Everything You Need To Know About The Motions To Disqualify Get-Trump Prosecutor Fani Willis
A Fulton County judge held an evidentiary hearing on Thursday and Friday on Donald Trump and his co-defendants’ motion to disqualify District Attorney Fani Willis’ office from prosecuting the criminal case against them.
Here’s your lawsplainer to understand the significance of last week’s sideshow.
The Indictment
In August 2023, Fulton County District Attorney Fani Willis charged former President Donald Trump and 18 other defendants in a 98-page indictment. That indictment included a total of 41 different counts, but it was the state-law “RICO” racketeering count that proved the centerpiece of the indictment.
Throughout some 70 pages, the indictment alleged all 19 defendants, “unlawfully conspired and endeavored to conduct and participate in, directly and indirectly, such enterprise through a pattern of racketeering activity,” the purpose of which was “to unlawfully change the outcome of the election in favor of Trump.”
Both the RICO count and the 40 other miscellaneous criminal charges suffer from numerous legal and factual problems, as I detailed here. But that is not what last week’s hearing concerned. Last week, Fulton County Superior Court Judge Scott McAfee held an evidentiary hearing on the pending motions to disqualify the district attorney’s office, which defendant Michael Roman originally filed.
Roman, who was a Trump 2020 campaign official, alleged multiple bases to dismiss the indictment against him, but the one that garnered the most attention concerned his claims that Willis had been involved in a sexual relationship with Nathan Wade, the man she hired to help lead the prosecution of Trump and the Trump-connected defendants. That relationship, Roman maintained, created a conflict of interest for Willis because she benefited from the hundreds of thousands of dollars Wade earned as a special prosecutor in the case.
After Roman’s attorney, Ashleigh Merchant, filed the motion to disqualify Willis in early January, at least eight other defendants in the RICO criminal case filed similar motions, which all presented two main arguments: that the DA’s office is disqualified either for having “a conflict of interest” or for “forensic misconduct.”
Conflict-of-Interest Law
Last week’s evidentiary hearing before Judge McAfee focused only on the conflict-of-interest issue. Under Georgia law, a prosecutor is “disqualified” or barred from handling a criminal case where there is a “conflict of interest.”
This typically arises when an attorney “switches sides,” such as a former prosecutor seeking to represent a defendant, or a defense attorney joining the DA’s office. A conflict of interest also exists if a prosecutor is a witness in the case or has a relationship with a victim.
Georgia law also provides that a disqualifying conflict of interest exists when a special prosecutor is hired on a contingency-fee basis, being paid only upon securing a conviction. This exception has led to language in court cases suggesting disqualification is warranted when a prosecutor has “a personal financial stake in the outcome” of the trial.
Defendants’ Argument on Conflict
In their motions, Trump and his co-defendants essentially argue that Willis is disqualified from prosecuting this case because she had “a personal financial stake” in it. They say that by indicting not just Trump but 18 other people, Willis created a gravy train for her lover, Special Prosecutor Nathan Wade, which in turn allowed Wade to shower Willis with expensive gifts of travel, including two Caribbean cruises and a Napa Valley wine excursion.
According to the motions, Wade received approximately $1,000,000 for his work on the Trump RICO case, compared to Willis, who earned just a tad over $198,000 in annual salary. With his earnings, the defendants argued, he paid for the couple’s trips. The defendants further highlighted various ethical rules for attorneys to argue Willis had a disqualifying conflict of interest.
Fani Willis Responds with Affidavit
On Feb. 2, lawyers for the district attorney’s office responded to the defendants’ motions to dismiss and to disqualify Willis, attaching a sworn statement signed by Wade in which he denied having had a “personal relationship” with Willis “prior to or at the time of [his] appointment as special prosecutor in 2021.” According to Wade’s sworn statement, it was not until 2022 that he and Willis “developed a personal relationship.” Wade further swore that none of the funds he received in his role as special prosecutor were “shared with or provided to District Attorney Willis,” and that “expenses for personal travel were roughly divided equally between us.”
Based on Wade’s affidavit, the Fulton County DA’s office asked the court to deny the defendants’ motions, claiming no further hearing was necessary. In supplemental filings, the defendants claimed they had evidence Wade was lying about when his relationship with Willis began.
Judge Rules for Evidentiary Hearing
Judge McAfee rejected the DA office’s argument that it should deny the defendants’ motions without a hearing, ruling last Monday that “it’s possible that the facts alleged by the defendant could result in disqualification” and that “an evidentiary hearing must occur to establish the record on those core allegations.”
“I think the issues at point here are whether a relationship existed, whether that relationship was romantic or non-romantic in nature, when it formed and whether it continues,” McAfee explained, adding, “and that’s only relevant because it’s in combination with the question of the existence and extent of any personal benefit conveyed as a result of that relationship.”
These statements indicate that, in Judge McAfee’s view, a disqualifying conflict of interest would exist if Willis benefitted financially from her hiring of Wade.
Hearing Before Judge McAfee
Against that backdrop, last Thursday and Friday, the defendants set out to establish that Willis and Wade were involved in a personal relationship and that Wade spent money he earned as a special prosecutor on Willis in the form of expensive trips.
Over the two days, witnesses called included Terrence Bradley, a former partner at Nathan Wade’s law firm; Nathan Wade; Robin Bryant-Yeartie, a former close friend of Willis; Fani Willis; and Willis’ father, John Clifford Floyd III. Theatrics aside, there were two competing storylines on two distinct issues: when the relationship began and whether Willis reimbursed Wade for the trips.
