Showdown in Fulton County

Anna Bower
Thursday, February 15, 2024, 8:19 AM
We will learn a great deal today and tomorrow about how big a problem Fani Willis has in her case against Donald Trump.
Fulton County Courthouse. (Ganeshk, CC BY 3.0,

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Shortly before midnight on Aug. 13, 2023, Fulton County District Attorney Fani Willis stood before a throng of reporters assembled in a government office building in Atlanta, where she announced a 41-count indictment against former President Donald Trump and 18 others. As Willis detailed the allegations in the indictment, she stood arm-to-arm with Nathan Wade, a private defense practitioner whom she had appointed as special prosecutor to lead the investigation of Trump’s alleged racketeering scheme to overturn the results of the 2020 election.

Though few Americans had heard of Wade until recently, he played a significant role in bringing about the historic indictment against the former president and some of his most prominent allies. Since his appointment as special prosecutor in November 2021, Wade has been a conspicuous presence in the case, both behind the scenes and at public hearings. Under his management, the prosecution notched several early victories: Four defendants—Scott Hall, Sidney Powell, Kenneth Chesebro, and Jenna Ellis—pleaded guilty to reduced charges. Prosecutors batted down efforts by some defendants to move the prosecution to federal court. And the presiding judge, Scott McAfee, has thus far ruled against several challenges to the indictment filed by defense counsel.

But as much as Wade may have contributed to those successes, his very involvement in the case now threatens to derail the prosecution entirely. At an upcoming evidentiary hearing, which begins today and is expected to continue through Feb. 16, Judge McAfee is set to receive evidence and hear argument regarding allegations that Willis and Wade were not only colleagues but also romantic partners who profited from the prosecution of Trump and others.

The stakes are high. If McAfee finds that Willis acquired a financial interest in the prosecution, he could disqualify her office from the case altogether. While the underlying charges would not be impacted by that disqualification, the decision to appoint a substitute prosecutor would fall to the Prosecuting Attorneys Council (PAC) of Georgia, a nonpartisan state agency. But it’s unclear who, if anyone, would be willing to serve as a substitute prosecutor on the sprawling racketeering case. And handing the case off to PAC could result in substantial delays. Consider how the agency has handled the investigation into Georgia Lt. Gov. Burt Jones: More than 18 months after Willis was disqualified from investigating Jones’s 2020 election activities, PAC hasn’t announced a decision on whether it will appoint a substitute prosecutor.

A disqualification of Willis would be an enormous victory for Trump as he seeks to stall criminal cases against him while campaigning for president. Here’s everything you need to know for the evidentiary hearing that begins today. 

The Factual Allegations

The allegations first surfaced in a motion filed last month by a lawyer named Ashleigh Merchant, who represents former Trump campaign official turned Trump co-defendant Mike Roman. Merchant’s filing alleges that Willis and Wade engaged in an “improper, clandestine” romantic relationship both before and after Wade contracted to work as a special prosecutor on the Trump case. According to documents Merchant obtained through open records requests, Willis’s office paid Wade more than $650,000 for his work on the case, at a rate of $250 per hour—a sum that Merchant believed to be excessive considering Wade’s lack of experience prosecuting RICO cases.

Merchant also claims that Wade used the money he earned from his work to take Willis on luxurious vacations, including travel to Napa Valley, Aruba, and the Bahamas. In other words, she alleges that Wade and Willis participated in a kickback scheme or form of self-dealing.

In her initial filing, Merchant did not provide any proof of a romantic relationship between the prosecutors. Nor did she provide concrete evidence that Wade had paid for Willis’s travel or other expenses. Soon after Merchant filed her initial motion, however, a filing in Wade’s ongoing divorce case appeared to provide partial support for Merchant’s claims. The filing, which included excerpts from Wade’s credit card statements, showed that Wade bought airline tickets for himself and Willis on at least two occasions—a trip to Miami in 2022 and a trip to San Francisco in 2023.

What’s more, a subsequent filing by Merchant on behalf of Roman in Fulton County Superior Court contained documents showing that Wade paid for airfare, hotel stays, and cruise tickets for vacations he and Willis took together. In total, the money Wade allegedly spent on shared travel expenses totals more than $10,000. It remains unclear whether Willis reimbursed any of those expenses.

All of which, according to Merchant, warrants dismissal of the indictment or disqualification of Willis, Wade, and their respective offices.

To that end, Merchant’s legal argument relies on the law surrounding the disqualification of prosecuting attorneys. Georgia courts have recognized that a conflict arises if a prosecutor develops a personal interest or stake in a defendant’s conviction. Merchant argues that the alleged direct and indirect financial benefits implicated by the personal relationship created an incentive for Willis and Wade to prosecute her client as long as possible. While there is no case on point, Merchant’s filings have drawn analogies to Georgia case law in which courts have found that a disqualifying conflict exists if a special prosecutor is paid based on a contingency fee arrangement in which payment is premised on a conviction. Such an arrangement, the Georgia Court of Appeals held, creates “at least the appearance of a conflict of interest between his public duty to seek justice and his private right to obtain compensation for his services.”

The Response

In the wake of Merchant’s bombshell allegations in early January, the district attorney’s office fell uncharacteristically silent. Through spokespeople, Willis told reporters that her office would address the allegations in a forthcoming court filing.

