Georgia Judge Expected to Rule on Fani Willis Disqualification—Here’s What We Know

Fulton County Judge Scott McAfee is expected to decide this week if District Attorney Fani Willis will be disqualified from the high-profile case.

Fulton County District Attorney Fani Willis speaks during a news conference at the Fulton County Government building in Atlanta, Ga., on August 14, 2023. Joe Raedle/Getty Images

Update: The judge issued a ruling on Friday, ordering either the district attorney or her special prosecutor to step down from the case.

On March 1, Fulton County Superior Court Judge Scott McAfee heard closing arguments regarding a motion to dismiss Fulton County District Attorney Fani Willis from prosecuting a high-profile racketeering case against former President Donald Trump and 14 others, deciding that he would issue a ruling within two weeks rather than reopening evidence as the parties requested.

The embattled district attorney has been the subject of several complaints and lawmaker investigations in recent weeks, since a defendant’s attorney alleged an improper relationship and misuse of public funds in a Jan. 8 filing in the racketeering case.

Allegations

Ashleigh Merchant, legal counsel for defendant Michael Roman, alleged in a motion to disqualify and dismiss the indictment that Ms. Willis had a conflict of interest due to appointing Nathan Wade, an attorney with whom she was having an affair, as the special prosecutor to lead the case.

Ms. Merchant also alleged that Ms. Willis financially benefitted from this appointment, as Mr. Wade had billed upwards of $650,000 at the time of the filing and the couple had spent thousands on vacations together.

The motion was later joined by half of the codefendants.

Weeks after the allegation, in a required Feb. 2 court filing, Mr. Wade and Ms. Willis acknowledged there was a “personal” relationship while arguing that the defense had not met the standard of showing a conflict of interest and accusing Ms. Merchant of trying to “harass” and “embarrass” Ms. Willis.

Judge McAfee then called an evidentiary hearing that spanned three days in mid-February.

“I think it’s clear that disqualification can occur if evidence is produced presenting a conflict or the appearance of one, and the filings submitted on this issue so far have presented a conflict of interest that can’t be resolved as a matter of law,” Judge McAfee said ahead of the hearing. “The state has admitted a relationship existed, and so what remains to be proven is the existence and extent of any financial benefit, again if there even was one.”

Both Mr. Wade and Ms. Willis testified they acknowledged a romantic relationship that was unknown to colleagues and family before Ms. Merchant’s motion, but challenged the alleged timeline and denied any financial benefit.

Cash Payments

Mr. Wade and Ms. Willis both testified that they took vacations together, which were booked on Mr. Wade’s credit card. However, Ms. Willis claimed she paid her half of the expenses either by taking turns making purchases or through large cash reimbursements.

Mr. Wade testified that the trips were booked in his name because of security concerns and that Ms. Willis was in the limelight with her position as district attorney. Ms. Merchant pointed out there was a record, supplied by the state, of Ms. Willis booking plane tickets for one trip with her card, name, and account.

Ms. Willis testified that she had paid Mr. Wade back in cash “around four times,” with amounts ranging from as little as $500 to as much as $25,000 because she wanted to cover her half of the costs. She added that the only “gift” exchanged was a trip she paid for to Belize for Mr. Wade’s birthday, which followed his battle with cancer. She added that she paid for as many meals as he did and the expenses evened out.

She also testified that she never declared these meals or trips because she never thought of them as gifts, even though local law requires district attorneys to report gifts over $100 by contractors or those seeking to do business with her office.

Neither Mr. Wade nor Ms. Willis had a record of the cash reimbursements. Ms. Willis testified that she had picked up a habit of always keeping large sums of cash on hand from her father.

Contested Testimony

Mr. Wade was part of Ms. Willis’s transition team in the months leading up to her taking office as district attorney in January 2021. He was later contracted by her in November 2021 to investigate the 2020 elections and had his contract renewed in mid-November 2022 to lead the case.

Ms. Merchant had alleged the relationship began as early as 2019, or at least before he was hired by the district attorney.

Mr. Wade and Ms. Willis both testified that a romantic relationship only began in early 2022, around March, after he had been hired, and that it ended in the summer of 2023.

Uncontested is the fact that they met in the fall of 2019 at a judicial conference, while both were municipal judges. Mr. Wade and Ms. Willis both testified that they exchanged contact information at the conference and communicated only a few more times in 2019, but much more often in 2020 and 2021 during the pandemic-era months.

