Fulton County district attorney Fani Wills will continue prosecuting the Georgia election-interference case against former president Donald Trump and more than a dozen other co-defendants after special prosecutor Nathan Wade, her former lover, stepped down on Friday.
In order to cure an appearance of impropriety, Fulton County Superior Court judge Scott McAfee on Friday released an order that gave Willis two options: either Wade withdraw from the case or Willis and her whole office must step aside.
Wade subsequently withdrew “in the interest of democracy, in dedication to the American public, and to move this case forward as quickly as possible,” he wrote in a one-page resignation letter to Willis. He called being involved in the case “the honor of a lifetime.”
In a letter accepting his resignation, Willis responded by complimenting Wade for his “professionalism and dignity” and for enduring “threats against you and your family, as well as unjustified attacks in the media and in court on your reputation as a lawyer.”
McAfee’s ruling is a blow to the defense, which had called for both Willis and Wade to be dismissed.
Willis has been leading the prosecution of the case for over three years. Her disqualification, and the disqualification of her office, would have left the case in legal limbo. As it is, Willis is on a tight timeline to bring the case to trial before the 2024 election.
In the 23-page ruling, McAfee found that defense lawyers failed to meet their burden of proving that Willis acquired an actual conflict of interest in the case through her relationship and travels with Wade. “However,” he wrote, “the established record now highlights a significant appearance of impropriety that infects the current structure of the prosecution team.”
McAfee wrote that “an odor of mendacity remains” over the case and testimony by witnesses, including Willis and Wade, during evidentiary hearings last month. At one point in his ruling McAfee chided Willis for “making bad choices,” for a “tremendous lapse in judgement,” and for the “unprofessional manner” of her aggressive testimony in February. He also wrote that Wade, through inaccurate filings in his pending divorce, “indicates a willingness on his part to wrongly conceal his relationship with the District Attorney.”
Willis’s office did not respond to a request for comment from National Review on Friday.
Questions about Willis’s ability to continue leading the election-fraud case first arose in early January when Ashleigh Merchant, an attorney for former Trump White House aide and co-defendant Michael Roman, filed a motion calling for Willis and Wade to be disqualified due to a conflict of interest tied to an unacknowledged romance between the two.
The motion alleged that Willis, “without legal authority,” chose to “appoint her romantic partner,” Wade, to lead the case. In the process, Willis paid Wade over $700,000 and he in return enriched Willis by taking her on expensive vacations and cruises while they were dating, the defense alleged. Willis said she and Wade mostly split the costs of the trips, and that she paid him back for large expenses in cash.
Defense lawyers also said it was disqualifying for Willis to give a mid-January speech at Atlanta’s Big Bethel AME church, during which she accused them of “playing the race card,” because both she and Wade are black. Defense lawyers argued that the obvious intent of the speech was to “inject and infect” the Fulton County jury pool.
Willis officially responded to the allegations in early February, calling them “meritless,” though she also acknowledged her relationship with Wade in the court filing.
McAfee held three days of hearings over the motion last month. Both Willis and Wade testified that although they’d known each other since late 2019, their romance didn’t begin until early 2022, after Willis had already hired Wade to serve as special prosecutor. Defense lawyers accused them of lying about that on the stand and in court filings, contending that the relationship likely started years earlier.
In his ruling, McAfee notes the special responsibility of prosecutors, who “are held to a unique and exacting professional standard in light of their public responsibility — and their power,” and whose “duty to the public creates an additional public interest that must remain unconflicted in every criminal case.”
He wrote that neither Willis’s payments to Wade to lead the prosecution nor their romantic relationship is problematic on its own. “But in combination,” he wrote, “a prima facie argument arises of financial enrichment and improper motivations which inevitably and unsurprisingly invites a motion such as this.”
However, he found there was no evidence that Wade was overpaid for serving as special prosecutor, that he exceeded monthly caps on his hours, or that Willis and Wade tried to prolong the case to enrich themselves. “Indeed, the record is quite to the contrary,” McAfee wrote.
