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Judge to decide Willis disqualification in Trump Georgia case within two
weeks
Amy Gardner, Holly Bailey
ATLANTA - The judge in the Georgia election interference case against
former president Donald Trump and his allies said Friday he plans to issue
a decision within two weeks on whether Fulton County District Attorney
Fani T. Willis (D) should be disqualified and charges dismissed because of
her romance and international travel with lead prosecutor Nathan Wade.
Over more than three hours of closing arguments Friday, prosecutors and
defense lawyers presented two starkly opposing views on whether Willis's
office should be removed from the case. Defense lawyers argued that Willis
and Wade created a conflict of interest by not disclosing their
relationship or travel expenditures. The prosecution argued that the
defense never proved their central allegations - that Willis and Wade
began dating before she hired him in November 2021, and that she allowed
him to pay for the travel they shared.
The salacious accusations have taken the Georgia case far off course since
they emerged in a January pleading from one of Trump's co-defendants,
delaying proceedings for weeks and now threatening to fully derail the prosecution as the spotlight turns to Fulton County Superior Court Judge
Scott McAfee as he decides what to do. The controversy has attracted a
national audience because of its potential impact on the 2024 presidential election, with fresh uncertainty on whether a trial will begin before
November and what would happen to the case overall if Trump is elected president.
It is the second of four ongoing prosecutions against Trump facing delays against the backdrop of the fall election. The federal election
interference case in Washington is awaiting an April Supreme Court review
of a claim of immunity.
In addition to wading through the explosive allegations that have consumed
the case since early January, McAfee now must consider two legal
decisions: whether Willis and Wade created an actual or apparent conflict
of interest with their romance and shared travel, and whether Willis is
also guilty of what's known in Georgia as "forensic misconduct" - a
forbidden action by a prosecutor such as publicly prejudicing the
defendants, as defense attorneys accused her of doing when she suggested
that the accusations were racially motivated in a speech she gave at a historically Black church in January.
"There are several legal issues to sort through, several factual
determinations that I have to make," McAfee said. "And those aren't ones
that I can make at this moment. And so I will be taking the time to make
sure that I give this case the full consideration that it's due. I hope to
have an answer for everyone within the next two weeks."
First, McAfee must determine who has told the truth. The nine defendants
who are seeking Willis's disqualification, including Trump, are heavily
relying on text messages that Wade's former law partner Terrence Bradley
sent to one of the defense attorneys and the testimony of Robin
Bryant-Yeartie, a former close friend of Willis who claimed the
relationship with Wade began in 2019, long before Willis hired Wade in
November 2021 to lead the case.
That timeline is significant, defense lawyers argued, because it creates a clear appearance of impropriety for Willis to hire a romantic interest.
The conflict of interest only grew when Willis took several trips with
Wade that he paid for, the lawyers argued.
Willis and Wade provided a different timeline in their own testimony. They
said they did not start dating until the spring of 2022. And they said
Willis paid for roughly half of the travel - primarily in cash. Willis's
father even took the stand to corroborate his daughter's tendency to carry
a lot of cash, which he taught her to do to encourage her independence.
The defense scoffed at those claims Friday. "Pay no attention to the
records, pay no attention to the to the airlines and to the flights and vacations and the cruises," said Craig Gillen, who represents former
Georgia GOP chairman David Shafer, one of three 2020 Trump electors
charged in the case. "'I paid him back in cash.'"
Just before Deputy District Attorney Adam Abbate began his arguments,
Willis walked into the courtroom and took a seat at the prosecution table. Wearing a bright red dress and smiling, she maneuvered her seat to the
edge of the table, where she had a clearer view of McAfee, a former
prosecutor who once worked for her. At one point, she looked like she
wanted to jump up and argue the case herself. At another, she passed
Abbate a note and nodded vigorously as he made his case.
Abbate argued that the defense never proved that Willis's and Wade's
testimony was false, and he tried to undermine both Bryant-Yeartie and
Bradley by calling one a "disgruntled former employee," and the other a "disgruntled" and "vengeful" former friend.
Bradley, whom McAfee characterized at a prior hearing as the defense's
star witness, "had every motive to lie," Abbate said, because Wade had
severed ties with his law partner after Bradley was accused of sexual
assault.
Bradley communicated with Ashleigh Merchant, the lawyer for former
campaign aide and Trump co-defendant Mike Roman, and that information
formed the foundation of the original accusations. But when asked under
oath about text messages he sent Merchant, Bradley said he was speculating
or that he didn't remember.
