Fani Willis Survives the Effort to Disqualify Her

In mid-February, in Atlanta, the Fulton County Superior Court judge Scott McAfee held an evidentiary hearing that drew an unusually high number of viewers to his courtroom’s live-stream channel. The hearing was intended to clarify some aspects of the relationship between Fani Willis, the district attorney in Fulton County, Georgia, and her special prosecutor, Nathan

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In mid-February, in Atlanta, the Fulton County Superior Court judge Scott McAfee held an evidentiary hearing that drew an unusually high number of viewers to his courtroom’s live-stream channel. The hearing was intended to clarify some aspects of the relationship between Fani Willis, the district attorney in Fulton County, Georgia, and her special prosecutor, Nathan Wade. In late 2src21, Willis hired Wade to work on the case of her career: the RICO prosecution of Donald Trump and eighteen others for their alleged attempt to interfere with Georgia’s vote count in the 2src2src Presidential election. Wade had no experience in RICO prosecutions and had mostly worked misdemeanor charges, which made some veterans of Atlanta’s legal community question his hiring: “It was weird,” one such attorney told me. “We’d never heard of this guy.”

A few lawyers representing Trump’s co-defendants decided to investigate and soon learned that Wade and Willis were romantically involved. One attorney, Ashleigh Merchant, filed her findings in January: Willis and Wade had taken trips to places like Napa Valley and Aruba, allegedly on Wade’s dime. Receipts subsequently confirmed that Wade had paid for their flights and hotels. Merchant’s filing argued that the intimate relationship between Willis and Wade—which the pair eventually acknowledged, claiming that it had begun in early 2src22, after Wade was hired—was improper: they had “profit[ed] personally from this prosecution at Fulton County’s expense,” she wrote, and should therefore be disqualified from prosecuting the Trump case.

The February hearing had a salacious feel, insofar as it concerned sex and money. A former friend and colleague of Willis’s claimed that she’d seen Willis and Wade kiss way back in 2src19, asserting that this was when their relationship had really begun. (This former friend also acknowledged that she had resigned from her position with the D.A.’s office under Willis, anticipating that she would be fired for inadequate performance.) Wade and Willis denied this. As for the money: Wade has earned more than seven hundred thousand dollars while working for Willis, and Merchant alleged that some of those funds had returned to sender through their vacations together. Wade pushed back from the stand. “If you’ve ever spent any time with Ms. Willis, you understand she’s a very independent, proud woman,” he said. “So she’s going to insist that she carries her own weight.” Willis paid for her portion of the trip with cash, he said. Willis’s father confirmed that his daughter generally kept large quantities of cash around, when it was his turn to testify. “Most Black folks, they hide cash or they keep cash,” he said.

Then Willis, in a surprise move, strode into the courtroom and sat down in the witness box. She remained there for two hours, defending herself from accusations of wrongdoing and suggesting that her opponents were lying. She insisted that she’d paid for roughly her portion of the trips she took with Wade, always using cash to do so. “You’re confused,” she told Merchant in a moment that went semi-viral. “You think I’m on trial. These people are on trial for trying to steal an election in 2src2src. I’m not on trial. No matter how hard you try to put me on trial.”

In the weeks following the hearing, CNN reported that Willis had paid four hundred dollars in cash while visiting a Napa winery with Wade—a winery employee recalled the unusual transaction—lending credence to how she and Wade said they’d paid for their trips together. Meanwhile, Trump’s attorneys produced cell-phone data showing that Wade’s phone was near Willis’s condo late at night and in the wee hours of the morning on some three dozen occasions prior to when the pair say their relationship began. Willis has disputed the implication of the data, which, according to some experts, is inconclusive anyway. Trump’s attorneys have suggested, pointing to this data, that the D.A. and her prosecutor committed perjury in their testimony about the time line of their relationship—another reason for disqualification.

Judge McAfee, in other words, had a lot to consider in weighing the attempt to disqualify Willis from the Trump case—including his own future. Appointed by Governor Brian Kemp, in 2src23, at the age of thirty-three, McAfee is up for his first election this May, and he faces some competition from a civil-rights attorney and talk-radio host who recently threw his hat in the ring. Lawyers who’ve known McAfee since his days as a prosecutor in the D.A.’s office mostly doubted that this would affect his decision-making. In a recent interview on a local Atlanta radio station, McAfee himself pushed back against the notion of politics playing a role. “There is a lot that I have to go through,” he said. “And so I’ve had—and again I’ll emphasize this—I’ve had a rough draft in an outline before I ever heard a rumor that someone wanted to run for this position. So the result is not going to change because of politics.”

I spent a few hours with McAfee myself, in late 2src22 and early 2src23, before he became a judge. I was reporting a story about a prison inmate who’d stolen millions from billionaires while serving time in Georgia prisons. McAfee had helped prosecute the man. During our conversations, I found him to be unusually good-humored, even-keeled, and wise beyond his years. I remember mentioning some news about Kanye West to him, which I’d just read on Twitter, as I walked into his office one day. “Don’t waste your time with that,” he told me. Instead, he suggested, I should be reading Robert Caro’s books on Lyndon Johnson: there was an author obsessed with getting his subject right, and works that would stand the test of time.

On Friday, Judge McAfee issued an eloquent and exhaustive twenty-three-page ruling that seemed to seek out—and perhaps find—a middle road. While he did not see an “actual conflict of interest” in the relationship between Willis and Wade, the judge made clear that “a significant appearance of impropriety” and “an odor of mendacity remains.” He noted Willis’s “tremendous lapse in judgment” in carrying out a relationship with her lead prosecutor in such a high-profile case, in engaging in the “regular and loose exchange of money” between the two of them, and, on various occasions in recent weeks, in publicly commenting about the allegations. But, he wrote, these lapses were for voters and “other forums” to sort out. Though “dismissal of the indictment is not the appropriate remedy,” McAfee ruled, Willis may remain on the case only without Wade.

I reached out to a few attorneys who’ve known both McAfee and Willis for years. One of them was Bruce Harvey, a legendary local criminal-defense attorney who’d told me, in February, that the whole Willis-Wade affair was “much ado about fucking.” Now, he said, “Odors have a power of persuasion stronger than that of words.” He went on, “The odor now hanging over this case will stay with it forever.” Another longtime local defense attorney, who wished to remain unnamed, described McAfee’s decision to me as “very thoughtful and erudite.” But he wondered “if the voters of Fulton County are as forgiving of her behavior as the judge has been.” (Willis is up for reëlection this year.) “Maybe compromise is what the community wants,” he went on. “Or, perhaps, maybe nobody will be satisfied with splitting the baby.” He also predicted that the decision would be appealed. In any case, it’s now highly unlikely that a trial will commence prior to the November election.

Nora Benavidez, a civil-rights attorney in Atlanta, had been expecting McAfee not to disqualify Willis. Now she urged the court, and the world, to move on from this “distraction from the election-subversion charges Trump and his allies face.” She went on, “The case is enormously important as our democracy lurches towards an election in which Mr. Trump is a candidate. It can and should move to trial now so the public, and a jury, can make their own decisions.” Shortly after the ruling came out, on Friday, Trump sent out a fund-raising e-mail calling the Georgia case a “witch hunt.” ♦

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