Sex, Lies, and Fulton County

As television drama, it could not have been more riveting: one part Perry Mason, one part General Hospital, and one part House of Cards. It featured damaging testimony suggesting that Fulton County District Attorney Fani Willis might not be telling the truth about when her relationship started with special prosecutor Nathan Wade. It featured Wade’s own testimony—seemingly incredible, at first—that she reimbursed him in cash for trips they took together. And it featured Willis’s own cinematic entrance into the courtroom, in which she demanded to testify and set the record straight about what she called the “lies” concerning her relationship with Wade.

Last week’s two-day evidentiary hearing offered a certain amount of clarity in the Fulton County case against former President Donald Trump and the 14 other remaining co-defendants. But it doesn’t resolve all of the questions because of three major outstanding questions related to how Judge Scott McAfee will process the testimony given before him last week:

• First, how does he weigh the evidence? Which witnesses does he credit and which does he disbelieve?
• Second, in particular, does he credit Willis’s testimony both as to when her relationship with Wade began and as to the cash repayments that both she and Wade insisted she made for travel apparently paid for by him?
• Finally, what facts are available to Judge McAfee as a result of in camera presentation that were not presented in open court because of privilege assertions, and does any such material raise doubts about the veracity of Willis’s account of her behavior?

Because of these questions, what follows is necessarily tentative. The judge could reasonably weigh the record evidence differently from the way we do so below and because—specifically with respect to the third issue—he may know facts that still are not public.

But with these caveats acknowledged, we believe the evidence as it stands currently supports the following conclusions:

• There is no basis for disqualifying Willis, at least not if Judge McAfee credits what seemed to us like compelling sworn testimony on her part—testimony corroborated by both Wade and Willis’s father, most of which is contradicted only by rumor. Under the proper standard—that of an actual conflict of interest—the defendant-movants simply don’t have sufficient evidence to support their key claim that Willis has a personal financial interest in continuing the prosecution as long as possible so as to keep getting what amounts to kickbacks from Wade for a contract she awarded him.

• While the evidence does not support disqualifying the office or Willis, Wade has displayed a sufficient lack of candor with the courts that he is not a credible figure to continue to represent the state in this case. Specifically, Wade appears to have misrepresented the truth about his relationship with Willis in a number of interrogatories. And while this took place in his divorce case, not in the Fulton County case, he compounded the apparent misconduct in his testimony last week, when he offered a wholly incredible explanation for his sworn answers. While this conduct doesn’t create the conflict of interest that the defendants alleged in their motion, it does taint the prosecution if he remains involved with it. Willis herself needs to remove Wade from her team, even if McAfee finds no basis to do so.

• The picture changes significantly if the judge does not credit Willis’s testimony—specifically, if he concludes either that the affair began before she admits or if he concludes that her account of the financial aspects of the relationship is not credible. In that instance, whether or not he finds an actual conflict of interest existed, Willis’s credibility would be too irreparably damaged to continue prosecuting the case.

The fundamental issue here turns out not to be the conflict of interest that the defendants allege. That still seems far-fetched. The fundamental question, rather, is that of the candor with which the lawyers approach the tribunals in which they practice. In our (admittedly tentative) view, Willis has been candid enough to continue in her role. Wade has not.

What the Defendants Allege

The defendants’ motion for disqualification has three major factual components: first, the allegation of the romantic relationship itself between Willis and the special prosecutor she had hired; second, the relationship’s having predated Wade’s retention as special prosecutor such that his hiring was a kind of improper insider deal between Willis and her boyfriend; and third, that the relationship had a sufficient financial element that Willis was benefiting from the prosecution insofar as Wade was spending money on her in the form of trips and vacations. The result of this combination, the movant-defendants allege, is a financial interest on Willis’s part in keeping the prosecution against them going as long as possible.

The evidentiary hearing has substantially, although not entirely, clarified all three points.

The first point—that Willis and Wade have had some kind of romantic relationship—has been conceded by both Wade and Willis in their testimony.

With respect to the second and third legs of the stool, however, the hearing saw conflicting evidence presented, and both Wade and Willis fiercely contested the basic factual premise of the motion.

The Timing of the Relationship

The timing of the relationship’s beginning is important for the motion, because a mere interoffice romance in the district attorney’s office does not come close to meeting the standard for a conflict of interest. To allege that Willis’s and Wade’s dating life presented some kind of conflict, the movants alleged not merely that they were dating but that Willis hired Wade as special prosecutor while they were dating by way of monetizing the prosecution of Trump, Michael Roman, and the others: “[T]he district attorney and the special prosecutor have been engaged in an improper, clandestine personal relationship during the pendency of this case, which has resulted in the special prosecutor, and, in turn, the district attorney, profiting significantly from this prosecution at the expense of the taxpayers.”

