Fulton County Superior Court Judge Scott McAfee scheduled a March 1 hearing for “all things disqualification” after three rounds of witness testimony related to the motion to disqualify Fulton County District Attorney Fani Willis from prosecuting the high-profile racketeering case against former President Donald Trump and 14 others.
Last August, President Trump and 18 co-defendants were indicted for allegedly violating Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act through their actions challenging the 2020 election results. Since then, four defendants have accepted plea bargains.
On Jan. 8, Ashleigh Merchant, legal counsel for defendant Michael Roman, filed a motion to disqualify Ms. Willis, alleging a conflict of interest and financial benefit in her appointment of Nathan Wade as special prosecutor to lead the case. Mr. Wade and Ms. Willis have acknowledged they had a romantic relationship; however, the timeline of that relationship and the alleged financial benefits are in question due to conflicting testimony.
Half of the defendants have joined the motion to disqualify, raising additional arguments of “prejudicial behavior” and impropriety on the prosecutors’ part.
Adam Abbate, chief deputy attorney general for the Fulton County District Attorney’s office, argued on behalf of the state.
Judge Says Will Likely Decide Within 2 Weeks
“There are several legal issues to sort through, several factual determinations I have to make, and those aren’t ones I can make at this moment,” the judge said. “I hope to have an answer to everyone within the next two weeks.”
Who Was Willis Referring to in Church Speech?
Mr. Sadow was given the last five minutes for rebuttal.
The state had argued that Mr. Wade was never impeached as a witness because defense attorneys did not confront him with specific statements. Mr. Sadow argued that Mr. Wade had testified early on and the defense would have been happy to call him back to the stand if the state had allowed it.
Mr. Abbate also argued that Ms. Willis wasn’t talking about the defendants in her church speech.
Ms. Willis had said “Commissioner Bridget Thorne and so many others” had attacked only “the black man,” referring to Mr. Wade.
“They’re not talking about Ms. Thorne or Marjorie Taylor Greene. They’re talking about us. And you know how everybody knows that? Because not a single story from the media reported anything other than Fani Willis accused the defense and the defendants of being racist,” Mr. Sadow said.
He said according to the state’s position on forensic misconduct, Ms. Willis could also explicitly call the defendants racist as long as she didn’t say they were “guilty.” He argued the motive and way she gave the speech was improper conduct.
Mr. Sadow alleged that Mr. Wade and Ms. Willis met up at Ms. Yeartie’s condo, pointing to the lengths they went to “hide” their relationship, even from Ms. Willis’s father.
Trial Date Is Evidence Against Financial Gain, State Argues
Mr. Abbate argued that if Ms. Willis was prosecuting the case for financial gain, she would not have tried to set a trial date as soon as possible. He also argued that if the appointment of Mr. Wade was made for financial gain, he would have been put on more than one case.
He added that the hotel Ms. Willis booked for the Napa Valley trip was a modest one.
“The allegation that Ms. Willis was living the lifestyle of the rich and the famous is a joke, an absolute joke,” he said.
He added that defense counsel have acted improperly, leaking confidential case information to the press on multiple occasions.
State Seeks to Discredit Witnesses
Mr. Abbate said both witnesses that contested the relationship timeline were “disgruntled” former associates of the prosecutors.
State attorneys had asked Ms. Yeartie if her resignation from the district attorney’s office was because she was given the choice of being fired or resigning. Ms. Yeartie answered this was incorrect. Mr. Abbate argued that Ms. Yeartie had leaked confidential information, leading her to be at risk of being fired.
He argued that Mr. Bradley was a disgruntled former partner in Mr. Wade’s law firm and had been “expelled” from a profitable practice after a sexual assault allegation, and had reason to make statements against Mr. Wade.
He added that the state showed that other attorneys had been approached for the position that was ultimately given to Mr. Wade, and he was not the first choice for the position. Ms. Willis had not been questioned on this point.
Judge Says Complaint Is Beyond ‘Conjecture’ Now
The state cited an appellate court decision that ruled a prosecutor could not be disqualified for “appearance of impropriety alone.”
However, one of the cases cited dealt with a complaint made based on speculation.
“Aren’t we past the speculation and conjecture aspect of this though? The original and the core of the financial allegation is that there is a relationship and that money changed hands,” Judge McAfee said.
“There’s maybe still an open question of where the ledger stands. I think it was conceded that that balance could run one way, in the district attorney’s favor. Is that contested?” he asked.
“Yes. What’s not contested is that a relationship did develop,” Mr. Abbate answered.
“And that purchases were made back and forth,” the judge interjected. “That’s the state’s position.”
“It’s no longer just the theory that money changed hands,” the judge added.
Mr. Abbate argued that money changed hands but not there was no evidence of financial benefit and claimed the hearings were done in a way to “harass and embarrass the district attorney” and to
“impugn her in front of the court.”
