Georgia judge hears arguments on possible DA disqualification

Judge Scott McAfee on Friday entertained lawyers’ arguments about whether the lead prosecutor against former President Donald Trump in Georgia should be disqualified. He said he hoped to have a decision on the matter within two weeks. Attorneys for Trump and some of his co-defendants have brought several witnesses to the stand over the past few weeks, arguing that Fulton County District Attorney Fani Willis lied about the timeline of her relationship with her romantic partner, special prosecutor Nathan Wade. Willis has denied wrongdoing.

What were the arguments presented by the defendants on Friday? Attorney Ashleigh Merchant represents Trump’s co-defendant, Michael Roman, who initially filed the motion to dismiss charges against Roman and disqualify Fulton County District Attorney Fani Willis and her office. Trump and other co-defendants later co-opted that motion. John B. Merchant also represents Roman. He argued that defendants merely needed to show an “appearance of conflict” in the conduct of Willis when she hired her romantic partner, special prosecutor Nathan Wade, to investigate the former president. Willis acknowledged the existence of the relationship in a court filing, but she insisted it began after she hired Wade. Defendants argue that it began before Wade’s hiring.

Speaking on Friday, John Merchant argued that Willis and Wade’s relationship improperly prejudiced the case, saying, “You know it when you see it” when a “personal interest” is present in a prosecution.

Trump attorney Steven Sadow insisted that Willis had behaved unethically when she delivered a speech at a historic black church in Atlanta accusing defendants of attacking her only black special prosecutor. Sadow also echoed Merchant’s argument that the judge only needed to find a “concern” about Wade and Willis’ truthfulness. Sadow criticized previous testimony in court earlier this week by Wade’s former divorce lawyer Terrence Bradley, saying that he “speculated” about the start date of their relationship. Sadow brought up text messages Bradley had previously written saying that the relationship “absolutely” started before Willis hired Wade.

What were the arguments by the prosecution? The prosecution’s attorney, Adam Abbate, argued that Willis had not done anything wrong and that the defendants’ witnesses had not provided any definitive proof of her wrongdoing. He discussed one of the defendants’ witnesses—Robin Yeartie, who was a former employee of Willis—and her motivations in testifying. He asserted that her background as an employee who’d been forced to resign could have compromised her testimony.

Abbate also discussed Bradley’s testimony, calling it untrustworthy. He noted how Bradley said he “speculated” about the start of Willis and Wade’s relationship during earlier messages during earlier conversations with a defense attorney while on the witness stand. He said the source of Bradley’s information in prior conversations with Ashleigh Merchant remained uncertain, and that it did not appear he had sufficient personal knowledge of the relationship to be able to make those statements. He also noted how Bradley had been expelled from the law firm he shared with Wade over his alleged sexual assault of an employee and allegations he’d paid off the victim.

Abbate argued many of the previous cases defendants relied on for their reasoning didn’t apply to this case. Willis’ attorney argued that the defendants had to show an “actual conflict,” not the appearance of one. He said those were the only grounds upon which a district attorney could be disqualified and that disqualification was supposed to be a last-ditch effort unless there was an incurable conflict of interest. The prosecution added that to disqualify Willis, the defendants had to prove she had a “personal interest” in the result of the case—meaning the conviction of the defendants.

Did anyone discuss the recent allegations about phone records? Judge McAfee referenced the documents but expressed hesitancy to re-open evidence and allow the sides to examine them. He did not decide on Friday to re-open evidence related to the documents.

Late last month, after McAfee closed the evidence in the case, defense lawyers filed a motion to enter a “Supplemental Defense Exhibit 38” into the evidence. It suggested that Willis and Wade exchanged thousands of calls and text messages before the date they provided for the start of their relationship, which was “early 2022.” Those cell phone records showed that Willis and Wade had been at one of Wade’s addresses together almost three dozen times before they say they began a relationship. The state objected to the exhibit. Defendants have responded to that filing with another filing of their own arguing why the evidence should be included.

Abbate further raised questions about the reliability of those records, and alleged differences between what the records showed and defense lawyers’ purported narrative about Wade and Willis’ relationship. Both sides had said they were prepared to call witnesses if McAfee decided to re-open the evidence of the case and expose the phone records and accompanying witnesses to examination and documentation.

Dig deeper: Read Carolina Lumetta’s report in The Stew about Willis’ prosecution of former President Donald Trump.