First, both Willis and Wade testified that their personal relationship did not begin until sometime in 2022 — after Willis had already hired Wade as a special prosecutor in late 2021. Bryant-Yeartie, on the other hand, testified that she had witnessed the two “hugging, kissing,” and showing “affection” “before November 2021, when Wade was hired by Willis.” According to Bryant-Yeartie, Willis had “also told her she was engaged in a romantic relationship with Wade in 2020 and 2021.”
Defense attorneys sought to obtain further corroboration of Bryant-Yeartie’s testimony from Wade’s former law partner, Bradley, but Bradley claimed he could not respond to any questions about when Wade and Willis’ relationship began because of “attorney-client privilege.” Bradley, who had briefly represented Wade during his divorce proceedings, maintained that everything he knew and observed about Wade’s relationship with Willis was protected by that privilege.
Defense counsel pushed for answers from Bradley, stressing that what an attorney observes is not protected by attorney-client privilege, and neither are conversations unrelated to seeking legal advice. It wasn’t until the DA’s office accused Bradley of being fired from Wade’s law firm for sexually assaulting a client that the judge intervened.
Bradley had previously testified that he left the law firm over a “disagreement,” and when pushed on the falling-out, Bradley claimed that was “privileged information.” Judge McAfee reportedly concluded Bradley’s invocation of attorney-client privilege in response to questions about the circumstances under which he left Wade’s firm, suggesting Bradley might not “understand[] what attorney-client privilege means.”
The judge then opted to question Bradley in chambers, and without attorneys for either side present, to assess what Bradley knew about Willis and Wade’s relationship, the basis for his knowledge, and whether it was indeed privileged. Depending on McAfee’s findings, he could bring Bradley back to the stand for further questioning.
That won’t happen until likely next week, however, with the judge telling the attorneys it would be Friday, at the earliest, they could reconvene.
While much of last week’s hearing focused on when Willis and Wade’s relationship began, that’s irrelevant to the question of the conflict of interest because the two were undisputedly in a relationship later when Willis renewed her contract with Wade. Nonetheless, if Willis and Wade had begun their affair earlier, as Bryant-Yeartie testified, that would mean both the DA and the special prosecutor committed perjury — an even bigger problem.
Did Willis Reimburse Wade for the Trips?
The second focus of last week’s hearing concerned whether Willis reimbursed Wade for the trips they took together. Wade testified that while he paid for the trips on his credit cards, Willis paid him back in cash for the thousands of dollars in airfare, cruise fees, and other travel expenses. Willis likewise claimed she paid her half of the travel expenses with cash. The DA even called her father to the stand to testify that keeping such large amounts of cash on hand was the norm for black people.
What’s Next
This week will likely be a lull in the case as Judge McAfee considers the next steps and specifically whether to allow Bradley to be further questioned by defense attorneys. After that, according to a person familiar with the proceedings, attorneys will present summations to the court, highlighting the evidence they believe supports their argument.
The court will also consider the second basis for disqualification raised by some of the defendants: “forensic misconduct.”
Disqualification for Forensic Misconduct
Under Georgia law, disqualification is appropriate for a “prosecutor’s forensic misconduct,” which, generally defined, is “any activity by the prosecutor which tends to divert the jury from making its determination of guilt or innocence by weighing the legally admitted evidence in the manner prescribed by law.”
Several of the defendants in the Trump RICO case thus seek to disqualify Willis by highlighting her many public statements that seek to try the defendants in the court of public opinion. The motions to disqualify point to Willis’ speech in a church soon after news broke of her affair with Wade, and her attempt to frame the attacks on her and Wade as racist.
The defendants also condemned Willis for calling them “fake electors” in the press — a term that is both legally inaccurate and prejudicial, and thus further evidence of forensic misconduct, according to the defendants. Finally, the defendants maintain that Willis engaged in forensic misconduct by providing the authors of the book Find Me The Votes: A Hard-Charging Georgia Prosecutor, a Rogue President, and the Plot to Steal an American Election access to information related to the criminal case. That book, published last month, included details from the authors’ extensive interviews with Willis.
No Hearing Necessary
Last week’s hearing did not explore the question of whether disqualification for forensic misconduct was appropriate. An individual familiar with the proceedings told The Federalist the court had previously ruled an evidentiary hearing on that issue was not necessary because Willis’ statements spoke for themselves. But the issue of whether forensic misconduct disqualifies Willis remains live and will be a focus when the parties return to court to present their summations.
That all assumes Judge McAfee allows Bradley to forego further questioning. If, on the other hand, the judge rules that defense attorneys may further question Bradley — and that Bradley must answer the questions posed — the circus of a hearing may resume. Either way, it will likely be mid-March before McAfee can issue a ruling on the totality of the issues.
If he holds Willis is disqualified from prosecuting the case, that ruling will render the entire DA office disqualified and toss the case to the Prosecuting Attorneys’ Council of the State of Georgia, which would then appoint an independent counsel to reevaluate the case and decide how to proceed.
Fear about the possibility that an independent counsel may delay the case until after the 2024 election or conclude that criminal charges are not appropriate led The New York Times to run an op-ed last month urging Willis to take a voluntary leave of absence to ensure Trump faced a criminal trial before voters cast ballots this November.
As I wrote at the time, “That the anti-Trump brigade is so forcefully pushing to keep the criminal prosecution of Trump in the hands of the Fulton County DA’s office, even if that means Willis must step aside, speaks volumes to the frivolousness of the indictment.” Last week’s hearing and Willis’ testimony confirmed that conclusion.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion (forthcoming), National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prive—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
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