Could a Georgia judge derail the Trump election fraud case? Fani Willis decision looms large

After six weeks of explosive allegations and two days of bombshell testimony, a Georgia judge is now weighing whether to disqualify Fulton County District Attorney Fani Willis – and possibly her entire office – in the election fraud case against former President Donald Trump and 14 others who allegedly conspired to overthrow the 2020 presidential election that Trump lost in the Peach State.

What Fulton County Superior Judge Scott McAfee decides, and when, could affect not only the outcome of a major criminal case against Trump, but whether that case proceeds before the November 2024 presidential election in which Trump is expected to face off against President Joe Biden.

The bottom line, legal experts say, is that while Willis is very unlikely to be disqualified based on a strict interpretation of Georgia law, the time spent on hearing evidence about her affair with special prosecutor Nathan Wade threatens to push the actual election fraud trial back to either right before − or after − election day.

At issue is whether Willis should be forced to step down from the case because of the romantic affair she has admitted having with Wade, the private lawyer she hired to oversee the sprawling racketeering case on Nov. 1, 2021.

More:What we know about the allegations against Fulton County District Attorney Fani Willis

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In sworn testimony during nationally televised hearings on February 15th and 16th, Willis and Wade denied any wrongdoing that would merit their disqualification, or in the case being dismissed, as Trump and some other co-defendants are seeking. Defense lawyers countered that the two were lying, and that their affair began before Willis hired Wade, which they claim would create a conflict of interest that irrevocably taints the entire case.

In one of the latest court filings, Trump’s defense lawyer Steven Sadow alleged Friday that cellphone records show Wade at Willis’s apartment 35 times from April 1 to Nov. 30, 2021, including twice late at night. Wade and Willis have said they only met in person before his hiring for professional reasons, including his work helping the newly elected district attorney select a special prosecutor to lead the Trump investigation before Wade himself took the job.

Who is Scott McAfee?

Chris Timmons, a former prosecutor in neighboring Cobb County and friend of the judge, told USA TODAY that McAfee is a skilled jurist wise beyond his 34 years of age, who − despite being politically conservative − will apply the evidence and the law without bias.

A former Fulton County and federal prosecutor himself, McAfee was appointed to the Superior Court bench in February 2023 by Republican Gov. Brian Kemp. He was randomly selected to preside over the election case.

More:Fani Willis hearing: a salacious drama that could undermine Trump election interference case

McAfee himself said during the hearings that there is likely a very high bar for disqualification of Willis, Wade and potentially others, explaining that the defense must show that the two not only had an affair but that they investigated and then prosecuted Trump and the others in order to financially benefit from the case.

The defense lawyers, led by Atlanta attorney Ashleigh Merchant, have claimed that Wade used some of the more than $650,000 he has received from leading the case on romantic trips with Willis, including a champagne and caviar tasting in Napa Valley California, trips to Aruba and Barbados, and at least one Caribbean cruise. Willis and Wade, in their sworn and often contentious testimony, said they each used their own money for their numerous excursions. In a Friday night court filing, they also dismissed the cellphone data submitted by the Trump lawyer as being inconclusive and likely inadmissible.

But McAfee also hinted that he could take a much broader view of potential disqualification, with the threshold being the mere appearance of a conflict of interest or financial benefit. That would significantly tip the scales in favor of the defense.

Here are some of the key issues and next steps:

When could the next shoe drop?

McAfee has set a March 1 hearing date for closing arguments on the motion to disqualify Willis. He has also said he would bring all parties in for a private “in camera” meeting to discuss whether to allow into evidence alleged statements from Wade’s former divorce lawyer Terrence Bradley. Defense lawyer Merchant, representing Trump 2020 campaign official Michael Roman, claims Bradley told her that Willis’s affair with Wade actually began long before she hired him as special prosecutor in November 2021.

Wade is trying to prevent Bradley from giving information obtained through representing him in his divorce proceeding, arguing that it would violate attorney-client privilege. McAfee scheduled the hearing on that particular issue for Monday, Fox News reported, based on anonymous sources.

After McAfee hears those arguments from the defense and the DA’s office, “he could rule at any time,” said Anna Bower, a legal fellow for Lawfare, who co-authored a lengthy analysis this week of how, and when, McAfee might rule.

“He’s usually quite fast with turning orders around, but I suspect he’ll want to be particularly careful with this decision,” Bower said in an interview Thursday. “I suspect we won’t see an order until the second week of March at the earliest.”

What is Trump accused of?

The former president and a network of allies are accused in a sweeping 41-count indictment of operating a criminal enterprise to overturn the 2020 election. As part of that, prosecutors listed scores of separate events that allegedly show Trump’s intention to steal the Georgia election after he was defeated by Democrat Joe Biden by 11,779 votes.

These include an infamous January 2021 phone call in which Trump asked Georgia Secretary of State Brad Raffensperger to “find” enough votes to eclipse Biden’s total. Roman, the former Trump election official who first sought Willis’s disqualification last month, is charged with allegedly trying to work with other Trump campaign officials to persuade state legislators in Georgia and other battleground states to illegally appoint their own slate of fake presidential electors.

