by Stanley Dunlap, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]

March 15, 2024

Legal experts predict that Fulton County District Attorney Fani Willis faces an uphill battle in trying to have Donald Trump and 14 remaining co-defendants stand trial ahead of the 2024 election despite a judge ruling Friday that allowed Willis to continue prosecuting the election interference case.

According to several legal experts interviewed by the Georgia Recorder, the Fulton County District Attorney’s Office does not have a good chance of successfully convening a trial this year against the former Republican president and his allies accused of overturning the 2020 election in Trump’s favor. The latest bombshell in the case dropped Friday when special prosecutor Nathan Wade resigned from the case after Superior Court Judge Scott McAfee ordered Wade or the Fulton district attorney to step aside.

McAfee wrote Friday morning that there is a need to address a “significant appearance of impropriety that infects the current structure of the prosecution team” concerning Willis and Wade. The two admitted to having been romantically involved while the case was underway.

But McAfee concluded that the Trump co-defendants who were pushing for Willis’ disqualification had failed to prove a conflict of interest related to a relationship that saw Wade earn about $700,000 since Willis appointed him as special prosecutor in November 2021.

Wade submitted his letter of resignation Friday afternoon.

“Although the court found that ‘the defendants failed to meet their burden of proving that the District Attorney acquired an actual conflict of interest,’ I am offering my resignation in the interest of democracy, in dedication to the American public, and move this case forward as quickly as possible,” Wade wrote in his resignation letter.

It was one of two options presented in a 23-page ruling that McAfee issued Friday morning.

Even with the judge’s ruling in Willis’ favor, the motion to dismiss has delayed the case by more than two months, complicating Willis’ attempt to start the trial by August, ahead of Trump’s expected rematch with Biden on Nov. 5. If Trump is already in the White House in January, the odds of him standing trial are greatly diminished, experts said.

Defense attorneys had claimed Willis gave her boyfriend Wade a lucrative contract funded by taxpayers to be the lead prosecutor in the election case. Wade spent thousands of dollars on the couple’s travel to take vacations together on cruises out of the country, weekend trips out of state and other expenses, according to credit card receipts that fueled a dramatic twist in the case.

Willis and Wade testified at a hearing on Feb. 15 that their romantic relationship began several months after he was hired for the case and ended last summer. Willis testified under oath that she paid for her share of travel costs in cash.

Friday’s ruling was in response to a motion filed in January by an attorney for one of the lesser-known defendants, former Trump campaign official Michael Roman, who sought to have the indictment dismissed and the DA’s office disqualified from prosecuting the case.

The judge held hearings in February that were nationally watched and featured surprise testimony from Willis, who offered a fiery defense of her actions.

Former longtime Gwinnett County District Attorney Danny Porter is giving the DA’s office a 30% chance of bringing the trial to court prior to the Nov. 5 election. 

Trump’s defense attorney Steve Sadow said that McAfee’s ruling did not offer the appropriate recourse for Wade and Willis committing prosecutorial misconduct that includes what he argues are the financial benefits of their relationship. He also said Willis should be held accountable for claiming in a January Atlanta church speech that Wade being a Black man was a factor in the defense attorneys challenging his role in the case. 

“We will use all legal options available as we continue to fight to end this case, which should never have been brought in the first place,” Sadow said in a statement Friday.

Porter said that the defense attorneys in the election interference case are likely limited to petitioning the state court of appeals to grant a certificate of immediate review. The chance of a successful appeal is low since McAfee ruled that the defense was unable to provide enough reason for the case to be wholly dismissed by the Fulton DA’s office, Porter said.

“The case survives disqualification but that’s the smaller picture,” Porter said. “The likelihood of success on appeal is not zero but it’s low.”

Porter said he expects that Willis will be aggressive in pushing for the start of the trial which will involve filing a motion to specifically set the trial date.

Porter said he believes there isn’t much of a chance that any evidence would be presented in the case prior to the Nov. 5 election. Porter compared the potential jury selection process for a case involving Trump to the nine months it took to find a jury for the ongoing “Young Slime Life” street gang racketeering trial headlined by Atlanta rapper Young Thug.

“If you think jury selection in ‘Young Slime Life’ was a nightmare, this will make it look like a picnic,” Porter said.

The future of the case could hinge on federal law and constitutional provisions regarding a sitting president and the president-elect, he said. Wade stepping down was the honorable decision instead of Willis being forced to remove him from the case, Porter said. A critical decision will be if Willis decides to try to appoint special prosecutors Anna Cross and John Floyd to take over Wade’s role or if Willis takes on more responsibility.

“Does she want to take over his role and become directly involved in the case or does she want to hire another special prosecutor or ask the two (other) special prosecutors if they are willing to expand their duties?” Porter wondered.

Norman Eisen, who was a legal scholar and counsel during Trump’s first impeachment trial, said McAfee acted correctly in not disqualifying Willis in the Georgia election interference case, since the defendants were not able to meet the steep burden required to remove a prosecutor under Georgia law.

McAfee’s ruling shouldn’t complicate the public’s understanding about the seriousness of an alleged criminal conspiracy involving a former president, Eisen said.

