Breaking News: Defense Attorneys Grill Key Witness in Effort to Disqualify Atlanta, D.A.
The witness, Terrence Bradley, is a former divorce lawyer for the special prosecutor, Nathan J. Wade. Mr. Wade’s sexual involvement with Fani T. Willis, the Fulton County district attorney who recruited him, has caused a court to explore charges of a financial conflict of interest that could remove both prosecutors from the case.
These references to the “taint team?” They’re referring to when Terrence Bradley, the witness, was working for the district attorney’s office. He went over documents and other investigative evidence to decide what should be considered privileged. Imagine a search warrant is issued, and a bunch of documents are hoovered up. Someone needs to figure out whether prosecutors should be prevented from looking at some of them.
And now the reference to “first appearance?” That means Bradley was also hired to represent the district attorney’s office during initial court appearances by some criminal defendants. Bradley says that it was Nathan Wade, his old law partner, who helped him acquire work with the D.A.
If you have ever tried to use your teeth to crack open a tough pistachio, well, that’s Ashleigh Merchant right now with this hesitant witness.
The judge says that the crime-fraud exemption does not apply, and so we’re back to asking Terrence Bradley about what he knows regarding the relationship between his former client and partner, Nathan Wade, and the Fulton County district attorney, Fani Willis.
Steve Sadow’s assertion that there is legal precedent that would “pierce” attorney-client privilege has thus far been relied on non-Georgia instances. He has now identified one from the state that he believes is pertinent, and, in a very Georgia touch, it involves the Coca-Cola Bottling Company.
This rather esoteric series of legal arguments all has to do with the fact that Ashleigh Merchant, a lawyer for one of Donald Trump’s co-defendants, thinks that this witness, Terrence Bradley, knows that the relationship between Nathan Wade and Fani Willis started before Willis hired Wade to work on the Trump case.
If accurate, that would suggest that Willis hired her lover for a plum job. This whole issue is about charges from the defense that Wade and Willis utilized the Trump case to benefit themselves, something the prosecutors have vigorously denied.
Steve Sadow, Donald Trump’s lawyer, is now making it apparent that he is charging Nathan Wade, the lawyer heading the Trump trial, of lying under oath. He thinks Wade has perpetrated “fraud upon the court” because of what he has said about when he started seeing Fani Willis.
It appears that Ashleigh Merchant is seeking to pierce Terrence Bradley’s attorney-client privilege with Nathan Wade, his former client, by bringing up a legal notion called the crime-fraud exception. That exemption forces lawyers to give testimony if they give counsel to their clients that helps them commit fraud or a crime.
Merchant is seeking to establish that the crime or fraud in this instance was perpetrated by Wade, alleging that he filed a false statement with the court indicating when his relationship with Fani Willis started. This does not appear to be going over well with the judge.
It’s no surprise that Terrence Bradley, Nathan Wade’s former divorce lawyer, is spending much of his evidence sitting quietly on the stand and watching other lawyers debate. Once more, we’re back to battling about Rule 1.6 under bar association regulations, which limits what lawyers can say about information they acquire from clients.
Judge McAfee adds “1.6 is not going to bar his testimony in this case,” but the narrower limits of attorney-client privilege will. So defense counsel interrogating him about Wade’s contact with Fani Willis have to work inside that gap.
Five lawyers are disputing over the attorney-client privilege and how it attaches to a witness who is… a lawyer. It was an appropriate occasion for a criminal case that charged a bunch of lawyers who argued they were not breaching laws but only lawyering.
Ashleigh Merchant, the defense counsel for one of Donald Trump’s co-defendants, is asking about her own text exchanges with the witness, Terrence Bradley, asking about the relationship between Nathan Wade and Fani Willis. We’re waiting to see what he will be able to say, if anything, about when they started dating.
“These exchanges are just two lawyers gossiping,” says Anna Cross from the district attorney’s office, but the court permits the line of questioning about text messages from Merchant’s phone to continue for now.
Lawyers are disputing after we heard from Anna Cross, representing the district attorney’s office, that the defense lawyer Ashleigh Merchant was about to ask something that Cross thought was “inflammatory” of Terrence Bradley, identified as an essential witness in efforts to dismiss Fani Willis.
Nathan Wade’s old partner and divorce lawyer, Terrence Bradley, was in Atlanta on Thursday.Credit…Pool photo by Alyssa Point.
Terrence Bradley, a lawyer who once worked in Nathan J. Wade’s law firm and served as his divorce lawyer, is expected to provide key testimony on the romantic relationship between Mr. Wade and Fani T. Willis, the leaders of the Georgia election interference case against former President Donald J. Trump.
