Key testimony could shape judge’s decision in fight to remove DA
Over the course of an extraordinary two-day evidentiary hearing last week, the personal lives of Fulton County District Attorney Fani Willis and one of her top deputies were dissected in full public view.
A gaggle of defense attorneys, who collectively represented nine of the remaining 15 defendants in Willis’ marquee election interference case, took turns scrutinizing the past romantic relationship between Willis and special prosecutor Nathan Wade for evidence of impropriety.
Their goal was to convince Fulton Superior Court Judge Scott McAfee that the two prosecutors had a conflict of interest in the case that warranted removing the entire Fulton DA’s office from the prosecution.
The hearing frequently meandered into telenovela terrain, but there were several notable developments that could shape how McAfee ultimately rules on the matter.
WILLIS AND WADE’S WORD VERSUS YEARTIE’S
Willis and Wade each presented similar timelines in their testimony. Wade said their romantic relationship began “around March” 2022 — months after he was hired to work on the case — while the DA said “between February and April” of that year. That gels with the timeline Wade included in a sworn affidavit attached to a recent court filing from the DA’s office.
But that contradicted the testimony given earlier in the day from Robin Bryant Yeartie, a former friend of Willis’. Yeartie, who met Willis in college and briefly worked in the Fulton DA’s office, let Willis take over the lease on a condo she rented near Hapeville. Yeartie testified that she saw the couple hug, kiss and be affectionate not long after they first met in 2019.
Pinning down the start date of the relationship is important for two reasons. First, if Willis was romantic with Wade before she hired him, it raises the prospect that she may have violated at least the spirit of anti-nepotism rules, though Fulton’s policy specifically focuses on family members. More importantly, if defense attorneys can prove Willis or Wade lied in court documents it could constitute perjury and provide real incentive for McAfee to punish the DA’s office.
Prosecutors did their part to discredit Yeartie. They argued that much of her testimony constituted hearsay and tried to frame her as a disgruntled former employee, getting her to acknowledge that she resigned rather than be fired for poor performance. It’s also notable that Yeartie didn’t provide many specifics.
Ashleigh Merchant, the defense attorney who first raised the impropriety allegations against Willis, indicated that Terrence Bradley, a former law partner of Wade’s who once represented him in his divorce case, could also provide testimony that counters Willis and Wade’s relationship timeline.
Prosecutors objected to most questions asked of Bradley when he was on the witness stand, and Wade refused to waive attorney-client privilege, meaning Bradley could not speak about his knowledge of the relationship. (Steve Sadow, Trump’s lead Atlanta attorney, saw the latter as particularly telling.)
Bradley’s broad claims of attorney-client privilege are currently under review by McAfee. Until then, it’s Yeartie’s word against Willis and Wade’s.
A BRADLEY BACKFIRE?
Bradley was billed as Merchant’s “star witness.” But for most of the hearing he proved to be an exceedingly difficult nut for the defense to crack. He kept the court waiting for several hours on Friday while he was at a doctor’s appointment, and when he did appear he largely cited attorneyclient privilege when asked about anything having to do with Willis and Wade’s relationship.
You could see defense attorneys growing increasingly frustrated as they took turns trying to find a way to get Bradley to open up — over the constant objections of prosecutors and Wade’s personal attorney — to little avail. The one damning exception was when Bradley seemed to confirm that the allegations Merchant included in her initial filing against Willis were accurate.
“Looks good,” he texted her after she sent him a copy of the document, though it’s not clear how closely he looked at her allegations.
Toward the end of the day Friday, prosecutors moved in for the kill, seemingly to ensure that Bradley would have no credibility even if he did ultimately talk. But their efforts might have been too effective — to the point they may now backfire.
Earlier Friday afternoon, Bradley had testified that he left his law firm with Wade due to a reason that fell under attorney-client privilege. But under cross-examination from special prosecutor Anna Cross, he acknowledged departing the firm after being accused of sexual assault by a coworker. (He vehemently denied he had committed sexual assault, against the colleague or a former client named by Cross.)
