Exclusive: Embattled Georgia prosecutor Willis will not recuse herself from Trump case amid affair allegations, sources say

(CNN) — Fulton County District Attorney Fani Willis has no plans to step down from the Georgia election subversion case over allegations she’s having an affair with her lead prosecutor, a decision driven in part over concern that her departure would effectively end the case against Donald Trump and his multiple defendants, sources familiar with the thinking inside the DA’s office told CNN.

The sprawling racketeering case still has no trial date, and Willis and her team are keenly aware that the window to go to trial before the 2024 election is rapidly shrinking. Any change in the team handling the prosecution would likely delay the proceedings, and it’s unclear if another prosecutor in Georgia would even be inclined to take up the case, given its political and legal challenges.

Willis has faced immense public scrutiny since allegations first surfaced that she has benefitted financially from a romantic relationship with lead prosecutor Nathan Wade. Despite calls by some legal experts to recuse herself from the case to protect its integrity, she is not expected to do so, the sources told CNN.

Instead, Willis is preparing to counter arguments from Trump and other co-defendants, not by necessarily disputing claims about the relationship but by arguing that defense attorneys seeking to remove her are wrong on the law, sources said.

Despite her relative public silence since the allegations surfaced, Willis has been personally involved in crafting her office’s formal response, according to a source familiar with her role.

Crucial few weeks

Willis has until Friday to provide written responses to the allegations lodged by Mike Roman, a former Trump campaign operative from 2020 who is a co-defendant in the case, setting up a crucial few weeks.

Judge Scott McAfee has scheduled a February 15 hearing for both sides to present evidence related to the allegations. CNN previously reported that defense attorneys issued nearly a dozen subpoenas for potential witnesses to testify publicly in that hearing, including to Willis, Wade and others.

While some inside the DA’s office believe the odds are low Willis will ultimately have to take the stand during the February 15 evidentiary hearing, sources acknowledge it is not out of the question.

Willis was also subpoenaed in Wade’s contentious divorce dispute in neighboring Cobb County, but the judge has paused any decision on whether she will ultimately have to testify. Wade was scheduled to testify on Wednesday over allegations he hid income from his estranged wife but on Tuesday afternoon, the dispute was temporarily settled, much to the relief of some in the DA’s office, a source told CNN.

Despite her intention to focus on the legal merits of the case, the allegations have provided cover for some political allies of Trump to resume attacking Willis and the case itself. Still, a source familiar with the thinking inside the DA’s office told CNN they would be “mystified” if it succeeds in removing her.

Norm Eisen, who served as White House Ethics czar during the Obama administration and is a CNN legal analyst, has called for Wade — but not Willis — to voluntarily step aside from the case despite arguing that neither are disqualified under Georgia law.

“I think it is the wise thing to do, but it is not legally required for him to step aside,” Eisen told reporters last month, referring to Wade. Eisen said the allegations do not concern him about Willis’ ability to try the case.

Wade’s immediate future remains unclear. Sources said there are no immediate plans for Wade to step down but if he did, Willis could replace him with another lead prosecutor or lean on her experienced staff without causing a delay in the proceedings.

Willis ‘not been a good crisis communicator’

Credit card charges that surfaced in Wade’s divorce case show he paid for two plane tickets for Willis to Miami and San Francisco, but beyond that, there has been no other evidence provided to suggest anything improper or illegal happened. Trump and two co-defendants allege the relationship and vacations they say were paid for by Wade amount to a disqualifying conflict of interest. Wade has earned more than $650,000 for his work on the case since 2021.

Former DeKalb County District Attorney Robert James told CNN he has had a few interactions with Willis in the past and that he is not convinced she broke any laws for allegedly having an improper relationship with her top deputy.

“I think a lot of what I’ve read is more of a distraction and not legally substantive,” James told CNN in a sit-down interview.

“Having an alleged affair with a subordinate, I don’t really know how that has anything to do with the case or the facts, or the evidence, or whether Donald J. Trump or any of these other individuals have done what’s in the indictment,” James said.

James did acknowledge that the political impact of the allegations could come into play during jury selection.

“These allegations of affairs can be distracting and can lead jurors to say, ‘You know what, I don’t like that prosecutor. I don’t like that prosecutor’s office. I don’t like this case. Doesn’t matter what the evidence says, I’m not going to convict,’” James said. “That’s the real danger here.”

Georgia State University assistant law professor Anthony Michael Kreis told CNN he believes that Willis has “not been a good crisis communicator,” but for Kreis, another issue at hand is the political threats Willis faces from partisan politicians in the GOP-controlled state legislature.

Moves by Georgia Republicans

Last week, Georgia lawmakers voted to form a special committee to investigate Willis, the latest and potentially most significant in a series of moves by the Republican-held state legislature regarding the case, including a resolution by one lawmaker to have Willis impeached – a move not supported by Georgia’s Republican Gov. Brian Kemp.

The committee will have subpoena power, giving it teeth, but it cannot disqualify Willis or bring an end to the case and can only write a report.

“A special committee in the Georgia legislature with subpoena power is an exceedingly rare thing. It’s not something that we have in Georgia quite often,” Kreis told CNN. “It’s certainly could be damaging, and I think if nothing else it will create a huge headache for the DA’s office.”

Kreis told CNN while he does not believe any of the efforts in the Georgia legislature will derail the case in a significant way, he does believe they are “politically symbolic,” and worth watching.

“I think what we really have here at the worst-case scenario is an ethical problem. There will certainly be questions about whether this was the wisest use of public taxpayer money. That’s a big political problem. It’s an optics problem. It’s a reelection problem. I think it’s very unlikely that we’ll see any criminal action come out of that,” Kreis told CNN.

While Willis and select prosecutors on her team have been working on their written response to the allegations, others in the DA’s office are working to address other outstanding motions to dismiss the case. If Willis ultimately survives the current push to disqualify her, the case would effectively be back on track, sources told CNN.

McAfee has signaled he wants to rule on the remaining motions by the end of February and if they are denied, the case would move into the trial preparation phase.

And if the federal election case overseen by Jack Smith is delayed by several months, the Fulton County DA’s office would be willing to ask the judge to set a trial date that’s earlier than their initial August request, the sources said.

CNN’s Nick Valencia and Jason Morris contributed to this report.

CLARIFICATION: This story has been updated to clarify the relationship between former DeKalb County District Attorney Robert James and Fulton County District Attorney Fani Willis.

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