Could Allegations of Affair With Her ‘Special Prosecutor’ Boot Fani Willis From Trump Case?

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A stunningly salacious motion filed Monday by a lawyer for one of Donald Trump’s codefendants in a criminal case in Georgia accuses Fulton County District Attorney Fani Willis of engaging in an “improper, clandestine personal relationship” with a married private attorney she hired as a “special prosecutor.”

The motion asserts that since Willis never got the Fulton County Commission’s approval to hire Nathan Wade, as required by state law, “the entire prosecution is invalid and unconstitutional.” It argues that Wade, “who assisted in obtaining both grand jury indictments,” wasn’t lawfully appointed.

If the case proceeds, the motion requests that Willis’ office as well as Wade be recused from further involvement, which ostensibly would mean that another prosecutor’s office would take over the case and put fresh eyes on the entire theory of prosecution. 

The motion was filed by Ashleigh Merchant, who represents former Trump campaign official Mike Roman in the criminal case Willis is prosecuting against Trump, Roman, and 13 other codefendants.

On the same day Merchant filed her motion for Roman, the Wall Street Journalreported that a representative of Wade’s wife served Willis with a subpoena at her office, compelling the Fulton County district attorney to testify in the Wades’ divorce case. 

Hell hath no fury like a woman scorned, as the saying goes. 

If the allegations are substantiated by the trial judge, Willis not only may have violated professional ethics rules but both state and federal law. The development could even jeopardize the validity of this prosecution. 

If Fulton County Superior Court Judge Scott McAfee grants Merchant’s motion as the presiding trial judge, the disqualification would reach all of the defendants, including Trump, because the wrongdoing of which Willis is accused affects every defendant in the case.

We have written previously about the abusive nature of Willis’ prosecution, under the state’s Racketeer-Influenced and Corrupt Organizations Act, of Trump and others who questioned the 2020 presidential election results in Georgia. 

This partisan attempt by Willis, a Democrat, to criminalize activity protected by the First Amendment is a profound assault on our democratic republic and the rule of law. 

Merchant wrote that she did not file the motion “lightly” or without “considerable forethought, research, or investigation.” Roman’s lawyer said she reviewed records of the divorce action between the Wades before a judge in another county sealed them at the couple’s request without holding a required hearing.

The essence of her 38-page motion is that Willis and Wade began a romantic relationship prior to her hiring him and that relationship has continued during the prosecution and Wade’s marriage. Under Georgia law, the 13 grounds for divorce include adultery.   

Merchant’s motion says that Willis and Wade took trips together to “Napa Valley, Florida,” and to “the Caribbean” on the Norwegian and Royal Caribbean cruise lines, with tickets and hotel rooms purchased by Wade. (It isn’t clear whether both California’s Napa Valley and Florida’s Nappa Valley are meant, or just one of the two.)

These trips occurred while Willis’ office, with her authorization, was paying Wade “an estimated $1,000,000 in legal fees.” (However, at least one news report, in the Atlanta Journal-Constitution, said Wade was paid closer to $654,000 since January 2022.)

Thus Willis, who earns a little under $200,000 a year, may have benefited personally from county funds she sought (allegedly under false pretenses) and then paid Wade. If this is true, it certainly would be strong circumstantial evidence that Willis engaged in fraud and received kickbacks, among other potential criminal charges.

The motion by Roman’s lawyer alleges that Willis engaged in fraud because she paid “her partner a large sum of money that was originally allotted to clear the backlog of cases in Fulton County following the [COVID-19] pandemic.” The RICO cases against Trump, Roman, and other defendants obviously have nothing to do with COVID-19.

The motion also alleges that Willis and Wade “have cohabited in some form or fashion at a location owned by neither of them.” The trial judge should delve into whether that is true, and if so, who paid for Willis and Wade to live together and with what funds.

Wade’s billing records show he was in two meetings at the White House, including with the White House counsel for President Joe Biden, in May and November 2022—before the indictments of Trump and the others were issued. 

Although plausible reasons may exist for those White House meetings, the optics aren’t good. And the meetings bring up the possibility that the Biden administration had some involvement in a case being filed by a politically ambitious Democratic prosecutor against Trump, who Biden defeated in 2020 and who looms as the president’s likely opponent in his reelection bid this year. 

Wade’s billing records, which are attached as exhibits to the motion, contain multiple daily entries in which he billed eight hours using opaque descriptions such as “Prepared cases for pre trial [sic].” In one entry, Wade billed 24 hours in a single day—no coffee or bathroom breaks, we suppose.

