Expert: “Almost impossible” to prosecute Trump before election if Fani Willis is disqualified

Fulton County District Attorney Fani Willis and Nathan Wade, one of her top prosecutors working on the sprawling racketeering case in Georgia against former President Donald Trump and others, have been subpoenaed to testify at a hearing next month regarding allegations that the two were involved in an improper “romantic relationship,” according to a lawsuit filed Tuesday.

The subpoenas were initiated on behalf of Michael Roman, a former operative from Trump's 2020 presidential campaign who is one of 15 remaining defendants in the racketeering case that accuses Trump of orchestrating efforts to overturn the 2020 presidential election results in Georgia.

The lawsuit accuses the Fulton County district attorney's office of "intentionally withholding information,” and "stonewalling" the attorney, Ashleigh Merchant, in her attempts to acquire records from the office using public information requests, ABC News reported.

Willis has come under significant public scrutiny following initial allegations that she derived financial benefits from a romantic relationship with the lead prosecutor, who the filings claim financed extravagant vacations with Willis using funds his law firm received from Fulton County. 

“If it is found that Wade and Willis had an improper relationship beginning before she hired him as special counsel, it could lead to state or federal charges because D.A. Willis may have financially benefitted from an undisclosed personal relationship at taxpayer expense,” Andrew Fleischman, Atlanta defense attorney, told Salon.

Willis hired Wade to assist with the case against Trump and his co-defendants. Roman has claimed that the two prosecutors benefited financially from the arrangement. While some legal experts have urged the district attorney to recuse herself to protect the case's integrity, sources told CNN that she is unlikely to take that step.

The allegations surrounding the supposed relationship between Wade and Willis were raised in a filing earlier this month that lacked any supporting evidence. Without citing any evidence, Roman claimed that Wade had been paid more than $650,000 by the district attorney's office and financed trips for the pair to places like Napa Valley, Florida and the Caribbean. 

Besides pursuing the dismissal of his charges, Roman is also pushing for Willis to be disqualified from the case.

The allegations can impact the case because if Willis is disqualified, it will be “almost impossible” to find another prosecutor to take the case before the election, and because it will “strengthen claims of bias and corruption” that defense attorneys may raise at trial, Fleischman said.

The issuing of subpoenas may pave the way for a high-stakes confrontation involving Willis and Wade. Despite their previous silence on the matter, they may now find themselves compelled to testify under oath in the televised hearing scheduled for Feb. 15, ABC News reported. 

Trump and other co-defendants are aiming to leverage these allegations to request the removal of Willis and Wade from the case, potentially leading to the dismissal of the indictment.

The hearing can play out in one of two ways, Fleischman suggested. In one scenario, there could be no conflict of interest found and the case proceeds as it was. 

“Defense counsel will almost certainly ask for a pretrial appeal, which they may or may not get,” Fleischman said. “If that happens, the case will be significantly delayed. If no pretrial appeal is granted, the disqualification issue will be preserved for appeal and any convictions procured at trial may be reversed.”

In the event that a conflict of interest is found, Willis and her entire office will be disqualified. The Prosecuting Attorneys’ Council of Georgia will select a new prosecutor, eventually. That new prosecutor will try the case in Fulton County, and must decide whether to try the case as “indicted, simplify it, or dismiss it,” he explained. 

Merchant, who made the misconduct allegations against Willis earlier this month, asserts in her new lawsuit that the D.A.'s office deliberately hindered her ongoing attempts to collect information on the issue, suggesting an intentional effort to delay the process, ABC News reported. 

"It is evidence that the [Fulton County District Attorney] has withheld the records without substantial justification," the complaint stated. "Indeed, it appears that [Fulton County DA's Office] is acting intentionally and in an effort to hide from public view public documents showing how [the office] has spent public monies related to the operation of the office."

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The complaint alleges a violation of the state's Open Records Act by the office, detailing several open records requests submitted by Merchant to the office, some dating back to September. The lawsuit contends that these requests were either ignored, partially responded to, or met with assertions that the records did not exist, the outlet reported.

It's “not very serious” that the D.A.'s office may have violated the Open Records Act, Fleischman said, adding that there's often litigation around this law, and it usually settles out of court.

In a letter sent on Friday, the D.A.'s office informed Merchant that they "respectfully disagree with your disingenuous implication" of violating the Open Records Act, The Atlanta Journal-Constitution reported. The letter stated that the office has fulfilled all 14 of her requests, including 12 recently filed ones.