Fani Willis decision in Georgia judge’s hands after final hearing

The fate of former President Trump’s 2020 election interference case in Georgia now rests with a state judge tasked with determining whether to disqualify Fulton County’s district attorney’s office from the historic prosecution over a romance between two top prosecutors.

Judge Scott McAfee heard arguments Friday to determine whether Fulton County District Attorney Fani Willis (D) and special prosecutor Nathan Wade should be kicked off the sweeping racketeering case because of their once-romantic relationship.

McAfee’s decision could hinge on how he weighs the evidence presented across three days of hearings. The judge previously said the allegations against Willis and Wade “could result” in their disqualification if evidence shows an “actual conflict of interest or the appearance of one.”

“The entire outcome is pretty much contingent on what standard of disqualification he applies,” said Anthony Michael Kreis, a law professor at Georgia State University who has closely followed the case.

“[The defense] has come up quite short of proving or demonstrating that Fani Willis received a considerable kickback, or anything of that nature, from the prosecution, so if the standard is an actual conflict, I think they have a pretty uphill battle,” Kreis said. “But if the standard is an appearance of a conflict or an appearance of impropriety — I think it’s possible that the defense has muddied things up enough.”

The weeks-long detour in the Georgia election interference case originated with a January motion filed by defendant Michael Roman, a Trump 2020 campaign operative, who accused Willis of financially benefitting from her relationship with Wade via lavish vacations the prosecutors took together.

Throughout several hearings, Willis and Wade took to the witness stand to defend their integrity. They confirmed their romantic relationship but said it began in early 2022, before they parted ways in summer 2023.

Testimony from two associates of the prosecutors — an ex-friend of Willis and Wade’s former law partner — contradicted that timeline.

Robin Yeartie, who met Willis in college, testified that Willis and Wade “no doubt” began dating in 2019, after a judicial conference. She said she saw the pair “hugging” and “kissing” before Wade’s hiring.

The ex-law partner, Terrence Bradley, claimed in text messages with Roman attorney Ashleigh Merchant that the prosecutors began dating before Wade’s hire, too.

“Do you think it started before she hired him?” Merchant asked.

“Absolutely,” Bradley replied.

Bradley, who was also once Wade’s divorce attorney, initially attempted to assert attorney-client privilege, but the judge required him to testify in more detail about his knowledge of the relationship. When on the witness stand, he described his texts as “speculation.”

Trump attorney Steve Sadow urged the judge to view Bradley’s private communications as the truth, despite his walk back while testifying.

“Now, ‘absolutely’ is not a speculative word,” Sadow said. “That’s not speculation; that’s a definitive statement.”

Fulton County prosecutors described Bradley as a “disgruntled, vengeful speculator” and said Merchant’s texted question to the lawyer itself implied speculation.

The ex-Wade law partner’s inconsistencies draw into question his credibility – and the credibility of the defense’s motion, said Melissa Redmon, director of the University of Georgia’s Prosecutorial Justice Program.

“As salacious as it is, [the motion] appears to have been just based on gossip,” Redmon said.

Fulton County prosecutors argued that the judge should consider whether the defense proved Willis and Wade’s relationship presents an actual conflict of interest — and purported that the defense failed to meet that burden.

In court filings, defense attorneys pointed to the pair’s vacations to Aruba and Belize, plus two cruises to the Bahamas and other trips, for which they say Wade paid.

But Willis and Wade claim they divide their travel expenses “rather evenly,” and the defense could not dispute their claim Willis paid Wade back in cash, despite asserting their payment method didn’t “pass the smell test.”

“Why would Ms. Willis repeatedly ask this court to set a trial date as soon as possible if her motive in prosecuting this case was to continue to financially gain?” prosecutor Adam Abbate said. “It doesn’t line up. It doesn’t make sense, and it doesn’t make sense for a reason, because it doesn’t exist.”

McAfee pushed back on the state’s contention that an actual conflict must be proven, indicating the judge may be looking at a broader method to examine the evidence for disqualifying Willis and her office.

“There are a number of these cases that seem to exclusively rely on the appearance of impropriety,” the judge said.

“I would submit to the court that is not the standard,” Abbate replied, after some back and forth.

If McAfee does boot the district attorney’s office from the case, it could throw the prosecution into limbo.

The state could not appeal the trial court’s granting of the motion to disqualify, Redmon said, which would hand the case over to the Prosecuting Attorneys’ Council of Georgia. The agency would then appoint another district attorney’s office to take it up. However, the case would still have a Fulton County judge and jury.

The agency’s executive director, Pete Skandalakis, previously said he would consider “how far” from Fulton County the new prosecutor would be, indicating a nearby county might be tasked with the massive prosecution if Willis and her office are removed from it.

The new prosecutors would have full agency to prosecute the case at their discretion — including to drop the case altogether.

“It’s probably a matter of like, how much bandwidth do they have? How much political will do they have? Obviously, there’s these moving parts of political violence — do they want to deal with that?” Kreis said.

“Of course they have their own cases to handle,” he added. “Do they want to be bothered with this?”

If McAfee does not disqualify the district attorney’s office, the defense could apply for a discretionary review by the appellate court, though grants of such appeals are rare, Redmon said. If the defense chose to apply for a review of the matter, they would have 10 days after McAfee’s order to do so.

Either outcome could further delay a trial in the matter. Willis and her office were disqualified from prosecuting Georgia lieutenant governor Burt Jones in July 2022, after Willis headlined a fundraiser for one of his political opponents. The council still has not reassigned the case, a year and a half later.

However, Trump’s other legal matters might make delay inevitable. His D.C. federal case is on pause as he appeals the issue of presidential immunity, while delays in his Florida federal case appear imminent. A trial date has not yet been set in the Georgia case, though prosecutors proposed an Aug. 5 start.

“I think the August trial date was ambitious,” Redmon said, citing numerous unresolved motions in the case that could still be appealed once ruled on by McAfee. “I would be surprised if the case went to trial before the election.”

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