Fani Willis faces uphill battle prosecuting Trump, including federal probe, while staying on the case: lawyers

Fani Willis dodged a bullet Friday when a judge ruled she can remain as prosecutor on the Trump election interference case — but she’s not in the clear just yet.

Fulton County, Georgia, Superior Court Judge Scott McAfee ruled Willis can continue as long as ex-boyfriend Nathan Wade was dropped as special prosecutor.

He then quit hours later.

However, the judgment reprimanded their conduct — which hurts her credibility both inside and outside the courtroom.

Though some saw the ruling as a win for Willis, McAfee’s 23-page ruling contained harsh words, writing that an “odor of mendacity” — or falsehoods — remains over the circumstances of their relationship.

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McAfee further slammed Willis and Wade’s relationship, calling it the result of “bad choices.”

Yet, “Georgia law does not permit the finding of an actual conflict for simply making bad choices – even repeatedly,” he wrote.

Going forward, sources told The Post, Willis will have to watch her step.

COURT OF PUBLIC OPINION

While Willis is likely to meet Trump and his co-defendants in court, “the DA is firmly on notice that any additional mishaps and missteps will come back to haunt her severely,” according to Georgia State University law Professor Anthony Kreis.

“She really is now on heightened alert and she needs to button things up on her end,” he told The Post.  

Others felt the affair has tainted the case irreparably and urged her to stop down.

Longtime Georgia state lawmaker Vernon Jones, a one-time-Democrat-turned-Republican, told The Post. “It’ll save these other groups from coming after her because it’s gonna get ugly.

“She can bail out now and save face but I doubt that will happen.”

The problem if she does recuse herself, Jones said, is “that no DA in the state of Georgia wants to touch this case. It’s too tainted. The whole thing is a mess.”

A leader of an anti-crime coalition in the affluent Buckhead section of Atlanta whose members all voted for Willis when she ran on a platform of being tough on crime in 2010 and then regretted it once the Trump prosecution became her priority, criticized the judge’s ruling

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“As a layperson I feel this is a punt on the part of the judge,” said the activist, who did not want to be identified.

“To me she’s the tree and the poison apple. Instead the judge makes it sound as if we’re talking about two teenagers fighting over a remote control and OK, one of you take it. If he needs to go why doesn’t she need to go. She was the one screwing him.”

But a number of attorneys told The Post they disagreed with hot takes that McAfee’s ruling was a case of “splitting the baby” or giving both sides a win.

Georgia attorney David DeLugas, a Trump supporter, said McAfee’s ruling was both fair and admirable because the Judge squarely addressed the overriding issue of whether the conduct alleged by the Defendants deprive them of a fair trial.

“I think he was reasonable,” DeLugas told The Post. “He could have tossed the entire DA’s office off the case and that would have been understandable. He also could have said no harm, no foul and not asked either Wade or Willis to step down. But what the Judge wrote were really strong words that will have impact as the case now goes forward, certainly when it comes to jury selection, and, likely, during any appeal, because he included findings of fact that are very unfavorable to the DA.”

FEDERAL PROBE

In addition to an expected appeal from the Trump case lawyers, Willis faces other hurdles.

The House Judiciary Committee headed by US Rep. Jim Jordan (R-Ohio) has already launched a probe into Willis’ alleged misuse of federal, state and city funds.

A Georgia Senate commission has also already begun hearings on the possible misuse of funds issue.

More concerning for Willis is a bill signed Wednesday by Gov. Brian Kemp that calls for a Prosecutor Oversight Committee — the only agency that has the ability to reprimand, suspend or even remove a Georgia DA or solicitor.

“The distraction around these issues are going to remain,” veteran Atlanta criminal defense attorney Dwight Thomas told The Post.

“Had the judge removed her, he would have been doing her a favor. We wouldn’t even be talking about this anymore.”

Judge McAfee said in his ruling Willis made a “tremendous lapse in judgment” by having a romantic relationship with her lead prosecutor.

He also noted the defense raised “reasonable questions” about whether the pair had testified truthfully as to the timeline of their relationship, which they maintained started in 2022, despite evidence presented in court.

COURT OF APPEAL

Member of defense teams representing trump and have indicated the fight is far from over.

Ashleigh Merchant, the defense attorney who represents Michael Roman, one of Trump’s 18 co-defendants in the Georgia case, said in a statement: “The judge clearly agreed … that there is a risk to the future of this case if she doesn’t quickly work to cure her conflict.

“While we do not agree that the court’s suggested cure is adequate … we look forward to the district attorneys response to the demands by the court. We will continue to fight for our client.”

Trump lawyer Steve Sadow and Christopher Anulewicz, a lawyer for co-defendant Robert Cheeley, both indicated they would be appealing the decision.

The hearings and the attention it has drawn to them help Trump and his 14 remaining co-defendants in the courtroom, according to Georgia-based defense attorney and former prosecutor, Keith Johnson.

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“Any discussion of the conduct of the prosecutor is one less discussion about the conduct of the defendants. 

“If you look at it from that lens as a defense attorney that is a win. Any delay for your client that is possibly in line to contend for the presidency in a few months is a win … this has been a beneficial exercise for the Trump team,” he said.

The wording of the judgment will also help the defendants when it comes to an appeal. The hearings have also caused a delay in the case, which was initially expected to take place in August, but will likely now be delayed until after the November election, legal sources have previously told The Post.

“My mother used to say all gifts don’t come gift wrapped,” Thomas said. “I think the defense got a gift. The ruling is worded with some real vagueness that puts this all in very unsettled legal territory which will help the defense in its expected appeal.”

Georgia law would allow for the defense team to request within 10 days a certificate for appellate review. If the judge grants that certificate, the issue could go directly to Georgia’s Court of Appeals, Thomas said.

A NEW DA?

Until fairly recently, Willis was running unopposed for re-election in Fulton County.

But two challengers have suddenly jumped in the race — thickening the plot even further.

Willis was thought to be a shoo-in prior to the January scandal over her relationship with Wade — and the resulting disqualification hearing.

Republican Courtney Kramer, a Georgia lawyer who calls herself a MAGA supporter on her Instagram account, has announced her bid for DA — along with Christian Wise Smith, a Democrat who’s served as Atlanta city solicitor and as a Fulton County prosecutor.

The party primaries are scheduled for May 21 before the general election on Nov. 5.

But even if Willis loses the Democratic primary or the Nov. election, she stays in office until Dec. 31 and can continue prosecuting the Trump case.

However, if a new prosecutor has been elected, he or she could drop the Trump case immediately upon assuming office on Jan. 1, 2024, legal sources told The Post.