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”).
I’m very amenable to the idea that many attacks on Willis and her team come from a place of racism. But, if you are the only person being targeted for schtupping your boss and you are the only person schtupping your boss I’m really inclined to believe you are being targeted for the whole schtupping thing.
Note: I apply this exact same logic to Trump. He IS being targeted, but only because he did bunches of crimes.
@Neil Hudelson:
Yes on all counts.
The thing about high profile, complex cases, is the prosecution cannot afford even one minor screw-up, never mind a major one.
There will be mistakes, because there are always mistakes. But there should never be anything big or substantial, even if only in appearance.
@Kathy:
Again, 100% agree with this. To go after someone high profile you need to ensure the appearance of impropriety (and, for that matter, impropriety) at every step.
Even assuming that the hiring was done on the up-and-up and the work has been done on the up-and-up, this is just [face palm] stupid behavior on the part of both of them. Even if it doesn’t procedurally derail the case, it – rightly or wrongly – reduces to a meaningless political circus (more than it already is). In what universe do they live that this was not going to become an issue?
@Joe:
Smart people often do stupid things.
And, to be honest, the challenge with having a criminal legal system at the State/County level based on elections often means that the type of people who run for office are the type of people who think they can get away with these sorts of things.
I haven’t followed this closely at sll, so I have a stupid question. Why was a special prosecutor needed for this case? Was it primarily to appear impartial (for a highly politicized case), as when Mueller was hired?
I guess what I’m getting at is, aside from the impropriety of the prosecutor benefitting financially from hiring her “friend,” does this in any way imply some sort of partisan targeting of Trump? Would it be because Willis is a Democrat and her alleged relationship with Wade would therefore make the special prosecution biased?
@Franklin:
Prosecutors and Public Defenders bring in help for a variety of reasons. Sometimes its staff augmentation (i.e. they don’t have the staff capacity to handle a case or they want to reserve line prosecutors for the day-to-day prosecutions). In other cases it’s for specific expertise to assist with a case. I don’t know the theory for this case.
It is, however, NOT like a Federal Special Prosecutor who is brought in to shield the office from specific conflicts of interest or undue influence.
Good question and not clearly addressed in the post. As I understand it, the primary issue is that prosecutors are not supposed to financially benefit from a prosecution. The accusation is that Wade has taken Willis on vacations and other trips since taking on that case for the office. And if he was the one paying for those trips, then they were partially paid for by income from this prosecution.
That creates a financial stake in pursuing the prosecution that creates a potential
conflict of interestdisqualifying. The theory is that, instead of going with a simpler approach that targeted just Trump with more easily prosecuted crimes, they chose to go after a very complex and involved prosecution approach that would lead to the billing of a lot of hours and a stream of revenue for Wade.This is all subject to a judicial/court finding
of a conflict of interestthat it’s disqualifying. Even if it turns out they had a romantic relationship, that finding isn’t guaranteed (though I think it will be really hard to avoid given the facts at hand so far).The added problem here, Matt Bernius is that courthouses are like small towns. Everybody knows everybody’s business. If this was really going on, I bet it is pretty widely known.
While this nuance is way below the headline Matt, if he got paid and then took her on a trip to pursue their relationship with his earnings, that’s his money to do with how he pleases. If there is no relationship and the trips were just pay back for him getting the position, that’s corruption. In this regard, them having an inappropriate personal relationship actual counts against corruption.
@Joe:
I have heard some reporting/speculation to that effect. We’ll see if that plays through. It’s also entirely possible that his estranged spouse was shopping this.
Once again, I’m over my ski tips as someone who isn’t a lawyer, but this doesn’t make sense to me. Since retaining him is her decision, this feels a lot like double dipping to me. Can you unpack that point a little more?
To be clear the other scenario reads as a quid pro quo.
BTW, I want to be clear that I wasn’t alledging that if true this is a crime. The theory, as I understand it, is that it is a
conflict of interestpotentially disqualifying issue.Edit: I just got reminded that “conflict of interest” is a very specific term of art and I realize that I’m blending colloquial use with legal frameworks. Apologies for that confusion Joe.
@Joe:
Originally, I was going to opine that it happens in a universe where there are disagreements about whether a university chancellor should be producing and distributing pornography. Since then I’ve come to the conclusion that
may be a better example of the sort of moral ambiguity that a universe where “this was not going to become an issue” might happen.
Then again, I’ve frequently been accused of having rather strident standards of morality. Who can say?
ETA: Maybe Bill Clinton was right all along and it is all dependent on what the word “is” means.
I think she should publicly state that she is applying the Clarence Thomas standard, and that when he admits to conflict of interest so will she.
If only she was a Supreme Court Justice. None of this would matter.
@Matt Bernius: Thank you for that detailed response. In particular I hadn’t thought through the part where a prosecutor might benefit personally by pursuing a (complicated, expensive) case.