Unless Willis’ hearing is 'an episode of Divorce Court' — she won’t be disqualified: ex-federal prosecutor

14 February 2024

Ahead of the Thursday, February 15 evidentiary hearing expected to decide whether Fulton County District Attorney Fani Willis' romantic ties to her fellow prosecutor will disqualify them from Donald Trump's racketeering case, The Daily Beast's Shan Wu argues "the hearing is unlikely to yield any enlightening evidence—because the premise of the motion is so deeply flawed."

Trump co-defendant Michael Roman wants Willis disqualified from the criminal case based on what he alleges is a conflict of interest.

Wu, a former federal prosecutor, notes, "Judge [Scott] McAfee has thus far run a disciplined courtroom and this hearing is likely to quickly and decisively end Roman’s efforts to disqualify Fani Willis. That is, unless Roman’s attorneys succeed at turning the hearing into an episode of Divorce Court."

He writes, "First, despite the salacious focus of Roman’s legal team, the hearing is not about Willis’ romantic relationship with Nathan Wade. Given that Willis submitted pleadings in which the existence of a personal relationship that developed after Wade was hired, Judge McAfee rightly said the existence of a personal relationship is not at issue—and the only relevance of that relationship is the question of whether it creates an actual conflict of interest or the appearance of one."

Wu adds according to Georgia law, "lawyers who are married to each other cannot be disqualified, even if they are on opposing sides of a case." He notes, "Willis and Wade are on the same side of the case, so the possibility of conflict is even less than if they were adversaries in the case."

Noting, "It’s important to know that it would be disqualifying if Willis (or Wade) had a financial stake in the outcome of the case," the ex-federal prosecutor writes:

Roman’s attorney argues that the financial interest in the case is due to the fact Wade gets paid by the hour, Fani Willis has an interest in dragging out the case. But dragging out a case is not the same as having an interest in whether you win or lose.

Not only is Roman’s argument legally off-base, it’s also stunningly tone-deaf. His own lawyers, Ashleigh Merchant and Jonathan Merchant, are married to each other and—presumably being paid for their work on Roman’s case on an hourly or flat fee basis. Under this logic, any lawyer being paid for work on a case has a financial stake in the case that could result in disqualification. In other words, all paid lawyers must be disqualified.

Finally, Wu emphasizes, "the biggest problem for Roman’s legal team is likely to be their star witness, Terrence Bradley, who is Wade’s former law partner and once represented him in Wade’s divorce case," adding that the main issue with "Bradley’s testimony is that unless Roman’s lawyers plan to qualify him as a couples counselor, Bradley lacks any expertise to testify about when the relationship between Willis and Wade turned romantic."

Wu's full op-ed is available at this link (subscription required).

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