Analysis: What are the legal principles behind the DA Fani Willis conflict of interest allegations?

Fulton County Superior Court Judge Scott McAfee says a hearing is necessary to determine if Fulton County DA Fani Willis should be removed from the election interference case involving former President Trump and 18 others. 

One of the defendants in the case alleged Willis had an improper romantic relationship with fellow prosecutor Nathan Wade and together they have “enriched themselves” off the prosecution of the case. 

The hearing is scheduled for Thursday. GPB’s Peter Biello discussed the hearing with Emory law professor John Acevedo.

Peter Biello: A defendant in this case, Mike Roman, alleges that Willis hired her romantic partner, Nathan Wade, to work on the election interference prosecution, and they've taken vacations together. Roman argues that that amounts to improper behavior and grounds for Willis's removal. Does this seem like improper behavior to you? Behavior that merits being removed from the case?

John Acevedo: It's certainly unusual behavior. I'm not sure it rises to the level of being removed. You need to show some sort of conflict of interest or other impropriety. And a relationship in and of itself isn't enough.

Peter Biello: Overall, how unusual is this kind of accusation?

John Acevedo: For conflict of interest? We're usually looking for conflicts between defense counsel and the district attorney's office. And here all the allegations are within the district attorney's office itself. So if it seems it's a bit unusual, It is a bit unusual. As it goes forward, the other thing I think that the public should keep in mind is the idea that we are looking for not only actual improprieties, but as Judge McAfee pointed out, perceived improprieties in the area of criminal law. We want justice to be done, but we also want it to be clear justice is being done. So I think we're going to see Judge McAfee err on the side of caution, as it proceeds on Thursday.

Peter Biello: Willis has been subpoenaed, but it's unclear if she's going to testify. That depends on testimony from another witness, Terrence Bradley. He is Wade's former law partner. And allegedly he will have some insight into when Willis and Wade started their relationship. In your view, does it matter when they started their relationship?

John Acevedo: The main reason it matters when they started the relationship is they represented to the court that it happened after his hiring. And if it can be proven that it happened before his hiring, it would indicate that they misrepresented themselves to the court. I think that's the main key here.

Peter Biello: So it's not whether or not it started before or after she hired Wade, It's whether or not she lied about the start after the fact.

John Acevedo: I think that is a more important issue going on here. There is, of course, the implication that the relationship was going on before the hiring, that that would take the hiring in terms of financial improprieties. The more immediate impact that, I think, is most courts do not like for lawyers to misrepresent themselves to them. So I think that will be the more immediate concern rather than the timing of the relationship.

Peter Biello: Some of the co-defendants have said that Willis should be disqualified because of remarks she made at Big Bethel A.M.E. church that indicated Wade was being targeted because he's Black, being targeted for criticism because he is Black. They say this could prejudice a jury. Could those remarks have any bearing on this case?

John Acevedo: That seems unlikely. They were one-off remarks at one event, and they can be screened for voir dire and other questioning of the jury to ensure that there's no prejudice towards the defendants based on race or other animus.

Peter Biello: In other words, you could select a jury that didn't even hear those comments.

John Acevedo: Exactly, or that will ignore them or view them as non-essential to the case or the defendants.

Peter Biello: I see. If Willis is removed from this case, how will that impact the prosecution of former President Trump?

John Acevedo: It would certainly delay the prosecution, probably well into late 2024, if not early 2025, to have a new lawyer brought up to speed. It would certainly require multiple months, especially with complex criminal litigation, like a RICO case.

Peter Biello: And if she stays on the case, whether she has to testify on Thursday or not, has she sustained some political damage here just by virtue of being accused of these things?

John Acevedo: She's absolutely sustained damage, both to herself politically as a district attorney and her private political career. And also, I think, to the case. The jurors of Fulton County are watching this, and many of them are not going to like the apparent financial improprieties that seem to have gone on, related to this prosecution. And that may taint the jury pool against her.