But Willis’s first public statements about the accusations did not, in the end, appear in the form of a court filing. On Jan. 14, Willis delivered a speech at a historically Black church, Big Bethel AME. Without naming Wade, she offered a fiery defense of his qualifications to serve as a special prosecutor. Wade’s “impeccable credentials” had only been questioned, she said, because she and Wade are Black. Willis did not directly address the nature of her relationship with Wade or when it began.

Steve Sadow, Trump’s lead attorney in the Georgia case, seized on the opportunity. In a motion filed little more than a week later, Sadow officially joined Roman’s motion to disqualify. But he added a new argument: Willis’s speech at Big Bethel AME, he said, injected “racial animus” into the case, which engendered a “great likelihood of substantial prejudice toward the defendants.” Sadow called for Judge McAfee to dismiss the indictment or disqualify Willis.

Trump, on social media, appeared emboldened by the development. “When is Fani going to drop the case, or should it be dropped for her?” he asked.

He wasn’t the only one. The weekend after Merchant filed her motion, I asked one of Trump’s alleged co-conspirators, John Eastman, what he made of the allegations.

“We have anti-nepotism rules for a reason,” Eastman told me. “Because prosecutors may be driven more by getting the money to line their pockets than they are by pursuing the law.” Later, during public remarks at a fundraising event to support his legal fees, Eastman took a swipe at Willis: “Maybe when I fly back home, I’ll fly to Aruba… Or take a cruise.”

Eastman’s defense team, surprisingly, has yet to file a motion to join Roman’s efforts to disqualify Willis. But seven other defense teams, in addition to Merchant and Sadow, have joined the effort to disqualify Willis. Those who have adopted the motion include Jeffrey Clark, Mark Meadows, Rudy Giuliani, Cathy Latham, David Shafer, and Bob Cheeley.

On Feb. 2, after weeks of silence, Willis’s office filed its response to the allegations. In the 200-page filing, Willis admitted that she had formed a “personal relationship” with Wade—but said that the relationship did not begin until 2022, after he was appointed as special prosecutor. The filing also claimed that Willis and Wade never shared or commingled their personal finances. The couple’s personal travel expenses were divided “roughly evenly,” according to the filing. Wade, for his part, attached an affidavit attesting to those facts.

With respect to the legal arguments, the district attorney’s office emphasized that Georgia courts have held that personal relationships among lawyers do not in and of themselves create an impermissible conflict of interest. What’s more, the filing emphasizes that the standard for finding a conflict in Georgia requires a showing that there is an actual conflict. An actual conflict, according to the district attorney’s office, requires something more than the “fantastical theories and rank speculation” offered by Merchant and others. Instead, Georgia law requires “more than a theoretical or speculative conflict.”

This might have been the end of the matter, except that Merchant filed a reply effectively accusing Wade of lying. She argued that the relationship did, in fact, begin before Wade’s appointment, that Wade has lavished money on Willis—not shared expenses roughly evenly—and that the two have, in fact, cohabitated. The factual discrepancies between the parties’ versions of events set up today’s hearing. 

The Hearing

The evidentiary hearing that could decide the fate of Trump’s prosecution in Georgia is set to unfold over a two-day period beginning today, Feb. 15. Judge McAfee, at a hearing held on Monday, Feb. 12, denied Willis’s request to forgo an evidentiary hearing. 

“I think it’s possible that the facts alleged by the defendant could result in disqualification,” McAfee said. “I think an evidentiary hearing must occur to establish the record on those core allegations.” McAfee made clear that he wanted to focus on the relationship, when it began, and what the financial arrangements associated with it were, and whether it gives rise to a conflict.

The defense lawyers, led by Merchant, will have the task of persuading McAfee that Willis’s relationship with Wade amounts to a disqualifying conflict of interest. In doing so, Merchant has subpoenaed more than a dozen witnesses to testify at the hearing. The potential witnesses include, among others, several current or former members of the district attorney’s staff; Robin Yeartie, an old friend of the district attorney’s; Chris Campbell, Wade’s current law partner; Gabe Banks, an attorney and friend of Willis; and Willis and Wade themselves. The district attorney’s office, for its part, has indicated that it intends to call Willis’s father, John Floyd, as a witness.

Whether any of these witnesses actually take the stand will depend, in large part, on the first witness Merchant intends to call: Terrence Bradley, Wade’s former law partner who also previously represented him in his divorce case. At a hearing on Monday, Judge McAfee heard arguments on a number of witnesses who are seeking to quash their subpoenas. But he deferred ruling on the motions until Bradley testifies. Merchant, in filings and at Monday’s hearing, represented that Bradley will testify to facts that establish a basis for the testimony of the witnesses she subpoenaed. Specifically, Merchant has suggested that Bradley will testify that the district attorney’s office misrepresented when the romantic relationship began between Willis and Wade. 

One name that has barely been spoken in any of these hearings is “Donald Trump.” In the sparring over Willis’s conduct, the former president’s own behavior—the purported subject of the case—has been, at least for now, largely lost.

If part of the goal was to change the subject in Fulton County, that has certainly been accomplished.

Anna Bower is Lawfare’s Legal Fellow and Courts Correspondent. Anna holds a Bachelor of Laws from the University of Cambridge and a Juris Doctorate from Harvard Law School. She joined Lawfare as a recipient of Harvard’s Sumner M. Redstone Fellowship in Public Service. Prior to law school, Anna worked as a judicial assistant for a Superior Court judge in the Northeastern Judicial Circuit of Georgia. She also previously worked as a Fulbright Fellow at Anadolu University in Eskişehir, Turkey. A native of Georgia, Anna is based in Atlanta and Washington, D.C.

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