0:00

previously on Breakdown. One

0:03

legal and factual conclusion

0:07

is abundantly clear. There

0:10

is absolutely no basis

0:13

to disqualify the

0:15

district attorney or Mr. Wade.

0:18

There's an actual conflict of interest and you don't

0:21

have to look to any sort of new or

0:23

new fangled rule. I gave myself

0:25

a deadline because I knew everyone wanted an

0:27

answer. I'm calling it as best I can

0:29

in the law as I understand

0:31

it. It's

0:33

been more than two months since defense

0:36

lawyer Ashley Merchant dropped a bombshell. On

0:39

January 8th, she filed a

0:41

court motion alleging that Fulton County DA

0:43

Fonny Willis was romantically involved with Nathan

0:45

Wade. He's the outside

0:48

lawyer she hired to be special

0:50

prosecutor in the election interference case

0:52

against former president Donald Trump. Not

0:55

only that, Merchant said because Wade

0:57

had taken Willis on trips, she'd

0:59

benefited financially from the relationship

1:02

and she argued that created a

1:05

conflict of interest and that

1:07

Willis and her whole office should be

1:09

disqualified from the case. Well,

1:11

we finally have a decision on whether

1:13

that will happen. And

1:15

instead of ruling in black and white,

1:18

Judge Scott McAfee today gave Fonny Willis

1:20

a choice. You could call it

1:22

a split the baby kind of decision. This

1:25

is episode 35, Fonny's choice

1:28

of season 10 of Breakdown, the

1:30

Trump indictment from the Atlanta Journal

1:33

Constitution. This

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9-8 central on ABC and stream

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on Hulu. Welcome

2:40

back to Breakdown, the podcast by

2:42

the Atlanta Journal Constitution covering Georgia's

2:44

most important cases. I'm Bill Rankin,

2:46

the AJC's Legal Affairs reporter. I'm

2:49

AJC's senior reporter Tamar Hellerman. And

2:51

I'm Shannon McCaffrey, senior editor for

2:53

Trump Legal Coverage at the AJC.

2:56

Joining us today, as he has before,

2:59

is our AJC colleague David Wicker. David,

3:01

thanks for coming on. Thanks for

3:03

having me. There is a lot to

3:05

cover today, so let's jump right in. Bill,

3:07

the judge this morning, issued a 23-page decision.

3:09

What did he say? Well,

3:13

like Tamar said, Judge McAfee gave

3:15

Willis a choice. Either recuse yourself

3:17

and your office from the case

3:19

or get your special prosecutor and

3:21

former lover Nathan Wade to withdraw.

3:24

If you do the latter, you keep the

3:26

case and it moves forward. This morning,

3:28

Tamar talked to criminal defense attorney Noah Pines

3:30

and asked for his take on the decision.

3:33

He said, quote, if Nathan Wade

3:35

doesn't step aside from this case by lunchtime,

3:38

I'd be concerned for the thought process of

3:40

the district attorney's office. The real

3:43

question is why he didn't do this

3:45

before. It should be noted

3:47

as of this recording, the lunch hour has

3:49

passed. So Judge

3:51

McAfee had one very important decision

3:53

to make, whether Willis and Wade's

3:56

romantic relationship constituted an actual conflict

3:58

of interest. If he

4:00

found that, it would have meant immediate

4:03

disqualification. But he found that the defense

4:05

had failed to meet its burden of

4:07

proving that Willis acquired an actual conflict

4:10

of interest through her romantic relationship and

4:12

the trips she took with her lead

4:14

prosecutor. At the same time, the

4:16

judge said there is a, quote, significant

4:19

appearance of impropriety that infects

4:22

the current structure of the

4:24

prosecution team, an appearance

4:26

that must be removed through the

4:28

state selection of one of two

4:31

options. If Wade withdraws,

4:33

McAfee wrote, the case can move

4:35

forward without his presence and

4:37

his accumulation of legal fees compromising the

4:39

merits of the case. And

4:42

the judge pretty much summed it up this way,

4:44

quote, whether this case

4:46

ends in convictions, acquittals, or something in

4:48

between, the result should be one that

4:51

instills confidence in the process. A

4:54

reasonable observer, unburdened by partisan

4:56

blinders, should believe the law

4:58

was impartially applied that those

5:01

accused of crimes had a fair opportunity

5:03

to present their defenses and

5:05

that any verdict was based on

5:08

our criminal justice system's best efforts

5:10

at ascertaining the truth. Any

5:12

distractions that detract from these

5:14

goals, if remedial under the

5:17

law, should be proportionally

5:19

addressed. So okay,

5:21

this is a big win for the DA, right?

