Will Fani Willis Be Disqualified? What We Know

After confirming that she had a personal relationship with special prosecutor Nathan Wade, Fulton County District Attorney Fani Willis said she won't be disqualified from former President Donald Trump's 2020 election case in Georgia. But the future of the case, and whether Willis will be removed from it, rests on the shoulders of Fulton County Superior Court Judge Scott McAfee.

Trump and 18 co-defendants were indicted last August for allegedly conspiring to overturn the 2020 election results in the state after Joe Biden's slim victory there. Trump has pleaded not guilty to all charges and claimed that the case is politically motivated as he is the front-runner for the 2024 Republican presidential nomination.

In a court filing on Friday, Willis asked McAfee to cancel an evidentiary hearing and denied any wrongdoing linked to her relationship with Wade. According to Willis, she did not financially benefit from hiring Wade and their relationship didn't create a conflict of interest.

In an affidavit accompanying the filing, Wade said the relationship with Willis started in 2022, after he was hired, and that none of the more than $650,000 he was paid since his appointment in November 2021 has been shared with the district attorney. Wade described he and Willis as "both financially independent professionals; expenses or personal travel were roughly divided equally between us" and said he has "no financial interest in the outcome of the 2020 election interference case or in the conviction of any defendant."

Later Friday, McAfee asked attorney Ashleigh Merchant, who represents Trump co-defendant Mike Roman and filed the motion against Willis, saying the relationship created a conflict of interest that should be grounds for disqualification, for reasons to hold the hearing. Merchant claimed she had evidence to disprove Willis' assertions.

The possibility of Willis and her office being disqualified from the case now depends on what McAfee decides to do next. Trump, Roman and another defendant have asked the judge to remove Willis and her office from the case. Trump has framed the criminal cases against him as part of a political "witch hunt."

Newsweek reached out to the Fulton County District Attorney's Office for comment by email on Monday and called McAfee's office outside standard business hours.

Norm Eisen, special counsel to the House Judiciary Committee majority during the impeachment proceedings and trial of Trump in 2019 to 2020; Joyce Vance, a law professor at the University of Alabama School of Law; and Richard Painter, a law professor at the University of Minnesota Law School, described Willis' relationship with Wade as showing "poor judgment" but denied that it could justify her disqualification.

Under Georgia law, "even if all the factual allegations regarding Willis and Wade were true, there would be no basis for disqualifying them from prosecuting Roman or any of the other defendants in the election conspiracy case," the three experts wrote in a piece published on Just Security.

"The key point is that regardless of whether the factual circumstances involving Willis and Wade give rise to separate ethical concerns with respect to his hiring, such questions do not affect the propriety of the prosecution against Roman and his co-defendants," they added.

The allegations against Willis, which both she and Wade deny, are "as irrelevant to the trial as allegations in other situations that prosecutors took office supplies for personal use, drove county vehicles for personal errands, or plagiarized portions of their student law review notes," Eisen, Vance and Painter wrote.

"All of those are legitimate issues—for prosecutors' offices and those with oversight responsibilities to address—but such allegations do not bring criminal prosecutions to a stop or require that cases be transferred to a different office. Defense attorneys cannot use allegations of prosecutorial ethics violations, real or imaginary, that have nothing to do with a trial to delay or force prosecutors off of a case."

They added that they believe Wade should step down because his continued presence in the case would be a distraction.

Newsweek reached out to Eisen, Vance and Painter for comment by email on Monday morning.

In her newsletter, Vance wrote that while there's no legal ground to disqualify Willis, the delay in responding to the allegations—about four weeks—"permitted the salacious allegation to fester and be treated as though they do merit recusal."

According to Vance, that was "a bad look" for Willis, "and I've heard more than one experienced attorney assume that the relationship is enough to disqualify her," she said.

"None of this is what we expect of a prosecutor handling a case of such significance. Assuming Judge McAfee permits her to remain on the case, she will be a nonstop target for the former president. Willis would do well to proceed with humility and take responsibility for making such an unnecessary misstep."