IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

STATE OF GEORGIA Case No. 23SC188947

v.

DAVID J. SHAFER et al.,

Defendants.

DEFENDANT DAVID J. SHAFER’S SUPPLEMENT TO MOTION

TO DISQUALIFY THE DISTRICT ATTORNEY FOR
FULTON COUNTY, GEORGIA

Defendant David J. Shafer files this Supplement to Motion to Disqualify the

District Attorney for Fulton County, Georgia, and hereby supplements his Motion to

Disqualify The District Attorney for Fulton County, Georgia, Atlanta Judicial Circuit, and

The District Attorney’s Office from Further Prosecution of This Action (Motion to

Disqualify), respectfully showing that, upon information and belief, Special Assistant

District Attorney Nathan J. Wade has made knowingly false and misleading statements

concerning his relationship with Fulton County District Attorney Fani T. Willis. Mr.

Shafer submits the statements as additional evidence of misconduct by the prosecution

in this action, as additional grounds for disqualification of District Attorney Willis and

her office.

I. Special Assistant District Attorney Wade’s Interrogatory Responses in the

Action of Wade v. Wade, civil action file number 21-1-08166-68 (Super. Ct.
Cobb Cnty. 2021)

Attorney Nathan J. Wade entered into a contract with the Fulton County District

Attorney’s Office on November 1, 2021, to provide “legal services related to anti-

corruption matters.” See Defendant Michael Roman’s Motion to Dismiss Grand Jury

Indictment as Fatally Defective and Motion to Disqualify The District Attorney, Her Office

1
and The Special Prosecutor From Further Prosecuting This Matter, Exhibit G, p. 1. On

November 2, 2021, counsel for Mr. Wade filed a complaint for divorce against Mr. Wade’s

spouse in the Superior Court of Cobb County, Cobb Judicial Circuit, initiating the divorce

action of Wade v. Wade, civil action file number 21-1-08166-68 (Super. Ct. Cobb Cnty.

2021) (divorce action).

Counsel for Mr. Wade’s spouse served Defendant’s First Continuing

Interrogatories to Plaintiff (Defendant’s Continuing Interrogatories) on Mr. Wade’s

counsel on November 30, 2021. On May 30, 2023, Mr. Wade served a response to

Defendant’s Continuing Interrogatories on counsel for Mrs. Wade. Mr. Wade provided,

in relevant part, the following responses:

[4.]
Describe each instance in which you have had sexual relations with a
person other than your spouse during the course of the marriage, including
the period of separation, by providing the complete contact information for
each and every such person and a complete description of the sexual
relation(s)… Answer: None
[5.]
Identify any and all occasions in which you entertained a member of
the opposite sex (other than your spouse), who is not related to you by blood
or marriage or in which a member of the opposite sex (other than your
spouse), who is not related to you by blood or marriage entertained you,
including, but not limited to dining and/or drinking at any restaurant(s),
bar(s), pub(s), hotel(s) or person's home from date of marriage to the
present… Answer: None

Exhibit A, pp. 5-6 (emphasis in original). Mr. Wade did not verify his responses to the

interrogatories.

2
II. Defendant Michael Roman’s Motion to Dismiss and Disqualify, and
Special Assistant District Attorney Wade’s Supplementation of His
Interrogatory Responses

On November 20, 2023, counsel for Mrs. Wade served Defendant’s Notice to

Plaintiff to Supplement Discovery Pursuant to O.C.G.A. § 9-11-26(E) on counsel for Mr.

Wade. See Exhibit B.

On January 8, 2024, Defendant Michael A. Roman filed a Motion to Dismiss Grand

Jury Indictment as Fatally Defective and Motion to Disqualify The District Attorney, Her

Office and The Special Prosecutor From Further Prosecuting This Matter (Roman Motion

to Dismiss and Disqualify), seeking dismissal of the prosecution’s Indictment and

disqualification of Fulton County District Attorney Fani T. Willis and her office. See

Roman Motion to Disqualify. The Roman Motion to Dismiss and Disqualify alleged that

Mr. Wade and District Attorney Willis were involved in a personal, romantic relationship

at the time that District Attorney Willis offered Mr. Wade his contract with the Fulton

County District Attorney’s Office. Id. at 5, 6. It stated that Mr. Wade paid for personal

trips, cruises, and hotel rooms for District Attorney Willis from the account used to

receive payments under his contract with Willis. Id. at 5-6. The Roman Motion to Dismiss

and Disqualify furthermore alleged that Mr. Wade and District Attorney Willis had co-

habited with each other at a location owned by another party during Mr. Wade’s

employment as a special assistant district attorney. Id. at 6.