In Wade’s affidavit accompanying the district attorney’s response, however, Wade contested the timeline, arguing that the two did not become involved until after he was already working on the case: “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. … In 2022, District Attorney Willis and I developed a personal relationship in addition to our professional association and friendship.”

So the first key question is whether the defendants-movants can establish that the relationship began earlier than Wade and Willis admit.

To this end, they have one witness—and perhaps a second one, whom they can’t get to talk. Both have problems.

The first of these is Robin Yeartie, whose testimony opened the evidentiary hearing on Thursday. Yeartie testified that she first met Willis in the 1990s, when they were college students. According to Yeartie, the two were “good friends” for many years. Following Willis’s election to the office of the district attorney in 2020, Yeartie accepted a non-attorney position on Willis’s team. Several months later, in April 2021, Willis took over the lease for a condo that Yeartie rented in Hapeville, a city in south Atlanta.

According to Yeartie, Willis and Wade met at a 2019 judicial conference and began a romantic relationship shortly thereafter. Yeartie testified that Willis told her about a romantic relationship with Wade prior to Wade’s appointment as special prosecutor on Nov. 1, 2021. Yeartie said she had “no doubt” in her mind that Wade and Willis were in a romantic relationship from 2019 to 2022. And Yeartie asserted that, prior to Nov. 1, 2021, she observed Wade and Willis “hugging, kissing” and being affectionate with one another.

But Yeartie, pressed on cross-examination by Anna Cross on behalf of the district attorney’s office, could not recall virtually any specifics. She could not recall when Willis first spoke to her about the romantic relationship with Wade. And she could not describe, in any level of detail whatsoever, what Willis told her during that conversation. Then, on redirect, Trump’s attorney, Steve Sadow, asked Yeartie if she had ongoing, “best friend-type” conversations with Willis about the romantic relationship with Wade. Yeartie, who minutes earlier testified that she had multiple conversations with Willis about the relationship over a period of years, inexplicably replied: “I don’t remember.”

The district attorney’s office also elicited testimony from Yeartie that could raise concerns about potential bias on her part toward Willis. Yeartie was vague on the details, but her testimony indicates that her departure from the district attorney’s office occurred under less-than-amicable circumstances. “A situation happened that wasn’t my fault,” Yeartie said. “And I either was going to resign or be let go.” According to Yeartie, the circumstances under which she left the district attorney’s office ended her friendship with Willis. The two haven’t spoken since, Yeartie said.

Yeartie wasn’t the only witness, however, who the defense claimed had personal knowledge that the relationship between Willis and Wade began sometime prior to Wade’s appointment in November 2021.  The “star witness” for the defense—as Judge McAfee put it at a hearing last Monday—was supposed to be a man named Terrence Bradley, Wade’s former law partner, who also previously represented him in his divorce case. According to a brief filed by Mike Roman’s counsel Ashleigh Merchant ahead of the evidentiary hearing, Bradley possessed “non-privileged, personal knowledge that the romantic relationship between Wade and Willis began prior to Willis being sworn in as district attorney for Fulton County, Georgia in January 2021.”

Bradley, however, turned out to be a far more reluctant and complicated witness for the defense than Merchant seemed to suggest. On the stand, Bradley testified that he first developed an attorney-client relationship with Wade in 2018. Around that time, he said, Wade approached Bradley for legal advice as he considered filing for divorce from his estranged wife. (Wade did not ultimately file for divorce until 2021.) Citing attorney-client privilege, however, Bradley asserted that he possessed no non-privileged, personal knowledge related to Willis and Wade’s romantic relationship. For its part, the district attorney’s office, working in conjunction with Wade’s personal attorney, forcefully invoked privilege in an effort to block aspects of Bradley’s testimony.

The invocations of privilege prevented the defense from eliciting what Bradley knew, if anything, about the timing of the relationship.

Wade’s refusal to waive privilege, as well as the state’s vigorous privilege objections on his behalf, made for bad optics for Willis: It gave the impression that Bradley possessed information about the relationship that is inconsistent with Willis and Wade’s version of events—information about which he once dished socially but was now asserting privilege to protect in court.

A series of text messages and emails that were proffered as exhibits and read into the record did little to dispel the idea that Bradley’s account may be inconsistent with Wade and Willis’s account. Lawyers for the state, in what could amount to a major misstep, started off the hearing by moving for sanctions against Merchant. Adam Abbate told McAfee on behalf of the state that Merchant had falsely claimed that she had communicated with Bradley and, based on those communications, that she expected him to testify that Willis and Wade’s relationship predated Wade’s appointment as special prosecutor. When Bradley took the stand, the state’s motion for sanctions opened the door for Merchant to question him about a series of text messages and emails the two exchanged over several months.