Cross knew she caught Bradley changing his story — “he lied,” she said — but the development prompted McAfee to state that he now had questions not only about Bradley’s credibility but his interpretation of attorney-client privilege.
The judge said he would hold an off-the-record meeting with Bradley and his attorney to consider his definition of attorney-client privilege and then make a determination about whether any additional evidence could be considered. That means it’s still possible Bradley could be questioned. If Bradley is able to offer testimony that corroborates Yeartie’s claims that could be very, very bad for the DA’s office.
REVISED DIVORCE FILING
Defense attorneys have gotten plenty of ammunition from Wade’s long-running divorce case, including financial records of his trips with Willis. But Craig Gillen, attorney for defendant David Shafer, landed some additional punches against the special prosecutor on Thursday when he drilled in on sworn responses Wade made — and later revised — to questions known as interrogatories in his divorce case.
In May 2023, Wade responded “none” to interrogatories about whether he had sexual relations or entertained a member of the opposite sex other than his wife over the course of his marriage, including during their separation. Gillen noted that late last month, after the Willis-Wade relationship allegations emerged, Wade amended his May 2023 response, this time citing privilege and declining to respond to the the questions.
“Your answer to this interrogatory is false, is it not, sir?” Gillen asked Wade on the witness stand after the prosecutor confirmed he entertained Willis. (Wade responded that he was truthful on the forms. He said he remained faithful to his wife until his marriage became “irretrievably broken” in 2015 after he said his wife had an affair.) If McAfee agrees with Gillen’s interpretation that Wade gave a false statement in an official document that could spell good news for the defense.
MUDDY FINANCIAL QUESTIONS
Merchant’s original motion to disqualify Willis hinged on questions of whether she improperly benefited financially from the case via trips Wade paid for. But at the hearing a bigger set of questions seemed to move to the forefront: whether Willis or Wade may have lied in court documents.
Some observers argued that Willis ultimately put the financial questions to rest when she, Wade and her father testified that she frequently carried around large amounts of cash and reimbursed Wade that way, either directly or by paying for meals and activities during trips. “I don’t need anyone to foot my bills,” Willis said. On Tuesday, her account got some added corroboration after CNN reported that a vineyard worker who served Willis and Wade in Napa Valley said the DA had paid the roughly $400 bill in cash.
Others say they still view the cash response as fishy and too convenient, given that there are no records of her paying Wade or him depositing the money. Gillen seized on that during his questioning of Wade. “You don’t have a single solitary deposit slip to corroborate or support any of your allegations that you were paid by Ms. Willis in cash, do you?” he asked. “No, sir,” Wade replied.
AN AUDIENCE OF ONE
Ultimately, the only opinion that will matter in the fight is McAfee’s. He’s heard evidence corroborating and contradicting Wade and the DA, so his decision could prove to be a gut-check moment.
Perhaps the biggest question is the standard he chooses to use. Ahead of the hearing, he said the DA’s office could be removed from the case “if evidence is produced demonstrating an actual conflict or the appearance of one.”
The state’s top court defined “conflict” differently. In 2005, Georgia Supreme Court justices ruled that a conflict exists when “the prosecutor has acquired a personal interest or stake in the defendant’s conviction” and that an “actual conflict” must be involved, not just a “theoretical or speculative” one.
An appearance of conflict is a lower standard. Some critics have argued that a prosecutor leading one of the highest-profile cases in the country, against a former president who is also the leading presidential candidate no less, should be above reproach.
A July 2022 ruling from one of McAfee’s colleagues could serve as a legal precedent. Judge Robert McBurney disqualified Willis from investigating now-Lt. Gov. Burt Jones during an earlier phase of the election case due to a conflict of interest. “The District Attorney does not have to be apolitical, but her investigations do,” he ruled.
McAfee says he will schedule a hearing for closing arguments before making a final ruling.