After the filing of the Roman Motion to Dismiss and Disqualify, which contained

allegations of a relationship between Mr. Wade and District Attorney Willis that directly

contradicted Mr. Wade’s May 30, 2023, interrogatory responses, Mr. Wade realized that

he was caught. On January 26, 2024, counsel for Mr. Wade in Mr. Wade’s divorce action

filed Plaintiff’s Objections and Responses to Defendant’s Notice to Plaintiff to

3
Supplement Discovery, in which Mr. Wade supplemented his prior responses to his

spouse’s and her counsel’s interrogatories as follows:

4.
Describe each instance in which you have had sexual relations with a
person other than your spouse during the course of the marriage, including
the period of separation, by providing the complete contact information for
each and every such person and a complete description of the sexual
relation(s)…
Original Response: None
Updated Response: The Plaintiff declines to respond to
this interrogatory and asserts his privilege pursuant to
O.C.G.A. Sec. 24-5-505.1
5.
Identify any and all occasions in which you entertained a member of
the opposite sex (other than your spouse), who is not related to you by blood
or marriage or in which a member of the opposite sex (other than your
spouse), who is not related to you by blood or marriage entertained you,
including, but not limited to dining and/or drinking at any restaurant(s),
bar(s), pub(s), hotel(s) or person's home from date of marriage to the
present…
Original Response: None
Updated Response: The Plaintiff declines to respond to
this interrogatory and asserts his privilege pursuant to
O.C.G.A. Sec. 24-5-505.

Exhibit C, pp. 5-6 (emphasis in original).

III. Special Assistant District Attorney Wade’s Sworn Declaration or

Affidavit in Support of The State’s Opposition to Defendants Roman,
Trump, and Cheeley’s Motions to Dismiss and to Disqualify The District
Attorney

On February 2, 2024, the prosecution, in the name of the District Attorney, filed

the State’s Opposition to Defendants Roman, Trump, and Cheeley’s Motions to Dismiss

and to Disqualify The District Attorney (Opposition). See Opposition. The first exhibit to

1 O.C.G.A. § 24-5-505 provides, in relevant part, that “[n]o party or witness shall be
required to testify as to any matter which may incriminate or tend to incriminate such
party or witness or which shall tend to bring infamy, disgrace, or public contempt upon
such party or witness or any member of such party or witness's family.” O.C.G.A. § 24-5-
505(a).
4
the prosecution’s Opposition was a sworn declaration or affidavit by Mr. Wade. Id.,

Exhibit A. In his declaration, Mr. Wade stated under oath that, in pertinent part:

26. While professional associates and friends since 2019, there was no
personal relationship between District Attorney Willis and me prior to
or at the time of my appointment as special prosecutor in 2021.
27. In 2022, District Attorney Willis and I developed a personal relationship
in addition to our professional association and friendship…
29. No funds paid to me in compensation for my role as Special Prosecutor
have been shared with or provided to District Attorney Willis…
31. I have never cohabitated with District Attorney Willis.
34. The District Attorney and I are both financially independent
professionals; expenses for personal travel were roughly divided
equally between us.

Id. at ¶¶ 26, 27, 29, 31, 34.

The prosecution’s Opposition repeatedly cites Mr. Wade’s declaration in support

of its arguments and for denial of the motions to dismiss or disqualify filed by the

defendants in this action. See Opposition, pp. 2, 4, 6, 7, 10, 12, 15, 26, 27. It claims it has

provided Mr. Wade’s affidavit “in an effort to be as candid and transparent with the Court

as possible…” Id. at 26. During a hearing on various motions to quash held on February

12, 2024, counsel for the prosecution furthermore represented to the Court:

Ms. Merchant represented that these witnesses subpoenaed, I think, two

weeks ago now, prior to the filing of Mr. Wade’s affidavit, that any of these
witnesses would refute the allegations, or the representations, that were
made in the Wade affidavit… These witnesses that have been subpoenaed
now for a hearing this afternoon have nothing at all to add to the allegations
that were made. Nothing in support. Nothing that would undermine the
affirmations that were made in the Wade affidavit. The affirmations and
the facts sworn by an officer of the Court that were made are categorically
true. They are 100% true.

https://www.youtube.com/watch?v=ewtzcoo9ics (emphasis added).

5
IV. Special Assistant District Attorney Wade’s False and Misleading
Statements

Mr. Wade’s sworn statement in his affidavit on behalf of the District Attorney’s

Office opposing the defendants’ motions to dismiss and disqualify that “[i]n 2022, District

Attorney Willis and I developed a personal relationship in addition to our professional

association and friendship…,” Opposition, Exhibit A, ¶ 27, demonstrate that Mr. Wade’s

responses to his spouse’s interrogatories in May of 2023 regarding whether he had had

sexual relations with any other persons were false, see Exhibit A, p. 5. Similarly, Mr.

Wade’s admission that he and District Attorney Willis traveled together and shared

expenses directly contradicts his interrogatory response that there were no occasions

during which Mr. Wade entertained a member of the opposite sex. Id. at 5-6. Financial

documents which have come into the possession of the defense refute or contradict Mr.

