Judge rules Fulton DA can stay — if associate steps aside
A Fulton County judge on Friday gave District Attorney Fani Willis a stark choice: Either recuse yourself and your office from the election interference case against Donald Trump or cut ties with your lead prosecutor and former lover.
The decision would allow Willis, if special prosecutor Nathan Wade withdraws, to continue prosecuting the case against the presumptive Republican nominee for president and his 14 remaining co-defendants. It also could resolve a disqualification motion that has upended the monumental case for the past two-plus months, turning it into a spectacle with salacious allegations of misconduct against one of the most recognizable DAS in the nation.
“Whether this case ends in convictions, acquittals or something in between, the result should be one that instills confidence in the process,” Fulton Superior Court Judge Scott Mcafee wrote. “Any distractions that detract from these goals, if remedial under the law, should be proportionally addressed.”
‘Tremendous lapse in judgment’
In a 23-page order, Mcafee said he by no means condones Willis’ “tremendous lapse in judgment” for having the relationship with Wade, who has billed more than $728,000 in legal fees that he used to help pay for cruises and vacations he took with the district attorney in 2022 and 2023.
However, in a major finding, the judge said the defense had “failed to meet their burden of proving that the district attorney acquired an actual conflict of interest in this case through her personal relationship and recurring travels with her lead prosecutor.” If Mcafee had found otherwise, he would have had to disqualify Willis and her office from the case.
But Mcafee did find that “the established record now highlights a significant appearance of impropriety that infects the current structure of the prosecution team — an appearance that must be removed through the state’s selection of one of two options.”
If Wade withdraws, Mcafee wrote, it will allow Willis, the defendants and the public “to move forward without his presence or remuneration distracting from and potentially compromising the merits of this case.”
Blockbuster allegations
The allegations were first lodged in a motion filed Jan. 8 by attorney Ashleigh Merchant, who represents Michael Roman, a defendant in the case. The motion led to several days of testimony in mid-february, during which both Wade and Willis took the stand. They both denied any wrongdoing and maintained their romantic relationship began months after Willis appointed Wade as special
prosecutor in November 2021 — a claim several defense attorneys called a lie.
Willis, apparently against the advice of her colleagues, abruptly took the witness stand and on one occasion yelled at Merchant, saying her allegations were filled with lies. Mcafee, who briefly adjourned the hearing at that point, wrote in his order that Willis behaved in an “unprofessional manner” when she testified at the hearing.
The allegations had cast uncertainty on the Georgia case, one of four criminal prosecutions Trump is facing as he makes a comeback bid for the White House.
Willis and her team were hoping to begin the trial as soon as August, but that timeline appears less and less likely given delays in Trump’s two federal cases that are expected to move first and the two months lost due to the disqualification fight.
‘An odor of mendacity’
Even though Willis has now been given a path to move forward with the case, undoubtedly a legacy item in her career, her credibility has been damaged. Not only did it raise questions about Willis’ judgment, but also left open whether Willis and Wade were fully truthful under oath, including about when their relationship started.
Mcafee indicated he could not discern the absolute truth on the matter based on conflicting and unreliable testimony.
Still, the judge wrote, “an odor of mendacity remains,” because there are “reasonable questions about whether the district attorney and her hand-selected (lead prosecutor) testified untruthfully about the timing of their relationship.”
This further underpins the finding of “an appearance of impropriety and the need to make reasonable effort to cure it,” he said.
Mcafee also had harsh words for Wade’s response to interrogatories in his divorce case, which he repeated when testifying, in which he said he had no relationships with other women — even though he had had one with Willis.
“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,” the judge wrote.
Mcafee’s decision is mostly a win for Willis, who has spent more than three years investigating the conduct of the former president and his allies. She has been given a way to maintain control of her high-profile case as she ramps up her reelection bid against two opponents, one from her left and one from her right.
But Willis’ critics are certain to continue using the allegations dredged up by Roman and others to pummel the DA on the campaign trail, in the state Legislature and even in Congress to try and undermine the case moving forward.
There was no immediate word on whether either side would appeal.
Trump attorney Steve Sadow said Friday he will continue to “use all legal options available as we continue to fight to end this case, which should never have been brought in the first place.”
