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Judge hearing arguments on whether Fulton DA should be removed from election interference case

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, according to reports from The Atlanta Journal-Constitution.

Watch a live stream of the hearing below from PBS NewsHour

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.

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