Why the Fani Willis hearing could decide the fate of Trump's Georgia election case

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ATLANTA – A potential blockbuster hearing starting on Thursday could decide the fate of the Georgia election racketeering case against Donald Trump and 14 others charged with trying to illegally overturn the 2020 election results in a state he lost by a whisker to Democrat Joe Biden.

The hearing marks the first time a judge will officially determine if allegations surrounding an affair between Fulton County District Attorney Fani Willis and the private attorney she hired to oversee the case, Nathan Wade, are enough to disqualify one or both of them – and potentially even to dismiss the case altogether after three years of investigation and prosecution.

Allegations about the affair by Trump co-defendant Michael Roman have made international headlines since he first aired them in a bombsell Jan. 8 court filing. Since then, they have launched several rounds of bitter and increasingly personal accusations.

Here are the key players, the big issues, the explosive revelations – and what could ultimately happen in a case that could derail Trump’s campaign for a second term.

More: Georgia judge rules evidence exists to possibly disqualify DA Fani Willis in Trump case

What’s happening in Georgia?

Fulton County Superior Court Judge Scott McAfee is set to hold an evidentiary hearing that promises to include extremely personal details of the private lives of Willis, Wade and potentially others who Roman’s defense attorney wants to call as witnesses.

The hearing promises so much fireworks that on Monday, McAfee ruled that not only is there enough evidence to potentially disqualify Willis, but that at least one extra day of hearings will be needed to hear all the evidence and testimony from witnesses for the prosecution and defense.

More: Fani Willis admits to relationship with prosecutor. What does that mean for the Trump case?

What do we know about Willis’s affair with her special prosecutor?

On Feb. 2, Willis and Wade admitted in a sworn court filing that they’ve had a “personal relationship” that included a romantic affair, after weeks of staying silent on the issue.

Roman has alleged that Wade, a private lawyer with little relevant experience in prosecuting complex racketeering cases, was unqualified for the case. And he charged that Wade used some of the more than $650,000 he’s been paid as special prosecutor to take Willis on romantic vacations to California wine country, Florida and on Caribbean cruises.

At issue is whether Willis’s “clandestine” affair with Wade represents an improper conflict of interest that irrevocably taints the case, as Roman alleged. In his initial motion, Roman asserted their relationship provided both Willis and Wade with a financial incentive to keep the investigation and subsequent prosecution going so they could “enrich themselves” and personally – and improperly – benefit from the proceedings.

More: Why Nathan Wade, under fire for alleged affair with Fani Willis, is facing new scrutiny

Willis and Wade push back

Wade and Willis strenuously denied using any of the money Wade has received in legal fees from the county for their vacations together. And they both insisted in their sworn court filings that their affair began after Willis hired him on Nov. 1, 2021 to oversee the case.

The very next day, Roman has noted, Wade filed for divorce from his wife of more than 26 years, Joycelyn Wade. She has also alleged, in unrelated divorce papers, that Willis is Wade’s “paramour.”

Willis and Wade also have insisted that neither of them received any financial benefit from the continuation of the case. Willis added that their merely being in a relationship together has no bearing on the investigation and prosecution of Trump and the others, including former Trump lawyer Rudy Giuliani and former White House Chief of Staff Mark Meadows.

All have denied wrongdoing and pleaded not guilty. Four of the initial 19 defendants, including former Trump legal advisors Sidney Powell and Jenna Ellis, have flipped, or entered into plea agreements in which they could receive potentially more lenient treatment in exchange for cooperating with prosecutors.

More: Georgia DA Fani Willis breaks silence over Donald Trump case prosecutor

A key question: When did the affair start?

Ashleigh Merchant, Roman’s lawyer and a prominent Atlanta defense attorney, told the judge at Monday's hearing that she wants to bring to the stand a former law partner of Wade’s and a former DA’s office employee, both to testify that Wade’s romantic relationship with his boss began before, not after, Willis hired him.

