Fani Willis, the Fulton County district attorney, and her lead prosecutor, Nathan Wade, have built a far-reaching racketeering case in Georgia against Donald Trump and many of his confederates in the effort to overturn Trump’s 2020 election defeat there. But the case is in some danger of unraveling thanks to allegations that Willis and Wade had a romantic relationship in which both may have benefited financially from tax-payer-funded fees paid by the former to the latter in connection with the prosecution. This allegation was hurled into the proceedings last month by Ashleigh Merchant, an attorney for one of the minor Trump co-defendants, who made a motion to disqualify the two prosecutors from the case.
Concrete information in connection with Merchant’s charges has been slow to emerge, but the allegation was considered serious enough by the trial judge supervising the Trump prosecution, Scott McAfee, that he began an evidentiary hearing on Thursday in Atlanta. Wade was expected to testify, and Willis wasn’t. But as the hearing grew more fractious, Willis came in and took the stand, and the proceedings went a bit off the rails. Almost immediately, she tried to turn the tables on Merchant, saying she is not on trial:
And then she called Merchant a liar for suggesting that she and Wade had lived together:
Citing the need for “professionalism,” Judge McAfee threatened to strike Willis’s testimony if she didn’t answer Merchant’s questions.
The hearing at some points descended into low comedy. By way of explaining why she insisted on paying cash for her share of travel expenses on trips with Wade, Willis suggested her lead prosecutor had some gender-dynamic issues, as the New York Times reported:
In response to more questions about their spending, Fani Willis, the district attorney, said that when they were dating, Nathan Wade “told me one time the only thing a woman can do for him is make him a sandwich. We would have brutal arguments about the fact that I am your equal.” She added, “There was tension always in our relationship, which is why I would give him his money back. I don’t need anybody to foot my bills.”
Later, when Trump lawyer Steve Sadow was questioning Willis about how exactly she made her cash reimbursements to Wade, he offered an interesting spelling lesson:
Boiling off the chaff, as the hearing has made clear, Willis and Wade have admitted to a romantic relationship that overlapped with Wade’s own (still not final) divorce proceedings. When asked by another Trump attorney why she didn’t disclose her relationship with Wade to her team, she said, “That’s my private life. It’s not any mystery to anyone. It’s like a woman doesn’t have a right to keep her private life private?”
They also admitted taking multiple personal trips together as the Trump prosecutions proceeded, such as a trip to Belize last year for Wade’s birthday where she picked up the tab, according to the Atlanta Journal-Constitution. What they deny is that their affair was already underway when Willis appointed Wade to the Trump case, or that Wade paid for Willis’s travel after being compensated very generously for his work on that case (Willis says the travel costs were divided evenly).
Judge McAfee eventually had to pause the hearing until Friday morning, at which point the prosecutor’s office opted not call Willis back to the stand. The second day of the disqualification hearing was a turgid mess in itself, ONE enlivened only by the testimony of Willis’s father, John Floyd, who reinforced her claim that she hadn’t been having an affair with Wade before hiring him for the Trump case. At one point, explaining why she carried around the large sums of cash she allegedly used to reimburse Wade for travel expenses, Floyd told the court that hoarding cash was “a Black thing.”
But most of the second day of the hearing revolved around a twilight struggle between the attorneys over the potential admissibility of text messages from Wade’s former law partner Terrence Bradley suggesting he knew or thought Wade and Willis were in some sort of relationship before he was hired for the current case. The DA’s office argued (and the judge temporarily agreed, pending his later review of the text messages) that these communications were barred as testimony under the attorney-client privilege, since Bradley was at the time representing Wade in his divorce. Still, apparently as a hedge against the testimony being admitted, DA’s attorney Anna Cross introduced evidence that Bradley had left Wade’s law office after being accused of sexual assault against a client, prejudicing Bradley against his former friend and partner, but Judge McAfee cut off that line of testimony. The hearing won’t resume for at least another week, during which the judge will presumably make a decision about Bradley’s potentially explosive testimony.