Travel would have been limited during that period. Bank statements showing travel with Mr. Wade’s and Ms. Willis’s names, totaling tens of thousands of dollars, were only obtained for 2022 and 2023.

Ms. Merchant called two witnesses she expected to testify that they had seen Mr. Wade and Ms. Willis romantically engaged before 2022, but both witnesses had their credibility called into question by the state.

Robin Yeartie, a former friend of Ms. Willis’s, said she had “no doubt” the relationship was a romantic one and began “shortly” after the 2019 judicial conference, which she said Ms. Willis told her about. State attorneys accused Ms. Yeartie of being a disgruntled former employee who was threatened with firing by the district attorney if she did not resign, but Ms. Yeartie testified this was not the case and she had resigned because her department changed and she did not like the work.

Terrence Bradley, a former law partner of Mr. Wade’s, was expected to be the “star” witness according to Judge McAfee, but during three days of testimony said little to nothing. During the first two days, Mr. Bradley said everything he knew was covered by attorney-client privilege because he had represented Mr. Wade during his divorce.

After a closed-door meeting in the judge’s chamber, Judge McAfee determined that his knowledge was not subject to attorney-client privilege, calling Mr. Bradley back for a third day of testimony during which he only said he “could not recall” or had been “speculating” when read text messages he sent to Ms. Merchant.

Ms. Merchant was later subpoenaed to testify before the Georgia Senate, during which she explained the full story of how her due diligence when Mr. Wade was appointed led to an investigation of the district attorney’s finances and eventual motion to disqualify.

She found Mr. Wade was being paid about five times more than other outside attorneys hired by Georgia district attorneys and that Ms. Willis had obtained the funding from a county board after pitching that she needed it to prosecute a large backlog of homicides.

It was only later that she ran into Mr. Bradley by chance at a courthouse and learned Mr. Wade was going through a divorce. Ms. Merchant testified that Mr. Bradley had been upset because Mr. Wade had hidden the money he was making from his wife during the proceedings. As a result, he left the stay-at-home mother, who had been in that role for 26 years, without alimony and asked her to move out as soon as their youngest child left for college.

Mr. Bradley then detailed an affair Mr. Wade had with Ms. Willis, according to Ms. Merchant. He specified that it began when they were both judges in municipal court, that they often met up at hotels or a condo Ms. Willis stayed at, later identified as Ms. Yeartie’s, to which Mr. Wade possessed a garage opener. Mr. Bradley also alleged that Mr. Wade used Mr. Bradley’s credit card to purchase trips with Ms. Willis and paid him back in cash to hide the affair and spending from his wife.

A private investigator hired by attorneys for President Trump was able to subpoena Mr. Wade’s cell phone data, finding 12,000 text exchanges between Mr. Wade and Ms. Willis from January to November of 2021. The data also showed Mr. Wade’s location, pinpointing more than one overnight stay at the condo in question before a romantic relationship allegedly began.

Prejudice

Defense attorneys also filed several additional arguments when joining Ms. Merchant’s motion to disqualify, arguing that Ms. Willis had shown prejudicial behavior in public statements.

Days after the relationship allegations were first made, Ms. Willis gave a live-streamed speech at an Atlanta church, during which she did not confirm or deny the relationship with Mr. Wade but suggested her critics were racially motivated by singling out only the “black man” when she had also hired Anna Cross and John Floyd, both white, as outside attorneys.

In court, state attorneys argued Ms. Willis was not referring to the defense but rather other officials and the defense pushed back that media articles about the speech had all focused on the election case.

Defense attorneys argued that in giving this speech, Ms. Willis had suggested she was doing God’s work by targeting these defendants, and had framed the defense as racist for calling into question her appointment of Mr. Wade, prejudicing the public and potential jury. Some defendants also argued that Ms. Willis gave other interviews in which she suggested the defendants were guilty, indicating a pattern of prejudicial behavior.

Standard for Disqualification

Key to whether Judge McAfee will disqualify the district attorney is what standard of law to abide by in making the decision.

Defense attorneys have put forth that the appearance of impropriety alone warrants disqualification, and that caselaw shows a preponderance of evidence, or 51 percent proof, is enough for the judge to rule in their favor.

Prosecutors argue that proof of forensic misconduct is necessary to show a conflict of interest and that the defense has not met that burden.

Ahead of the expected decision, Judge McAfee this week quashed six counts of the 41-count indictment finding they were too vague to allow for an intelligent defense.