What Happens Next in Trump’s Georgia Election Interference Case?

The Washington Post / Amy Gardner, Holly Bailey

16:16 JST, February 5, 2024

Shortly after Fulton County District Attorney Fani T. Willis (D) admitted in a Friday court filing that she had a personal relationship with the lawyer she appointed to lead the investigation into former president Donald Trump – and had taken vacations with him – the judge overseeing the case dashed off an email to the defense attorney who had first accused Willis of misconduct.

In her filing, Willis asked Fulton County Superior Court Judge Scott McAfee to cancel an evidentiary hearing on the accusations, saying that the relationship did not create a conflict of interest, did not financially benefit her and should not be used by those she says criminally conspired to try to overturn the 2020 election to evade justice.

McAfee quickly turned to Ashleigh Merchant, who represents Trump co-defendant Mike Roman, and through his staff emailed her this request, Merchant told The Washington Post: File a response explaining why I should still hold that hearing.

Merchant did so late Friday, claiming to have evidence to dispute some of Willis’s assertions. She accused the prosecutors of trying to “escape accountability” in a case where “freedom and lives are at stake.”

Now, it falls to McAfee to decide what comes next. Canceling the hearing could allow the case to proceed, but it would also prompt outrage from Trump, who has used all four criminal cases against him as a rallying cry as he marches toward the Republican nomination for president. Moving ahead guarantees more salacious headlines about Willis’s personal life and finances that could undermine the public’s – and a future jury’s – faith in her judgment and the merits of the case.

More important, holding the hearing leaves open the possibility that McAfee does what Merchant asked him to do when she first raised the allegations last month: remove Willis and her entire office from the case, which would almost certainly delay and potentially even scuttle the prosecution.

McAfee’s office declined to comment on the case.

Roman, Trump and another defendant in the sprawling election interference case have asked McAfee to disqualify Willis and her office from pursuing this case and drop the charges against them. Roman alleged in a court filing nearly a month ago that Willis financially benefited from appointing a lover, Nathan Wade, as the special prosecutor and then allowing him to pay for “lavish” vacations. The district attorney’s office has paid Wade’s law firm more than $650,000 since his appointment in November 2021.

Wade, in a sworn affidavit, said that the personal relationship did not start until 2022, once the investigation against Trump was already underway, and that the two split expenses when traveling together. The filing did not say whether the relationship is ongoing.

Even if McAfee decides to cancel the hearing or not take action, the scandal is unlikely to go away.

A Georgia Senate committee with subpoena power is investigating the allegations, and a member of the Fulton County governing board has suggested he might also launch an investigation. Rep. Marjorie Taylor Greene (R-Ga.) has referred the matter to the state ethics commission for potential sanctions and has also requested that Georgia Gov. Brian Kemp or Attorney General Chris Carr, both Republicans, launch a criminal investigation. House Judiciary Committee Chairman Jim Jordan (R-Ohio), who has been critical of Willis and the Georgia case against Trump, subpoenaed the district attorney Friday while questioning her use of federal funds.

Even the case’s defenders concede that Willis has damaged her credibility.

“Even those of us who understand that Georgia law does not require disqualification are acutely sensitive to the fact that this matter is not being tried merely in the court of law,” said Norm Eisen, who served as special counsel to the House of Representatives’ first impeachment of Trump. “It’s also being tried in the court of public opinion.”

Merchant told The Post she was already planning a response to Willis’s filing when McAfee’s request landed Friday afternoon. She quickly filed an initial reply, claiming she will call witnesses who will testify that Wade and Willis were indeed romantically involved before he was appointed to the case. A disputed fact could be reason enough to proceed with the hearing.

Roman gave formal notice through Merchant on Wednesday that he had subpoenaed a dozen witnesses, including Willis and Wade and several of their associates, to testify at the Feb. 15 hearing. Merchant has also subpoenaed documents from Atlanta-area travel agencies and financial records tied to Wade and his law firm. Willis’s Friday motion noted that she plans to file a motion to quash the witness subpoenas – a move that could require its own evidentiary hearing.

Willis’s office declined to comment on the case, but in her filing, Willis called the accusations “meritless,” “distasteful” and “malicious.” She said that they are irrelevant to the case and that there is no basis in Georgia law for removing her from the prosecution or dismissing the charges. She argued that defendants’ plans to delve into prosecutors’ personal lives amount to a “ticket to the circus” designed to “garner more breathless headlines” rather than settling any matter of law.

There is also the matter of Willis’s highly publicized speech at a historically Black church in Atlanta shortly after the allegations became public. Framed as a talk with God to commemorate the Martin Luther King Jr. federal holiday, Willis questioned why Wade was targeted and not the two other private attorneys appointed as special prosecutors in the case, who are White. Willis and Wade are Black. She did not mention Roman or any other defendants by name, and she neither confirmed nor denied any of the specific accusations.

Trump’s defense lawyers, led by Steve Sadow, seized on the speech in their own motion to disqualify Willis and dismiss the case, accusing her of making racially charged accusations against the defendants that could prejudice a future jury. They wrote that Willis’s remarks amount to a violation of Georgia’s rules of professional conduct, which state that the prosecutor in a criminal case shall “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.” They noted that the maximum penalty for such a violation is disbarment.

Willis wrote in her response Friday that her remarks “neither reference this case nor these defendants,” so to cite that as a basis for disqualification “is transparently meritless.”

“Much like the motion advanced by Defendant Roman, Defendant Trump’s motion appears designed to generate media attention rather than accomplish some form of legitimate legal practice,” Willis wrote. “It should be dismissed out of hand.”

