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Georgia judge rules evidence exists to possibly disqualify DA Fani Willis in Trump election case

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Thursday’s hearing could turn into a televised spectacle, including a public airing of the district attorney’s relationship with her special prosecutor — possibly with Donald Trump in attendance.

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A Georgia judge ruled Monday that he will hold at least two days of potentially explosive televised hearings later this week on whether to disqualify Fulton County District Attorney Fani Willis from the election fraud case against former President Donald Trump because of her romantic affair with the special prosecutor she hired to oversee it.

But Fulton County Superior Court Judge Scott McAfee also cautioned lawyers seeking to have Willis and Nathan Wade dismissed − and the case thrown out entirely − that he will not tolerate attempts to smear their reputations through unproven allegations.

“If there’s anything that is referring to … harassment or undue embarrassment, I’m not going to feel inhibited from stepping in, even without an objection from counsel, to move this along and keep it focused on the issues at hand,” McAfee said during a nearly two-hour emergency hearing Monday.

More: Fani Willis admits to relationship with prosecutor. What does that mean for the Trump case?

Fani Willis and special prosecutor Nathan Wade admitted to ‘a personal relationship’

McAfee held the emergency hearing to allow attorneys for Wade, Willis and other potential witnesses to try and quash subpoenas ordering their clients to testify at the evidentiary hearing, scheduled for Thursday.

Wade and Willis in particular have already made their case that they did nothing wrong and that the high-profile prosecution of Trump and 14 co-defendants should be allowed to proceed.

Both admitted in a recent court filing that they have been engaged in a “personal relationship,” or romantic affair, but they said it began after Willis hired the little-known private attorney to join the DA’s office to helm the high-profile case back in November 2021.

More: Why Nathan Wade, under fire for alleged affair with Fani Willis, is facing new scrutiny

The ‘disqualification’ option

Given that both Willis and Wade have acknowledged their relationship, McAfee said, what “remains to be proven” is whether Willis derived any financial benefit from it, as alleged last month by Michael Roman, a former Trump campaign official also charged in the alleged effort to illegally overturn Trump’s 2020 Georgia loss to Democrat Joe Biden.

“So because I think it’s possible that the facts alleged by the defendant could result in disqualification, I think an evidentiary hearing must occur to establish the record on those core allegations,” McAfee said.

McAfee suggested that both Willis and Wade are likely to testify at the hearing, and that all of the procedural wrangling and attempts to introduce − and refute − allegations could prolong the hearing throug Friday and possibly longer.

More: Georgia DA Fani Willis breaks silence over Donald Trump case prosecutor

Will court hear from witnesses about when the affair started?

One of the key issues to be heard at trial is whether Willis financially benefitted from her relationship with Wade.

A lawyer for Roman, Ashleigh Merchant, has alleged that Wade used some of the more than $650,000 he’s been paid as special prosecutor to take Willis on vacations to California wine country, Florida and Caribbean cruises. More recently, Merchant alleged that the affair began before Willis hired Wade − and thus has created a conflict of interest that irrevocably taints the case.

On Monday, Fulton County prosecutor Anna Cross told the judge that Merchant is either making it up, or mistaken.

“I will be shocked if Miss Merchant is able to support that statement. Shocked,” said Cross. “I don’t believe that’s true.”

‘Shocked’ if the allegations are true

Cross told the judge that many of the other allegations launched by Roman and lawyers for other defendants, including Trump himself, in a flurry of recent filings, are untrue. She described attempts by defense attorneys to subpoena and cross-examine as many as nine prosecutors, security officials and others involved in the Trump case, or close to Wade or Willis, are essentially a fishing expedition based on “wild speculation” and third-hand hearsay.

Cross also reiterated that Wade and Willis split the costs of their trips together and didn’t use any taxpayer money paid to Wade and his law firm as compensation for the Trump case for the vacations. And she disclosed that the DA’s office wants to have Willis’s father testify remotely from California Thursday to refute some of the allegations, including that Willis and Wade lived together at some key point in their relationship.

Merchant countered that the witnesses she has subpoenaed do have information that’s “relevant” to the allegations, and that Wade had lived with Willis in a county-funded safe house where she was living in due to threats. She also said a former business associate of Wade is prepared testify that their affair predated Willis’s hiring of Wade. 

McAfee said he will decide many of those issues, including who might testify, on Thursday, including whether, and when, the district attorney herself might take the stand.

The Washington Post reported late Monday that Trump himself might attend the hearing, citing two people with knowledge of Trump’s intentions. During Monday’s hearing, Trump lawyer Steve Sadow asked for a private, or “ex-parte,” conversation with the judge about an unspecified matter. Afterward, Sadow would not comment on the Post report, telling USA TODAY only that it was “speculation.”

“Don’t get excited yet,” he added.

A prosecutor’s dirty laundry

If the defense gets its way and is allowed to cross-examine witnesses, Thursday’s hearing is likely turn into a live television spectacle, including a public and potentially detailed airing of the particulars of Willis’ relationship with Wade, who is married but getting divorced.

McAfee seemed to suggest that he is willing to hear at least some of those allegations before deciding whether to disqualify Willis, Wade or the entire DA’s office, as Roman has requested.

“So just to emphasize, I think the issues at point here are whether a relationship existed, whether that relationship was romantic or non romantic in nature, when it formed and whether it continues,” McAfee said. “And that’s only relevant because it’s in combination with the question of the existence and extent of any personal benefit conveyed as a result of their relationship.”

Related: When is the next presidential election? Everything to know about Election Day 2024.

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