Mr. Bradley was subpoenaed by a defense counsel for Michael Roman, a former Trump campaign official who is facing criminal charges relating to the case. The defense lawyers believe Mr. Wade and Ms. Willis, the district attorney for Fulton County, should be removed from the case because they had a personal relationship, creating a conflict of interest.
Ms. Willis recruited Mr. Wade in November 2021, and the two have said their personal relationship began months later. But Mr. Roman’s lawyer says Mr. Bradley has “personal knowledge” that the relationship began before Ms. Willis was sworn in as district attorney in 2021.
Ms. Willis has told the court that Mr. Bradley does not have information pertinent to the case. She has also contended that any information he could have would be covered by attorney-client privilege from his work as Mr. Wade’s divorce lawyer, and therefore would be inadmissible in court.
But a lawyer for Mr. Roman wrote in a court filing that Mr. Bradley had obtained the information about the relationship “directly from Wade when Wade was not seeking legal advice from Bradley,” and that the information was obtained “in a personal capacity as Wade’s friend prior to Wade’s decision to file for divorce.”
Mr. Bradley briefly took the stand on Thursday, but maintained that he was not able to offer any details regarding the relationship since he had been Mr. Wade’s attorney, and that he had spoken with the Georgia bar on the topic. Scott McAfee, the presiding judge, has suggested that he might disregard that recommendation and order Mr. Bradley’s testimony on at least certain aspects of the case.
Richard Fausset and Danny Hakim contributed reporting. Court is back in session. The state has no more witnesses. Terrence Bradley is presently (finally) on the stand. He is a former legal partner and former divorce lawyer for Nathan Wade.
A Loyola Law School professor who has been watching the case stated that evidence from Fani Willis’s father, John Floyd, who was brought by the district attorney’s office, contributed to humanize Willis. “She’s not just one of the most famous prosecutors in the country, she’s someone’s daughter,” said, Jessica Levinson, the professor.
Levinson said that his “explanation of why she had to leave her house is a useful reminder of the risks” faced by “high-profile public workers, particularly women and women of color.”
The judge sets a lunch break. The activity in Atlanta will continue at 1 p.m.
Fani Willis’s father has been excused by the judge. We expect Terrence Bradley, who has been labeled as a potential “star witness,” to be here in 20 minutes or so. His testimony may have to wait until after lunch.
The evidence of Fani Willis’s father, John Floyd, backed up her allegation that she keeps huge quantities of cash in her residence, however it didn’t shed much new light on the timeframe of her relationship with Nathan Wade, as he found out about it when the rest of us did.
Under questioning from Donald Trump’s lawyer, Steve Sadow, Fani Willis’s father claims, “I just found out when other folks found out” that his daughter had dated the special prosecutor, Nathan Wade.
Keeping large amounts of cash around is “a Black thing,” Fani Willis’s father, John Floyd, says. Willis, the district attorney, has said that she paid Nathan Wade back for trips that they took together in cash. Defense attorneys have suggested that she benefitted from employing Wade as the special prosecutor by taking expensive trips with him.
Floyd says, “I’ve always told my daughter, you keep six months worth of cash, always.” And he claims he gave his daughter her first cash box.
With her father on the stand being questioned by defense attorneys, you can see where Fani Willis got her penchant for pushback. John Floyd, her father, is also describing his exploits in South Africa, Hollywood and elsewhere, making a case for being, as the beer ad goes, “the most interesting man in the world.”
John Floyd’s description of the death threats that his daughter, Fani Willis, has experienced is likely part of an effort to undermine the key accusation against her: that she is prosecuting Donald Trump for the money. The D.A.’s office is trying to drive home a point: Who would want to subject themselves to this kind of abuse?
Floyd reported his daughter’s house was doxed, with individuals turning up outside at 5:30 a.m. “cursing and yelling” the “b-word” and the “n-word.” He added, “Fortunately the neighbors called the police and disbanded the group.” He said he hadn’t seen anything “exactly like it before.”
Fani Willis’s father, John Floyd, is taking the stand. He was originally meant to dial in via videoconference but is here in person. He has likely been asked to aid the prosecution dispute charges that Willis and Nathan Wade were living together.
The judge observes that Terrence Bradley, one of the key witnesses subpoenaed by the defense, is now technically in volation of his subpoena for ghosting this session. His counsel says he is at a medical appointment.
Former Gov. Barnes offers support for Nathan Wade and his hiring by Fani Willis to run the Trump case: “Nathan is a good organizer. Nathan can organize stuff, I’ve watched him over the years. So I wasn’t surprised that he was acting as special prosecutor.” You can see and feel the respect that these high-powered Georgia trial lawyers have for Roy Barnes, the former governor and a prominent lawyer. He is a sort of Michael Jordan figure among them.