If true, the potential testimony by lawyer Terrence Bradley – who has not commented publicly – would not only mean Willis and Wade both lied in their sworn court filings, but that they could potentially be disqualified from the case, Judge McAfee ruled in allowing the evidentiary hearing to go forward. Willis and Wade both tried to quash subpoenas requiring them to testify, presumably to avoid having the details of their personal lives and romantic relationship aired in a publicly livestreamed courtroom.

Merchant also told the judge Bradley would testify that Willis and Wade had stayed together in at least one county “safe house” apartment used by the district attorney following threats to her life over the Trump prosecution. Merchant told the judge that she wants to call several other witnesses to bolster her case.

Fulton County District Attorney Fani Willis appears before Judge Scott McAfee for a hearing in the 2020 Georgia election interference case at the Fulton County Courthouse on November 21, 2023 in Atlanta, Georgia.
Fulton County District Attorney Fani Willis appears before Judge Scott McAfee for a hearing in the 2020 Georgia election interference case at the Fulton County Courthouse on November 21, 2023 in Atlanta, Georgia.

‘A ticket to the circus’

One of Willis’s top aides, Anna Cross, told the judge on Monday that she believed the primary allegation – that the affair began before Willis hired Wade -- was false and that she would be “shocked” if it turned out to be true. But it wasn’t clear from Cross' testimony if she was clearly refuting it. And neither Willis nor Wade have responded directly to the claim, which Merchant raised in a court filing just hours after Willis and Wade swore in writing that they did nothing wrong.

After weeks of initial silence, the judge gave Willis until Feb. 2 to respond to Roman’s initial motion, which was later joined bv Trump and at least one other co-defendant. They’re seeking not only to disqualify Willis, Wade and the entire District Attorney’s Office, but to have the case against them dismissed outright.

More broadly, the state’s response in one recent court filing was that Roman and his lawyer want to call so many witnesses on Thursday in an attempt to “intrude even further into the personal lives of the prosecution team in an effort to embarrass and harass the district attorney personally.”

“This is not an example of zealous advocacy, nor is it a good faith effort to develop a record on a disputed legal issue — it is a ticket to the circus,” Willis' office wrote.

Related: 'Ominous' sign for Donald Trump? Guilty pleas from Chesebro, Powell raise the stakes in Georgia

What could happen next?

Many legal experts, especially Democratic ones, have said that while Willis’s affair with her chief prosecutor is embarrassing, it doesn’t rise to the level of forcing either one of them to be disqualified.

A group of 17 former prosecutors and defense attorneys, in a recent friend of the court brief, downplayed the controversy, saying Roman and the other defendants haven’t done anything to prove some of their key allegations, especially in showing that the Willis-Wade affair undermined their right to a fair trial in any way.

“But even if all Defendants’ allegations are true, they do not mandate disqualification here. Indeed, they do not even come close,” wrote the self-described ethics experts, including former top Republican White House ethics lawyer Richard Painter. “As the Georgia disqualification cases show, prosecutors are trusted to discharge their duties impartially, even when they have conflicting interests that may generate an appearance of impropriety in the eyes of some.”

Fulton County Superior Judge Scott McAfee called for two days of hearings starting Thursday to determine if Fulton County DA Fani Willis should be booted from the prosecution of former President Donald Trump and more than a dozen codefendants over her affair with special prosecutor Nathan Wade.
Fulton County Superior Judge Scott McAfee called for two days of hearings starting Thursday to determine if Fulton County DA Fani Willis should be booted from the prosecution of former President Donald Trump and more than a dozen codefendants over her affair with special prosecutor Nathan Wade.

Others, however, including Georgia law professor Clark Cunningham, have told USA TODAY that Willis’s confirmation of the affair means she should step down so as not to jeopardize the case or undermine it with constant attacks on her leadership.

If McAfee ultimately rules in Roman’s favor, he could potentially remove Willis, Wade or the entire Fulton County DA’s office from the case. If that happens, the Atlanta Journal-Constitution reported, a little-known state agency called the Prosecuting Attorneys’ Council of Georgia would be the oversight body that would decide what happens next.

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This article originally appeared on USA TODAY: Fani Willis hearing could decide fate of Trump's Georgia election case