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Georgia Trump prosecutor Fani Willis misconduct hearing: What to watch

<i>Elijah Nouvelage/Reuters/File</i><br/>
Elijah Nouvelage/Reuters/File

By Zachary Cohen, Holmes Lybrand, Jason Morris and Nick Valencia, CNN

(CNN) — A hearing that could derail the election subversion case against Donald Trump and others in Georgia is underway as a judge considers whether Fulton County District Attorney Fani Willis should be disqualified.

The two-day evidentiary hearing is a pivotal moment for the Georgia RICO case. Trump and co-defendants are seeking to remove Willis based on allegations that she and Nathan Wade, the special prosecutor she hired to lead the case, engaged in an improper romantic relationship which financially benefitted the district attorney.

If Trump and his co-defendants succeed in disqualifying Willis, some inside the DA’s office fear it could derail the entire case, according to multiple sources familiar with their thinking. 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 delay could mean Trump could avoid a trial on his efforts to overturn his 2020 election defeat or connections to the January 6, 2021, US Capitol attack until after Election Day. Trump’s federal trial is already delayed due to a request for the Supreme Court to intervene.

It’s unclear if another prosecutor in Georgia would even be inclined to take up the case from Willis, given its political and legal challenges.

Wade and Willis acknowledged in court filings that they had a personal relationship but deny any wrongdoing. Willis argued there’s no basis for her to be disqualified or for the case to be dismissed.

During a hearing earlier this week, Willis’s attorneys failed to convince Judge Scott McAfee that the motions to disqualify her and dismiss the case should be denied without an evidentiary hearing.

McAfee called for the hearing Thursday to “establish the record on those core allegations” against Willis and Wade and their relationship.

“That is no longer a matter of complete speculation. The state has admitted a relationship existed,” McAfee said Monday. “So what remains to be proven is the existence and extent of any financial benefit, again if there even was one. Because I think it’s possible that the facts alleged by the defendant could result in disqualification.”

If Willis survives the challenge, the DA’s office believes it has an opportunity to hit the reset button on the case and turn its focus back to preparing for trial, which prosecutors hope to begin in August.

Willis and Wade are among those expected to testify. Others who could be called to testify include two top DA attorneys, Wade, members of Willis’s personal security team and Willis’s father.

Allegations against Wade and Willis

The alleged affair was first raised by Trump’s co-defendant, former 2020 campaign official Mike Roman, last month in a court filing accusing Willis of financially benefiting from selecting Wade when he took her on lavish vacations, paid partly with what he billed her office for work on the case.

Willis appointed Wade special prosecutor to assist in the investigation in 2021.

But there was little direct evidence included in that initial filing seeking her dismissal and for the case to be tossed, an effort Trump has since joined. Since then, credit card statements revealed in Wade’s divorce case show he paid for two plane tickets for Willis to San Francisco and Miami.

Trump and the 14 remaining co-defendants were indicted by Willis last summer and have pleaded not guilty. Four other co-defendants have already pleaded guilty and agreed to cooperate with prosecutors to testify.

Roman’s attorney Ashleigh Merchant told CNN she plans to call Wade as the first witness.

“We are focusing on what the judge asked us to show him – the personal and financial benefits that Willis got from Wade,” Merchant told CNN. “The money trail, history of lies.”

A ‘star witness’ and nearly a dozen subpoenas

Merchant has subpoenaed nearly a dozen others to testify during Thursday’s hearing, including DA employees and Willis herself.

McAfee said that he will allow Merchant – who represents Roman – to question her “star” witness and Wade’s former law partner, Terrence Bradley, on Thursday.

Bradley also represented Wade during his divorce proceedings, which also highlighted Wade and Willis’s relationship.

In previous court filings, Merchant has said Bradley’s testimony will refute the claim from Willis and Wade that their personal relationship began after she appointed him in late 2021 to lead the case against Trump and his allies.

In an affidavit submitted to the court earlier this month, Wade wrote that he has “never cohabited” with Willis.

Merchant contends that Bradley would dispute that assertion.

“Bradley will confirm that Willis and Wade stayed together,” Merchant said in a court filing that referred to them staying together beginning in the fall of 2022 in a “safehouse” that Fulton County rented for Willis.

What if Willis is disqualified?

If McAfee decides to grant the co-defendants’ motions and remove Willis from prosecuting the sprawling RICO case, under Georgia law the case would automatically be re-assigned to the Prosecuting Attorneys’ Council of Georgia, a bipartisan collaboration of six district attorneys and three solicitors general from across the state.

The council’s executive director, Peter Skandalakis, would be responsible for either appointing a new district attorney from a separate county to oversee the case or a private lawyer, attorney general, or one of the members of the council.

“It’s a historic indictment, it’s a historic event, and you have to find somebody with the resources and experience that is capable of handling this type of case,” Skandalakis told CNN, adding that in this scenario, he would appoint a candidate that actually wanted the high-profile case.

“This case has a lot of people emotionally tied to it and that does make things a little bit more complex because there is the security issue that always goes along with a case of this magnitude that has this much attention,” he said.

Could Wade leave the case voluntarily?

While CNN has reported that Willis has no plans to voluntarily recuse herself from the Georgia RICO case, sources were less definitive when asked about Wade’s future.

Some legal experts have called for Wade to step aside on his own even if the allegations against him and Willis do not meet the legal threshold for disqualification.

“I think it is the wise thing to do, but it is not legally required for him to step aside,” Norm Eisen, who served as White House ethics czar during the Obama administration and is a CNN legal analyst, told reporters last month.

Eisen added the allegations do not concern him with regard to Willis’ ability to try the case.

Wade’s immediate future remains unclear. Sources said there are no immediate plans for him to step down but if he did, Willis could replace him with another lead prosecutor or lean on her experienced staff in order to avoid a delay.

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