Fani Willis’ legal drama explained: Will she be booted from case? What does it mean for Trump?
Georgia District Attorney Fani Willis’ reputation will take a big hit even if she isn’t thrown off former President Donald Trump’s election fraud case, legal eagles consulted by The Post predict.
Fulton County Superior Court Judge Scott McAfee is currently weighing whether Willis’ affair with prosecutor Nathan Wade is grounds for taking the case off her hands.
Judge McAfee gave little away during the proceedings, making it difficult to read which way he will rule.
If Willis is taken off, the case could be dead in the water, the analysts claim.
However, even if Willis and Wade allowed to continue, both may face discipline from the Georgia State Bar — a regulatory group for lawyers, one of the experts said.
Trump’s lawyers have repeatedly said that both prosecutors have been guilty of perjury for lying on the stand, but it’s less likely either would be charged with a major crime like that, the legal eagles said.
No matter how McAfee rules, it’s also unlikely a trial will unfold before November’s presidential election.
Here’s a primer on what to watch for while we await Judge McAfee’s decision.
What could swing the judge’s ruling
After an action-packed hearing filled with salacious drama, including Willis’ theatrical spell on the stand, the cases come down to a dry legal issue — whether Trump and his co-defendants have shown she had an “actual conflict” of interest, or simply the appearance of one.
Trump’s lawyers have argued even “an appearance of impropriety” — in layman’s terms, something looking really bad — is enough to remove Willis from the case.
The court has heard eyebrow-raising evidence, including that Wade’s phone was tracked to the “vicinity” of Willis’ home several times late at night in 2021, well before the pair claimed they were a couple.
Wade’s former law partner and divorce lawyer, Terrence Bradley, also texted Ashleigh Merchant, a lawyer for one of Trump’s co-defendants, that he “absolutely” believed the relationship began before Willis appointed Wade in November of that year.
Yet Bradley clammed up when confronted on the witness stand, claiming he’d been speculating.
The DA’s office has argued Georgia prosecutors have only been dismissed in the past when its crystal clear they can’t be fair to defendants — like if they have a relationship with crime victim in a case they’re prosecuting.
“It all comes down to what standard for disqualification the court applies,” Anthony Michael Kreis, a professor at Georgia State College of Law, told the Post.
Kreis said most people who have studied Georgia “case law” — a legal term for prior court rulings — would agree with Willis’ team that the higher “actual conflict” bar must be met in order to dismiss her.
But the law professor cautioned it’s not “implausible” Judge McAfee, who has kept his views close to the vest, could use the legal standard favored by Trump’s lawyers.
“The defense’s argument isn’t without merit, but most neutral observers think that it’s wrong,” the professor said.
The biggest threat to Willis’ removal are the charges she financially benefitted by appointing Wade — who then spent his salary from her office on luxury travels for them as a couple.
Willis’ explanation that she repaid Wade with cash raises eyebrows, according to John Felipe Acevedo, a professor at Emory University School of Law.
“The claimed repayment in cash certainly sounds unusual to most individuals, which may be enough to have her disqualified,” Acevedo said.
What happens if Willis is removed
If Willis is tossed from the case, her entire office would be as well. A state prosecutors’ council would then be tasked with deciding which new DA, if any, would take over the case.
It’s unclear if a new prosecutor would have the appetite to bring the sprawling and complex racketeering case against the former president and his allies, Acevedo said.
“Although the case will not automatically go away, it’s possible that no new prosecutor will be found, thus making the case go away in practice,” the professor told the Post.
What happens if Willis stays on the case
The Georgia case — in which Trump, 77, is charged with conspiring to overturn the state’s 2020 presidential election results after losing to President Joe Biden — was already expected to be the last of his four criminal cases to go to trial, even before it was derailed by the Willis drama.
A trial date will likely stay on the back burner and be pushed until at least early 2025 even if Willis is allowed to continue, Kreis said.
Calls for Willis to step away from the prosecution, meanwhile, will likely get even louder even if she’s allowed to stay.
Willis would be wise to “screen herself from the case and make it clear that Wade is no longer reporting to her, but to an independent lawyer in the Fulton County DA’s office,” according to Acevedo.
Will Willis and Wade be charged with perjury? What other penalties could they face?
Trump’s lawyers have argued both Willis and Wade should be charged with perjury for allegedly lying about their relationship timeline.
Willis and Wade — who only reached a divorce settlement with his wife this year — both testified under oath that their relationship started in 2022, after she had hired him, and that it ended last summer.
But Willis’ longtime friend Robin Yeartie testified that she saw the pair “hugging” and “kissing” all the way back in 2019.
To prove perjury, prosecutors need hard proof a witness lied on the stand — and that the witness knew they were lying. Felony perjury in Georgia can carry up to 10 years in prison.
However, because of the conflicting accounts in the Willis case it’s unlikely a separate prosecutor, with the current evidence available, would pursue a perjury case, both Kreis and Acevedo said.
That doesn’t mean that Willis and Wade would be off the hook.
Georgia’s state Bar Association could “certainly” open a probe of both attorneys, Acevedo said — potentially opening them up to a range of penalties including possible suspensions of their law licenses.
What this means for Trump
Willis’ removal, or anything else that derails the Georgia prosecution, would be great news for Trump, as he faces 13 criminal counts.
Even if re-elected president, Trump would not be able to order the Justice Department to essentially shut down the Georgia case, as it has been brought by the state.
The same applies to a separate state case in Manhattan — where Trump is charged with covering up hush money payments to a porn star.
Trump is already mired in other legal problems. He’s due in a Manhattan criminal courthouse for jury selection in the hush money case on March 25, and has been ordered to pay more than $530 million after being found liable in separate civil trials for defaming the writer E. Jean Carroll and massively inflating the value of his assets on financial filings.
Can Willis be forced to step down as DA?
Georgia’s Republican governor Brian Kemp plans to sign a law passed by the state’s GOP-majority state House of Representatives creating a new commission which has the power to remove prosecutors like Willis.
But Democrats in the state have sharply opposed the idea and vowed to stop the so-called Prosecuting Attorneys Qualifications Commission from taking effect.
For now, the best bet for Georgians who want to move on from Willis may be at the ballot box.
She’s announced plans to run for reelection to serve another four-year-stint as Fulton Country DA, with her current term set to end in December.
Her first potential challenger emerged Friday. Christian Wise Smith, a former Fulton County prosecutor, self-described progressive, and author of a voting rights-themed children’s book, announced plans to run against Willis in this fall’s Democratic primary.
