A hearing this week could prove to be a defining moment for Fulton County District Attorney Fani Willis and her election interference case, according to reports from the Atlanta Journal-Constitution.
For the first time since misconduct allegations surfaced against Willis, the judge overseeing the case will weigh in. Fulton County Superior Court Judge Scott McAfee has scheduled an evidentiary hearing for February 15 to consider a motion from defendant Mike Roman that seeks to disqualify Willis and her office from the case and for the criminal charges against him to be dropped.
Roman is arguing Willis improperly benefitted financially from the case, which has ensnared former President Donald Trump and 14 other remaining defendants, citing her romantic relationship with one of the case’s special prosecutors, Nathan Wade.
Roman’s accusations have upended the case over the last month, transforming one of the country’s most high-profile criminal prosecutions into a personal, increasingly bitter knife fight.
Key issues to be debated
Roman has alleged Willis and Wade have “enriched themselves” off the case. McAfee must determine whether there is a legal conflict that justifies an extraordinary remedy like removing the DA’s office from the case.
There are two main grounds for disqualifying a prosecutor from a case, according to the Prosecuting Attorney’s Council of Georgia: “forensic misconduct” or a conflict of interest. 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.”
Roman has cited more than $16,000 Wade spent on cruises and trips with Willis to Napa Valley, Aruba and Belize allegedly using his taxpayer-funded earnings. Roman argues it could amount to self-dealing and honest services fraud, a federal crime in which a vendor gives kickbacks to an employer. Wade, a private attorney who is solely contracting on the Trump case, said he and Willis roughly divided expenses on trips using individual personal funds and the DA has insisted she did nothing wrong.
Roman, in a court filing on Friday, also drew attention to access Willis gave authors of a recent book about the probe, saying it was part of an effort to “prejudice Mr. Roman and poison the jury pool.”
The hearing could also delve into other areas of dispute, including when Willis’ personal relationship with Wade began and whether the two lived together.
In a sworn affidavit, Wade has said the relationship did not start until after he was hired in late 2021 to lead the Trump case and that he did not cohabitate with Willis. But in a court filing, Roman’s attorney, Ashleigh Merchant, said she hopes to call two witnesses — Wade’s onetime law partner and a former employee in the DA’s office — who could testify otherwise.
Several codefendants have also highlighted Willis’ recent remarks at Big Bethel AME church as a reason why she should be disqualified from the case. They said the DA’s comments that her critics were playing the “race card” could prejudice a jury.
What experts are saying
Many outside legal experts have argued that while the allegations aren’t great for Willis politically, they don’t affect the underlying case and don’t justify the wide-reaching relief Roman and now five other codefendants are seeking.
“Defendants have not shown that their constitutional rights were violated or that these proceedings were rendered fundamentally unfair due to any relationship between DA Willis and Wade. Nor can Defendants establish that they were actually prejudiced, so as to warrant this relief,” a group of 17 ethics experts, former prosecutors and defense attorneys wrote in a recent “friend of the court” brief.
Still, some observers have pointed to a July 2022 ruling from one of Judge McAfee’s colleagues as a potential legal precedent that cuts against Willis.
In that ruling, Fulton Superior Court Judge Robert McBurney blocked Willis and her office from investigating then-lieutenant governor hopeful Burt Jones because the DA had held a fundraiser for one of his political opponents.
Defendant Bob Cheeley cited the McBurney decision as the basis for why Willis should be removed from the case, saying if the “appearance of political conflict” ended in her recusal in the Jones matter, “a financial benefit conferred directly to the District Attorney certainly " should do the same.
Who could testify
Merchant has subpoenaed Willis, Wade and a half-dozen other members of the DA’s staff to testify at the hearing. She’s also subpoenaed information from tourism companies where bank records show Wade made purchases.
Willis has asked McAfee to kill the summonses for her and her staff and called them an “effort to support reckless accusations” of wrongdoing. Separately, Wade accused Merchant of going on a fishing expedition using his bank records.
Ashleigh Merchant, an attorney for defendant Mike Roman who made the allegations about Fulton County District Attorney Fani Willis and prosecutor Nathan Wade in a court filing earlier this month, speaks in Cobb County Superior Court on Monday, Jan. 22, 2024, in Marietta, Ga. A judge on Monday ordered court records to be made public in the divorce involving the special prosecutor hired in the election case against Donald Trump and others and accused of having an affair with District Attorney Willis.
“This is not an example of zealous advocacy, nor is it a good faith effort to develop a record on a disputed legal issue — it is a ticket to the circus,” the DA’s office warned about the hearing in a recent court filing.
Merchant says prosecutors haven’t been truthful about key details and that the court “cannot just take their word for it.”
Judge McAfee has scheduled a separate hearing on Monday to consider whether to quash the subpoenas.
It is extremely rare for prosecutors to be questioned during a legal proceeding under oath. If McAfee agrees to uphold Merchant’s subpoenas it would mark an extraordinary turn for the case.
What’s at stake
The February 15 hearing and its outcome could provide the reset that Fulton prosecutors are looking for as they eye a potential August trial start date. Or it could generate even more tabloid fodder for Willis’ critics as they seek to undermine the DA’s work. That could be particularly potent in the lead-up to the 2024 election, where both Trump and Willis are on the ballot.
Noah Pines, a defense attorney closely tracking the case, has been struck by how increasingly personal court filings have become between the lawyers. Atlanta’s legal community is small and prosecutors and defense attorneys generally “get along,” he said.
“This case is personal,” he said. “This case will, in my opinion, impact the relationship of these lawyers forever. And that’s kind of disheartening.”
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