5:24

Yes and no, I'd call it a partial

5:27

victory. On the one hand, DA Willis

5:30

came out on top in the sense that

5:32

Judge McAfee gave her a pathway to maintain

5:34

control of this case, which is of course

5:36

what she wants. This is a

5:38

legacy item for her and obviously one of the

5:41

biggest cases she'll ever do in her career. So

5:43

it was very important that she'd be able to

5:45

stay at the helm of all of this. On

5:48

the other hand, in this ruling, Judge

5:51

McAfee was not afraid to take Willis

5:53

to task for her bad judgment

5:56

and he hit at her credibility

5:58

at multiple points in... this

6:00

ruling. But even though the

6:02

defense lost this fight,

6:05

they've beaten her up pretty good. And she is

6:08

deeply wounded because of all of this.

6:10

I mean, first of all, her private

6:12

life has been unearthed

6:15

for all to see. And

6:17

these are details that that's going to

6:19

haunt her, not only on the campaign

6:21

trail as she campaigns for reelection, and

6:23

she's challengers on both her left and

6:25

her right, as we talked about in

6:27

the last episode. Also Donald

6:29

Trump has made hay about a lot

6:31

of these claims in his campaign rallies.

6:33

Here's an example of what the former

6:35

president said at a rally in Rome,

6:37

Georgia last weekend. Corrupt

6:40

Fawny Willis hired her lover,

6:42

Nathan Wade, so

6:44

they could fraudulently make money together. Let's

6:46

make money, darling. Let's see. Who can

6:48

we go after? And

6:51

that's something her political opponents

6:53

will also be talking about

6:55

in the state legislature, where

6:57

they've announced an investigative committee

6:59

that will also be looking into the

7:01

romance between Fawny Willis and Nathan Wade

7:03

to see if any state money was

7:06

spent. And just over

7:08

the course of the last week

7:10

here, Governor Brian Kemp signed a

7:12

bill that would strengthen a new

7:14

prosecutorial oversight board that's designed to

7:17

punish, quote, rogue prosecutors. And one

7:19

of the first complaints that that

7:21

commission received was about D.A. Fawny

7:23

Willis. So even if this

7:25

is the end of the line legally for

7:27

these complaints, these are still issues that

7:30

she's going to have to contend with on

7:33

the campaign trail and in the legislature. So

7:36

David, assuming Nathan Wade does in fact

7:38

go, Fawny Willis gets to keep the

7:40

Trump case. But

7:42

Judge McAfee didn't let her off

7:44

the hook completely. His decision included some

7:46

pretty unflattering words about Willis, who

7:49

was at one point his boss when he

7:51

worked in the D.A.'s office,

7:53

right? Yes, one of McAfee's earliest

7:55

jobs out of law school was prosecuting

7:57

homicides in the Fulton D.A.'s office. office.

8:01

In an interview last year with the

8:03

Washington Post, Willis was quoted as saying

8:05

that McAfee was once one of her

8:07

quote, baby attorneys. She also

8:09

said he was quote, immensely talented. But

8:12

McAfee didn't cut his old boss any slack

8:14

in his decision. McAfee

8:16

wrote that the way Willis handled

8:18

the whole situation with Wade showed

8:21

a quote, tremendous lapse of judgment.

8:23

And he also said that her behavior

8:25

when she took the witness stand back

8:28

in February was unprofessional. McAfee

8:30

also called out her comments at

8:32

Bethel AME Church in January. He

8:34

called them quote, legally improper. And

8:37

he said the speech quote, created dangerous

8:39

waters for the district attorney to Wade

8:42

further into. A

8:44

big dispute has been whether Willis and

8:46

Wade's romantic relationship began before or after

8:48

Wade was appointed the special prosecutor. Willis

8:51

and Wade testified under oath their romance

8:54

began months after she had hired him.

