Fulton County RICO Case Against Trump Facing Major Procedural Challenges
Fulton County Prosecutor's alleged relationship with special prosecutor could derail the trial
Fulton County District Attorney Fani Willis’s prosecution of Donald Trump has taken an unexpected turn. On Monday, January 8th, Ashleigh Merchant, the defense attorney for former Trump campaign official Michael Roman, filed a dismissal motion on his behalf, alleging that Willis has financially benefitted from the prosecution by hiring a romantic partner as a special prosecutor. From the Atlanta Journal-Constitution:
The bombshell public filing alleged that special prosecutor Nathan Wade, a private attorney, paid for lavish vacations he took with Willis using the Fulton County funds his law firm received. County records show that Wade, who has played a prominent role in the election interference case, has been paid nearly $654,000 in legal fees since January 2022. The DA authorizes his compensation. …
Pallavi Bailey, a Willis spokeswoman, said the DA’s office will respond to Roman’s allegations “through appropriate court filings.” Wade did not immediately respond to a request for comment.
The document offers no concrete proof of the romantic ties between Willis and Wade, but says “sources close to both the special prosecutor and the district attorney have confirmed they had an ongoing, personal relationship.”
Roman’s lawyer, Ashleigh Merchant, said she reviewed the case file in Wade’s ongoing divorce proceedings at the Superior Court Clerk’s Office and made copies of certain documents. But the case file was later improperly sealed because no court hearing was held as required by law, the motion said.https://www.ajc.com/politics/breaking-filing-alleges-improper-relationship-between-fulton-da-top-trump-prosecutor/A2N2OWCM7FFWJBQH2ORAK2BKMQ/
When news of this filing first hit the news, I was skeptical, especially as the filing offered no proof of the relationship. However, shortly after the news broke, Georgia Defense attorney Andrew Fleischman tweeted/x’d the following:
Fleischman has a lot of experience with the Fulton County prosecutor’s office. He is also considered a trusted source by groups like Lawfare and practitioners like Ken White. I cited his critique of Willis’ charging strategy in a previous post. Fleischman taking the allegations seriously made me take them more seriously.
Like several commenters, including Lawfare, I held off on writing about this before Wills’s promised response to the allegations. That response came on Sunday, and it did not fill me with a lot of confidence:
Speaking publicly for the first time since last week’s court filing accused her of hiring a romantic partner to help prosecute the former president, Willis told the congregation at Big Bethel AME Church that attorney Nathan Wade is a legal “superstar” who is uniquely qualified for the role.
Without ever addressing him by name, Willis referred to Wade as “a great friend and a great lawyer” and said he is paid the same hourly rate as the other two special prosecutors hired to assist with the case. She did not deny or confirm that the two are romantically involved. …
County records show that Wade —who led prosecutors’ presentation to the special grand jury, signed off on subpoenas, interviewed key witnesses and negotiated immunity deals in the case—has been paid nearly $654,000 in legal fees since January 2022. …
Standing in front of the choir during the historic Black church’s Martin Luther King Jr.-themed service, Willis noted that the other two special prosecutors on the Trump case, John Floyd and Anna Green Cross, are both white. She did not mention those two by name.
“They only attacked one,” Willis told the congregation.
“First thing they say, ‘Oh, she’s gonna play the race card now,” Willis said. “But no God, isn’t it them that’s playing the race card when they only question one? Isn’t it them playing the race card when they constantly think I need someone from some other jurisdiction in some other state to tell me how to do a job I’ve been doing almost 30 years?”
Floyd, a prominent expert on racketeering laws, on has been consulting with Willis’ office on the Trump and Young Slime Life RICO cases for almost three years. Cross, known for her experience arguing high-profile cases, including the Dunwoody day care and Jamil Al-Amin murder cases, has been deployed twice by Willis to argue during two key courtroom moments in the Trump case.
According to billing documents reviewed by The Atlanta Journal-Constitution, Cross’ firm has been paid almost $43,000 for her work on the election interference case and Floyd’s has been paid $73,000 by the DA’s office.https://www.ajc.com/news/crime/fulton-da-defends-special-prosecutor-during-church-speech/HLHFIKVP4FHIJH4ANZYV7HKHP4/
Lawfare’s Anna Bower also curated a selection of video clips from Willis’s speech. In addition to what the AJC’s reported, Willis’s remarks that day repeatedly referenced how she is an “imperfect” and “flawed” person and should be allowed to “stumble” from time to time.
Given that at no time in the speech did Willis deny that she and Wade were/are in a relationship and that she has been subpoenaed to testify in Wade’s divorce hearings, I think it’s prudent to prepare to accept that all of this smoke is pointing to a (procedural) fire. Keeping that in mind, let’s spend a moment on the implications of a relationship between Willis and Wade.
If a relationship between the two can be proven, it will create a procedural nightmare for Willis and her office. There is little chance at all that it will cause the case to be dismissed. After all, it doesn’t change any of the facts about the alleged crimes being prosecuted that led to the indictments.
While the dismissal is almost assuredly DOA, a conflict of interest or other disqualifying issue could be found. If that happens,
a conflict of interest will it would disqualify Willis and Wade from prosecuting Roman (and any other co-defendants joining the motion) and disqualify the entire Fulton County DA’s office. This has already happened in this prosecution with Lieutenant Gov. Burt Jones.
[Update: The theory for disqualification, as I understand it, goes as follows. Prosecutors are not supposed to benefit from a prosecution financially. The accusation is that Wade has taken Willis on vacations/trips since taking on this case. And if he was the one paying for those trips, then they were partially paid for by income from this prosecution. Ditto paying for any meals or gifts.
Those payments can be seen as a financial stake in pursuing the prosecution, creating a potential
conflict of interest disqualification. A good defense attorney will argue that instead of going with a more straightforward approach that targeted just Trump with more easily prosecuted crimes, they chose to go after a very complex and involved prosecution approach, going after a LOT of people via RICO, that would lead to the billing of a lot of hours and a stream of revenue for Wade (which would also provide Willis ongoing financial benefits).]
If disqualified via a court finding, the case then goes to the Prosecuting Attorneys’ Council of the State of Georgia for reassignment. The Council, made of prosecutors from across the State, leans Republican and could choose to assign the case to a prosecutor more sympathetic to Trump’s side or sit on the case (as they are currently doing in the Jones case). Either way, it greatly reduces the chances of any prosecution before the election (something that was already very unlikely due to the complexities of the case).
Facts are still emerging in this case. It may come out that there has been no relationship between Willis and Wade. Unfortunately, the longer we wait for a formal denial, the less likely that outcome becomes. I totally understand Willis’s point about everyone being imperfect and deserving of grace. I believe that. And, in a high-stakes prosecution like this one, you are always held to a higher standard.
Returning to Fleischman for the final word for now, what stands out to me is if Willis had pursued a more careful approach, she could have gotten a conviction much sooner and avoided this entire situation:
A lot of pixels have been spilled about how Trump’s hubris leads to a lot of self-owns. If this story plays out as many expect it to, it will provide another cautionary tale about how none of us are immune to that particular issue.
Note: While I am sure that some of the critique of Willis is due to racism (this entire case is steeped in it), I have to admit that I find her defense of Wade’s hiring to be dubious. Yes, he is the only one of the special prosecutors being questioned. And yes, he is black too. He has also been paid significantly more than the other two prosecutors. Additionally, the other two prosecutors have, as the AJC notes, specifical expertise in prosecuting complex RICO cases. People have questioned Wade’s appointment in this case for quite a while. And as Neil Hudelson writes below, he’s also the only one who has been accused of schtupping the boss (extra points for “schtupping”).