Judge in Trump election case moves forward with misconduct hearing, saying DA's disqualification 'possible' if evidence warrants

The judge seemed inclined to permit testimony from at least some witnesses.

February 12, 2024, 3:37 PM

The judge overseeing former President Donald Trump's Georgia election interference case says that it's "possible" misconduct allegations leveled against Fulton County District Attorney Fani Willis "could result in disqualification" if evidence shows she financially benefited from the case, and that a hearing on the matter will proceed as scheduled on Thursday.

Fulton County Judge Scott McAfee made the remarks during a hearing Monday to determine whether Willis, prosecutor Nathan Wade, and others will have to testify Thursday during a hearing the judge had scheduled to hear arguments on the matter.

Wills and Wade, along with a number of employees in the DA's office, have been subpoenaed to testify Thursday by Trump co-defendant Michael Roman, who last month filed a motion seeking to dismiss the election charges against him and disqualify Willis on the grounds that she allegedly engaged in a "personal, romantic relationship" with Wade, one of her top prosecutors in the election case, which allegedly resulted in financial gain for both of them.

A subsequent court filing from Willis admitted to the relationship but denied that there was any financial conflict of interest that would disqualify her from the case. Roman then accused the DA of misrepresenting in that filing aspects of the relationship, including when it began.

"I think it's clear that disqualification can occur if evidence is produced demonstrating an actual conflict or the appearance of one," Judge McAfee said in Monday's hearing. "The state has admitted a relationship existed. And so what remains to be proven is the existence and extent of any financial benefit, again if there even was one. And so because I think its possible that the facts alleged by the defendant could result in disqualification, I think an evidentiary hearing must occur to establish the record on those core allegations."

"I think the issues at point here are whether a relationship existed, whether that relationship was romantic or non-romantic in nature, when it formed, and whether it continues. And that's only relevant because it's in combination with the question of the existence and extent of any personal benefit conveyed as a result of their relationship," the judge said.

Willis and Wade had sought to have the Thursday hearing canceled and their subpoenas to testify quashed. However, after hearing arguments Monday, the judge appeared inclined to permit testimony from at least some witnesses subpoenaed by the defense, including potentially Willis, saying that the defense was able establish a "good faith basis for relevance" for their testimony.

Fulton County District Attorney Fani Willis appears before Judge Scott McAfee for a hearing in the 2020 Georgia election interference case at the Fulton County Courthouse on Nov. 21, 2023 in Atlanta.
Dennis Byron-Pool/Getty Images, FILE

"I don't see how quashal can be imposed here," McAfee said of the subpoenas.

The judge, however, declined to issue a final ruling on the issue, saying he would defer the matter until Thursday's hearing.

"I don't see how I can make that determination on the front end without live testimony subject to cross-examination," Judge McAfee said. "With each one of these witnesses, I would defer the ruling until we get further into the hearing itself."

Regarding the district attorney, the judge said, "We're not talking about calling Ms. Willis as the first witness, and we need to get over a few procedural hurdles before we can get there."

In her arguments before the court, Fulton County prosecutor Anna Cross urged the judge to quash the subpoenas. While she acknowledged that the state has not interviewed the potential witnesses, Cross said, "What they would say they would not in any way support the wild speculation that was included in this motion."

Cross said that any of the costs incurred when Wade and Willis traveled together were evenly split and do not present a financial conflict as the defense alleges.

"This is a serious case. These are serious charges," Cross said, later adding, "The defense is bringing you gossip ... and the court should not condone that practice."

An attorney for Roman pushed back, telling the judge that the witnesses have information that is "relevant" to the allegations.

Attorney Ashleigh Merchant said Willis and Wade have the "most relevant" information and that a former Wade business associate has information that Willis and Wade's personal relationship "predated" Wade being hired on the case, which would contradict the DA's filing.

"He has firsthand knowledge that this relationship predated" Wade being hired, Merchant said of the associate, Terrence Bradley.

Cross responded that she would be "shocked" if Merchant was able to prove that, and that she doesn't "believe that's true."

"The evidence would be that the timeline that's being represented is either mistaken … or simply fabricated," Cross said.

In an earlier filing, Willis' office asked the judge to quash the subpoenas to her, Wade, the DA's office employees, and Wade's business associate, calling the effort "harassment and disruption." She has also asked the judge to cancel the upcoming evidentiary hearing altogether.

Willis has argued there is "no factual basis" that "could reasonably justify requiring" her and a number of her employees to become witnesses in the case, and accused Roman of "an attempt to conduct discovery in a (rather belated) effort to support reckless accusations."

"Harassment and disruption of this type should not be entertained," the filing said.

Wade also filed a motion seeking to quash a subpoena for his bank records, and a former DA's office employee is also seeking to quash a subpoena issued to her.

Trump has joined in on the effort to disqualify Willis and dismiss his charges, accusing the DA of violating her office's ethics obligations with statements she made at a church in the wake of the allegations.

Trump, Roman, and 17 others pleaded not guilty in August to all charges in a sweeping racketeering indictment for alleged efforts to overturn the results of the 2020 presidential election in the state of Georgia.

Four defendants in the case subsequently took plea deals in exchange for agreeing to testify against other defendants.

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