DA Fani Willis or special prosecutor must go for Trump case to continue in Georgia, judge rules

Trump co-defendant Michael Roman accused Willis of misconduct for her “clandestine” relationship with Nathan Wade, whom she appointed as special counsel.

A Georgia judge ruled Friday that Fulton County District Attorney Fani Willis should not be disqualified from prosecuting the racketeering case against former President Donald Trump and several co-defendants — with one major condition.

Fulton County Superior Court Judge Scott McAfee found the "appearance of impropriety" brought about by Willis' romantic relationship with special prosecutor Nathan Wade should result in either Willis and her office leaving the case — or just Wade, whom she'd appointed to head the case.

The choice is likely to be an easy one: If Willis were to remove herself, the case would come to a halt, but having Wade leave will ensure the case continues without further delay.

The judge said the prosecution "cannot proceed" until Willis makes a decision.

Trump attorney Steve Sadow said in a statement that, “While respecting the Court’s decision, we believe that the Court did not afford appropriate significance to the prosecutorial misconduct of Willis and Wade.”

“We will use all legal options available as we continue to fight to end this case, which should never have been brought in the first place,” he added.

Willis's office did not immediately comment on the ruling.

The judge found there was no "actual conflict" brought about by the relationship, a finding that would have required Willis to be disqualified. "Without sufficient evidence that the District Attorney acquired a personal stake in the prosecution, or that her financial arrangements had any impact on the case, the Defendants’ claims of an actual conflict must be denied," the judge wrote. 

“This finding is by no means an indication that the Court condones this tremendous lapse in judgment or the unprofessional manner of the District Attorney’s testimony during the evidentiary hearing. Rather, it is the undersigned’s opinion that Georgia law does not permit the finding of an actual conflict for simply making bad choices — even repeatedly — and it is the trial court’s duty to confine itself to the relevant issues and applicable law properly brought before it,” he added.

The judge did, however, also find “the prosecution is encumbered by an appearance of impropriety.”

“As the case moves forward, reasonable members of the public could easily be left to wonder whether the financial exchanges have continued resulting in some form of benefit to the District Attorney, or even whether the romantic relationship has resumed,” he wrote. “As long as Wade remains on the case, this unnecessary perception will persist.”

McAfee also suggested he was skeptical about Willis and Wade's testimony that they did not start dating until after he was appointed to the case. He said "reasonable questions about whether the District Attorney and her hand-selected lead SADA (Special Assistant District Attorney) testified untruthfully about the timing of their relationship further underpin the finding of an appearance of impropriety and the need to make proportional efforts to cure it."

The decision is a partial victory for Willis and leaves open the possibility the case could be tried before the 2024 presidential election. Had Willis been disqualified outright, the case would have had to go to a different prosecutor, who would be tasked with catching up on a case that Willis spent over two years building.

The ruling by McAfee comes after one of Trump’s co-defendants in the election interference case, former Trump White House and campaign staffer Michael Roman, filed a motion for Willis to be disqualified and the criminal case to be dismissed because of her allegedly improper personal relationship with Wade.

Roman alleged Willis skirted the rules to appoint Wade, and that she benefited financially from his appointment, which has earned his office over $600,000 to date. He also claimed they were romantically before Wade's appointment.

Willis and Wade later acknowledged they’d been in a relationship, but maintained it began after he was appointed special prosecutor in November 2021.

The judge signed off on an evidentiary hearing on Roman’s claims last month and warned, “Disqualification can occur if evidence is produced demonstrating an actual conflict or the appearance of one.”

In an extraordinary hearing that stretched over three days during a two-week period, Willis and Wade both took the stand and testified that they’d dated for a little over a year after he was appointed, and that she did not profit from his work. They both said while Wade would sometimes charge plane tickets for Willis to his credit card, she’d repay him with cash or by picking up other bills.

In his ruling, McAfee questioned Willis' judgment.

"Even if the romantic relationship began after SADA Wade’s initial contract in November 2021, the District Attorney chose to continue supervising and paying Wade while maintaining such a relationship. She further allowed the regular and loose exchange of money between them without any exact or verifiable measure of reconciliation. This lack of a confirmed financial split creates the possibility and appearance that the District Attorney benefited — albeit non-materially — from a contract whose award lay solely within her purview and policing," he wrote.

He also questioned some of Wade's testimony about why he had claimed he hadn't been in a romantic relationship with anyone else in a court filing in his ongoing divorce case. "Wade’s patently unpersuasive explanation for the inaccurate interrogatories he submitted in his pending divorce indicates a willingness on his part to wrongly conceal his relationship with the District Attorney," McAfee wrote.

Fulton County District Attorney Fani Willis testified during a probe of her romantic relationship with prosecutor Nathan Wade in relation to the case against former President Donald Trump for allegedly attempting to overturn the 2020 election results.

Lawyers for Roman had brought in two witnesses to back their claims about the timing of Willis and Wade's relationship, including a former friend of Willis’ named Robin Yeartie and Wade's former law partner and divorce lawyer, Terrence Bradley.

The judge found while Yeartie's testimony "raised doubts about the State’s assertions, it ultimately lacked context and detail." As for Bradley, who Roman lawyer Ashleigh Merchant has said was the source of their misconduct claims, the judge said he was "unable to place any stock" in his testimony.

"His inconsistencies, demeanor, and generally non-responsive answers left far too brittle a foundation upon which to build any conclusions," the judge wrote.

Bradley had told Merchant in a text message that Wade and Willis' relationship had "absolutely" started before Wade's appointment, but testified on the witness stand he'd just been speculating.

The judge said "neither side was able to conclusively establish by a preponderance of the evidence when the relationship evolved into a romantic one," but "an odor of mendacity remains."

He also criticized a speech Willis delivered at Big Bethel AME Church in mid-January, after Roman had filed his disqualification motion. In the speech, she criticized an unnamed "they" who were "attacking" the lone Black special prosecutor she'd appointed to the case — Wade, who she did not name either.

Willis "ascribed the effort as motivated by 'playing the race card.' She went on to frequently refer to SADA Wade as the 'black man' while her other unchallenged SADAs were labeled 'one white woman' and 'one white man.' The effect of this speech was to cast racial aspersions at an indicted Defendant’s decision to file this pretrial motion," McAfee wrote.

Attorneys for Roman and Trump had argued the comments were made to taint the potential jury pool for the case, and were also grounds for disqualification.

McAfee said he "cannot find that this speech crossed the line to the point where the Defendants have been denied the opportunity for a fundamentally fair trial, or that it requires the District Attorney’s disqualification. But it was still legally improper. Providing this type of public comment creates dangerous waters for the District Attorney to wade further into."

Both Trump and Roman have pleaded not guilty in the case, which alleges they conspired with others to overturn the election results in the state.

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