McAfee will decide the future of the Trump case

It will fall to McAfee, who has not yet set a trial date, to decide what to do. There is precedent to allow the case to continue, but some argue there is also precedent to do the opposite – a previous ruling that blocked Willis and her team from investigating Burt Jones, a 2020 Trump elector who is now Georgia’s lieutenant governor.

The July 2022 ruling came from Fulton County Superior Court Judge Robert McBurney, who oversaw the special purpose grand jury that spent months investigating the efforts by Trump and his allies to try to overturn Joe Biden’s win in Georgia.

Jones, then a state senator, was one of the 16 Georgia Republicans who signed a certificate falsely claiming that Trump had won the election in Georgia. He was informed by the district attorney’s office in 2022 that he was a “target” in the investigation.

Jones asked McBurney to disqualify Willis, arguing that she had a conflict of interest because she hosted a fundraiser for Jones’s eventual Democratic opponent for lieutenant governor, Charlie Bailey. Bailey, a former prosecutor, previously worked with Willis and is married to her spokeswoman, Pallavi Bailey.

In a hearing on the issue, McBurney criticized Willis, describing her decision to host a fundraiser for a likely opponent of a target in an investigation as a “what are you thinking moment” and “problematic” to efforts to “maintain confidence that this investigation is pursuing facts in a nonpartisan sense no matter who the district attorney is.”

“The optics are horrific,” McBurney said.

Anna Cross, one of the three special prosecutors on the election case, unsuccessfully sought to change McBurney’s mind, arguing that Jones’s attorney had not proved that Willis’s behavior had legally compromised the case or was an actual conflict – an assertion similar to the arguments raised in Willis’s Friday response to the latest efforts to disqualify her from the case.

“Appearance of a conflict isn’t enough,” Cross told McBurney. “Under Georgia law, the disqualification of a prosecuting attorney or entity requires an actual conflict. Not speculative, not conjecture, an actual personal interest. … While optics in this case may be more front and center than in some others, optics doesn’t carry the day. It’s an actual conflict.”

McBurney ultimately disagreed. In his ruling he acknowledged that Willis had done nothing illegal and that elected district attorneys may engage in political activity. But he also concluded that Willis had compromised public trust in the investigation.

“An investigation of this significance, garnering the public attention it necessarily does and touching so many political nerves in our society, cannot be burdened by legitimate doubts about the District Attorney’s motives,” McBurney wrote. “The District Attorney does not have to be apolitical, but her investigations do.”

Three of the 16 Republican electors were charged alongside Trump in August.

Three people close to the district attorney’s office, who spoke on the condition of anonymity because they were not authorized to speak publicly about the ruling, criticized McBurney’s decision, saying he had legally overstepped. But some wonder now if McBurney’s caution in seeking to protect the public trust in the case could provide an avenue for his colleague, McAfee, to take the same route – finding that Willis and Wade may not have done anything legally wrong but that their actions have undermined public trust in the case.

At least one Trump co-defendant is pointing to McBurney’s decision on Jones as precedent. Attorneys for Bob Cheeley, an Atlanta-area attorney facing multiple charges in the alleged election scheme, joined Roman’s motion last month and cited McBurney’s ruling that the mere “appearance” of conflict disqualified Willis from investigating Jones and that the “appearance of impropriety” now “requires disqualification.”

“The fact that the District Attorney has engaged in multiple, ongoing conflicts of a political and financial nature evidences a disregard of her oath to impartially and fairly exercise the enormous power vested in her office,” Christopher Anulewicz and Richard Rice, Cheeley’s attorneys, wrote.

In her Friday response, Willis argued that McBurney’s ruling on Jones should not be “binding precedent.”

“The elevated standard applied in that analysis was, respectfully, inconsistent with the actual legal standard Georgia appellate courts have applied for decades” and “sheds no light” on the current motions in the case, Willis wrote.

If Willis and her office were to be removed from the Trump case, the Prosecuting Attorneys’ Council of Georgia, a state agency that advises local prosecutors, would be asked to find another prosecutor to take on the case. The agency has already been looking for a district attorney to take on the investigation into Jones. Peter Skandalakis, the group’s executive director, said he still has not found a prosecutor to take the Jones case – a fact that does not bode well for the Trump case should it meet the same fate.

Willis under investigation

If McAfee allows the case to continue – and Willis’s team to stay on it – her troubles wouldn’t be over. The state Senate committee that will investigate the controversy, composed of six Republicans and three Democrats, has subpoena power that it is expected to use to examine Willis’s and Wade’s financial records. The goal, the committee’s boosters said, is to examine whether Willis misused taxpayer funds by appointing Wade while having a personal relationship with him.

The committee does not have the power to remove Willis, but it could generate uncomfortable headlines for her. And it is expected to issue recommendations that could lead to new laws affecting her position.

Georgia lawmakers also created a commission last year to police – and remove – prosecutors for misconduct, and some are calling on the commission to remove Willis. The panel is in limbo, however, because the enabling law required its rules to be approved by the Georgia Supreme Court. The court declined to approve the rules, citing separation of powers. The legislature is expected to rework the law and get the commission on its way sometime this year, after which Willis is expected to be one of its first targets.

The state ethics commission – formally known as the Georgia Government Transparency and Campaign Finance Commission – will be responsible for weighing Greene’s ethics complaint, in which she accuses Wade of failing to file required paperwork as a government vendor. Potential penalties for such violations include fines but not removal from office.

It’s not clear what will come of Greene’s demands for a criminal investigation. Spokespeople for Kemp and Carr did not respond to requests for comment. Both resisted demands from Trump and his allies to reverse the 2020 election results, and they could be called as witnesses at trial.