Fulton County Superior Judge Scott McAfee confirmed on Feb. 12 that the hearing about misconduct claims against Fulton County District Attorney Fani Willis and special prosecutor Nathan Wade “must occur” on Feb. 15 and could lead to disqualification.
Ms. Willis is presiding over the high-profile racketeering case that names former President Donald Trump and 14 others.
“I think it’s clear that disqualification can occur if evidence is produced presenting a conflict or the appearance of one, and the filings submitted on this issue so far have presented a conflict of interest that can’t be resolved as a matter of law,” Judge McAfee said.
State attorneys had sought to quash the subpoenas on nine members of the district attorney’s office as well as an attorney who represented Mr. Wade during his divorce.
“I don’t see how quash can be imposed here,” Judge McAfee said during a Feb. 12 hearing ahead of this week’s anticipated hearing in which the district attorney will have to respond to allegations of an “improper” relationship.
On Jan. 8, defendant Michael Roman filed a lengthy motion that alleged that Ms. Willis was in a personal relationship with Mr. Wade, an attorney with a private law firm whom she had contracted to take a lead position in the racketeering case. He alleged that Mr. Wade took Ms. Willis on “lavish” vacations, including a cruise, and that she financially benefited from the situation.
He also made several other allegations, including that Mr. Wade wasn’t qualified for the position and that Ms. Willis used funds improperly, which the judge indicated would not be the focus of the Feb. 15 evidentiary hearing. After the huge claims were made, several co-defendants filed their own motions to disqualify Ms. Willis based on “prejudicial” actions.
“Specifically looking at defendant Roman’s motion, it alleged a personal relationship that resulted in a financial benefit to the district attorney that is no longer a matter of speculation,” the judge said. “The state has admitted a relationship existed, and so what remains to be proven is the existence and extent of any financial benefit, again if there even was one.”
Judge McAfee said the claims of prejudice were based on public statements—a speech Ms. Willis gave at an Atlanta church where she invoked God and said her critics were playing the “race card”—and did not warrant a hearing meant to produce evidence for the record. Other issues such as Mr. Wade’s resume also did not warrant an evidentiary hearing, according to the judge.
The district attorney had filed a motion arguing that no evidentiary hearing was necessary because no conflict of interest had occurred, but the judge rejected the argument.
“Because I think it’s possible that the facts alleged by the defendant could result in disqualification, I think an evidentiary hearing must occur to establish a record on those core allegations,” Judge McAfee said.
He said that the hearing will focus on “whether a relationship existed, whether that relationship was romantic or not in nature, when it formed, and whether it continues.”
“I think that’s only relevant because it’s in relation to the question of the extent of any personal benefit conveyed as a result of the relationship,” Judge McAfee said.
Mr. Roman’s attorney, Ashleigh Merchant, alleged that the relationship began as early as 2019 and that the couple cohabited at one point and claimed in a court filing that she could produce witnesses to testify to these allegations.
Mr. Wade had submitted a sworn affidavit stating that he had met Ms. Willis in 2019 but that a “personal relationship” began only in 2022 and that Ms. Willis split expenses with him so there was no financial benefit.
Anna Cross, another one of the prosecutors contracted by the district attorney for the case, said during the Feb. 12 hearing that none of the subpoenaed witnesses have anything to say that contradicts Mr. Wade’s affidavit.
Witnesses
Ms. Cross said these witnesses had never been spoken to by Ms. Merchant and would not support the “wild speculation” in the allegations.“The defense is bringing you gossip,” she said.
None of the witnesses in the district attorney’s office were properly subpoenaed and therefore will not be testifying, according to Ms. Cross.
“How can Mr. Wade not have relevant information to this inquiry? He probably has the most relevant information,” Ms. Merchant argued. “Ms. Willis as well.”
She argued that an affidavit didn’t meet the bar for admissible testimony, that the person can “cherry pick” what to talk about without cross-examination, and that Mr. Wade’s previous affidavit filed in his divorce case contradicted the recent one. In May 2023, he submitted an affidavit answering standard questions in a divorce proceeding, saying he hadn’t had a relationship outside of the one with his spouse during the course of the marriage. After Mr. Roman’s allegations, he updated the record in his divorce case, instead invoking his Fifth Amendment rights.
The judge agreed that Ms. Willis and Mr. Wade were in another category but said not all of the witnesses whom Ms. Merchant had subpoenaed to testify had relevant information. A bank that Mr. Wade uses, for instance, won’t have to open its records to Ms. Merchant.
Terrence Bradley, an attorney who represented Mr. Wade during his divorce proceedings, himself did not submit a motion to quash, but the district attorney’s office filed a motion on his behalf.
Mr. Bradley is the only potential witness whom Ms. Merchant had communicated with, the parties clarified during the hearing. He had shared some information supporting the relationship allegations, and Ms. Merchant believes that many of the other staff members could corroborate that information.
If the other witnesses testify to the contrary, Mr. Bradley’s testimony would impeach the witnesses, according to Ms. Merchant.
Ms. Cross asked that the subpoenas be held off until Mr. Bradley was made to testify, but the judge disagreed, specifying that Ms. Willis should be ready to testify and that Ms. Merchant’s not having communicated with staffers wasn’t a basis to quash a subpoena.
Judge McAfee said it was possible that the state has an “abundance” of evidence that the allegations are false, but he wouldn’t be able to make a determination without testimony and cross-examination.
The judge also said that if anything resembling harassment or efforts to embarrass arose, he would proactively intervene.