Wade’s claim that the travel expenses were “roughly divided equally.”

As attorneys and officers of the Court, Mr. Wade and District Attorney Willis owe

duties of truthfulness and candor to the Court. Georgia Rule of Professional Conduct 3.3,

governing “candor towards the tribunal,” states:

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal…
(4) offer evidence that the lawyer knows to be false. If a lawyer has
offered material evidence and comes to know of its falsity, the lawyer
shall take reasonable remedial measures.
(b) The duties stated in paragraph (a) continue to the conclusion of the
proceeding, and apply even if compliance requires disclosure of information
otherwise protected by Rule 1.6…
The maximum penalty for a violation of this Rule is disbarment.

Ga. R. Prof. Cond. 3.3. As the State Bar of Georgia’s comments to Rule 3.3 state, a lawyer

“must not allow the tribunal to be misled by false statements of law or fact or evidence

that the lawyer knows to be false.” Ga. R. Prof. Cond. 3.3 cmt. 2; accord Miller v. State,

6
295 Ga. 769, 773 (2014) (stating that Rule 3.3 “prohibits a lawyer from offering evidence

the lawyer knows to be false”). He or she possesses an “obligation as an officer of the court

to prevent the trier of fact from being misled by false evidence.” Ga. R. Prof. Cond. 3.3

cmt. 4. “Legal argument based on a knowingly false representation of law constitutes

dishonesty toward the tribunal.” Ga. R. Prof. Cond. 3.3 cmt. 4. Georgia Rule of

Professional Conduct 3.4, relating to “fairness” to opposing parties and counsel,

furthermore provides, in relevant part, that a lawyer shall not “counsel or assist a witness

to testify falsely…” Ga. R. Prof. Cond. 3.4(b)(2).

Mr. Shafer and the other defendants to this action possess due process rights to a

disinterested prosecutor. See Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807

(1987). “The prosecution has a special duty not to mislead; the government should, of

course, never make affirmative statements contrary to what it knows to be the truth.”

United States v. Universita, 298 F.2d 365, 367 (2d Cir. 1962). The defendants have raised

serious grounds in support of disqualification of the District Attorney and her office, and

the defendants’ allegations must be taken seriously by the Court and the State in order to

preserve public confidence in the “‘integrity and impartiality’” of the administration of

justice. See Allen v. Lefkoff, Duncan, Grimes & Dermer, P.C., 265 Ga. 374, 376 n. 5 (1995)

(emphasis added) (quoting Preamble, Ch. 1, Part III, Appendix; 219 Ga. 885 (1963)). Any

knowingly untrue statement submitted by, or on behalf, a prosecutor in responding to a

disqualification challenge should be held to constitute misconduct amounting to forensic

misconduct, and should be found to constitute an additional ground for disqualification.

CONCLUSION

Based upon the facts and authorities set forth herein and in Defendant David J.

Shafer’s Motion to Disqualify The District Attorney for Fulton County, Georgia, Atlanta

7
Judicial Circuit, and The District Attorney’s Office from Further Prosecution of This

Action, defendant David J. Shafer respectfully requests that the Court grant defendant’s

Motion to Disqualify The District Attorney for Fulton County, Georgia, Atlanta Judicial

Circuit, and The District Attorney’s Office from Further Prosecution of This Action and

order that Fulton County, Georgia, Atlanta Judicial Circuit, District Attorney Fani T.

Willis and her office are disqualified from representing the State of Georgia in this action.

Respectfully submitted, this 13th day of February, 2024.

/s/ Craig A. Gillen _____________

Craig A. Gillen
Georgia Bar No. 294838
Anthony C. Lake
Georgia Bar No. 431149
GILLEN & LAKE LLC
400 Galleria Parkway
Suite 1920
Atlanta, Georgia 30339
(404) 842-9700
[email protected]
[email protected]

/s/ Holly A. Pierson _____________

Holly A. Pierson
Georgia Bar No. 579655
PIERSON LAW LLC
2851 Piedmont Road NE, STE 200
Atlanta, GA 30305
(404) 353-2316
[email protected]

Counsel for David J. Shafer

8
 CERTIFICATE OF SERVICE

I hereby certify that I have this 13th day of February, 2024, filed the foregoing filing

with the Court using the Court’s Odyssey eFileGa system, serving copies of the filing on

all counsel of record in this action, and furthermore have sent a copy of the filing to the

parties and the Court.

/s/ Craig A. Gillen _____________

Craig A. Gillen
Georgia Bar No. 294838
Anthony C. Lake
Georgia Bar No. 431149
GILLEN & LAKE LLC
400 Galleria Parkway
Suite 1920
Atlanta, Georgia 30339
(404) 842-9700
[email protected]
[email protected]

Counsel for David J. Shafer

9
EXHIBIT A
EXHIBIT B
EXHIBIT C