8:57

But the defense contends the relationship

8:59

started before the appointment, which if

9:01

true would look terrible. McAfee

9:03

said because of unreliable and contradictory testimony,

9:05

he can't be sure what the truth

9:08

is. But McAfee wrote

9:10

quote, an odor of mendacity remains

9:12

because there are reasonable questions about

9:15

whether the district attorney and her

9:17

hand selected lead prosecutor testified

9:20

untruthfully about the timing of

9:22

their relationship. That strong language.

9:24

It was definitely a body blow to the DA. So

9:28

is there any word from the defense

9:30

attorneys, any reaction from them? And

9:33

can they appeal? Well

9:35

Trump's lead attorney Steve Sadeau issued

9:37

a statement shortly after the

9:40

opinion came out quote, we

9:42

believe that the court did not

9:44

afford appropriate significance to the prosecutorial

9:46

misconduct of Willis and Wade, including

9:49

the financial benefits testifying

9:51

untruthfully when their personal relationship

9:54

began, as well

9:56

as Willis's extrajudicial Martin

9:58

Luther King church speech. where she played

10:00

the race card and falsely

10:02

accused the defendants and their counsel

10:05

of racism. We will use

10:07

all legal options available as we continue

10:09

to fight to end this case which

10:11

should never have been brought in the

10:13

first place. An Ashley merchant who brought

10:15

the first motion as we said on

10:17

January 8th she said, while

10:19

we believe the court should have

10:22

disqualified Willis's office entirely, this opinion

10:24

is of indication that everything put

10:26

forth by the defense was true,

10:28

accurate, and relevant to the issues

10:30

surrounding our clients right to a

10:32

fair trial. The judge clearly

10:34

agreed with the defense that the actions

10:37

of Willis are a result of her

10:39

poor judgment and that there is

10:41

a risk to the future of this case

10:43

if she doesn't quickly work to cure her

10:45

conflict. Yes Shannon, either side can try to

10:48

appeal this decision and if they do it

10:50

gets a bit complicated and we haven't heard

10:52

one way or another what they plan to

10:54

do. They could ask Judge

10:57

McAfee for what's called a certificate of

10:59

immediate review to appeal his decision or

11:02

they could even try to appeal directly

11:04

to the Georgia Court of Appeals.

11:06

In either instance it will be up to the

11:09

Court of Appeals to decide whether it wants to

11:11

hear the appeal and if

11:13

it doesn't want to hear it at this time

11:15

the case will return to McAfee and proceed toward

11:17

trial. But if the Court of

11:19

Appeals does accept the appeal it could be

11:22

several months before it issues its decision and

11:24

that means no trial this summer and maybe not one

11:26

this year. Also the losing

11:29

party at the Court of Appeals could then

11:31

appeal its decision to the state Supreme Court

11:34

and that would take even more time. Oof,

11:36

okay. So during the evidentiary hearing

11:38

last month there were two witnesses

11:40

who seemed to pose the biggest

11:42

problem for the DA and those

11:44

were Robin Uredy and Terrence Bradley.

