An evidentiary hearing on Thursday has the potential to set Fulton County District Attorney Fani Willis’ sprawling election interference case back on track — or deal it a crippling blow.
The election probe, which has produced historic racketeering charges against former President Donald Trump, onetime White House Chief of Staff Mark Meadows and 13 other remaining defendants, has in the last five weeks been overshadowed by allegations of impropriety against Willis.
Defendant Mike Roman has accused Willis of enriching herself off the case due to her romantic relationship with Nathan Wade, the outside attorney she tapped as a special prosecutor to lead the probe. Roman has pointed to the thousands of dollars Wade has spent on vacations he took with Willis using his salary from the Trump case. That has created an improper personal interest in the Trump case and is a form of self-dealing, Roman claims. (The prosecutors have argued they’ve done nothing wrong and Wade said the two split travel expenses roughly equally.)
Roman is pushing for the entire Fulton DA’s office be disqualified and that the charges against him be dropped — a request that’s been joined by eight other codefendants, including Trump and Meadows.
‘Could result in disqualification’
Thursday’s hearing will be a key moment as Fulton Superior Court Judge Scott McAfee considers evidence to determine whether there is “any personal benefit conveyed” from the Willis-Wade relationship and the election case.
Legal observers believe it’s unlikely that McAfee will drop the criminal charges against the defendants. But they see a potential decision to remove the DA as an almost certain death knell for the racketeering probe.
Preliminary comments McAfee made at a procedural hearing on Monday are already causing some quiet hand-wringing among the DA’s staunchest outside supporters.
The judge said that the facts alleged by Roman “could result in disqualification.” That differs from the opinion of some ethics experts and former prosecutors who said in a recent “friend of the court” brief that an evidentiary hearing wasn’t warranted because Willis didn’t have any conflicts to justify her removal from the case.
Some allies are fretting even more about a new set of allegations from Ashleigh Merchant, Roman’s attorney, that Wade wasn’t truthful in a sworn affidavit included as part of a court filing submitted by the DA’s office. Merchant said she has two witnesses who can rebut Wade’s statements that his personal relationship with Willis didn’t begin until after he was hired on the Trump case and that he has never cohabitated with Willis. (During Monday’s hearing, special prosecutor Anna Cross said the facts Wade swore to in his affidavit are “100% true.”)
Amy Lee Copeland, a Savannah-based former federal prosecutor who signed onto the “friend of the court brief,” said she still believes there isn’t the type of “impermissible financial conflict” here that would result in Fulton prosecutors being disqualified.
“The concern would be is if people are not 100% transparent with the judge he would view it as some sort of sign that they were trying to cover up something and that might lead him to believe that a conflict exists where there really isn’t one,” she said.
“Any time you appear in court and any time you’re a witness you have to be truthful and transparent,” she added. “The DA’s office should know that better than anybody.”
Andrew Fleischman, a criminal defense attorney unaffiliated with the case, said if Merchant can prove prosecutors lied in the affidavit it should warrant not only their removal from the case but disciplinary proceedings with the state bar.
“It would be extremely serious misconduct,” he said. “That would mean that you, as a district attorney, told someone to write an affidavit, you knew it was false and filed it into the case. You have aided, abetted, encouraged, were party to that crime.”
Georgia State University law professor Clark Cunningham agreed that if Merchant can back up her claims “there’s a real question” about whether Wade committed perjury. If so, he said Willis may be guilty of suborning perjury because she knows the details of their relationship. Cunningham said that alone might be reason enough to disqualify them from the case.
Hearing agenda to be determined
Exactly how Thursday’s hearing unfolds is unclear. The “star witness,” as McAfee described him, will be Terrence Bradley, Wade’s former law partner and friend who had at one point represented him in his divorce case. It appears that the two have since had a falling out.
Merchant said Bradley will be able to confirm that Willis and Wade’s relationship began before 2022, countering what Wade stated in his affidavit.
From there, the hearing agenda looks less clear. Merchant has subpoenaed nine members of the DA’s staff, including Willis, Wade, the DA’s executive assistant and members of her security detail.
Prosecutors have asked McAfee to quash their subpoenas — it is extremely rare for prosecutors to be questioned under oath in a criminal case — but McAfee has deferred his decision until after Bradley testifies. The DA’s office said it would like to call Willis’ father, John Clifford Floyd III, to testify. Floyd who recently lived with his daughter, can testify that Willis never resided with Wade, Cross said.
Testimony may come in fits and starts as prosecutors and defense attorneys clash over witnesses and subpoenas. A last-minute fight emerged late Wednesday over a witness defendants were hopin g to call who could summarize findings from a voluminous cache of financial records they obtained, presumably of Wade’s.
Attorneys are also expected to argue over definitions and how facts are construed. Among them: what does it mean for two people to cohabitate? Should the start of the relationship be when a couple becomes exclusive, when they first sleep together or somewhere in between?
McAfee has narrowed the scope of the hearing, saying Monday that he’s not interested in discussing Wade’s professional qualifications or Willis’ recent comments at a historic Black church. Still, it is expected to stretch into a second day on Friday.
It will almost certainly be a minefield for McAfee, who has shown a disdain for spectacle, as he navigates awkward, intimate details about prosecutors’ personal lives.
What is a conflict of interest?
At the end of the day, much will hinge on what McAfee decides constitutes a disqualifying conflict for a prosecutor. On Monday, McAfee said that “disqualification can occur if evidence is produced demonstrating an actual conflict or the appearance of one.”
In 2005, the Georgia Supreme Court said a conflict exists when “the prosecutor has acquired a personal interest or stake in the defendant’s conviction.” It added that an “actual conflict” must be involved, not just a “theoretical or speculative conflict.” Copeland pointed to a 1981 ruling from the same court, which she summarized as saying “an appearance of impropriety isn’t enough. There has to be an actual conflict of interest.”
It’s possible McAfee could look to a July 2022 ruling from a colleague, Superior Court Judge Robert McBurney, which removed Willis and her office from investigating then-State Sen. Burt Jones in the Trump case. McBurney determined that Willis had a conflict of interest because of a fundraiser she had thrown for the Democrat who would go on to become Jones’ opponent for lieutenant governor.
“This scenario creates a plain — and actual and untenable — conflict,” McBurney wrote. “Any decision the District Attorney makes about Senator Jones in connection with the grand jury investigation is necessarily infected by it.”
Not all of Willis’ allies are worried.
“The judge wants to understand all the facts so he can apply the law. That’s a good thing,” said Norm Eisen, who served as former President Barack Obama’s ethics czar. “We need an evidentiary hearing to ascertain the facts and clear the air.”
Eisen, who has suggested that Wade voluntarily step aside in the interest of keeping the case on track, said he still believes the allegations don’t meet the standard for disqualification.
Regardless of how McAfee rules, legal observers say the losing side can ask the judge for the right to appeal his decision, which could delay the underlying case.
“It’s absolutely everything Trump could have wanted from a pretrial proceeding,” said Fleischman.
Staff writer David Wickert contributed to this article.
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