Nathan Wade should step down from Fulton Co. case even if he isn’t disqualified: experts

Special prosecutor Nathan Wade — who admitted on the witness stand last week to briefly dating Fulton County District Attorney Fani Willis — should recuse himself from the prosecution of former President Donald Trump and his associates to preserve the integrity of the investigation, according to a recent column by two legal experts.

In a column for the legal publication Lawfare, Harvard-educated lawyer Anna Bower and editor-in-chief Benjamin Wittes both argued that while there is no basis to disqualify Willis based on the evidence brought by an attorney representing one of Trump's co-defendants, the lingering questions surrounding Wade and his relationship with Willis are a distraction from the historic and unprecedented RICO prosecution of the 45th president of the United States. They clarify that Wade's dismissal is still necessary even if Judge Scott McAfee — who is overseeing the proceedings — doesn't disqualify Willis and Wade from the case.

"While the evidence does not support disqualifying the office or Willis, Wade has displayed a sufficient lack of candor with the courts that he is not a credible figure to continue to represent the state in this case," Bowers and Wittes wrote. "While this conduct doesn’t create the conflict of interest that the defendants alleged in their motion, it does taint the prosecution if he remains involved with it. Willis herself needs to remove Wade from her team, even if McAfee finds no basis to do so."

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The authors continued by pointing out that Wade lacks the credibility needed to remain on Willis' team. They observed that during Wade's testimony, he contradicted an earlier statement he made during his divorce proceedings. In May of 2023, when asked about any extramarital affairs he had in between the time of separation up to the present, he said there were "none." However, Wade admitted under oath last week to having sex with Willis during that time frame.

"Quite apart from the question of whether any sort of conflict of interest arises out of Wade’s relationship with Willis, this kind of failure of candor with the court is unbefitting a prosecutorial office, and Willis tolerates it at no small peril to her office’s credibility," Bower and Wittes wrote.

They also both noted that Judge McAfee said that he may apply a more broad definition of a "conflict of interest" when issuing his ruling on whether there was indeed a conflict meriting disqualification as attorney Ashleigh Merchant — who represents Trump co-defendant Michael Roman — previously alleged. In Georgia, disqualification is typically granted if petitioners can demonstrate "more than a theoretical or speculative conflict." However, McAfee said last week that "disqualification can occur if evidence is produced demonstrating an actual conflict or the appearance of one."

"Assuming he is not going to disqualify [Willis], Judge McAfee will likely want to act swiftly to get the case back on track," the authors wrote. "Willis should help him do that by taking Wade off the case."

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Click here to read Bower and Wittes' column in full.