Judge says Fulton County DA must step aside or remove special prosecutor

ATLANTA (AP) — Fulton County District Attorney Fani Willis must step aside from the Georgia election interference case against Donald Trump or remove the special prosecutor with whom she had a romantic relationship before the case can proceed, the judge overseeing it ruled Friday.

Fulton County Superior Court Judge Scott McAfee did not find that Willis’ relationship with special prosecutor Nathan Wade amounted to a conflict of interest that should disqualify her from the most sprawling of the four criminal cases against the former president.

However, the judge said, it created “an appearance of impropriety” that infected the prosecution team, and he questioned the truthfulness of Willis and Wade’s testimony about the timing of their relationship.

“As the case moves forward, reasonable members of the public could easily be left to wonder whether the financial exchanges have continued resulting in some form of benefit to the District Attorney, or even whether the romantic relationship has resumed,” the judge wrote.

“Put differently, an outsider could reasonably think that the District Attorney is not exercising her independent professional judgment totally free of any compromising influences. As long as Wade remains on the case, this unnecessary perception will persist.”

While the judge did not go as far as Trump wanted by kicking Willis off the case, his ruling chiding the top prosecutor for a “tremendous” lapse of judgment is a remarkable development. It underscores how the high-stakes case has become consumed by salacious details of the love lives of the prosecutors, distracting attention from allegations that Trump and his allies worked desperately to undermine the democratic process in a bid to keep the Republican in power.

A spokesperson for Willis did not immediately respond to a text message seeking comment Friday.

An attorney for Trump said the former president’s team respects the court’s decision but believes the judge “did not afford appropriate significance to the prosecutorial misconduct of Willis and Wade.”

“We will use all legal options available as we continue to fight to end this case, which should never have been brought in the first place,” defense attorney Steve Sadow said.

Willis hired Wade to lead the team to investigate and ultimately prosecute Trump and 18 others on charges that they illegally tried to overturn his narrow loss to Democrat Joe Biden in Georgia in 2020. The case uses a statute normally associated with mobsters to accuse the former president, lawyers and other aides of a “criminal enterprise” to keep him in power.

Trump, the Republicans’ presumptive presidential nominee for 2024, has denied doing anything wrong and pleaded not guilty.

Willis and Wade testified at a hearing last month that they had engaged in a romantic relationship, but they rejected the idea that Willis improperly benefited from it, as lawyers for Trump and some of his co-defendants alleged. Willis and Wade insisted they didn’t begin dating until after he became special prosecutor, though another a former colleague of Willis’ testified that she said the pair hugging and kissing before he was hired.

Willis and Wade said the relationship ended in the summer of 2023. They both said that Willis either paid for things herself or used cash to reimburse Wade for travel expenses.

McAfee wrote that there was insufficient evidence that Willis had a personal stake in the prosecution. And he said he was unable to “conclusively establish by a preponderance of the evidence” whether Willis and Wade began dating before or after he was hired as special prosecutor.

“However, an odor of mendacity remains,” the judge wrote. He said “reasonable questions” about whether Willis and Wade testified truthfully about the timing of their relationship “further underpin the finding of an appearance of impropriety and the need to make proportional efforts to cure it.”

Even so, he said, dismissal of the case was not the appropriate remedy to “adequately dissipate the financial cloud of impropriety and potential untruthfulness found here.”

McAfee found no showing that the due process rights of Trump and the other defendants had been violated or that the issues involved prejudiced them in any way. He also said the disqualification of a constitutional officer, like a district attorney, is not necessary when a less drastic option is sufficient.

The judge said he believes that “Georgia law does not permit the finding of an actual conflict for simply making bad choices — even repeatedly — and it is the trial court’s duty to confine itself to the relevant issues and applicable law properly brought before it.”

An attorney for co-defendant Michael Roman asked McAfee to dismiss the indictment and prevent Willis and Wade and their offices from continuing to prosecute the case. The attorney, Ashleigh Merchant, alleged that Willis paid Wade large sums for his work and then improperly benefited from the prosecution of the case when Wade used his earnings to pay for vacations for the two of them.

The ruling comes days after the judge dismissed three of 13 counts against Trump in the indictment. The judge said prosecutors failed to allege sufficient detail regarding the nature of the allegations related to soliciting public officers to violate their oaths. However, the bulk of the indictment remains intact and the judge said prosecutors could seek a new indictment to try to reinstate the charges he dismissed.

One dismissed count stemmed from a phone call Trump made to Georgia Secretary of State Brad Raffensperger, a fellow Republican, on Jan. 2, 2021, in which Trump urged Raffensperger to “find 11,780 votes” for him to win the election in the state.

Of the 19 people originally charged in the indictment, four have pleaded guilty after reaching deals with prosecutors. They include prominent Trump allies and attorneys Sidney Powell and Kenneth Chesebro.
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Associated Press reporter Alanna Durkin Richer contributed from Boston.