11:47

Tamar, what did they say on the stand

11:49

and what did McAfee have to say about

11:52

their testimony? Well it's important

11:54

to note that both Uredy and Bradley

11:56

were called to the witness stand to

11:58

contradict Wade and Bliss's relationship timeline,

12:01

Wade and Willis said they began dating in early

12:03

2022. So let's

12:05

start with Yardi. She was Willis's

12:08

former friend and an employee. She

12:10

also had a condo in Hatesville where Willis

12:12

stayed for a while. Wade said

12:15

he also visited that condo. Yardi

12:17

testified that she saw Willis and Wade hugging and

12:19

kissing as far back as 2019 right after

12:22

they met. In his

12:24

ruling, McAfee said, Yardi's testimony

12:27

raised doubts about Willis's and

12:29

Wade's assertions that their relationship

12:31

began after Wade's appointment. Still,

12:34

Yardi's testimony, quote, ultimately

12:36

lacked context and detail,

12:38

McAfee wrote. Then

12:41

there's Terrence Bradley, Wade's ex-law partner

12:43

and divorce attorney. He

12:45

was supposed to be the defense's star witness. We

12:48

learned that Bradley was texting regularly

12:50

with defense attorney Ashley Merchant and

12:52

said in those texts that Wade

12:55

and Willis became a couple before

12:57

she hired him. On

12:59

one occasion, Bradley had texted

13:01

Merchant, quote, absolutely when

13:04

she asked him if he thought the two were

13:06

romantically involved before the appointment. But

13:08

on the witness stand, Bradley testified that Wade

13:11

had once told him he was in a

13:13

relationship with Willis, but he couldn't remember when

13:15

Wade had told him that. He

13:17

also testified that he was speculating when he

13:19

sent that text to Merchant. In

13:22

his order, McAfee says he's unable

13:24

to place any stock in Bradley's

13:27

testimony. Quote, his

13:29

inconsistencies, demeanor, and generally non-responsive

13:32

answers left far too brittle

13:34

a foundation upon which to

13:36

build any conclusions, the judge

13:39

wrote. It's interesting

13:41

that McAfee found what is sort of a

13:43

middle ground. What does that say to you

13:45

about his style? Well,

13:47

it's hard to believe that the judge is only 34

13:49

and has been on the bench for only a little

13:52

more than a year. But

13:54

most legal observers, including us, have

13:56

been tremendously impressed with how he's

13:58

handled this explosive case. case so

14:00

far. He's calm and collected on

14:02

the bench, he asks good questions,

14:05

and it looks like he's always being true to

14:07

the law that governs his decisions. Don't

14:10

forget what he said during that WSB

14:12

radio interview after he'd attracted the first

14:14

of two challengers against him in his

14:17

upcoming election. He said he'd

14:19

already made up his mind as to how he

14:21

was going to rule and had outlined his decision

14:23

before he got a challenge. Here

14:25

he is again in that interview last week. What

14:55

comes next? We wait to

14:58

see if Fonnie Willis decides if it's time

15:00

for Nathan Wade to go or if Wade

15:02

himself decides to leave, and we

15:04

wonder if either side is going to try

15:06

and appeal McAfee's decision. The waiting

15:08

game continues, but we sure are

15:10

glad this decision is finally behind

15:12

us. Just

15:15

ahead, we tell you what

15:17

criminal counts Judge McAfee struck from the

15:19

original indictment and why. This

15:21

is Breakdown from the Atlanta Journal

15:23

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16:25

This wasn't our only big news this

16:27

week. Two days before Judge McAfee

16:29

issued his opinion on the disqualification,

16:31

he dismissed six counts from the

16:33

indictment. David, what happened? Well,

16:35

Judge McAfee issued a nine-page ruling

16:37

addressing some of the defense motions

16:40

to quash a number of counts

16:42

in the 41-count indictment. In

16:45

his ruling, he dismissed counts lodged against

16:47

Trump, former New York Mayor

16:49

Rudy Giuliani, lawyer John

16:51

Eastman, former White House Chief

16:53

of Staff Mark Meadows, and

16:55

Georgia Attorneys Ray Smith and Bob

16:57

Chilley. Specifically, these

17:00

are the allegations that the

17:02

defendants illegally solicited Georgia elected

17:04

officials, including Secretary of

17:06

State Brad Raffensperger, then

17:08

House Speaker David Ralston, and

17:10

members of the General Assembly to violate their

17:13

oaths of office, most of

17:15

them by convening a special session of

17:17

the legislature to appoint pro-Trump electors. McAfee

17:20

said prosecutors didn't provide enough information

17:22

in the indictment for opposing lawyers

17:24

to prepare their defenses in an

17:26

intelligent manner. McAfee

17:28

said the defendants were essentially accused

17:31

of soliciting state officials to violate

17:33

their oaths of the U.S. and

17:35

Georgia constitutions, and

17:37

that's not specific enough for the defense

17:39

to know which provisions of those constitutions

17:42

were allegedly violated. The

17:44

judge noted that the U.S. Constitution contains

17:46

hundreds of clauses, any one of which

17:48

can be a lifetime study, and

17:51

there are some provisions in

17:53

Georgia's Constitution that have been

17:55

interpreted to contain dramatically different

17:57

meanings than its U.S. counterpart.