"All he did was speculate," Abbate said of Bradley. "Any information that
he had and garnered and then passed on to Ms. Merchant was mere
speculation. I believe he said that over and over again."
McAfee seemed troubled by which version of Bradley's recollections he
should view as truthful - the detailed texts with Merchant or his
testimony under oath. If he lied under oath, as Trump lawyer Steve Sadow argued, "perhaps we have some kind of core that you could point back to
and say, 'That's the time he was telling the truth in these text
messages.'" But in this case, McAfee mused, "Is it ever definitively shown
how he knew this and that he actually did know it other than just an assertion?"
The judge also questioned why it is his job to "rectify" an untruthful statement from a prosecutor. "Generally, we send you down the street to
the bar, right?"
On the other side, McAfee seemed skeptical of Abbate's claim that he must
find Willis and Wade guilty of an "actual" conflict, and not just an
appearance of one, if he is to disqualify her office from the case.
"There's never been an appellate opinion that relies only on an appearance
of impropriety as it relates to a prosecutor or a district attorney?"
McAfee asked.
Abbate replied: "Yes, that's what I am saying."
Defense lawyers argued that the appearance is enough - that Willis's
behavior was improper even if they can't prove without a shred of doubt
that Willis and Wade began dating in 2021.
"It puts an irreparable stain on the case," said defense lawyer Harry MacDougald, who represents former Justice Department official Jeffrey
Clark.
Sadow and Gillen took the lead arguing that Willis was guilty of "forensic misconduct." Gillen argued that Willis was guilty of a "continuous
pattern" and a "calculated plan to prejudice the defendants in the minds
of the jurors." He said her comments in the book "Find Me the Votes,"
which reported on her legal case against Trump, and others made in the
media and at a church demonstrated an attempt to build the case against
Trump and his co-defendants in the public "before it was supposed to be
tried in this courtroom."
Sadow focused on Willis's Jan. 14 speech at the Big Bethel AME Church, a historically Black church in Atlanta that was celebrating the Martin
Luther King Jr. Day holiday that day, during which Willis suggested that
racism was at the heart of the allegations. She did not mention any
defendant by name nor did she address the accusations directly.
In court Friday, Sadow said it was a clear example of forensic misconduct:
"Can you think of anything more that would heighten public condemnation of
the defendant than alleging that defense counsel and the defendants were
making their motion based on race and religion? That's just bad as it gets
in Fulton County."
One question McAfee must weigh is what the burden of proof is for
disqualifying Willis's office. He asked Sadow if the standard to be met is
a "preponderance" of the evidence, meaning that the defense must merely
show that a majority of the evidence points to misconduct.
"We are dealing with the preponderance standard," Sadow replied, "and it's
our burden, no question about that."
But Abbate challenged that idea, citing case law that ruling for a
conflict of interest requires "a high standard of proof" that is higher
than preponderance.
And he added that the defense had failed that test, noting that Merchant
had sought subpoenas for multiple staffers in the district attorney's
office, including top aides, members of the prosecution team in the Trump
case and people on Willis's security detail. She had claimed earlier in
court that those people had knowledge of the relationship and its timing.
But she never called them to the stand, Abbate said.
"If it wasn't mere speculation, if it wasn't mere gossip, and if it wasn't
mere conjecture, each one of those people who were subpoenaed would have
been called to testify," Abbate said. "Like District Attorney Willis was,
like Mr. Wade was, in order to be confronted and then impeached by Mr. Bradley."
McAfee pressed Abbate to explain why he should not consider cellphone
records showing that Wade's cellphone was repeatedly in proximity to a
condo that Willis rented, including two occasions that stretched into the
early morning hours. Defense attorneys said the data contradicts Wade's
and Willis's claims that he never stayed at her home.
Abbate responded that the records were analyzed by a "non expert" and not properly peer-reviewed. He also said the records span a period of time
that predates Willis's move into the condo. And he noted that the records
don't make the point that the defense claims they do, because they don't
show Wade visiting her prior home in South Fulton, which she left amid
personal threats stemming from this case. "But they're dating," he said, parroting the defense's claims. "They're in a serious relationship."
At the start of the hearing, Gillen and William Cromwell, who represents
former Trump elector Cathy Latham, said each wanted to bring a new witness
into the matter, but McAfee said no because they had not given the state advance notice. He also said he wanted to get straight to the legal
arguments, but said they were free to submit pleadings next week regarding their new evidence.
Yvonne Wingett Sanchez in Phoenix and Azi Paybarah in Washington
contributed to this report.
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Anyone that isn't confused doesn't really
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~Edward R. Murrow USA WWII Correspondent ==================================================
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