The Georgia case against Trump may be fatally compromised

This much we know: Fulton County District Attorney Fani Willis had an undisclosed sexual relationship with her subordinate, Nathan Wade, paying him $728,000 in taxpayer money, and received at least $13,000 worth of meals and vacations in return. At the hearing for the motion to disqualify her from continuing in Georgia’s Trump prosecution, Willis defended herself by maintaining that she paid Wade back, but always in cash, and always withdrawn from a stash in her home rather than from an ATM, so there are no transaction records.

That is not good.

But what’s worse is how the Fulton County DA’s office conducted Willis’s defense. At the hearing, it came out that Wade’s attorney in his divorce proceeding, Terrence Bradley, had spoken with Ashleigh Merchant, the attorney for Mike Roman — the indicted GOP political operative who brought the disqualification motion — about when the relationship between Willis and Wade began. Worse, Bradley had done so in a text message, telling Merchant that her motion “looks good” in response to questions about its accuracy.

This put Willis’s team in an impossible position. Do you argue that Bradley was sharing privileged information that couldn’t be admitted in court, meaning his statement was true? Or do you argue that Bradley is untrustworthy?

Strangely, Fulton County chose to do both.

In the same proceeding, Fulton County argued that Bradley only knew that Nathan Wade had a pre-appointment relationship with Fani Willis because he had told his lawyer about it in the course of his divorce representation. But those same prosecutors had just seen Wade swear under oath that the relationship only began after he was appointed. If the communication was privileged, it was also true, and it contradicted the sworn testimony prosecutors had just seen Nathan Wade give. But no one took their ethical duty seriously enough to pause the hearing and direct him to tell the truth.

Or, nearly as bad, prosecutors could have known full well that the communication wasn’t privileged, that Bradley knew what he knew as Wade’s law partner, not as his lawyer. And that after Bradley received what seemed to be a glut of messages telling him not to testify, he decided to falsely swear that the communications were privileged so he wouldn’t tank the trial. In which case, a lawyer obeying her duty of candor to the court should not have argued his claims were truthful.

There were other ways that Fulton County’s defense of their leader disappointed. There was Wade’s constant evasiveness, claiming he did not remember how many cabins he had rented in his life, and that when he had sworn under oath that he had not had any relationships with other women while married, he meant while happily married.

Meanwhile, Willis bulldozed into the courtroom with testimony so nonresponsive and embittered that the trial court had to threaten to strike her testimony — a remedy I have never seen employed in a Georgia courtroom. An ordinary person who came to court and acted this way would likely be remanded into custody.

Then there’s the simple fact that, in an effort to avoid this hearing, the Fulton County DA’s office moved for sanctions against defense lawyer Ashleigh Merchant, claiming she had no good-faith basis to believe there was a pre-appointment relationship, despite the fact that they knew full well that Terrence Bradley had told her so, privileged or not.

Shockingly, the State dealt with Bradley’s potentially devastating out-of-court statements with a completely irrelevant allegation of sexual assault. This evidence was not admissible — the goal was to hurt him in front of the largest possible audience.

In the interests of full disclosure, I am a Fulton County criminal defense lawyer, and I often appeal from Fulton County convictions. But it honestly shocked me to see the office act this way when it knew others were watching.

Judge Scott McAfee is now in an impossible situation. Any credibility finding he makes about when the Willis-Wade relationship started, or whether Wade was reimbursed, is bound to come under scrutiny, and it is likely that federal and state investigations into those facts will continue long after he makes a decision. And even if McAfee decides that he cannot consider privileged information to make his determination, there is no reason why the public could not access this information and make its own decision about whether Nathan Wade and Fani Willis told the truth.

But even without making any findings of credibility here, there is an obvious appearance of impropriety. A judge is being asked to seriously consider whether the sitting district attorney perjured herself in this proceeding. If this case were in federal court, disqualification would be a no brainer — federal prosecutors are not allowed to participate in cases where someone with whom they have a close personal relationship has a substantial financial interest. In other words, they can’t hire a spouse or boyfriend to be a special prosecutor.

The U.S. Supreme Court has pointed to such rules with approval, and Georgia courts have adopted the reasoning from that case in similar contexts. Judge McAfee’s best option may be not to make any credibility determinations at all, but simply to point to the confirmed conduct, and the way that Fulton County’s lawyers conducted themselves, as a basis for disqualification.

There is little doubt in my mind that Donald Trump committed serious crimes in Georgia. He lied to elected officials and to the public, and encouraged people to falsely represent themselves as electors, all in an effort to steal an election he had lost. Any competent prosecutor could have secured a conviction for false statements with little more than what was in the recorded phone call with Brad Raffensperger, where Trump claimed 5,000 dead people voted for his opponent.

Instead, Fulton County sought to maximize attention and public expenditure. It is a shame when corruption and incompetence at one level of government keeps us from addressing it at another level. But even the guiltiest defendant deserves a fair trial, and it is not clear that Fulton County has the will, or the ability, to provide one.

Andrew Fleischman is an attorney at Sessions & Fleischman in Atlanta. Follow him @ASFleischman.