“While respecting the court’s decision, we believe that the court did not afford appropriate significance to the prosecutorial misconduct of Willis and Wade, including the financial benefits, testifying untruthfully about when their personal relationship began, as well as Willis’ extrajudicial MLK ‘church speech,’ ” he said.
Mcafee called Willis out for making that speech, finding it was “legally improper.” And providing such public comments, he added, “creates dangerous waters for the district attorney to wade further into.”
Mcafee noted in his ruling that state law “does not permit the finding of an actual conflict for simply making bad choices — even repeatedly.” Other forums, such as the Legislature, state ethics commission, the State Bar of Georgia, the Fulton County Board of Commissioners or the county’s voters, “may offer feedback on any unanswered questions that linger,” he said.
During a campaign rally Saturday in northwest Georgia, Trump mocked Willis and Wade as the thousands in attendance booed and laughed at the DA.
“Corrupt Fani Willis hired her lover
Nathan Wade so they could fraudulently make money together,” Trump said. “‘Let’s see, darling, who can we go after?’ ”
No star witness
The defense had hoped Terrence Bradley, Wade’s former law partner and onetime divorce lawyer, would be the star witness who could show that Wade’s and Willis’ romantic relationship began before Wade’s appointment. Bradley had texted Merchant, “Absolutely,” when she asked him if he thought the two were romantically involved before the appointment.
On the witness stand, Bradley testified Wade had once told him he was in a relationship with Willis, but he couldn’t remember when Wade told him that. He also testified that he was speculating when he sent that text to Merchant.
In his order, Mcafee said he is unable to place any stock in Bradley’s testimony. “His inconsistencies, demeanor and generally nonresponsive answers left far too brittle a foundation upon which to build any conclusions,” the judge wrote.
Mcafee noted that defense witness Robin Yeartie raised doubts about Willis’ and Wade’s assertions when she testified their relationship began before Wade’s appointment. Still, the testimony from Yeartie, a onetime friend and employee of Willis’ until she was told to resign or be fired, “ultimately lacked context and detail,” Mcafee wrote.
The judge also addressed Willis’ and Wade’s testimony as to who paid for the four trips they took together to the Bahamas, Napa Valley, Belize and Aruba. Both testified that while Wade purchased most of the vacations with his credit card, Willis paid for one set of flights using her credit card and also repaid Wade for roughly her share of the rest in cash.
“Such a reimbursement practice may be unusual and the lack of any documentary corroboration understandably concerning,” Mcafee wrote. “Yet the testimony withstood direct contradiction, was corroborated by other evidence … and was not so incredible as to be inherently unbelievable.”
Because there seems to be no way to be certain that the expenses were split evenly, it’s possible Willis may have received a net benefit of several hundred dollars, Mcafee wrote. But this does not establish that Willis received a financial benefit as a result of her decision to hire and have a romantic relationship with Wade, the judge said.
Also, citing Willis’ testimony, Mcafee found “that the evidence demonstrated that the financial gain flowing from her relationship with Wade was not a motivating factor on the part of the district attorney to indict and prosecute this case.”
Appearance of impropriety
Even though questions remain, Mcafee said, “the court is not under an obligation to ferret out every instance of potential dishonesty from each witness or defendant ever presented in open court. Such an expectation would mean an end to the efficient disposition of criminal and civil proceedings.”
But there remains an appearance of impropriety, Mcafee wrote, describing it as “a perceived conflict in the reasonable eyes of the public (that) threatens confidence in the legal system itself.”
Mcafee also denied the defense’s request to dismiss the indictment in its entirety, citing state Supreme Court precedent that held such an extreme sanction should be used only sparingly.
If Willis were to make the highly unexpected decision to recuse herself and her office, the case would go to the Prosecuting Attorneys Council of Georgia to be reassigned to a new prosecutor.
She also faces challenges on other fronts.
Gov. Brian Kemp on Wednesday signed legislation bolstering a new state commission designed to discipline “rogue” prosecutors. The first complaint the panel received after being created last year was about Willis. State senators, meanwhile, are ramping up a new investigative committee, which has subpoena power.
Bar complaints against Willis and Wade have also been filed, even as two ethics complaints against the DA in Fulton were dismissed due to lack of jurisdiction.