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Left: FILE – Fulton County District Attorney Fani Willis poses for a portrait, April 19, 2023, in Atlanta (AP Photo/Brynn Anderson, File). Right: Former President Donald Trump arrives at the Moms for Liberty meeting in Philadelphia, Friday, June 30, 2023. (AP Photo/Matt Rourke)
Fulton County District Attorney Fani Willis and special prosecutor Nathan Wade may be forced to testify about various aspects of their “personal relationship” during a contested hearing later this week, the judge overseeing the racketeering (RICO) and election subversion case against Donald Trump and others ruled Monday.
The decision is a limited victory for defendant Michael Roman and his attorney, Ashleigh Merchant, who have raised the prosecutorial romance in an effort to dismiss the indictment and disqualify the two prosecutors from the case. Roman previously worked as a staff member for Trump’s 2020 reelection campaign.
“That is no longer a matter of speculation,” Fulton County Superior Court Judge Scott McAfee said, noting the admitted relationship between Willis and Wade. “I think it’s possible that the facts alleged by the defendant could result in disqualification.”
The high stakes hearing is slated for Feb. 15 — with the exact contours of those proceedings subject to how certain testimony unfolds.
A substantial loss for the state, the judge said the four major issues for the hearing are: whether a relationship between Willis and Wade existed; whether the relationship is romantic or not in nature; when the relationship formed; and whether it is still ongoing.
Wade and Willis, in court documents, say their relationship did not become romantic until after the RICO case appointment. Roman, by way of his attorneys, says the DA and her “boyfriend” are lying.
The Fulton County District Attorney’s Office sought to quash all of the subpoenas issued against nine employees and hires. On Monday, the state failed, but the judge deferred ultimate judgment.
“Ms. Merchant has established a good faith basis for relevance,” McAfee ruled. “I don’t see how quashal can be imposed here.”
Anna Green Cross, for the state, repeatedly sought to rubbish what she termed the “spectacle” of opposing counsel in the case having to testify under oath and cross-examination by the defense.
“Even if all of the allegations were true, and they’re not, that is not a basis to dismiss the indictment or disqualify the prosecution,” Cross argued. “The defense is not bringing you facts. The defense is not bringing you law. The defense is bringing you gossip. And the state cannot — and the court should not — entertain that.”
In the end, the court was not persuaded enough to even address any of the state’s arguments about additional media coverage. The judge did, on the other hand, say he would likely intervene in order to keep the upcoming hearing on track and to avoid the appearance of harassment or rumor-mongering.
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The state unsuccessfully tried to quash a subpoena issued against attorney Terrence Bradley. Cross described Bradley as one of Wade’s former business partners and attorneys, with whom the special prosecutor has had a business relationship since 2015. Cross argued that there has been no waiver of attorney-client privilege, the defense knows about the privilege, and the privilege would be invoked should Bradley be called to the stand.
“It is designed to obtain more public relations, more spectacle,” the prosecutor said — reprising a recurring theme in her arguments.
If needed, Bradley would also be able to impeach multiple members of the DA’s office should they dispute the timeline of the relationship between the two prosecutors, Merchant added.
“I will be shocked if Ms. Merchant is able to support that statement,” Cross said. “Shocked. And I don’t think that’s true.”
McAfee said it was his understanding that the defense has communicated with Bradley directly about the relevant issues and asked Merchant to confirm that notion — which she did.
The court ultimately sectioned off Willis and Wade, deeming them potentially likely necessary witnesses to deal with the issues raised by Roman, subject to how Bradley testifies and what other evidence is presented during the Thursday hearing. The judge said he would not, for example, allow the defense to call Willis as their first witness.
“What I’m hearing is, again, emphasizing the conflict and the evidence,” the judge told the state. “And if the state is — it sounds quite confident that it’s going to have an abundance of evidence to show these things are not true at the hearing. But I don’t see how I can make that determination on the front end without live testimony subject to cross-examination and an assessment of demeanor and everything else that goes into those kind of determinations. I don’t see a way around that.”
Asked to make an argument for subpoenaing the other seven members of the DA’s office, Merchant admitted that some of the witnesses are cumulative, some are considered “fallback” witnesses, and that other might be used to impeach.
“These witnesses would all have personal knowledge when the relationship started,” Merchant argued and, when asked by McAfee, clarified that the “relationship was romantic” prior to Wade being appointed special counsel — arguing that Bradley is the source for each witness having such knowledge.
Monday’s hearing was not an undiluted win for the defense, however. Roman was denied a subpoena for bank records related to Wade’s law practice because the request was overbroad. The defense will have an opportunity to narrow down that request in a second subpoena if they choose to do so.
The court also deferred on another requested defense subpoena involving attorney Gabe Banks, a former county and federal prosecutor and presently a defense attorney. Banks insisted he had nothing relevant to add to the case.
Merchant, in no uncertain terms, argued that Banks called Bradley and told him not to testify about the Willis-Wade affair.
“One, he’s my friend, and two, he’s my fraternity brother,” Banks said — saying that he called Bradley on a personal level — but did not deny it. Said he would “take issue” with the conversation being framed as witness intimidation.