He argued that the “appearance of impropriety” standard applies to judges, not prosecutors.
State Argues Defense Has Not Met Burden
Mr. Abbate argued that the standard is that the defense has to show evidence that the prosecutor has a conflict of interest and gains based on the “outcome” of the case.
“Not a single shred of evidence was produced through any of the exhibits or the witness testimony showing how their constitutional rights, their due process rights, were at all affected by the relationship that began in March 2022 with Ms. Willis and Mr. Wade,” he said. “The motion to disqualify should be denied.”
He argued that the defense misrepresented the cases they cited, and the judge asked for specifics.
The defense cited cases where an appearance of impropriety was enough to warrant disqualification of counsel, and acknowledged there was ambiguity for the standard of “appearance of impropriety.”
Mr. Abbate argued these cases did not disqualify prosecutors without a showing of conflict of interest, and there was no ambiguity.
“Are you also saying that it’s only if a financial interest is affecting the final result, the outcome, that’s the only one we should be worried about? Or is it the prosecution as a whole?” Judge McAfee said.
They agreed it was related to the “conduct” of the prosecution, not just the outcome.
State Says Key Testimony ‘Inconsistent’
Mr. Abbate asked the judge to consider Robin Yeartie’s testimony “inconsistent.”
Ms. Yeartie, who was a friend of Ms. Willis’s, claimed the relationship began shortly after Ms. Willis and Mr. Wade met in November 2019. Mr. Abbate argued that Ms. Yeartie could not describe any behavior she witnessed, only echoing Mr. Sadow’s question about whether he saw them “hugging, kissing.”
State Says Defense Made ‘Material Misrepresentations’
Mr. Abbate argued that a half dozen members of the district attorney’s office had been subpoenaed and Ms. Merchant had argued Mr. Bradley would impeach their testimonies. He said the accusations against Ms. Merchant were made because she had made “material misrepresentations.”
“We didn’t hear from any of those individuals,” Mr. Abbate argued. “Mr. Bradley impeached no one.”
“Mr. Wade wasn’t once confronted with a statement that he said to Mr. Bradley,” he added.
“I never called Ms. Merchant a liar, I never used those words,” he said.
Ms. Merchant’s claims and representations about Mr. Bradley’s testimony were made during a court hearing on the state’s motion to quash subpoenas and prevent the testimony of the district attorney’s office.
“Those were material misrepresentations made to the court,” Mr. Abbate said.
Defense Attorney Says Prosecutors Have 6 Conflicts of Interest
Harry MacDougald, representing Jeffrey Clark, argued there were six conflicts of interest at issue: financial, personal and political ambition, pattern of deceit of concealment of the relationship and money, the church speech, a motion for protective order the district attorney filed in Mr. Wade’s divorce case, and the way the state conducted the defense of the motion to disqualify.
“She has to go to the county commission to get approval to pay him like she did. She cannot accept gifts from a prohibited source [county contractor]. She has to disclose gifts she receives. She evaded all of those requirements,” Mr. MacDougald argued, citing county guidelines.
Mr. MacDougald also accused Ms. Willis of violating ethical guidelines in threatening Mr. Wade’s wife with prosecution in a civil case to benefit a criminal case.
Ms. Wade had sought to depose Ms. Willis regarding Mr. Wade’s finances. In a motion to quash that subpoena, Ms. Willis had proposed an investigation into Ms. Wade for alleged interference in the racketeering case.
“If this is tolerated, we’ll get more of it,” Mr. MacDougald said. “This office is a global laughingstock because of their conduct.”
The defense reserved the last five minutes of their time for rebuttal. The state will present arguments after a short break.
Shafer Attorney Says DA Prejudicing Jurors
Craig Gillen, counsel for David Shafer, said there was a “systematic, continuous pattern, a calculated plan, evidencing a design to prejudice the defendants in this case in the minds of the jurors.”
Mr. Gillen argued this was not a brief, off-the-cut comment, but that Ms. Willis had written down a speech and had given multiple interviews about the defendants.
Judge McAfee said case law points to prosecutors making comments that defendants were guilty.
Mr. Gillen cited one case where a pattern of improper comments disqualified a prosecutor.
“What we have here is someone who sat down and drew up a plan for two reasons,” he said.
“Pretrial can create major problems for a defendant indeed more harmful than publicity during a trial, for it may set the community opinion as to guilt or innocence,” he cited.
He pointed out that the church speech had been prewritten, and therefore planned. Ms. Willis had invoked God in questioning her critics’ motives and speaking about her will to pursue this case.
He argued that the prosecutors’ testimony was a “fraud on this court,” and argued the secretive nature of the relationship pointed toward the prosecutors knowing what they did was wrong.
Trump Attorney Says Judge Can Believe Witness Texts Over Testimony
Terrence Bradley, former law partner to Mr. Wade, had sent texts telling Ms. Merchant she was “absolutely” correct that the relationship before the hiring and offered additional information stating it began when Ms. Willis was a judge in late 2019. On the witness stand, Mr. Bradley said this was “speculation,” and he could not “recall” the circumstances around him sending the text.