On one occasion, Merchant texted Bradley as follows: “On information and belief, Willis and Wade met while both were serving as a magistrate judge and began a romantic relationship at that time. Is that accurate?” According to Badley’s testimony, he replied “No, it was municipal court.” Neither party disputes that Willis and Wade met at a municipal court judges conference in 2019. But Bradley’s response could be read to imply that the other part of Merchant’s statement—that they began a romantic relationship in 2019—is accurate.

Merchant also proffered an email that she sent Bradley just days before she filed her initial motion to disqualify, which alleged that Willis and Wade were involved prior to his appointment as special prosecutor on Nov. 1, 2021. According to Merchant, her email to Bradley included a copy of the motion that she ultimately filed on Jan. 8, 2024. On the stand, Bradley testified that he responded to Merchant’s email in a text message, telling her that the motion “looks good.” He said that his response was based on knowledge that he obtained pursuant to confidential communications.

All of which looks, at a minimum, awkward for Willis and Wade. But none of it presents clear evidence that the two are lying about the relationship’s beginning.

On the other side of the ledger is the sworn testimony of both Wade and Willis—corroborated by the testimony of Willis’s father.

Both Wade and Willis testified that their romantic relationship did not begin until “early 2022.” Wade, who testified first, painted a portrait of a professional relationship that began at a municipal court conference in 2019. Over time, he said, the two grew close and began to speak more frequently, but they didn’t become romantic until after his appointment as special prosecutor. Wade testified that from 2020 to 2021—a period during which the defense alleges Wade and Willis were dating—he did not date anyone because he was battling a cancer diagnosis.

For her part, Willis’s testimony closely tracked Wade’s account of the relationship. Willis described, in great detail, meeting Wade for the first time at a 2019 conference—and forcefully denied Merchant’s insinuation (which came in a filing), that she slept with Wade at that conference.

Willis also testified that Wade was sick in 2020 with cancer and was not in a position to be dating anyone. And, like Wade, she pinpointed the start of the relationship in “early 2022”—specifically, sometime between “February and April of 2022.” The relationship ended, Willis said, sometime between June and August of 2023. The demise of the relationship, she said, had “nothing to do with” the indictment that was returned against Trump and 18 others on Aug. 13, 2023. Instead, she cited the couple’s differing views on equality between men and women. (“As he told me one time, the only thing a woman can do for him is make him a sandwich.”)

And John Floyd, Willis’s father, testified that he never met Wade during the time that he was supposedly dating Willis. Floyd did, however, meet the boyfriend Willis dated in 2019 and 2020, who frequently visited the home Floyd shared with his daughter at the time. “He was a disc jockey or something,” Floyd said of the boyfriend, whom he nicknamed “Deuce.” “And he had all this paraphernalia that I’d have to move out.” Unlike the disc jockey, Floyd said, Wade was never at the house during the period that Floyd lived with Willis from 2019 to 2021. “I did not meet Nathan Wade until 2023,” Floyd testified.

The testimony of Yeartie is weak compared to this trio’s sworn, mutually corroborative statements, particularly given her vagueness and apparent acrimony with respect to Willis—who made clear in her own testimony that the friendship had ended badly: “I have not spoken to Robin in over a year. I certainly do not consider her a friend now. I think that she—there’s a saying, no good deed goes unpunished, and I think that she betrayed our friendship.” If McAfee is going to find as a matter of fact that the relationship began earlier than Wade and Willis admit, it cannot be on the basis of Yeartie’s testimony alone.

This brings us to Terrence Bradley. In making his factual findings, Judge McAfee is unlikely to draw an adverse inference against the state on the basis that it and Bradley asserted privilege energetically after Bradley apparently revealed information about the relationship to Merchant. While Georgia courts have recognized that a fact finder may draw a negative inference from assertions of privilege in some circumstances in civil cases, that principle does not seem to apply in criminal cases.

Much will thus depend on what Judge McAfee learns from Bradley behind closed doors. At the hearing, McAfee indicated that he intended to speak with Bradley in private about the circumstances and content of his communications with Wade as it relates to the nature and timing of his relationship with Willis. Based on that conversation, McAfee will determine whether the communications really are protected by attorney-client privilege and, if so, whether any exception might apply to pierce the privilege.