In January, Eisen called for Wade’s departure in order to refocus the investigation.

“The judge’s opinion does allow us to get past this distraction and get back to what the case is really about: the serious allegations that a president illegally sought to remain in office despite the will of American voters,” said Eisen, who served as an ethics czar during the Obama Administration.

“The need is for speed. If I were Fani Willis, I would embrace this ruling,” Eisen said. “I would respectfully register my disagreement with one or two points, and on Monday, I would move to either renew the August request she’s made (for trial), or go even sooner… We have waited long enough for this case to move.”

Atlanta attorney Andrew Fleischman said that McAfee’s ruling underscored the problems with Willis having a romantic relationship with the special prosecutor in the case. Fleischman said he isn’t aware of a judge who said that they would consider implementing a gag order on a district attorney based on her comments in the case.

Fleischman said the chances are “slim” for the Fulton DA’s office to bring the case to court prior to the November presidential election. He points to the strong language McAfee used in this ruling to admonish the way Willis has handled her appointment of Wade in the case.

Willis should have dismissed Wade a long time ago if she was acting in the best interest of prosecuting the case moving forward, Fleischman said. 

“The correct decision would’ve been to dismiss Wade several months ago,” he said. 

The political fallout from Friday’s ruling

While the ruling is largely a win for Willis, the judge was unsparing in his criticism of the district attorney’s conduct, calling her actions a “tremendous lapse in judgment” and her behavior at last month’s hearing “unprofessional.”

But McAfee wrote that any further recourse will have to be found in other venues, such as the state Legislature where the high-profile case has already loomed large in the form of a prosecutor oversight commission, and at the ballot box. Willis faces a primary challenger as well as a Republican candidate affiliated with the 2020 Trump campaign in the fall.  

Friday’s favorable ruling for Willis also did not come without a price, says Andra Gillespie, a political science professor at Emory University.

“It’s a two-prong strategy. On the one hand, it fails because (Roman’s attorney) couldn’t muster enough evidence to prove that Fani Willis benefited financially from her employment of Nathan Wade and the relationship that was also going on kind of concurrently for at least part of this time period,” Gillespie said Friday.

“But what she did succeed in doing was besmirching the reputation of Fani Willis and creating a side show that is a distraction from the overall facts of the case, which are not compromised by any mistakes Willis made in putting a boyfriend or an ex-boyfriend on this particular case,” she added.

The episode has also raised questions about the credibility and the motives of the prosecution, potentially influencing would-be jurors and complicating the district attorney’s strategy for the case.

“I’m not acknowledging that (Willis) didn’t open the door for this kind of attack or criticism, but I think it is also important to point out that this was a distraction too and that this was done as a dilatory tactic,” Gillespie said.

Critics of the former president hoped Friday’s ruling would help get the case back on track.

“Great news!” Atlanta Democratic Rep. Shea Roberts posted on social media after the ruling was issued. “Now it’s time to stop with the distractions and let DA Willis do her job! It’s time for Trump and his associates to be held accountable for trying to overturn the will of GA voters.”

The former president and his supporters blasted the judge’s ruling. Trump mocked Wade and Willis on his social media site and said Willis had sought the case on behalf of his rival, President Joe Biden, “for purposes of Election Interference and living the life of the Rich & Famous.”

“Judge McAfee’s ruling is disappointing but not surprising,” Congressman Andrew Clyde, an Athens Republican, posted on social media. “After all, he worked for Fani Willis and donated to her campaign. Clearly, corruption runs deep in Fulton County, Georgia.”

Clyde’s accusations were echoed by other Republican lawmakers like Georgia Congresswoman Marjorie Taylor Greene of Rome, who is a key Trump surrogate.

McAfee worked in a division of the Fulton County District Attorney’s Office headed up by Willis before she became district attorney, the New York Times reported. The far-right news outlet Breitbart first reported that McAfee donated $150 to Willis’ campaign for district attorney, but that was in 2020, before he was appointed to the bench in 2022 by Republican Gov. Brian Kemp. 

McAfee’s decision may inspire ire among Trump fans and satisfaction for Biden backers, but Jason Shepherd, Kennesaw State University professor of political science and former chair of the Cobb County Republican Party, said it probably won’t be a game-changer for this November’s election.

“It likely will not have any effect, especially in Georgia,” Shepherd said. “Each camp is dug in with a majority of Republicans firmly believing that the case against Trump is simply political lawfare while a majority of Georgia Democrats believe Trump is guilty of numerous crimes. Swing voters are more concerned about the economic conditions based on inflation that is still putting a dent in family budgets.” 

Shepherd said McAfee’s words could tarnish Willis’ reputation ahead of her bid for a second term as top prosecutor in Georgia’s most populous county. He noted that part of Willis’ 2020 campaign focused on the incumbent district attorney’s ethical fitness.

“Terms in the order like ‘tremendous lapse of judgment’ do not make great talking points for your own re-election but make for great attack pieces designed to hit mailboxes just as voters prepare to go to the polls,” he said.

Georgia Recorder is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor John McCosh for questions: info@georgiarecorder.com. Follow Georgia Recorder on Facebook and Twitter.