In her motion, Merchant asks a series of critical, factually relevant questions about why Willis hired Wade in the first place. 

For example, since Wade had “never tried a felony RICO case” and plenty of other Georgia lawyers “specialize in the prosecuting and defending [of] RICO cases,” why would the district attorney appoint someone with no experience in “a case with such national significance” when she had access to those experienced lawyers?

In fact, Merchant points out that Wade would not be qualified to be appointed as a defense counsel under Fulton County’s standards for appointing such counsel.

“Is that why the district attorney did not seek approval for his appointment?” Merchant asks in her motion.  

As Merchant stresses, these shocking, lurid details are important because:

—Willis’ failure to get approval for hiring a special prosecutor as required by law prior to his “obtaining indictments against” Roman (and the other defendants) renders Wade’s involvement “a nullity and without effect under Georgia law, so the indictments he assisted in securing suffer from a structural and irreparable defect and must be dismissed.”

—Willis’ personal relationship with Wade prior to his appointment “created an impermissible and irreparable conflict of interest under Georgia’s Rules of Professional Conduct,” requiring that Wade, Willis, and her entire office be disqualified from any involvement in the prosecution.

—Willis’ intentional failure “to disclose her conflict of interest,” combined with her decision to employ an inexperienced special prosecutor “based on her own personal interests,” may “be an act to defraud the public of honest services.” This not only would be a federal crime under 18 U.S.C. § 1346, but “a predicate act which could result in a RICO charge against both the district attorney and the special prosecutor.”

Merchant correctly asserts that, apart from these legal and ethical issues, the conduct of Willis and Wade “undermines the sanctity of the criminal justice system, erodes public trust in our judicial system, and would place them above the law.”

Roman’s lawyer also urges the court not to “allow this conduct to go unchecked.” That is particularly true, she argues, because Willis used her platform as a public official “and the megaphone it provides to tour the country giving interviews in her pursuit of a conviction.”

The nation contains approximately 2,300 district attorney offices. Recusals by individual offices happen regularly. When a conflict of interest exists, or even the appearance of such a conflict or impropriety, a district attorney will recuse not only the individual prosecutor handling the case but the entire district attorney’s office, regardless of the procedural stage of a criminal case.

A typical recusal occurs when a prosecutor is married to, lives with, or has a relationship with a key witness, the defense attorney, a police officer involved in the case, or the victim.  Under those circumstances, that office would recuse itself from that case as a matter of routine.

The case then would be handled by another prosecutor in a different county in the same state. That prosecutor would take a fresh look at the charges and make an independent decision regarding the validity of the prosecution. 

Here, if the facts are even partially true, the optics not only are horrible but call into question the judgment, fairness, and impartiality of Fani Willis.

Since Fulton County’s district attorney isn’t voluntarily going to recuse herself or her office from further proceedings, it will be up to the trial judge to conduct a fair and impartial hearing. This would include calling witnesses to develop a complete record.

The Georgia State Bar Association likely will need to investigate possible ethical violations by Willis, Wade, and any other lawyers in their offices who had knowledge of these actions and failed to report them.

Given the possible violation of numerous state and federal criminal laws, Georgia Attorney General Christopher Carr, a Republican, and U.S. Attorney for Atlanta Ryan Buchanan, a Democrat, ought to open investigations.

This motion should be taken seriously. If the allegations are true, the Fulton County District Attorney’s Office should be recused from any further involvement in any of these cases.

Willis’ conduct, including her duty of candor and adherence to the law and state ethics rules, should be held to the same standards that the law demands of all state and federal prosecutors. If she broke the law, played fast and loose with the rules, or violated state ethics rules, Willis should suffer the consequences.

One way or the other, the truth must come out.

By

Portrait of Hans von Spakovsky

Hans von Spakovsky@HvonSpakovsky

Hans von Spakovsky is a senior legal fellow at The Heritage Foundation, a former commissioner on the Federal Election Commission, and former counsel to the assistant attorney general for civil rights at the U.S. Department of Justice. He is a member of the board of the Public Interest Legal Foundation.

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Cully Stimson@cullystimson

Charles “Cully” Stimson is a leading expert in national security, homeland security, crime control, immigration, and drug policy at The Heritage Foundation’s Center for Legal and Judicial Studies. Read his research.