The Weekend Wrap: February 4, 2024

Georgia DA responds to conflict claims, and we're still waiting on the D.C. Circuit

Welcome to the Weekend Wrap! Here are the week’s white collar highlights:

Trump Prosecutions

Georgia State Case - January 6 Allegations

Georgia District Attorney Fani Willis filed her response to the motion by defendant Mike Roman claiming she and her office should be disqualified because she is romantically involved with the special prosecutor she hired to lead the case, Nathan Wade. The response is 176 pages long, including exhibits, and includes an affidavit from Wade that responds to many of the allegations.

Fulton County Georgia District Attorney Fani Willis (Credit: Joe Raedle/Getty)

In his affidavit Wade admits that he and Willis are involved in a personal relationship, but says that relationship began only after she hired him. He admits the two have traveled together, but says they generally take turns covering expenses. He notes they have never had any joint accounts or shared daily living expenses, that their finances are not otherwise intertwined, and that they have never “cohabitated.” He also states that he has no financial interest in the outcome of the Trump prosecution.

Willis’s response also rebuts a number of the other claims Roman made in his motion. She runs through Wade’s experience and qualifications to counter the suggestion that he was underqualified for the job, arguing that he has represented clients in many complex criminal cases (although apparently as defense counsel, not as a prosecutor). In a nice touch, she notes that when Wade was running for a judicial position in 2016, Roman’s current counsel, Ashleigh Merchant, supported him and spoke of his qualifications in glowing terms. The response includes this picture of Merchant during Wade’s campaign:

Willis argues that she has no financial or other personal stake in the outcome of the case that would lead to a conflict of interest. She points out that pursuing the case has actually come at considerable personal cost to her in terms of negative publicity and threats. She argues that Roman is mistaken in his claims that appropriate procedures were not followed when Wade was hired or that his compensation has not been appropriate. Overall, she argues, the claims of a conflict of interest are completely speculative and not supported by law. She urges the court to deny the motion without a hearing.

Later the same day, Roman’s counsel filed a brief reply arguing that an evidentiary hearing is essential. She suggested that cross examination will show that a number of the statements in Wade’s affidavit are false or misleading and that the county has not been forthcoming in providing requested information about the relationship.

For example, Wade’s affidavit says he met Willis at a judicial training program in 2019 but that their personal relationship did not begin until 2022, after he was hired to be special prosecutor. Roman’s counsel suggests she has information that the two “began more than just a friendship” at the 2019 conference. She also suggests the evidence would counter Wade’s claims that he and Willis never “cohabitated,” including by showing that they shared a king-size bed in Aruba for four days and that they spent time together at an AirBNB near Atlanta paid for by taxpayer dollars that they used as a “safe house.”

Roman’s counsel has subpoenaed Willis, Wade, and a number of others involved in the prosecution to testify at the hearing that is currently set for February 15. As the Roman reply brief makes clear, that evidentiary hearing could quickly become very tabloidy (if that’s a word) - descending into claims about who was sleeping with whom and when. (We also may need judicial findings on the legal definition of “cohabitate.”) Judge McAfee will have his hands full to keep it from becoming a circus.

These allegations have nothing at all to do with the facts of the case against Trump and the other defendants, of course. But that’s precisely the problem with Willis’s reckless behavior: for now, the story is all about these salacious allegations, not about the efforts by Trump and the other defendants to overturn the election results in Georgia.

I don’t know whether in the end Willis will be disqualified for a conflict of interest. It seems unlikely, but it may depend on what emerges at the hearing. Here’s what I think is the best-case argument for the defense:

One could claim that any special prosecutor paid by the hour, like Wade, has a financial motive to extend and expand the case. But in a typical case the financial motives of that special prosecutor and the DA who hired him/her are opposed, not aligned. The DA would have the opposite incentive, to keep costs down and to ensure the special prosecutor is being efficient and not prolonging or expanding the prosecution.

Here that’s arguably not the case. If the DA hires her boyfriend, or spouse, or business partner, their financial interests are potentially aligned. She can enrich her boyfriend, which is a personal benefit to her in and of itself. That suggests Willis has a potential financial interest in allowing Wade to expand the investigation, overcharge the case, and run up the bill - which is not true with a typical special prosecutor. She benefits from that, if only indirectly.

Even absent any evidence the DA was actually personally enriched (because Wade paid for luxury trips, for example) this seems to me at least an appearance of impropriety that is not trivial. I don’t know that it’s enough to force her off the case, but I also don’t think it’s a frivolous claim.

One thing that I think is clear: it was a real public relations blunder for the DA to stay silent about these allegations for nearly a month and allow them to fester in the press and public imagination. She could have issued a forceful denial immediately after the motion was filed, making some of the same points that she made in this response. In addition to quieting some of the public speculation, that might have kept Trump, whose lawyer initially seemed cautious about joining the motion, from jumping on the bandwagon and adding to the allegations.

I understand generally wanting to make your arguments only in the courtroom, but in this case I think failing to respond publicly was a serious mistake.

D.C. Federal Case - January 6 Allegations

Judge Cancels March 4 Trial Date - Last week Judge Chutkan made official what was already inevitable. She cancelled the March 4 trial date and said she will schedule a new date if and when the case returns to her from the court of appeals. At this point the absolute best case scenario would probably be a trial date in May.