18:00

What's important to note is that all

18:02

of these six defendants still face racketeering

18:04

charges and other felony counts. And

18:07

even though McAfee dismissed the solicitation

18:09

counts about Trump's phone calls to

18:11

Raffensperger and Ralston, and the

18:13

testimony before the legislature, prosecutors

18:16

can still present evidence of all of this

18:18

in trying to make its racketeering case.

18:21

The state could also appeal this if it wants

18:23

to. It can also just

18:25

forge ahead without having to deal with the

18:27

solicitation counts. Or it could

18:30

try to re-indite the case in front

18:32

of another grand jury, but that's something

18:34

that could take time and could open

18:36

them up to additional lines of criticism

18:39

and fighting with defense attorneys, which is a

18:41

calculation they might not want to take. Finally,

18:44

before we go, we need to make

18:46

a correction. In last week's episode, I

18:48

referred to the late Jesse Jackson. Well,

18:51

that's not right. I'm glad

18:53

to say the civil rights leader, Reverend Jackson,

18:55

is still very much alive. We

18:57

apologize for the mistake. That's

18:59

all for this week. You can be sure we'll

19:02

be back soon. Well,

19:04

we're back sooner than we thought we would be. Just

19:07

after we finished recording this episode, the

19:09

Internet exploded with news that Nathan

19:12

Wade has resigned from the election

19:15

interference case, which means Fonny Willis

19:17

can stay on the case and

19:19

it can move forward. He

19:22

wrote a letter to the district attorney.

19:25

In part, it says, The

19:51

seeking justice for the people of Georgia and the

19:53

United States and being part of the effort to

19:55

ensure that the rule of law

19:57

and democracy are preserved has been

19:59

the obvious. of a lifetime. I'm sure

20:01

that this case and the team will be

20:04

in good hands moving forward and justice

20:06

will be served. You, the

20:08

team on this case, and the entire office

20:10

have my prayers for your safety and

20:13

your success in the pursuit of justice."

20:16

And very soon after Wade's resignation

20:18

letter surfaced, the DA's office released

20:20

a letter that Fonny Willis

20:23

had written today to Nathan Wade. She

20:26

said she accepts his resignation

20:28

effective immediately. She wrote,

20:30

I compliment you for the professionalism and

20:32

dignity you have shown over the last

20:34

865 days, as

20:38

you have endured threats against you and

20:40

your family, as well as unjustified attacks

20:42

in the media and in court on

20:44

your reputation as a lawyer. I will

20:47

always remember and will remind everyone

20:50

that you were brave enough to step

20:52

forward and take on the investigation and

20:55

prosecution of the allegations

20:57

that the defendants in this case

20:59

engaged in a conspiracy to

21:01

overturn Georgia's 2020

21:04

presidential election. You were the

21:06

one who had the courage to accept the role, even

21:09

though you did not seek it. And

21:11

she congratulated him for overseeing

21:13

the special purpose grand jury and

21:16

for helping obtain the indictment

21:19

and for litigating all those victories that

21:21

the DA's office had in federal court.

21:23

And she ends her letter by saying,

21:26

please accept my sincere gratitude on behalf

21:28

of the citizens of Fulton County, Georgia,

21:31

for your patriotism, courage, and

21:33

dedication to justice. I

21:36

wish you the best in your future

21:38

endeavors. So there you have

21:40

it wrapped up just

21:42

within hours after Judge McAfee's order. As

21:46

always, thanks so very much for listening.

21:49

Breakdown's producer is Alexandra Zaslow.

21:52

Thanks to our presentation specialist, Pete

21:54

Corson, our colleague, Shane Backler, deputy

21:57

managing editor Jennifer Brett, and

22:00

publisher Andrew Morse, and

22:02

the AJC's editor-in-chief, Leroy Chapman.

22:06

You can follow our daily coverage on

22:08

our website, ajc.com, and if you really

22:10

want to support local journalism, please subscribe

22:12

to the AJC. Be

22:14

safe and take care. Until next time, I'm

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