Blockbuster hearing could be key moment in Fulton Trump case

Roman’s accusations have upended the case over the last month, transforming one of the country’s most high-profile criminal prosecutions into a personal, increasingly bitter knife fight.

Here’s what we’re watching for:

Key issues to be debated

Roman has alleged that Willis and Wade have “enriched themselves” off the case. McAfee must determine whether there is a legal conflict that justifies an extraordinary remedy like removing the DA’s office from the case.

There are two main grounds for disqualifying a prosecutor from a case, according to the Prosecuting Attorney’s Council of Georgia: “forensic misconduct” or a conflict of interest. In 2005, the Georgia Supreme Court said a conflict exists when “the prosecutor has acquired a personal interest or stake in the defendant’s conviction.” It added that an “actual conflict” must be involved, not just a “theoretical or speculative conflict.”

Roman has cited more than $16,000 Wade spent on cruises and trips with Willis to Napa Valley, Aruba and Belize allegedly using his taxpayer-funded earnings. Roman argues it could amount to self-dealing and honest services fraud, a federal crime in which a vendor gives kickbacks to an employer. Wade, a private attorney who is solely contracting on the Trump case, said he and Willis roughly divided expenses on trips using individual personal funds and the DA has insisted she did nothing wrong.

Roman, in a court filing on Friday, also drew attention to access Willis gave authors of a recent book about the probe, saying it was part of an effort to “prejudice Mr. Roman and poison the jury pool.”

The hearing could also delve into other areas of dispute, including when Willis’ personal relationship with Wade began and whether the two lived together.

In a sworn affidavit, Wade has said the relationship did not start until after he was hired in late 2021 to lead the Trump case and that he did not cohabitate with Willis. But in a court filing, Roman’s attorney, Ashleigh Merchant, said she hopes to call two witnesses — Wade’s onetime law partner and a former employee in the DA’s office — who could testify otherwise.

Several codefendants have also highlighted Willis’ recent remarks at Big Bethel AME church as a reason why she should be disqualified from the case. They said the DA’s comments that her critics were playing the “race card” could prejudice a jury.

What experts are saying

Many outside legal experts have argued that while the allegations aren’t great for Willis politically, they don’t affect the underlying case and don’t justify the wide-reaching relief Roman and now five other codefendants are seeking.

“Defendants have not shown that their constitutional rights were violated or that these proceedings were rendered fundamentally unfair due to any relationship between DA Willis and Wade. Nor can Defendants establish that they were actually prejudiced, so as to warrant this relief,” a group of 17 ethics experts, former prosecutors and defense attorneys wrote in a recent “friend of the court” brief.

Still, some observers have pointed to a July 2022 ruling from one of Judge McAfee’s colleagues as a potential legal precedent that cuts against Willis.

In that ruling, Fulton Superior Court Judge Robert McBurney blocked Willis and her office from investigating then-lieutenant governor hopeful Burt Jones because the DA had held a fundraiser for one of his political opponents.

Defendant Bob Cheeley cited the McBurney decision as the basis for why Willis should be removed from the case, saying if the “appearance of political conflict” ended in her recusal in the Jones matter, “a financial benefit conferred directly to the District Attorney certainly " should do the same.

Who could testify

Merchant has subpoenaed Willis, Wade and a half-dozen other members of the DA’s staff to testify at the hearing. She’s also subpoenaed information from tourism companies where bank records show Wade made purchases.

Willis has asked McAfee to kill the summonses for her and her staff and called them an “effort to support reckless accusations” of wrongdoing. Separately, Wade accused Merchant of going on a fishing expedition using his bank records.

“This is not an example of zealous advocacy, nor is it a good faith effort to develop a record on a disputed legal issue — it is a ticket to the circus,” the DA’s office warned about the hearing in a recent court filing.

Merchant says prosecutors haven’t been truthful about key details and that the court “cannot just take their word for it.”

Judge McAfee has scheduled a separate hearing on Monday to consider whether to quash the subpoenas.

It is extremely rare for prosecutors to be questioned during a legal proceeding under oath. If McAfee agrees to uphold Merchant’s subpoenas it would mark an extraordinary turn for the case.

What’s at stake

The February 15 hearing and its outcome could provide the reset that Fulton prosecutors are looking for as they eye a potential August trial start date. Or it could generate even more tabloid fodder for Willis’ critics as they seek to undermine the DA’s work. That could be particularly potent in the lead-up to the 2024 election, where both Trump and Willis are on the ballot.

Noah Pines, a defense attorney closely tracking the case, has been struck by how increasingly personal court filings have become between the lawyers. Atlanta’s legal community is small and prosecutors and defense attorneys generally “get along,” he said.

“This case is personal,” he said. “This case will, in my opinion, impact the relationship of these lawyers forever. And that’s kind of disheartening.”

A high-wire act for McAfee

Judge McAfee has won praise from case observers for his no-nonsense, even-handed approach. He’s given defense attorneys chances to argue pre-trial motions, even if he hasn’t granted many of them, and moved the case along while quickly diffusing some of the most contentious issues that have landed in his lap.

But this hearing will force McAfee into new waters: considering uncomfortable personal details about prosecutors on the case. Navigating that will not be easy, especially if he wants to avoid a media spectacle, as he’s indicated is his goal.

What happens if Willis is disqualified

If Judge McAfee ultimately rules in Roman’s favor and removes the entire Fulton DA’s office from the case, the decision on what to do next would fall to the Prosecuting Attorneys Council of Georgia, a nonpartisan state agency.

Credit: Twitter

Credit: Twitter

The council would decide whether to assign another prosecutor to the case. That prosecutor could decide to continue the probe using the state’s racketeering law, to prosecute some but not all of the current charges or opt to abandon the case altogether.

“You might find a special prosecutor who says, ‘this (racketeering) stuff, let’s get rid of it. And let’s just charge all these defendants with these specific acts which we think we can prove pretty easy,’” said Pines.

Some of Willis’ defenders have feared that the case might die if she is disqualified on the assumption that there are few other DAs offices around the state with the resources — or political will — to pick up such a complex and highly-charged case.

The council is the same entity that is tasked with deciding what to do with Jones after McBurney disqualified Willis from investigating him. More than 18 months later, it has yet to announce next steps.

Staff writer Bill Rankin contributed to this article.