A court hearing this afternoon could clear the way for a resolution to the sex scandal that’s overshadowed the Fulton County election interference case for the last two months.
Fulton Superior Court Judge Scott McAfee is scheduled to hear closing arguments at 1 p.m. on a motion to disqualify District Attorney Fani Willis and her office from the case over trips she went on with one of her top deputies when they were in a romantic relationship.
Attorneys for former President Donald Trump and eight of his co-defendants have argued that Willis and special prosecutor Nathan Wade improperly benefitted financially from the case. They have also insinuated the two perjured themselves under oath. The prosecutors confirmed that they were once in a romantic relationship but insisted they have done nothing wrong.
Defense attorneys and the DA’s office are expected to be given a set amount of time to summarize their final arguments, incorporating evidence from exhibits and testimony given during a multi-day evidentiary hearing last month.
Credit: AP
Credit: AP
Here is what The Atlanta Journal-Constitution is watching for:
Cell phone records
Defense attorneys have asked McAfee to admit Wade’s cellphone records as evidence.
Those records show that Wade’s cellphone was in Willis’ Hapeville neighborhood nearly three dozen times in 2021, including two times when it arrived in the area late in the evening and left hours later before dawn. Defense attorneys have argued that undercuts sworn testimony from Willis and Wade that their romantic relationship did not begin until spring 2022, months after Wade was hired to work on the case.
Prosecutors have contended that cellphone records are inadmissible on a number of procedural grounds. And they said even if they are allowed, they “do not prove, in any way,” the content of the communications between Willis and Wade, whether Wade was ever at a particular address or whether Willis and Wade were ever in the same place during those times.
Experts are divided on the accuracy and reliability of the kind of cellphone tracking technology used. Attorneys for Trump have argued that the Fulton DA’s office routinely relies on similar data to obtain convictions in other cases. “Any suggestion that this data is unreliable is disingenuous at best,” Trump’s lawyers, Steve Sadow and Jennifer Little, contended in a recent court filing.
An investigator hired by Trump’s legal team said Willis and Wade called each other more than 2,000 times during the first 11 months of 2021 and exchanged nearly 10,000 text messages, averaging roughly six calls and 30 texts a day.
Additional evidence?
Attorneys from both sides are expected to push McAfee to admit other last-minute evidence, which could open the door for additional testimony.
Earlier this week, prosecutors asked McAfee to accept a sworn affidavit from Stanley Herbert Brody, who worked at a winery in Napa Valley that Willis and Wade visited in spring 2023. Brody, who recently came forward in a CNN article, said in the affidavit that Willis paid for a wine tasting bill of roughly $400 in cash. That backs up the DA’s testimony last month that she reimbursed Wade for travel expenses using cash and did not inappropriately benefit from their trips.
“Mr. Brody is available to testify at the Court’s convenience, and should the Court decline to accept this affidavit, the State respectfully requests that Mr. Brody be permitted to testify at the hearing currently set in this matter” on Friday, prosecutors wrote.
Terrence Bradley
Wade’s former law partner and divorce attorney was initially billed as a “star witness” for the defense. Ashleigh Merchant, who represents defendant Mike Roman and has led the charge to remove Willis, previously indicated Terrence Bradley would contradict Willis and Wade’s timeline about the start of their relationship. But over three separate rounds of questioning, Bradley proved to be a frustrating and disappointing witness for defense attorneys.
On Tuesday, when Bradley spoke under oath for the final time, he testified repeatedly that he didn’t know when Wade’s romantic relationship with Willis began. He said he was just “speculating” when he texted with Merchant earlier this year that the couple had begun dating before the DA had hired Wade to lead the election case.
It could be telling to see how much, if at all, defense attorneys invoke Bradley’s testimony, especially given that some questioned whether he was lying on the stand. Some could choose to focus on texts he had sent Merchant, which were recently obtained by the AJC and other news outlets. While the conversations were not under oath, they tell a different story from his court testimony.
In one notable exchange, Bradley responded that the filing that contained Merchant’s original allegations against Willis and Wade “looks good.” Another time, Bradley responded “absolutely” when Merchant asked him if he believe Wade’s relationship with Willis began before she hired him.
Hints from McAfee
During many pretrial hearings in this case, McAfee has provided at least some indication of how he’s leaning on the matters before him. But he’s been notably silent on the removal question, saying only that disqualification of a prosecutor “can occur if evidence is produced demonstrating an actual conflict or the appearance of one.”
McAfee is not expected to rule from the bench, but his remarks on Friday will be picked apart for any clues about how he’s leaning. Close observers of the case have credited him for his even-keeled demeanor and ability to navigate through sticky situations. But some Willis supporters have criticized him for holding the evidentiary hearing in the first place, which they say has been used as a forum to smear the DA with little more than gossip.
Much will depend on whether McAfee chooses to focus on an “actual conflict” or an “appearance of” one. The latter is a broader standard. He could turn to a 2005 Georgia Supreme Court ruling that found that a conflict exists when “the prosecutor has acquired a personal interest or stake in the defendant’s conviction.”
A July 2022 ruling from one of McAfee’s colleagues could also help guide his thinking. Judge Robert McBurney disqualified Willis from investigating now-Lt. Gov. Burt Jones during an earlier phase of the election case due to a fundraiser she held for one of his Democratic opponents. “The District Attorney does not have to be apolitical, but her investigations do,” McBurney ruled.
Staff writer David Wickert contributed to this article.
