A Georgia judge is expected to decide this week whether to boot Fulton County District Attorney Fani Willis (D) and her office from former President Trump’s election interference case because of her romance with a subordinate.
Judge Scott McAfee has said Willis’s relationship with special prosecutor Nathan Wade “could result” in their disqualification if evidence shows an “actual conflict of interest or the appearance of one.”
Any decision the judge makes could have resounding implications for the historic prosecution, from sharpening already intense scrutiny of Willis to catapulting the case into uncertainty.
Here’s what we know ahead of the judge’s ruling.
How did we get here?
Fani Willis, Fulton County District Attorney, at the Fulton County Courthouse in Atlanta, Georgia, US, on Friday, March 1, 2024. The judge overseeing Fulton County’s prosecution of Donald Trump and others over his alleged effort to overturn the 2020 presidential election is holding the hearing as he considers whether he should disqualify Fani Willis over claims she gained a financial and personal benefit from her romantic relationship with the lead prosecutor, Nathan Wade. Photographer: Alex Slitz/AP/Bloomberg via Getty Images
Trump’s Georgia election interference case went on a weeks-long detour after a January motion filed by defendant Michael Roman, a Trump 2020 campaign operative, accused Willis of benefiting financially from her romance with Wade through lavish vacations they took together.
Both prosecutors were called to the witness stand to defend their integrity in fiery hearings where, at times, the drama rivaled any legal soap opera. They confirmed their relationship but said it began in early 2022 — after Wade had been hired to prosecute Trump.
What happens if Willis is disqualified?
Fulton County District Attorney Fani Willis looks on during a hearing on the Georgia election interference case, Friday, March, 1, 2024, in Atlanta. (AP Photo/Alex Slitz, Pool)
If Willis is disqualified, Trump’s case would be handed over to a state entity called the Prosecuting Attorneys’ Council of Georgia. The agency would appoint another Georgia district attorney’s office to take up the prosecution, even though the case would still have a Fulton County judge and jury.
“If he removes her, that’s not going to kill the case, but it’s going to make the case far more difficult,” said Darryl Cohen, a former Fulton County assistant district attorney. “Because that will mean, in all likelihood, that the Fulton County DA’s office will not prosecute it, and that leaves … only a few other district attorneys in Georgia who are capable of handling it.”
Cohen said that only a few counties in Georgia have the manpower to take on such a case — and even then, some of their district attorneys may not want to take it up.
The council’s executive director, Pete Skandalakis, previously said he would consider “how far” from Fulton County the new prosecutor would be, indicating a nearby county might be tasked with the massive prosecution if Willis and her office are removed from it.
The new prosecutors could handle the case at their discretion, meaning they could alter charges or even drop it altogether.
How long would it take to reassign the case?
FILE – Burt Jones, then a candidate for Georgia lieutenant governor, participates in a Republican primary debate, Tuesday, May 3, 2022, in Atlanta. (AP Photo/Brynn Anderson, Pool, File)
There’s no timetable dictating by when the council must appoint a new prosecuting office, which could cause delays.
In July 2022, Willis and her office were disqualified from prosecuting Georgia Lt. Gov. Burt Jones after the district attorney headlined a fundraiser for one of his political opponents. The council still has not reassigned the case, a year and a half later.
Any delay could be exacerbated by an appeal of McAfee’s decision by the district attorney’s office. Skandalakis told NBC News that he would hold off on choosing a new prosecutor until after the appeal was resolved.
What happens if Willis is not disqualified?
Fulton County District Attorney Fani Willis gestures while testifying as Fulton County Superior Judge Scott McAfee presides during a hearing on the Georgia election interference case, Thursday, Feb. 15, 2024, in Atlanta. (Alyssa Pointer/Pool Photo via AP)
If McAfee rules that Willis can continue prosecuting the case, he could grant the defense a certificate to appeal immediately or make them wait for a post-trial conviction to appeal, according to Anthony Michael Kreis, a law professor at Georgia State University who has closely followed the case.
The defense could then request discretionary review by the appellate court — though grants of such appeals are rare, said Melissa Redmon, director of the University of Georgia’s Prosecutorial Justice Program. If they do choose to apply for a review of the matter, defense attorneys would have 10 days after McAfee’s order to do so, she said.
But a decision not to disqualify Willis would hardly let her off the hook, Cohen said.
“If you think that she’s been under a microscope now … it won’t matter what she does; she’s going to be wrong,” he said. “If she turns left, she should have turned right. If she turns right, she should have turned left.”
