Many of us were stunned by Fulton County District Attorney Fani Willis’ decision to prosecute former President Donald Trump and 18 additional co-defendants under the state’s Racketeer-Influenced and Corrupt Organizations (RICO) Act last August. Although I’m not a lawyer, it certainly seemed to be a rather novel – and highly partisan – application of a law that hitherto had been used to prosecute individuals engaged in organized crime. The indictment was also extraordinary because freedom of speech, which includes the right to question the results of an election, is guaranteed to us under the First Amendment.
At any rate, a motion filed last week by Georgia attorney Ashleigh Merchant, who represents co-defendant Michael Roman, a former Trump campaign official, alleges that Willis has engaged in an “improper, clandestine personal relationship” with Nathan Wade, the special prosecutor “who assisted in obtaining both grand jury indictments.” The filing states that Willis hired Wade without obtaining approval from the Fulton County Commission, which is required by state law. Therefore, according to the motion, “the entire prosecution is invalid and unconstitutional.”
The document alleges that Willis hired Wade because she was romantically involved with him. In fact, their romantic relationship predates Wade’s hiring, according to the filing, which also alleges that both Willis and Wade have benefited financially from the approximately $650,000 in compensation Wade has received for his services since January 2022. Wade has used his income to take Willis on lavish vacations to Napa, California, and to resorts in Florida and the Caribbean.
Perhaps the most important revelation is that Wade’s billing records show he met with investigators from the House Jan. 6 Committee in April 2022, held a conference with the White House Counsel the following month, and conducted an eight-hour “[i]nterview with DC/White House” in November 2022. These charges raise questions about possible coordination between the Biden administration and state prosecutors in their targeting of Trump.
Wade’s qualifications for the job have also come under scrutiny. The Wall Street Journal reported that Wade has never tried a racketeering case and according to the filing, “There exists no record that Wade, a lawyer in private practice hired to lead the Trump case, has ever handled a felony trial in Georgia.”
It gets worse. According to the Journal, just hours before Merchant filed her motion, Willis was served (at her office) with a subpoena to testify in Wade’s divorce case.
Merchant has called for the charges against Roman to be dismissed and for Willis and Wade to be recused from the case.
Heritage Foundation senior fellow Hans von Spakovsky, a former Federal Elections commissioner, noted this “ostensibly would mean that another prosecutor’s office would take over the case and put fresh eyes on the entire theory of prosecution.” He explained that, “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 or trial judge,” von Spakovsky continued, “the disqualification would reach all of the defendants, including Trump, because the wrongdoing of which Willis is accused affects every defendant in the case.”
While the document contains no explicit evidence of the pair’s affair, it states that “sources close to both the special prosecutor and the district attorney have confirmed they had an ongoing, personal relationship.”
Merchant wrote she had “reviewed the case file in Wade’s ongoing divorce proceedings at the Superior Court Clerk’s Office and made copies of certain documents. But the divorce file was later improperly sealed because no court hearing was held as required by law.” She added that she has asked a judge to unseal the file and will share her findings once the seal has been lifted.
Willis broke her silence on these allegations in a 35-minute speech to parishioners at the Big Bethel AME Church in Atlanta on Sunday. Addressing her remarks to God, she predictably played the race card. Willis said she had hired a white woman, a white man, and a black man to prosecute the case, but claimed the black man was the only one whose qualifications were being challenged. “God, isn’t it them who’s playing the race card when they only question one?” she asked.
Although she did not mention Wade by name, she defended the black man’s “impeccable credentials.” She said, “The black man I chose has been a judge for more than 10 years, run[s] a private practice more than 20 [years]. Represented businesses in civil litigation … served as a prosecutor, a criminal defense lawyer, special assistant attorney general.”
She continued, “I’m just asking, God, is it that some will never see a black man as qualified, no matter his achievements?”
It remains to be seen whether Willis’s self-serving remarks will help or hurt her. But clearly, the optics of the allegations against the pair look terrible.
It will be up to Judge McAfee to conduct a thorough review of the evidence presented and to render a decision. According to the Atlanta Journal-Constitution, McAfee is a 34-year-old former prosecutor and inspector general who was appointed as a Fulton County Superior Court judge by Republican Gov. Brian Kemp in February 2023. AJC notes that McAfee once “worked under Willis.” Friends described him to the media outlet as “driven and mild-mannered with conservative credentials.” I suppose we’ll see.
A court-ordered recusal from this case would certainly be a humiliating way for Willis’s 15 minutes of fame to come to an end. If the allegations turn out to be true, it would also be well-deserved and long overdue. Hopefully, Judge McAfee will take a load off Fani — and Wade as well.
A previous version of this article appeared in the Washington Examiner.
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I think the bigger question is what would happen to Trump if these cases start getting thrown out, gutted, or overturned one by one over the next 4, 5, or 6 months.
I get that it might be wish casting but given how all of these cases against Trump were manufactured to keep Trump out of the WH but it would be poetic justice if the maneuvers hurt the Dems rather than helped them.