How the Fani Willis allegations could hit the Trump Georgia case

by Ella Lee - 01/24/24 6:00 AM ET

Allegations of a romance between Fulton County (Ga.) District Attorney Fani Willis (D) and a special prosecutor she appointed to head former President Trump’s 2020 election interference case have created a whirlwind of controversy around her and the historic prosecution.

The explosive claim surfaced earlier this month in court filings by an ex-Trump 2020 campaign operative and co-defendant in the case, who asserts that the purported relationship between Willis and special prosecutor Nathan Wade renders the sweeping racketeering indictment “fatally defective.”

The defendant, Michael Roman, asked a Georgia judge to disqualify Willis, Wade and the district attorney’s office from prosecuting the case, and for the charges against him to be dropped.

Trump’s fiercest allies have latched onto Willis and Wade’s alleged romance as evidence of prosecutorial misconduct. The special prosecutor’s estranged wife has also raised the accusation in their ongoing divorce proceedings in which Willis is fighting being deposed.

But despite the political firestorm in recent weeks, the affair allegation will likely have little impact on the case itself, particularly because there are no laws in place that would require Willis or Wade to step back from the case.

“There’s little doubt that this was poor judgment,” said Jessica Levinson, a law professor at Loyola Marymount University. “But I think there is doubt as to whether or not this amounts to disqualification.”

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Wade joined the district attorney’s office’s Trump prosecution in 2021, after Willis had already asked several other lawyers to consider the job. In a 2022 New York Times interview, she admitted that Wade wasn’t her first choice.

Before then, Wade ran a private practice focused on family law and contract disputes and previously served as a municipal judge. Critics have pointed to his relatively little experience with complex criminal prosecutions, as he helps lead the winding racketeering case against the former president and a slew of allies accused of trying to overturn the state’s 2020 election results in Trump’s favor.

Roman’s motion asserts that Willis and Wade’s “improper, clandestine personal relationship” began before the district attorney’s office began investigating Trump and before Wade was appointed a special prosecutor. It also purports Willis profited off Wade’s appointment, because he paid for their travel to “traditional vacation destinations.”

In court filings last week, lawyers for Joycelyn Wade, the special prosecutor’s wife, accused Wade of purchasing personal flights for he and Willis while the district attorney’s office investigated Trump’s efforts to overturn Georgia’s election results. The documents include bank statements that appear to show flights to San Francisco and Miami in both their names.

Willis received a subpoena to testify in the divorce case the same day Roman’s motion surfaced the affair allegations, court records show, though a judge Monday temporarily paused her deposition until Wade is questioned later this month.

Neither Willis nor Wade have addressed the allegations head on, though Willis did seem to defend Wade’s qualifications during an Atlanta church service earlier this month.

Norman Eisen, special counsel to the House Judiciary Committee during Trump’s first impeachment and an ally of Willis, called for Wade to bow out of the case Saturday. Alongside two other legal scholars, Eisen argued that there is “no basis” for disqualifying the pair but that the affair allegation “had become a distraction.”

“Defense attorneys cannot use allegations of prosecutorial ethics violations, real or imaginary, that have nothing to do with a trial to delay or force prosecutors off of a case,” wrote Eisen, University of Alabama law professor Joyce Vance and University of Minnesota law professor Richard Painter.

Levinson said prosecutors can be disqualified from cases over personal stakes, but having a relationship with someone within the same office typically doesn’t meet that threshold.

“If there’s a letter where [Willis] says, like, ‘God, Nathan’s really not qualified but he needs some money so he can take me on vacations’ — sure, then we have a problem,” she said.

Financial disqualifications are also possible, though Eisen, Vance and Painter argued that Wade’s compensation is “consistent with well-established practice in Georgia.” Fulton County has paid Wade more than $650,000 since he joined the team, records show.

“Neither Wade nor the hundreds of other Special Prosecutors in Georgia who are paid by the hour have an improper financial incentive to seek a conviction to the disadvantage of a defendant,” they wrote.

That hasn’t stopped the political fallout.

A day after allegations of an improper relationship between Willis and Wade were lodged, Trump insisted the 2020 election interference case against him and several others should be dropped, calling Willis — and her case — “totally compromised.”

On Capitol Hill, Trump’s most fervent allies have echoed that sentiment. Rep. Marjorie Taylor Greene (R-Ga.) accused Willis of weaponizing her office to “wage lawfare” against Trump to interfere in the 2024 presidential election. Willis called Greene’s spirit “filled with hate” in an apparent reply.

House Judiciary Committee Chair Jim Jordan (R-Ohio) launched an inquiry into the matter, demanding in a letter that Wade turn over documents and information linked to the Georgia investigation.

“This new information released recently only reinforces the Committee’s concerns about politically motivated prosecutions by state and local officials,” Jordan wrote in the letter.

And in Georgia, oversight bodies have taken note. Bob Ellis, head of the Fulton County Board of Commissioner’s audit committee, told Willis last week in a letter obtained by The Hill to turn over information related to her appointment of Wade as special prosecutor in the election interference case. A Republican state senator also filed legislation Monday to create a special panel to investigate Willis.

The next hearing in Wade’s divorce case is set for Jan. 31, when lawyers for his wife have said they intend to question him over his conduct and finances.

Judge Scott McAfee, who is overseeing the Georgia election interference case, ordered Willis to respond to Roman’s allegations in writing by Feb. 2. He also scheduled a hearing on the matter for Feb. 15.

Without a “smoking gun,” it’s likely Roman’s motion will be denied, Levinson said. Eisen, Vance and Painter reached the same conclusion.

But even if McAfee does allow Willis and her team’s prosecution to proceed, an appearance of impropriety could still pose challenges if a jury is convinced there is a conflict of interest.

“She had to know that the appearance of appointing the person who allegedly is your romantic partner would just be horrible. … How could she not know that? This is one of the most high-profile cases in the entire world,” Levinson said.

“Appearances matter when it comes to the law, and appearances matter when it comes to whether or not a jury thinks that the prosecutors are doing justice,” she said.

Tags Fani Willis Michael Roman