Fani Willis Should Have Known Better

The relationship the Fulton County D.A. had with one of her prosecutors has endangered her prosecution of Trump.

Fani Willis, the district attorney of Fulton County, Georgia, inside her office chambers in the Fulton County Justice Center Tower in Atlanta on September 20, 2022. (Photo by David Walter Banks / Getty Images)

LAST WEEK, FULTON COUNTY DISTRICT ATTORNEY Fani Willis reluctantly took the witness stand to testify about her romantic relationship with Nathan Wade, whom she hired in November 2021 to lead the Georgia 2020 election interference case against Donald Trump. In Wade’s acrimonious divorce proceedings, evidence emerged that he used roughly $65,000 from his work as a prosecutor to pay for vacations for the two of them. On January 8, a motion was filed by one of Trump’s co-defendants, Michael Roman, complaining about a potential conflict of interest arising from “self-dealing” between Willis and Wade, and seeking to get her thrown off the Trump case. In subsequent filings, Trump and another co-defendant, Robert Cheeley, signed on to the effort to throw the prosecution into chaos.

Willis’s defiant testimony last week only managed to shift the scandal from bad to really bad, handing Trump a head-spinning political win and threatening to to kill the criminal case altogether. Willis had to know that indicting Trump would draw vicious right-wing scrutiny. By having an affair with a handpicked colleague, she displayed a stunning lack of judgment that could wind up torpedoing any accountability for crimes under Georgia law. If it weren’t for the fact that prosecutors would have to start over if Trump and his co-defendants get their way, Willis should probably step down. But the American people deserve to see Trump go to trial in Georgia.

Judge Scott McAfee identified the issues to be resolved through the hearing as “whether a relationship existed, whether that relationship was romantic or nonromantic in nature, when it formed and whether it continues,” in addition to “the existence and extent of any personal benefit conveyed as a result of the relationship.” As I explained earlier this month, Georgia law generally requires an actual conflict of interest to disqualify a prosecutor—meaning the prosecutor and defense counsel or a key witness are shown to have a relationship that could compromise the prosecution’s case against a defendant.

In this case, the allegations of a conflict of interest arise solely from activity between people within the D.A.’s office, and the defendants have not shown that the romantic getaways somehow influenced how Willis and Wade are investigating and prosecuting the case. Terrence Bradley, who was Wade’s former law partner as well as his divorce lawyer, asserted attorney-client privilege when Ashleigh Merchant, the defendants’ lawyer, referred to text messages allegedly showing that Willis and Wade were in a relationship prior to Wade’s 2021 hiring. At the conclusion of Bradley’s testimony, Judge McAfee said he would meet in private with him to discuss questions regarding attorney-client privilege and an accusation of sexual assault against Bradley. So that line of inquiry went nowhere for Trump. The defendants’ lawyer had to know that lawyers can’t waive clients’ privileged communications, so perhaps she was betting that Bradley’s refusal to talk might create the impression that Wade is hiding something. (A judge is no jury, though; surely McAfee knows better.)

Willis’s father was also called to testify, and spoke about death threats his daughter has faced in recent years, how he never met Wade until 2023, and how she kept money in her home on his advice (relevant because of questions about whether Willis and Wade had financial entanglements that might bear on their professional decision-making). Again, nothing sprang forth to support the claim of a conflict of interest that would be legally disqualifying. Former Georgia Governor Roy Barnes took the stand to testify that Willis had tried to hire him but that the salary was too low to take the job, establishing that Wade was not her first choice.

Although it seems like there’s not enough evidence of an actual conflict to meet the legal standard, Judge McAfee has also said that Willis could be disqualified if the evidence demonstrates an appearance of a conflict of interest, as well. Willis is not out of the woods. Worse, at the hearing, Robin Yeartie, a former college friend of Willis who was formerly employed in the D.A.’s office, testified that she had “no doubt” that Willis and Wade were in a relationship before Willis hired Wade to work on the Trump case. Willis denied Yeartie’s testimony, and there is some evidence that Yeartie may have an ax to grind with her former friend/boss.

Even if McAfee denies Trump, Roman, and Cheeley’s motion, the episode has been extremely damaging to Willis’s reputation. It could also hamper the public’s—and maybe even future jurors’—perception of the integrity and legitimacy of the criminal case against Trump and the remaining co-defendants who haven’t already pleaded guilty. A decision not to disqualify Willis will undoubtedly be appealed, as well, pushing back a trial date even further (though there’s no chance the trial would be completed before the November election anyway).

If McAfee grants the motion, Willis and her entire office would be disqualified from the case, which would then be transferred to the Prosecuting Attorneys’ Council of Georgia for appointment of a replacement prosecutor who could rebuild the case from the ground up with a new team of prosecutors or might instead decide just to scrap the entire thing. By the time that all gets sorted out, November 5 will have come and gone. It’s a pity that this prosecution, which seeks to bring to justice those who tried to undermine American democracy in 2020, could be tossed aside not because the case against Trump is flawed but because two prosecutors entrusted to serve the people lost sight of the big picture. Shame on Willis for not thinking that part through before engaging in such recklessness.