After spending nearly three years seeking to hold Donald Trump and his allies accountable for trying to overturn the 2020 election, Fulton county district attorney Fani Willis faces a series of imminent, critical choices that could upend her consequential case against the former president and 14 remaining co-defendants.
“The stakes could hardly be higher,” said Clark Cunningham, a law professor and ethics expert at Georgia State University.
Michael Roman, a seasoned Republican operative and one of the defendants in the wide-ranging racketeering case, filed a motion earlier this month seeking the disqualification of Willis and Nathan Wade, an outside lawyer hired by Willis in 2021 to assist with the Trump case. In court filings, Roman alleged Willis and Wade were in a romantic relationship and Wade had used some of the more than $650,000 he earned from his work for her to pay for vacations for the two of them. Bank records made public last week showed Wade had paid for tickets for himself and Willis to California in 2023 and Miami in 2022.
Neither Willis nor Wade has confirmed or denied a romantic relationship yet, and Willis has said she will respond in a court filing due 2 February. A hearing on the request is set for 15 February. Willis has said all of the special prosecutors she hired were paid the same rate.
While experts cautioned they were waiting for Willis and Wade to respond to Roman’s claims, it has already caused a headache for Willis, whose case has long been seen as one of the strongest efforts to hold Trump accountable for 2020. Because the case is in Georgia state court, it is also immune from Trump’s interference should he win the election.
“As a legal matter, I don’t see much of anything as of yet that would make me think that a disqualification is likely,” said Anthony Michael Kreis, a law professor at Georgia State University who has closely followed the case. “In terms of the political bucket, it is both an optics disaster, but it’s also been a lot of political malpractice from the office for not responding. So this drip, drip, drip is a problem.”
A disqualification would upend the case against Trump and significantly delay it. If judge Scott McAfee were to disqualify Willis’s office from handling the case, the executive director of the Prosecuting Attorneys Council of Georgia would appoint a replacement. There’s no time limit on how long that could take. “It could entirely derail the entire enterprise,” Kreis said.
Wade was a municipal judge and well-known lawyer in the Atlanta suburbs with little prosecutorial experience before Willis hired him to work on the Trump case. The two met in 2019 during a legal education course for judges, and he became a confidante and mentor to Willis. Willis told the New York Times in 2022 that Wade was not a first choice to work on the prosecution team, but that she approached him after other more experienced lawyers turned her down. Wade was tepid, too, she told the Times, telling her he didn’t have much prosecutorial experience. She eventually convinced him to join the team. “I need someone I can trust,” she told the Times.
Roman’s accusation has prompted national interest in Wade’s ongoing divorce. Willis was subpoenaed for a deposition as part of that case, but a judge this week put off requiring her to testify.
Regardless of what happens legally, Trump is likely to use the salacious allegation to continue to try to undermine Willis’s credibility. While his lawyers did not join Roman’s motion, Trump has already weighed in.
“When is the Great State of Georgia dropping the FAKE LITIGATION against me and the others? ELECTION INTERFERENCE! The case is a FRAUD, just like D.A. Fani Willis and her ‘LOVER’,” he wrote in a post on his Truth Social platform on 20 January.
Norman Eisen, a former “ethics czar” under Barack Obama, has been supportive of Willis, and argued that disqualification isn’t merited under Georgia law. Still, he has called for Wade to step aside.
“Questions about gifts and related matters go to Willis’s and Wade’s obligations to the Fulton County District Attorney’s office, and have no connection to assuring the defendants a fair trial,” he wrote in an essay in Just Security with former US attorney Joyce White Vance and Richard Painter, a former ethics czar under George W Bush.
“Although the Georgia law on disqualifying a prosecutor would permit Wade to remain on the case as well, in our view he should voluntarily step down. His continued presence will create a distraction, and his departure, in addition to an on-the-record hearing in court, is the best path to dispense with any lingering concerns, ” they wrote.
Willis has had a brush with disqualification already. In July of 2022, when a special purpose grand jury was still investigating the case, she held a political fundraiser for Charley Bailey, the Democratic opponent of Burt Jones, the Republican nominee for lieutenant governor, who served as a fake elector for Trump in 2020. Jones was under investigation by the special purpose grand jury at the time. Judge Robert CI McBurney disqualified Willis’s office from handling any part of the case against Jones.
“An investigation of this significance, garnering the public attention it necessarily does and touching so many political nerves in our society, cannot be burdened by legitimate doubts about the District Attorney’s motives,” McBurney wrote in his disqualification order. A replacement special prosecutor still has not been appointed.
McBurney also admonished the DA’s office during a hearing, calling it “ a ‘What are you thinking?’ moment”.
Stephen Gillers, a legal ethics expert at New York University, agreed that there was no conduct identified in Roman’s motion that would cause the indictment to be dismissed – an opinion shared by other experts.
“Indictments do not get dismissed because of behavior like this. Nothing about the allegations suggests that the indictment is in any way tainted,” he said in an interview.
He also agreed that Willis’s conduct likely would not result in disqualification. And the fact that Wade was paid a high hourly rate was not in itself grounds for him to be disqualified. “Every lawyer who bills by the hour has that interest. Hourly billing is quite common nationally. So of course the lawyer has an interest in a continuation of a case,” he said.
Still, Gillers said he was concerned by the vagueness of the invoices Wade had submitted and that were approved by the Fulton county district attorney’s office. They would not pass muster at most government agencies or corporations, he said.
“They’re generic, they are in whole numbers. Eight hours, six hours, seven hours. They don’t break down the particular tasks that were done. For someone like me, looking at that, that’s a red flag,” he said.
“In my view, he has to step aside, unless the board of commissioners or other Fulton county official, knowing all the facts, approves of the arrangement, and designates someone other than Willis to review Wade’s bills,” he continued. “His position is tainted by the romantic relationship unless there is informed consent from the appropriate authority in Fulton county.”
By filing the allegations as part of the court case, and not directly with a disciplinary body, Roman may have made a strategic decision to try and muddy the legal issues in the case, understanding the optics for Willis would look bad, he added.
Cunningham said he was waiting for more information to evaluate the merits of Roman’s disqualification claim. But regardless of what McAfee rules, he said, there are likely to be efforts to appeal that could drag out the case. Willis, he said, should step aside from the case and let a chief deputy or someone else take over and decide whether Wade continues on the case.
“The argument that the case as it moves forward is being motivated improperly goes away. That is absolutely the best way to make sure that the motion to disqualify isn’t granted,” he said.
“It minimizes it just to say it’s a question of optics, though that’s certainly the case,” he said. “Right now, they’re the story. Every day. And that’s bad in every possible way. It’s not good for public confidence in this case, which is needed.”
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