McAfee’s finding in that regard could find the parties back in Courtroom 5A for another showdown: If McAfee finds that some of Bradley and Wade’s communications are not protected by attorney-client privilege, then he would likely reopen the hearing to allow the parties to examine Bradley on the topics for which privilege was improperly invoked.

Even if McAfee finds that the communications were privileged, what Bradley reveals about his conversations with Wade is likely to matter a great deal. After all, McAfee is far less likely to credit the testimony of Willis and Wade on the timing of the relationship if he knows of privileged information to which he can’t make reference that suggests they are not being truthful on the point.

Still, it’s unclear if an inconsistent account of the timing of the relationship during in camera review with McAfee would be sufficient to nudge McAfee in favor of the defense on this point. Bradley’s testimony under oath was so riddled with inconsistencies and evasions that it would leave any reasonable fact finder with doubts concerning his credibility. During Bradley’s first appearance in court on Feb. 15, for example, he testified that he never “directly” communicated with Merchant about Willis and Wade’s relationship. Merchant, of course, later proffered text messages showing that they had communicated on that very topic, multiple times.

But perhaps the most explosive—and damaging—inconsistency in Bradley’s testimony occurred when the subject turned to the circumstances surrounding his departure from the law partnership he shared with Wade. On direct examination, Bradley said he left the partnership because he “wanted to leave and go out on my own.” But he also admitted that he had a  “disagreement” with Wade. Initially, he declined to go into the specifics,  claiming that the nature of the disagreement was privileged. The disagreement, he claimed, related to his representation of Wade in the divorce case. On cross-examination by the district attorney’s office, however, Bradley changed his tune. He admitted that an employee of the firm accused him of sexual assault and, as a result of that allegation, he left the firm.

All of which left the so-called star witness of the defense with a real credibility problem.

Another problem with Bradley’s testimony is that while it’s clear that he was giving some kind of information to Merchant about Wade and Willis and that he now frames this information as protected by attorney-client privilege, it is completely unclear what he actually knows or whether it, in fact, contradicts Wade’s and Willis’s testimony. Might he, for example, have heard gossip about the two of them, some of it from Wade, and gotten the time frame and details wrong—the beginning of the relationship being wholly unimportant until Merchant cooked up her conflict theory? Might Bradley have been exaggerating to Merchant and actually know very little? Or more malevolently, might he have started the whole rumor-mongering by way of embarrassing a former partner with whom he had had a falling out?

In short, as things stand now, the evidence is somewhat conflicting on the question of when the relationship began, but at least based on the public record, the defense has not carried its burden.

The Financial Benefit

The defense fares even worse on the question of the supposed financial benefit to Willis of Wade’s service as special prosecutor.

At the beginning of the hearing, this claim seemed like an area of strength for the movants. On the stand, Nathan Wade offered an explanation that sounded, at least initially, completely fantastical. Yes, he fronted a lot of the money paid for his trips with Willis—to Aruba, for two cruises, and to Napa Valley. But Willis, he said, paid him back—except that she did so in cash, so he can’t provide any receipts or evidence of her repayment. Wade’s testimony to that effect elicited guffaws from defendant David Shafer, who was promptly shut down by Judge McAfee. In the gallery, another defendant, Harrison Floyd, smirked. This was perhaps the hearing’s low point for Willis and Wade.

But if the story started out ridiculous, it didn’t stay that way. When Willis took the stand, she offered a coherent account of her use of cash, saying that, growing up, her father told her that a woman should always have “at least six months of cash” around at all times. “If you’re a woman and you go on a date with a man, you better have $200 in your pocket,” Willis said. “So if that man acts up, you can go where you want to go. So I keep cash in my house.”

As Willis explained it, that’s one reason why she insisted on paying Wade back when they traveled together. “A man is not a plan. A man is a companion,” she said. “I don’t need anybody to foot my bills. The only man who’s ever paid my bills completely is my daddy!”

Willis was also able to recall specific details about her repayments to Wade, and who paid for what on which trips. She described, for example, paying in cash for two wine tours during a trip with Wade to California. And she recalled handing over $2,500 in cash while the couple were in Belize for a vacation to celebrate Wade’s 50th birthday.

Her father, John Floyd, once again validated her account, testifying that he had—in fact—always taught her to keep cash in the house. “I’ve told my daughter, you keep six months’ worth of cash always,” Floyd testified. “I’m not trying to be racist, but it’s a Black thing,” he said.

The defendants offered nothing in response to this testimony, except their undisguised skepticism. But undisguised skepticism is not record evidence, and what’s left on this point is three witnesses testifying—two of them to the same facts as to the cash transactions and Willis paying her way, and one of them to this being Willis’s way of doing things. If Judge McAfee minimally credits Willis’s testimony, their word is unrebutted on this point.