How will Judge McAfee make his decision?
Fulton County Superior Judge Scott McAfee speaks in court, Tuesday, Feb. 27, 2024, in Atlanta. Terrence Bradley, Wade’s former law partner and onetime divorce attorney, testified as a judge considered an effort by lawyers for former President Donald Trump to disqualify Fulton County District Attorney Fani Willis over her romantic relationship with Wade, a top prosecutor who had been Bradley’s law partner. (AP Photo/Brynn Anderson, Pool)
McAfee’s decision on whether to disqualify Willis could hinge on how he weighs the evidence.
Fulton County prosecutors want the judge to consider whether an actual conflict of interest arose from Willis and Wade’s relationship, while defense attorneys say the appearance of a conflict is enough to kick them off the case.
“The entire outcome is pretty much contingent on what standard of disqualification he applies,” Kreis said.
“[The defense] has come up quite short of proving or demonstrating that Fani Willis received a considerable kickback, or anything of that nature, from the prosecution, so if the standard is an actual conflict, I think they have a pretty uphill battle,” he continued. “But if the standard is an appearance of a conflict or an appearance of impropriety — I think it’s possible that the defense has muddied things up enough.”
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During the state’s closing arguments earlier this month, McAfee pushed back on prosecutors’ contention that an actual conflict must be proven, citing several cases that he said “seem to exclusively rely on the appearance of impropriety.”
The exchange could indicate the judge is looking at a broader method to examine the evidence.
Could there be other penalties?
ATLANTA, GA – FEBRUARY 15: Fulton County Special Prosecutor Nathan Wade testifies during a hearing in the case of the State of Georgia v. Donald John Trump at the Fulton County Courthouse on February 15, 2024 in Atlanta, Georgia. Judge Scott McAfee is hearing testimony as to whether DA Fanni Willis and Wade should be disqualified from the case for allegedly lying about a personal relationship. (Photo by Alyssa Pointer-Pool/Getty Images)
Even if Willis and her office are not disqualified from the case, they — and other witnesses who testified during the hearings — could still face other penalties.
For example, while Willis and Wade maintained that their relationship began after Wade’s hiring, two defense witnesses testified that they started seeing each other romantically years before then.
If new evidence surfaces to support the defense testimony, Willis and Wade could face disciplinary action from the State Bar of Georgia — or, a criminal perjury inquiry, though Cohen said that’s unlikely.
However, the testimony of one defense witness was also drawn into question. Terrence Bradley, Wade’s ex-law partner, claimed the prosecutors began dating before Wade’s hire, but on the witness stand, he called his remarks “speculation.” His testimony could “easily” spark an inquiry from the state bar or a criminal inquiry, Cohen said.
Will it delay Trump’s trial?
File – Republican presidential candidate former President Donald Trump speaks at a Super Tuesday election night party Tuesday, March 5, 2024, at Mar-a-Lago in Palm Beach, Fla. (AP Photo/Evan Vucci)
A trial date has not yet been set in Trump’s Georgia case, though prosecutors proposed an Aug. 5 start.
Either outcome could tie up the case in appeals, but the former president’s other legal matters might already make delay inevitable. Trump’s federal election interference case in Washington, D.C., is on pause as he appeals the issue of presidential immunity, and delays in his Florida federal case appear imminent — which could push back the start of a Georgia trial.
“I think the August trial date was ambitious,” Redmon said, citing numerous unresolved motions that could still be appealed once ruled on by McAfee. “I would be surprised if the case went to trial before the election.”
How will it affect key players’ reelection campaigns?
Fulton County Superior Judge Scott McAfee presides in court, Friday, March, 1, 2024, in Atlanta. The hearing is to determine whether Fulton County District Attorney Fani Willis should be removed from the case because of a relationship with Nathan Wade, special prosecutor she hired in the election interference case against former President Donald Trump. (AP Photo/Alex Slitz, Pool)
In the weeks since the Willis-Wade romance saga began, both McAfee and Willis have been challenged in their upcoming reelection contests.
Any decision the judge makes — or fate the district attorney faces — could serve as fodder for their opponents, raising the possibility that either of them could be taken out of office before Trump heads to trial.
In an interview with local radio station WSB Atlanta, McAfee said his campaign will have no bearing on his ruling.
“I’ve had a rough draft and an outline before I ever heard a rumor that someone wanted to run for this position, so the result is not going to change because of politics,” McAfee said. “I am calling it as best I can in the law, as I understand it.”