{O} n Thursday, a judge in Atlanta will hold a hearing on a defense motion to disqualify Fulton County district attorney Fani Willis from further participation in the sprawling state RICO prosecution she has brought against former president Donald Trump and 18 others.
The co-defendant, Michael Roman, who originally brought the motion that other defendants including Trump have now joined, also seeks the disqualification of Nathan Wade, one of the special prosecutors Willis hired with county funds for the case. The defense alleges that Willis has been (and perhaps still is) having a romantic affair with the married Wade. Willis initially suggested that the allegation was racially motivated — a factually peculiar claim given that counsel for Roman heavily relied on claims made by Wade’s estranged wife in divorce proceedings (Willis, Wade, and Jocelyn Wade are all black). In a more recent court filing, however, Willis and Wade conceded being romantically involved, although they deny that the relationship has affected their stewardship of the case.
As detailed here a couple of weeks ago, Willis managed to avoid testifying in the divorce case when Nathan and Jocelyn Wade reached a last-minute settlement. It was clear even then, though, that the DA’s woes were just beginning. The judge in the RICO case, Scott McAfee of the Fulton County superior court, had signaled that he was taking the defense motion quite seriously — requiring a response from Willis and scheduling the upcoming hearing.
On that score, we should recall that Willis, an elected Democrat, has already been disqualified from prosecuting one subject in the investigation over an ethical lapse. Specifically, she has been excluded from the prosecution of Georgia’s lieutenant governor, Burt Jones. When the Trump-allied Jones was a state senator under investigation by the DA’s office, Willis headlined a fundraiser for his Democratic opponent in the campaign for lieutenant governor.
The DA is also under investigation by the state senate and the House Judiciary Committee, both controlled by Republicans. There have been media reports that “whistleblowers” in Willis’s office are anxious to share information with state investigators. As Rich Lowry and I discussed on a recent podcast episode, a former administrator in the office has accused Willis of firing her in retaliation for her complaint that a Willis adviser had schemed to divert funds from a federal grant intended for youth-offender programs.
Roman alleges that, although Nathan Wade has sparse relevant experience in felony prosecutions, Willis retained him and lavishly paid him in the RICO case. She thereby financially benefitted, the defense contends, accompanying Wade on luxury vacations to California, Florida, and the Caribbean.
The defense also disputes the representation that Willis and Wade made in the aforementioned court filing that their romantic relationship began only after Willis hired Wade in September 2021. As the New York Times reports, Roman’s lawyer, Ashleigh Merchant, says she can present witness testimony showing the relationship was ongoing at the time Wade was hired. The defense has also alleged that Willis did not obtain necessary county approval to retain Wade; it is claimed that he has been paid out of funds Willis had said were needed to deal with a backlog of cases built up during the Covid pandemic.
Romantic relationships between superiors and subordinates in a prosecutor’s office can create conflicts of interest — which, no doubt, is why Willis vowed to avoid such entanglements when she was campaigning to be elected district attorney. The prosecutor’s obligation is to do justice in the case; that can be undermined by personal motivations.
I’ve argued, for example, that most competent prosecutors, if standing in Willis’s shoes and determined to file 2020 Georgia election-interference charges, would have indicted smaller, discrete cases — not a huge dubious RICO case that could take a very long time to prosecute. And indeed, although four defendants have pled guilty in the matter, none has pled to the RICO count or even a serious crime that would result in a prison sentence — they’ve pled to smaller, discrete, significantly less egregious violations. In seeking the disqualification of Willis and Wade, the defense will obviously contend that they were motivated by their personal relationship to exaggerate the severity and complexity of the case in order to extend the time and scope of Wade’s employment, from which, allegedly, they both benefit financially.
The hearing scheduled Thursday could highlight ironies beyond Willis’s campaign commitment to avoid office romances. In the indictment, Willis has charged several of Trump’s lawyers, on the theory that their complicity in what she alleges were crimes undermines any claims of attorney-client privilege. As noted above, at Thursday’s disqualification hearing, Merchant (Roman’s lawyer) plans to prove that the duration of the Willis/Wade affair exceeds what they’ve represented. For this, she hopes to rely on testimony from Terrence Bradley, described by the Times as “a lawyer who used to work with Mr. Wade, and who for a time represented Mr. Wade in his pending divorce case.”
On behalf of Willis, the district attorney’s office has countered that Bradley should not be permitted to testify because that would violate Wade’s attorney-client privilege. Imagine that.
The defense contends that the conflict generated by the circumstances of the Wade/Willis relationship is so thoroughgoing that the district attorney’s office, as a whole, should be recused from the case and the indictment dismissed. For now, it appears that Judge McAfee will begin by establishing the duration of the relationship, whether it involved legal improprieties, and exactly what is the nature of the conflict — or at least the appearance of a conflict that could undermine public confidence in the proceedings.
In light of the potential self-dealing with public funds, the controversy raises the specter of potential criminal liability. As former federal prosecutor Bill Shipley points out, the federal penal code’s Section 666 (no, I’m not kidding, it’s really 6-6-6) makes it a felony for state officials, whose agencies accept even minor amounts of federal money, to obtain by fraud or otherwise convert to their own use state money or property valued at $5,000 or more. Another perennial favorite of federal prosecutors in public corruption cases (although decidedly not a favorite of the Supreme Court) is the fraud statute (Section 1346, supplementing Section 1341) that makes it a felony to engage in a deceptive scheme that deprives the public of its “intangible right of honest services.”
Acts of fraud, as Fani Willis could probably tell you, are predicates for prosecution under RICO in federal law — though most sensible prosecutors would just charge them as smaller, discrete fraud cases. In any event, if the defense can establish financial self-dealing by prosecutors that potentially rises to the level of state or federal violations of law, that would bolster the argument for disqualifying the district attorney and special prosecutor.