Fulton County Superior Court Judge Scott McAfee on Monday cleared the way for an evidentiary hearing later in the week that will probe whether District Attorney Fani Willis improperly benefitted from her relationship with the top prosecutor in her election interference case.
McAfee turned back a request from the Fulton DA’s office to cancel the hearing and to kill subpoenas seeking testimony from Willis and eight others in her office, including special prosecutor Nathan Wade, her executive assistant and investigators involved in her security detail.
The extraordinary developments were sparked by a motion from defendant Mike Roman to disqualify Willis and her office from the case. One sign of how seriously the judge is taking the issue: he has set aside Thursday and Friday for testimony and arguments.
“Because I think it’s 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,” McAfee said.
When did the relationship start?
The judge said he would allow Roman’s attorney, Ashleigh Merchant, to question Terrence Bradley, Wade’s former law partner who had represented him in his divorce case. Merchant believes that Bradley can speak to when Willis and Wade’s relationship began.
In a recent court filing, Merchant raised questions about the accuracy of statements Wade made in an affidavit, in particular his claim that he did not begin a personal relationship with Willis until after he was hired by her in late 2021. (During Monday’s hearing, special prosecutor Anna Cross said the facts Wade swore to in his affidavit are “100 percent true.”)
McAfee said he would defer a decision on whether to honor or quash the subpoenas for the DA and other witnesses until after Bradley testifies. It is generally rare for prosecutors to be forced to answer questions under oath.
McAfee said the evidentiary hearing needs to establish “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,” he said.
Roman has accused Willis and Wade of unjustly “enriching themselves” from the case, pointing to personal trips Wade covered for the two of them using money he earned from his work for the Fulton DA’s office. Roman’s legal filings have prompted the two to acknowledge being in a “personal relationship,” though the DA’s office said in a court filing they have done nothing wrong.
In addition to removing Willis and her office from the case, Roman is asking McAfee to drop the criminal charges a grand jury handed up against him in August. Five other codefendants have signed onto the effort, including former President Donald Trump and his onetime personal lawyer, Rudy Giuliani.
‘The defense is bringing you gossip’
At Monday’s hearing, attorneys representing people subpoenaed by Merchant accused her of going on a “fishing expedition” and improperly using subpoenas to try and dig up dirt that isn’t relevant to the underlying election subversion crimes of which her client is accused.
In his first public comments about the accusations since they first arose in early January, McAfee said he would not spend time at the hearing discussing Wade’s credentials — or alleged lack thereof.
He indicated he would keep the Thursday hearing focused on whether Willis had any conflicts. It now appears Bradley will be a star witness — the other potential witnesses are being put on hold for now, contingent on what Bradley says.
Merchant said Bradley would testify that numerous individuals in the DA’s office have personal knowledge of the romantic relationship between Willis and Wade. That includes when it began, whether they “cohabitated” and where they traveled together, she said.
Cross disputed that. She said none of the people Merchant subpoenaed have such knowledge.
“The defense is not bringing you facts. The defense is not bringing you law. The defense is bringing you gossip,” Cross said. “And the state cannot and the court should not condone that practice.”
Cross also disputed some of Merchant’s specific claims, including the suggestion that Wade lived with Willis until her father moved in with her. Cross said Willis’ father, John Clifford Floyd III, moved in with her before she even met Wade – and he has a change in driver’s license to prove it. Cross said Willis’ father never saw Wade there — and that the DA’s office plans to call him as a witness later this week to speak to that.
“If there’s a hearing, the state will establish, unequivocally, there was no cohabitation,” Cross said. “They never lived together.”
Subpoenas on hold
Cross, along with attorneys representing others who had been subpoenaed, argued that none of their clients had knowledge of information Merchant is seeking.
Credit: arvin.temkar@ajc.com
Credit: arvin.temkar@ajc.com
McAfee had Merchant go through her list of subpoenas person-by-person to explain the sort of facts she was hoping each would confirm. Cross said Merchant on several occasions was mistaken about the information some would-be witnesses might be privy to.
She mentioned Robin Bryant Yeartie, a longtime friend of Willis’ who worked for a time in the Fulton DA’s office and briefly lived with the DA. Merchant said that part of Yeartie’s job was to oversee Willis’ schedule; Cross said was not the case.
But as he did with other members of the DA’s office, McAfee opted to wait on ruling about Yeartie’s subpoena.
‘Personal or direct knowledge’
McAfee also withheld judgement on whether he would compel testimony from Gabe Banks, an outside attorney who turned down an offer to lead the prosecution before Wade accepted the job.
On Monday Banks told McAfee he had no “personal or direct knowledge” of a romantic relationship between Willis and Wade. But he later acknowledged he had called Bradley – a friend and fraternity brother – about the possibility of Bradley testifying about Wade. He said he was concerned Bradley — who he said served as Wade’s lawyer as early as 2015 — might be “emotional” and violating attorney-client privilege.
“I was concerned personally as my fraternity brother and as another member of the bar that he might arguably be running afoul of the attorney-client privilege,” Banks said. “And so I did have a conversation with him about that and expressed my concern.
And if that was a way to intimidate, if that’s what he’s suggesting, I mean I would take issue with that,” he said. “In fact, we laughed and he said we should get together for a drink afterward.”
McAfee on Monday did opt to kill one of Merchant’s subpoenas: to Synovus Bank, where Wade’s law firm banks. Merchant was interested in the records since she said that is the account from where Wade paid for trips with Willis.
The judge agreed with an attorney for Wade who argued that Merchant’s request is overly broad — with no limits or date or scope of what they are seeking — and irrelevant.
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