More:Trump lawyer wields cellphone data in bid to discredit Georgia DA Fani Willis in election fraud case

Four of the initial codefendants, including Trump campaign lawyer Jenna Ellis, have pleaded guilty and agreed to assist the prosecution.

What might the judge do?

In a preliminary hearing last week, McAfee ruled that there was enough evidence to potentially disqualify Willis to merit holding the two days of sworn testimony and cross examination in a downtown Atlanta courtroom.

Many legal experts, however, say the judge is unlikely to do anything like dismiss the entire office, or even Willis herself, based on their review of the evidence and their interpretation of the law.

After watching the two days of hearings in person, former senior assistant Fulton County District Attorney Charlie Bailey said the defense fell far short of proving its central argument.

Despite some salacious testimony about Willis’s affair with Wade, who filed for divorce in November 2021, Bailey told USA TODAY, “It doesn’t change the central thread that’s come through – which is the wildly offensive and idiotic, frankly, argument that Fani Willis led this two-year investigation – and brought in a special Grand Jury and went through all of these vile and dangerous threats you can imagine – not because her career as a prosecutor tells her duty is to gather evidence and follow the law, but because she couldn’t afford a trip to Aruba and had to hire a man to pay him something so then he would pay for it.”

Other legal experts who also watched from the courtroom pews were less emphatic but came to largely the same conclusion.

Anthony Michael Kreis, a law professor at Georgia State University, told USA TODAY as he exited the courtroom that he heard “zero evidence” that the relationship between Willis and Wade provided them with financial benefits, much less that it was the driving force behind why they filed and then continued the case against Trump and the original 18 other defendants.

Some of the testimony, including from a former friend of Willis, did contradict the claims from Willis and Wade that their affair started after he was hired. If the judge gives weight to that, and to similar testimony from Wade’s former divorce lawyer Bradley, he could conclude ultimately that Willis was lying about the timeline of events and move to disqualify, Kreis said in an interview Thursday.

“But the evidentiary burden of production is on the defendants here. And they really didn’t have much in the way of anything that was contrary to what Fani Willis and Nathan Wade said, that they did not profit from this prosecution,” Kreis said. “So at the end of the day, without evidence showing that they misled Judge McAfee or lied under oath, or somehow were less than transparent, it’s hard case to make for the defense here.”

Kreis also said that while he thinks it’s extremely unlikely, McAfee could choose to use the “appearance of a conflict” standard, even though it was mentioned only as a footnote in one unrelated Georgia court ruling recently and can hardly be construed as being case law.

“If he goes with the appearance standard, that is a much more dangerous area for the DA’s office to be in because it does look messy,” Kreis said of the Willis-Wade affair. “And the salaciousness and the ethical considerations that might have been at play could very well land the DA’s office in the disqualification zone.”

What happens if Willis is disqualified?

If McAfee does disqualify Willis and/or her office, a little-known state agency called the Prosecuting Attorneys’ Council of Georgia would be the oversight body that would decide what happens next, according to Kreis and other legal observers.

In another case – also coincidentally involving Willis – the Prosecuting Attorneys’ Council has had since July 2022 to appoint someone else to take over the case, and it has yet to do so.

As a result, many legal experts say a disqualification would likely delay the Trump case significantly and push the trial past the November election.

Kreis, however, said it’s likely that the prosecuting council would speed up a decision in this case given its significance.

What if Willis isn’t disqualified?

If McAfee rules sometime in March against the motion to disqualify as legal experts predict, then Willis is likely to double down on her efforts to get an August trial date for the case. Trump’s lawyer, Sadow, has argued there is little time to try the former president before the 2024 election − and that the Republican frontrunner couldn’t be tried after then if he wins.

Why the election deadline matters

Unlike the federal prosecutions against Trump for attempting to overturn the election and taking classified documents and refusing to turn them over after leaving office — both of which he would be directly able to quash if he regains control of the executive branch — this is a state-level case. However, experts say that if Trump were president, as a practical matter, trying him in Georgia would be difficult if not impossible because he would still be able to apply enormous political pressure to those trying to put him on trial.

Another option: voluntarily stepping down

Even if McAfee rules against disqualification, some legal experts have argued that Willis, or Wade, should step down to avoid plaguing the case with politics and distractions.

Richard Painter, a former top Republican White House ethics lawyer, was one of 17 former prosecutors and defense attorneys who wrote in a recent friend of the court brief that no evidence exists for disqualification.

“Still, the best interest of Georgia and the nation, is that she step aside and allow other lawyers in the DA’s office to prosecute,” Painter said Wednesday in a series of posts on X, formerly known as Twitter. “Too much is at stake to do otherwise.”

Contributing: Bart Jansen

Reach Domestic Security Correspondent Josh Meyer on X, formerly Twitter, @joshmeyerdc.