In the meantime, there’s another case proceeding in the court of public opinion. And as even Willis’s defenders acknowledge, she’s in danger of losing that case even if she survives the challenge to her right to finish the Trump prosecution she started. As Brookings Institution senior fellow Norman Eisen told The New Yorker’s Charles Bethea, there’s smoke if not fire:
“The relationship between the D.A. and Mr. Wade does not alter one iota of evidence in this case,” he told me. He didn’t believe that any formal wrongdoing had been committed and was certain that Willis should not be disqualified from the case. “Couples are allowed to give each other gifts,” he said. “But this has been a sufficiently large kerfuffle that there needs to be some consequences.” He believed that Wade should step aside “so we can return our focus to that tape [the tape of Trump ordering Georgia Secretary of State Brad Raffensperger to change the 2020 election results in that state].”
Veteran Atlanta defense attorney Bruce Harvey was blunter in distinguishing the legal from the political issues:
“Much ado about fucking,” he said. “The story is made for the blogosphere, not the legal sphere. It’s incredibly bad optics, but I don’t think there’s enough substance that it would result in any kind of conflict or disqualification legally.”
Unless McAfee finds that Willis and Wade have lied about their financial interactions or considers the entire prosecution tainted, efforts by Merchant and other defense lawyers to slow down or blow up the case are likely to fail. But the political damage is done. By admission of the parties, Willis hired an underqualified lead prosecutor (though, without much evidence, she has described him as a “legal superstar”) for the most important case her office has ever pursued; compensated him disproportionately (over $728,000); had (even if it wasn’t earlier initiated) an intimate relationship with that attorney, taking a number of vacations with him; and then stonewalled inquiries into that relationship until the judge forced testimony on it.
As former prosecutor Elie Honig recently wrote for New York, Willis’s credibility was eroded even more significantly by the most conspicuous public comment she made on questions about her judgment:
After these allegations surfaced, Willis somehow made it worse still. Prosecutors love to proclaim that “we do our talking in court” (preferably accompanied by a dramatic lowering of the sunglasses over the eyes). This is more than a catchphrase. It’s an affirmation of the core duty to protect the defendant’s liberty interests and the integrity of our criminal process. Indeed, under the Georgia Rules of Professional Conduct (and pretty much every other professional code), prosecutors must “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”
Yet Willis did just that. Days after Trump’s co-defendant filed the motion relating to Wade, Willis responded not in a court filing but in a speech from the pulpit of a historic Black church on Martin Luther King Jr. Day with the cameras rolling. Willis told the assembled congregation (and the general public) that the defendants had raised allegations about Wade — criminal defendants are entitled to make motions, by the way — because of Wade’s race. These public comments by the district attorney are anathema to prosecutorial ethics and fair practice.
Willis’s conduct and demeanor at the evidentiary hearing also showed her straying over the boundaries of propriety that normally constrain prosectors against utterances outside the trial itself (which, of course, is months from beginning).
It’s important to remember that Willis, a Democrat, is an elected official whose primary accountability is to the voters of Fulton County (a jurisdiction where almost half the population is Black, and that Joe Biden carried by nearly a three-to-one margin in 2020). By lashing out at her critics in an uninhibited way, she may have been covering her flanks politically. But in doing so, she gave ammo to Trump allies who view this and every other prosecution as “rigged” and partisan.
Assuming McAfee doesn’t disqualify the prosecutors, the case will continue on its very slow path to trial, but there’s already enough chum in the water to encourage MAGA world to dismiss the case against Trump as a political hatchet job. The fact remains that if Trump is convicted by a Fulton County jury on the charges facing him, it will be one conviction he cannot reverse even if he becomes the 47th president. But the prosecution has given Trump fodder for an awful lot of appeals in every sense of that word.
This post has been updated.