Nathan Wade’s Credibility 

Assuming Judge McAfee does not learn something from Bradley in camera to grossly undermine Willis’s credibility, there is—in short—no basis for him to find a conflict of interest.

The standard for disqualification under Georgia law is actual conflict, meaning something “more than a theoretical or speculative conflict.” The defense, in other words, must show that Willis’s relationship with Wade gave rise to a palpable financial interest in the conviction of Trump and others.

The defense has argued that Judge McAfee should apply a less exacting standard, which looks to whether Willis’s conduct created an “appearance of impropriety.” McAfee, in a hearing last week, did not discount the possibility that a mere appearance of a conflict could result in disqualification. “It’s clear that disqualification can occur if evidence is produced demonstrating an actual conflict or the appearance of one,” McAfee said.

The applicable standard is likely to be the subject of debate at an upcoming hearing, in which the parties are expected to make closing arguments on the disqualification issue. But on our read of Georgia law, it’s not enough to show the appearance of impropriety. Georgia courts require an actual conflict. At a minimum, that would require a showing that Willis and Wade commingled their assets or that Willis financially benefited from Wade’s employment because he paid for her vacations using funds that he was paid as special prosecutor. In our view of the known evidence, the defense failed to make that showing.

There is, however, a remaining matter: the matter of Wade’s own credibility.

The defense attacked Wade’s credibility by confronting him with answers he provided in interrogatories filed as a part of his ongoing divorce case in Cobb County. While some of Wade’s responses in those filings can be explained away by artful interpretations of the questions posed in the interrogatory, others raise serious questions about Wade’s candor in that proceeding—and his defense of the answers on the stand import the problem into the Fulton County case.

Take, for example, a May 2023 interrogatory that asked Wade to disclose any sexual relations he had during his marriage, including during the “time of separation” and “up to the present.” In his interrogatory response at that time, Wade answered “none.” But on the stand last week, Wade acknowledged that he had engaged in sexual relations with Willis by May 2023. In explaining his response to the interrogatory, Wade maintained that his marriage was “irretrievably broken” in 2015 and, as such, he did not have a relationship with anyone during the course of his marriage. But that explanation does not account for the fact that the interrogatory asked for conduct during the “time of separation” and “up to the present.” As one Georgia family law attorney told us: “Wade’s ‘definition’ of the end of his marriage being when it was irretrievably broken years ago is legal bullshit.”

There are similar problems with other interrogatories in the divorce proceedings. In the May 2023 interrogatory, for example, Wade was asked to identify “any and all” occasions in which he entertained a member of the opposite sex “from date of marriage to the present.” Wade again answered “none.” Confronted with this interrogatory by defense counsel last week, Wade agreed that he had “entertained” Willis in May 2023. But he insisted on a strained interpretation of the question posed, claiming that he did not entertain anyone during the “course of the marriage”—a qualifying phrase that appears nowhere in the question or Wade’s response.

Quite apart from the question of whether any sort of conflict of interest arises out of Wade’s relationship with Willis, this kind of failure of candor with the court is unbefitting a prosecutorial office, and Willis tolerates it at no small peril to her office’s credibility.

In a case about big lies, even small lies corrode. And while Wade’s infidelities to the truth took place in a different case, they have found their way into this one. Wade and Willis risk arming the defense with a needless weapon if he remains on her team.

What Happens Now

Judge McAfee will likely want to hear arguments on the factual record and the application to it of the law, and as noted above, it’s conceivable that he will decide that some of Bradley’s story is, after all, not privileged and can be heard in open court.

With those caveats, the matter is now largely in his hands. McAfee has been a bit of a sphinx so far on this matter. He has run a meticulously fair process. He has acted decisively to keep things moving. He has not, however, shown his hand—or what he thinks about any of the witness testimony.

He has tended to rule quickly on motions, however, so look for him not to waste time mulling over the matter. The defense has already successfully changed the subject in this case. It has been several weeks since anyone associated with it has spent any time discussing, say, a RICO conspiracy to overturn the 2020 election.

Willis herself, on the witness stand Thursday afternoon, declared: “You think I’m on trial. These people are on trial for trying to steal an election in 2020. I’m not on trial, no matter how hard you try to put me on trial.”

In an important sense, Willis is wrong. For the past several weeks, the case has been all about her and her conduct—which is not what a prosecutor should ever want.

Assuming he is not going to disqualify her, Judge McAfee will likely want to act swiftly to get the case back on track. Willis should help him do that by taking Wade off the case.

– Anna Bower, Benjamin Wittes, Published courtesy of Lawfare.