Wade’s credit card statements documenting the trips he took with Willis show that, at most, Willis received a financial benefit of between $12,000 and $15,000. While Wade paid for the trips with his credit card, both Willis and Wade testified that she reimbursed him in cash.
McAfee wrote that “such a reimbursement practice may be unusual and the lack of any documentary corroboration understandably concerning,” but concluded that it was “not so incredible as to be inherently unbelievable.”
“Simply put,” he wrote, “the Defendants have not presented sufficient evidence indicating that the expenses were not roughly divided evenly.”
“In addition – and much more important,” McAfee added, “the Court finds, based largely on the District Attorney’s testimony, 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.”
But while the defense didn’t prove the existence of a conflict, McAfee found that the “prosecution is encumbered by an appearance of impropriety.” Regardless of when their relationship began, Willis “chose to continue supervising and paying Wade while maintaining such a relationship,” and she “further allowed the regular and loose exchange of money between them without an exact or verifiable measure of reconciliation,” McAfee wrote.
An “outsider,” McAfee wrote, “could reasonably think that the District Attorney is not exercising her independent professional judgement totally free of any compromising influences.”
“As long as Wade is on the case,” he continued, “this unnecessary perception will persist.”
McAfee noted that during the February hearings, the focus shifted from the financial benefits Willis may have accrued from Wade to the timing of their relationship, and whether she and Wade were truthful about it in court documents and on the witness stand.
A one-time friend of Willis’s testified that Willis’s and Wade’s relationship, including “hugging, kissing,” started soon after they met in 2019. Wade’s former law partner and divorce lawyer, Terrence Bradley, told Merchant in text messages that Willis’s and Wade’s relationship “absolutely” started before they say. But on the witness stand, Bradley — who had been dubbed a “star witness” — said he was only “speculating.”
Defense lawyers also pointed to an analysis of Wade’s cellphone records that found that Wade and Willis had exchanged thousands of phone calls and texts in 2021, and that Wade may have spent the night at or near Willis’s condo months before they say their romance began.
McAfee wrote that he was unable to put any stock in Bradley’s testimony. Ultimately, he wrote, “neither side was able to conclusively establish by a preponderance of the evidence when the relationship evolved into a romantic one.”
McAfee also took issue with Willis’s speech in church, calling it “legally improper” and saying that it “creates dangerous waters for the District Attorney to wade further into.” He noted that the effect of the speech was to “cast racial aspersions” on the defense’s decision to file the motion calling for her disqualification.
But McAfee ruled that the speech wasn’t disqualifying because Willis didn’t name any of the defendants, she didn’t address the merits of the case, she didn’t disclose confidential evidence, and the case is too far from jury selection to establish that the jury pool had been tainted.
Still, McAfee wrote, the “time may well have arrived for an order preventing the State from mentioning the case in any public forum to prevent prejudicial pretrial publicity, but that is not the motion presently before the Court.”
Defense lawyers have argued that through their actions and testimony Willis and Wade “put an irreparable stain on the case.” Prosecutors, on the other hand, argued that defense lawyers made “material misrepresentations” during the February hearings, alleged that defense witnesses gave “inconsistent testimony,” and said that there is no reason to believe that the defendants’ due process rights have been damaged.
McAfee agreed with that final point. “There has not been a showing that the Defendants’ due process rights have been violated or that the issues involved prejudiced the Defendants in any way,” he wrote. “Nor is disqualification of a constitutional officer necessary when a less drastic and sufficiently remedial option is available.”
“The District Attorney may choose to step aside, along with the whole of her office,” he wrote, or, alternatively, “Wade can withdraw, allowing the District Attorney, the Defendants, and the public to move forward without his presence or remuneration distracting from and potentially compromising the merits of this case.”
McAfee’s ruling comes two days after he struck down six counts in the indictment against Trump and several other defendants in the case. The counts, which involved the alleged solicitation of Georgia elected officials to violate their oaths of office and to unlawfully appoint pro-Trump presidential electors, lacked “sufficient detail” and “do not give the Defendants enough information to prepare their defenses intelligently,” McAfee wrote in his Wednesday ruling.