“You don’t have to accept the fact that he was speculating,” Mr. Sadow argued, pointing to cases other cases with similar situations.
“You can disbelieve that testimony and draw a negative inference,” he said, citing two cases. “You can simply take the prior inconsistent statement as evidence.”
“Where in the law do we find the remedy to an untruthful statement?” Judge McAfee asked. “Generally, we send you down to the bar.”
Mr. Sadow pointed to cases where counsel, not prosecutors, were disqualified for similar ethical violations. “Prosecutors are held to a higher standard, they are the ones seeking justice,” he added.
Judge McAfee asked whether, if he found the prosecutors untruthful, he would need to disqualify them from every case. Mr. Sadow said it was limited to the current case where they had testified under oath.
“Are we dealing with a preponderance standard?” the judge asked.
Mr. Sadow agreed and said it was indeed the defense’s burden to show ethical violations.
Trump Attorney Says Willis Church Speech Was Improper
Steve Sadow, representing President Trump, argued Ms. Willis engaged in forensic misconduct.
He said that after he said in court his client was considering joining Mr. Roman’s motion, Ms. Willis made a speech at an Atlanta church days later suggesting defendants had made allegations about Mr. Wade and herself because they were black. The speech took place before the state responded to the motion.
Mr. Sadow said it was an “ethical violation.”
The ethical guidelines “make it clear that you must refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused,” he cited.
“Can you think of anything more that would heighten public condemnation of the defendants than alleging that defense counsel and their defendants were making their motion based on race and religion?
“That’s as bad as it gets in Fulton County, with all due respect,” he said.
He added that the appearance of impropriety was enough to warrant disqualification under Georgia law.
Roman Attorney Uses Argument Time to Defend Wife
Mr. Merchant said he had to take the time to defend Ashleigh Merchant, his wife, from accusations by the state that she was a “liar.”
Text messages between Ms. Merchant and witness Terrence Bradley have since been entered into the record, countering testimony from Ms. Willis and Mr. Wade.
Mr. Merchant argued that the state pushed back so hard on the timeline allegations because “they did this, they knew it was wrong, they hid it, and even when they were called out on it they tried to create an excuse for it by saying it happened after the fact.”
Roman Says Willis Testimony Leaves More Than $9,000 Unaccounted
Mr. Merchant said that even accounting for the money Ms. Willis testified she gave to Mr. Wade in cash and how much Mr. Wade spent on Ms. Willis’s expenses according to financial statements, there was still $9,247 unaccounted for.
“It’s not necessarily the amount of the money, it’s the fact that she received it,” he added.
Defense Brings Up Previous Willis Disqualification
Mr. Merchant said this case was the “first impression” of its kind in Georgia, and he could not find another similar case.
“We’re here today on this motion to disqualify DA Willis and her office because of her judgment, frankly. She is supposed to be disinterested under the Sixth Amendment and she is anything but that,” he said. “This court represents the guardrails for the Sixth Amendment and Ms. Willis has already been disqualified once.”
Ms. Willis had previously been disqualified from prosecuting a case against Burt Jones, a Republican Georgia state senator.
Mr. Jones was at the time running for lieutenant governor in Georgia against Charlie Bailey, a Democratic candidate for whom Ms. Willis had hosted a campaign fundraiser.
“The law in Georgia suggests, and is very clear, that we can demonstrate an appearance of a conflict of interest and that is sufficient,” he added.
Mr. Merchant noted that if the judge did not grant the disqualification, the defendants were prepared to seek appeal, and if the decision were overturned the entire case would have to be retried.
“What is that, personal interest?” Judge McAfee asked.
Mr. Merchant said there was “no definition for that under Georgia law.”
“It could be a personal financial interest, it could be a personal interest related to bias, which sort of falls into the forensic misconduct box. But we have here a very personal financial interest laid out in terms of money received by Ms. Willis as a result of the scheme she set up,” Mr. Merchant said.
“You know it when you see it,” he added, quoting a Supreme Court opinion regarding how to define “obscenity.”
Hearing Begins
Adam Abbate, chief deputy attorney general for the Fulton County District Attorney’s office, was present on behalf of the state. Ms. Willis and Mr. Wade were not seen in the courtroom at the beginning of the hearing.
Each side was given an hour and a half to argue.
The defense had wanted to reopen evidence and both sides wanted to call another witness, which the judge said he may allow additional evidence after hearing legal arguments today if he deems it necessary.
John Merchant, representing Mr. Roman, will argue on conduct and appearance of a conflict of interest.
Attorneys Steve Sadow and Craig Gillen will argue on forensic misconduct, including allegedly prejudicial statements Ms. Willis made and alleged fraud on the court.
From The Epoch Times
