ATLANTA– Allegations that Fulton County District Attorney Fani Willis had an improper relationship with a special prosecutor she hired to seek convictions of Donald Trump and others for meddling in Georgia’s 2020 election have led to renewed calls to Willis from the case.
Willis has defended her hiring of Nathan Wade, who has little prosecutorial experience, and has not directly denied a romantic relationship. The allegations were first made public in a motion filed earlier this month by attorney Ashleigh Merchant, who represents former Trump campaign aide and White House aide Michael Roman.
Merchant claims that Willis’ office paid Wade large amounts of money and that Willis wrongly benefited when Wade then paid for the two of them to go on vacation. Merchant has not provided any evidence of the alleged relationship. But a filing last week by Wade’s wife in their divorce case contains credit card information showing that Wade bought plane tickets for Willis to travel with him to Miami and San Francisco.
Willis, an elected Democrat, has shown no signs of resigning, but there are ways she could be ousted. Here are some options:
WHAT CAN THE JUDGE DO?
Merchant’s motion asks Fulton County Superior Court Judge Scott McAfee to dismiss Willis and Wade and their offices from further prosecution of the case. McAfee has the power to do that.
Another judge, Fulton County Superior Court Judge Robert McBurney, took that step in July 2022 when he presided over the special grand jury investigation that preceded the indictment in the election case.
Then-Sen. Burt Jones, one of 16 Georgia Republicans who signed a certificate falsely declaring Trump won the election and declaring himself among the state’s “duly elected and qualified” electors, was told he was a was targeted in the election case. He argued that Willis had a conflict of interest because she organized a fundraiser for his Democratic opponent in the lieutenant governor’s race.
McBurney ruled in favor of Jones, writing that the situation had gone beyond bad optics and created “a clear – and factual and untenable – conflict.” He barred Willis and her office from prosecuting Jones in the case.
If McAfee decides to take similar action and remove Willis and her office from the election case, it will be up to the Georgia Board of Attorneys to find another prosecutor to handle the case. That person could stay on the trail Willis took, could choose to pursue only some charges or dismiss the case altogether.
Finding a prosecutor willing and able to take on the large case can be difficult, said former Gwinnett County District Attorney Danny Porter. Only a few district attorneys in the state — spread across Atlanta — have the resources to handle such a case, he said.
CAN WILLIS GET OUT OF THE BUSINESS TO SAVE IT?
If Willis were to recuse herself, her entire office would likely have to step away from the case, Porter said. Even in that scenario, it would be up to the Council of Prosecutors to find someone who can take on the task.
Attorney Norm Eisen, who served as former President Barack Obama’s ethics czar, said in a news conference Saturday that, based on what he knows so far, “there is absolutely no legal basis under Georgia law” to disqualify Willis or Wade .
But, Eisen said, “the sensible thing to do at this time is for Mr. Wade to voluntarily end his time on this case.” Even though he is not legally required to do so, Eisen said, “at this point, the conversation about these issues has become a distraction” from the “overwhelming amount of evidence justifying the decision to prosecute Mr. Trump and his co-conspirators.” ”
CAN AN OVERSIGHT COMMITTEE REMOVE HER?
Many Republicans would like to see Willis investigated by Georgia’s new Prosecutor Qualifications Commission. That body was created last year to discipline and dismiss prosecutors. But it ran into a problem after the state Supreme Court declined to approve the commission’s rules.
Lawmakers this year are trying to revoke the required court approval so the commission can begin its work. The commission could remove district attorneys from office or discipline them for conflicts of interest, “conduct prejudicial to the administration of justice that brings the office into disrepute” or for “willful misconduct while in office.”
However, it is unlikely that the committee could merely remove Willis from the Trump case unless she agreed to step aside in a negotiated settlement.
CAN STATE LAWYERS DESCRIBE WILLIS?
Some lawmakers have proposed impeaching and removing Willis, an idea Trump endorsed this summer. However, Georgia’s General Assembly has not impeached anyone in more than fifty years. And a two-thirds majority of the Senate is needed for conviction. That is a difficult hurdle, because Republicans currently control less than two-thirds of the 56-seat Senate. A Republican would likely win a vacant seat, bringing the Republican majority to 33. Even then, five Democrats would have to vote to convict.
Also works against impeachment: all Georgian lawmakers are up for re-election this year. Passing impeachment could keep them in office and off the campaign trail.
State Sen. Colton Moore of Trenton tried to convince fellow Republicans to call a special session over the summer to go after Willis, but never got close.
CAN THE STATE BAR COME IN?
The State Bar of Georgia, which regulates attorneys, adopted special rules in 2021 regarding prosecutorial misconduct. But those rules addressed a prosecutor’s duty to release evidence that could prove someone’s innocence.
If Willis were to face the consequences of the bar, she would have to be disciplined under the rules that apply to all lawyers. The bar has rules against conflicts of interest, but these are mainly aimed at private lawyers who abuse their clients. It is unclear how these rules might apply to this case.
ARE THERE OTHER CONSEQUENCES?
A Fulton County commissioner, Republican Bob Ellis, sent Willis a letter Friday demanding information about how they spent the county’s money and “whether any payments of county funds to Mr. Wade were converted to your personal benefit in the form of subsidized trips or other gifts. Commissioners could make future cuts to Willis’ budget, but Democrats have a majority on the committee. Fulton County government has a code of ethics, but it appears the county does not prohibit consensual relationships. The County Board of Ethics could fine and reprimand Willis, but does not have the power to fire her.
Republican Sen. Greg Dolezal of Cumming on Monday proposed a special Senate committee to investigate Willis. He said a “thorough and impartial investigation” would “ensure transparency, accountability and the preservation of the integrity of our justice system.” Dolezal’s proposed resolution suggests that any investigation could be followed by legal or budgetary changes.