Could Allegations Against DA Derail Trump’s Trial In Georgia?

Allegations against Fulton County District Attorney Fani Willis, who is leading the prosecution of Donald Trump in Atlanta, seem unlikely to wholly derail the attempt in Georgia to hold the former president accountable for his attempt to overturn the 2020 election but have handed him additional grist for his grievance-based politics and could certainly delay the trial until after the 2024 election.

In a court filing Monday, a lawyer for former Trump campaign staffer and co-defendant Mike Roman alleged that Willis had engaged in an inappropriate “personal, romantic relationship” with the special prosecutor she hired for the case in what amounted to a conflict of interest worthy of disqualification.

The filing urging the court to dismiss the charges against Roman and disqualify Willis from prosecuting the case alleges that the district attorney and special prosecutor Nathan Wade were engaged in a “romantic relationship” prior to her bringing him on to the case. It further argues that Wade, whose firm handles car accidents and family law disputes, is under-qualified for the position for which he has already claimed at least $654,000 in legal fees.

To justify seeking Willis’ disqualification, the filing alleges that Wade took Willis on vacations, presumably with money he earned from the position, creating a conflict of interest.

“[T]he district attorney and the special prosecutor have been engaged in an improper, clandestine personal relationship during the pendency of this case, which has resulted in the special prosecutor, and, in turn, the district attorney, profiting significantly from this prosecution at the expense of the taxpayers,” states the filing submitted by Roman’s lawyer Ashleigh Merchant.

The allegations are largely based on sealed records from ongoing divorce proceedings between Wade and his wife of 28 years. While so far unsubstantiated, the allegations have already thrown a wrench into Willis’ effort to hold Trump and 18 co-defendants to account for actions aimed at overturning the 2020 presidential vote in Georgia.

“We have a lot of smoke and very little fire,” said Anthony Michael Kreis, an associate law professor at Georgia State University. “As a legal matter, that means there’s really nothing there yet. And so this is all a political issue right now.”

The Trump legal team and conservative media have jumped on the allegations as a justification to cast the entire prosecution as corrupt. This move follows the tried-and-true PR strategy pursued by Trump ever since he entered the political fray: to cast his opponents as either unqualified (Barack Obama’s birth certificate) or corrupt (“Crooked Hillary” or “Crooked Joe Biden”).

At the heart of the allegations is the claim that Willis hired Wade, whom she has called a mentor, and received the personal benefit of vacations he paid for with money earned from the special prosecutor position.

Conflicts of interest under Georgia law can be found if a prosecutor previously had a professional relationship with the defendant, such as representing or consulting for them for the same offense, or if the prosecutor has developed a personal stake in the case or if there is a financial stake in the outcome. The allegations levied against Willis fall into the financial benefit category.

Though the facts around the allegations are not yet known, Merchant’s filing does note that Willis hired Wade despite his lack of relevant prosecutorial experience and that he has earned a large amount from the billable hours he’s filed in this case.

“I think that a lot of people thought it was odd to put someone with no experience in charge,” said Andrew Fleischman, a criminal defense attorney based in Atlanta.

Looking at Wade’s lack of relevant experience, the allegations, if assumed to be true, could lead someone to think that “the prosecutor is pursuing a case, and as a result of that case they are having their vacations paid for,” Fleischman said.

That is what Roman, Trump and his co-defendants would like a judge to find. But one sticking point is whether this still unproved conflict is related to the outcome of the case.

For a conflict to rise to the level of disqualification, the prosecutor must have “acquired a personal interest or stake in the defendant’s conviction,” according to a 2018 Georgia appeals court decision. That conflict must be “more than a theoretical or speculative conflict.”

The allegations, then, must be proved and the presiding judge must see them as a conflict related to the outcome of the case.

Willis found herself disqualified in a related case when she sought to subpoena Lt. Gov. Burt Jones about his role as a fake elector for Trump in 2020. A judge disqualified Willis from subpoenaing Jones after she held a fundraiser for Jones’ Democratic opponent in 2022. In his decision, the judge determined that Willis’ open endorsement of Jones’ opponent gave her a personal stake in the outcome of the case, as it could harm Jones’ campaign and aid his opponent.

“It’s hard to say without greater verification of the facts or more information, but for now what has been alleged does not rise to the level of disqualification,” Kreis said.

Willis’ office said it will respond to Merchant’s filing with a motion to dismiss the request for the district attorney’s disqualification.

“First, the prosecutors are going to make a filing but will contest everything on a legal basis and probably not a factual basis,” Kreis said.

Fulton County Superior Court Judge Scott McAfee would then have to decide whether to call a hearing on the matter at which further facts could be presented and argued.

“If Judge McAfee entertains the motion, he’ll hear evidence and he’ll go down this list [of conflicts that could warrant disqualification] and he’ll see if any of those apply to the extent that it impacts the decision-making in this case,” said Pete Skandalakis, executive director of Prosecuting Attorneys’ Council of Georgia.

The big questions around such a hearing is whether Wade’s divorce records would be ordered to be unsealed, as Merchant’s filing requests, and whether those records or any witnesses substantiate the allegations.

Any hearing on divorce records will also deal with the reliability of accusations made by partners in the middle of a bitter separation.

“I’m incredibly skeptical of a filing that relies on a divorce filing for its evidence,” Kreis said. “Domestic disputes are so inherently contentious. I don’t put stock in it unless there are affidavits.”

If McAfee decides that a conflict of interest exists and warrants disqualification, Willis will not be able to appeal the decision.

Skandalakis will then be tasked with selecting a replacement. That replacement could be another district attorney in the state, an attorney in private practice, a solicitor general, an attorney from the Prosecuting Attorneys’ Council, an attorney employed by the state Department of Law or a retired prosecuting attorney.

Skandalakis is solely in charge of appointing a replacement.

“There’s no matrix about how I go about making the decision,” Skandalakis said.

When looking for a replacement, he said, he looks at other prosecuting offices that have the resources to take it on and aren’t weighed down by a heavy caseload. If the replacement is a district attorney, he looks to offices in the same region. That would mean pulling in a district attorney close to Fulton County rather than reaching out to far-flung parts of the state.

There is no timetable for a replacement if Willis were disqualified. And though the process is meant to be quick, no replacement has yet been appointed to prosecute the Jones case a year and a half after Willis was disqualified from it.

And that gets at the real point behind these motions. Trump’s team is throwing everything they’ve got into delaying and derailing the prosecutions he faces with the hope that he can win the presidential race in November and assume the immunity from prosecution afforded to sitting presidents.

Even if Willis is not disqualified, a hearing into the issue would likely affect the proposed Aug. 5 trial start date.

“If it’s granted, it hugely delays the trial,” Fleischman said. “It’s not going to happen on time.”