Not removing Fulton County District Attorney Fani Willis from the Georgia election interference case against Donald Trump and others over her romantic relationship with a top prosecutor would undermine public confidence in the legal system, a lawyer for one of Trump's co-defendants told a judge Friday.
After several days of extraordinary testimony, the judge began hearing arguments over whether Willis' relationship with special prosecutor Nathan Wade created a conflict of interest that should force both of them off one of four criminal cases against the former president.
John Merchant, an attorney for Trump co-defendant Michael Roman, told Superior Court Judge Scott McAfee that “if the court allows this kind of behavior to go on ... the entire public confidence in the system will be shot.” If McAfee denies the bid to disqualify Willis, “there's a good chance” an appeals court would overturn that ruling and order a new trial, Merchant argued.
Lawyers for Trump and other defendants say Willis paid Wade large sums for his work and then improperly benefited when he paid for vacations for the two of them.
Willis and Wade have acknowledged the relationship, which they said ended last summer, but they have argued it does not create any sort of conflict and has no bearing on the case. The pair said they didn't begin dating until the spring of 2022, after Wade was hired, and that they split travel expenses.
Since the relationship was revealed in early January, the subject dominating the court’s time and the public’s attention has not been the crimes prosecutors allege Trump and his allies committed while trying to overturn the election, but rather the intimate details of Willis and Wade’s relationship.The hearings have at times wandered into surreal territory: Atlanta's mayor watching from the gallery as a former Georgia governor testified, Willis' father talking about keeping stashes of cash around the house and details of romantic getaways.
Willis' removal would throw the most sprawling of the four criminal cases against Trump into question as the former president seeks a return to the White House. But it wouldn't necessarily mean the charges against him and 14 others would be dropped.
McAfee heard details of Willis and Wade's personal lives and conflicting accounts of when they started dating, but it remains unclear whether he will find the relationship caused a conflict of interest that merits removing the prosecutors from the case.
At a hearing preceding testimony, McAfee noted that under the law, "disqualification can occur if evidence is produced demonstrating an actual conflict or the appearance of one.” He said he wanted testimony to explore “whether a relationship existed, whether that relationship was romantic or nonromantic in nature, when it formed and whether it continues.”
Those questions were relevant only “in combination with the question of the existence and extent of any personal benefit conveyed as a result of the relationship," McAfee said.
Georgia State University law professor Anthony Michael Kreis, who has followed the case closely, said a lot will depend on which standard McAfee uses: an actual conflict of interest or the appearance of a conflict.
“The standard I think that's applicable is an actual conflict of interest where the evidence produced shows that Fani Willis profited off the investigation and the charging decisions that she brought against the 2020 election interference defendants,” he said.
Because Willis and Wade said the relationship ended before they sought an indictment in the election interference case, it's hard to argue the due process rights of Trump and his co-defendants were violated, Kreis said. But if McAfee applies an “appearance of conflict” standard, that could mean trouble for Willis and Wade “because the shadow has been cast over the whole thing," he said.
If Willis and her office are disqualified, a nonpartisan council supporting prosecuting attorneys in Georgia would be tasked with finding a new attorney to take over. That person could either proceed with some or all of the charges against Trump and others, or drop the case altogether.
Even if a new lawyer moved forward on the path charted by Willis, the inevitable delay would seem likely to lessen the probability of the case getting to trial before November's presidential election, when Trump is expected to be the Republican nominee.
A Fulton County grand jury indicted Trump and 18 others in August on charges related to efforts to keep the Republican incumbent in power even though he lost the 2020 election to Democrat Joe Biden. Four people have pleaded guilty after reaching deals with prosecutors, while Trump and 14 others have pleaded not guilty.