The point of bringing Roy Barnes to the stand is to establish that Nathan Wade was not the first choice of Fani Willis, the Fulton County district attorney, to run the Trump prosecution. Barnes, a former governor of Georgia, testified that he met with Willis for an hour about taking on the case, but declined.
Former Gov. Barnes was involved in attempts to try to alter the old Georgia flag, which originally contained Confederate iconography. So it is not unexpected to hear him declare he had experience with angry threats.
Former Gov. Barnes reveals publicly that Fani Willis, the Fulton County district attorney, approached him about pursuing the Trump case. He declined because the money wasn’t good enough: “I have mouths to feed at a law office.”
Barnes also adds that part of the reason he rejected down Willis was that he didn’t want to deal with threats from racists. “I wasn’t going to live with bodyguards for the rest of my life.”
The hearing is back on, but Terrence Bradley, who the judge has called the star witness in this case, is still not here. Instead, we have another star of sorts: Former Gov. Roy Barnes of Georgia. Mr. Barnes is a moderate Democrat who served one term.
Barnes is a skilled lawyer, and according to a recent book about the Trump affair, Fani Willis approached him about helping to prosecute the case before hiring Nathan Wade. Judge Scott F. McAfee is a recently appointed Fulton County Superior Court judge who was once supervised by the county’s district attorney, Fani T. Willis.Credit…Pool photo by Alyssa Pointer
The judge overseeing the landmark racketeering case in Georgia against Mr. Trump and his allies, as well as this hearing, is Scott F. McAfee, a recently appointed Fulton County Superior Court judge who was once supervised by the county’s district attorney, Fani T. Willis.
Judge McAfee, who is in his 30s, was appointed to the bench by Gov. Brian Kemp of Georgia, a Republican, and was sworn in on Feb. 1, 2023 to fill a vacancy.
He attended the University of Georgia School of Law and earned his undergraduate degree from Emory University. While at law school, Judge McAfee was the vice president of the Federalist Society, a conservative law group, as well as the treasurer for the Law Republicans, which has been described as serving “conservative, moderate and libertarian” law students. He graduated in 2013.
One of Judge McAfee’s first jobs after graduating was in the Fulton County district attorney’s office, where he handled the early stages of felony cases before being promoted to the complex trial division. At the time, the division was led by Fani T. Willis, the prosecutor overseeing the Trump case.
In August last year, just a few months after he was sworn in, Judge McAfee was randomly assigned the case in Atlanta against former President Donald J. Trump and others, which accuses Mr. Trump and his allies of engaging in a plot to subvert Georgia’s 2020 presidential election results. Since August, four of the 19 original defendants have pleaded guilty.
Since then, Judge McAfee has overseen the proceedings, including the current hearings over the allegations that Ms. Willis and Mr. Wade were in a romantic relationship, as well as the push to disqualify them from the case.
In July 2022, Judge McAfee’s predecessor, Robert C.I. McBurney, disqualified Ms. Willis and her entire office from developing a criminal case against Burt Jones, now Georgia’s lieutenant governor, because Ms. Willis had headlined a fund-raiser for a political opponent of Mr. Jones’s.
In this case, Judge McAfee will have to rule on the motion to disqualify Ms. Willis from the election interference prosecution.
Earlier this week, Judge McAfee declined to quash the subpoenas sent by the defense team to a number of witnesses, including Ms. Willis and Mr. Wade. But he also ruled out delving into the qualifications of Mr. Wade, who defense attorneys have said lacked relevant experience and was unqualified to take on such a high-profile case.
Nicholas Bogel-Burroughs, Richard Fausset and Danny Hakim provided reporting.
A number of lawyers have referred to “Rule 1.6” during the hearing. That’s a citation from bar association rules that relates to lawyers keeping information received from clients confidential. But Judge Scott McAfee said this morning that he would direct witnesses to “be responsive to any questioning that may be covered by Rule 1.6” because it was not equal to attorney-client privilege.
The judge’s comments are significant, because they suggest that Wade’s former lawyer, Terrence Bradley, will not be able to avoid answering some questions when the takes the stand, though there is sure to be significant sparring among the lawyers as he testifies. He has been identified as a significant witness by the defense who could establish the timeline of when Wade began dating Fani Willis, the district attorney. The hearing has now been put on hold until Terrence Bradley shows up.
With Fani Willis’s testimony apparently over, the defense has tried to call Terrence Bradley, the former divorce lawyer for Nathan Wade, the special prosecutor who was in a romantic relationship with Willis. But a lawyer for Bradley says that he is at a doctor’s appointment and will be in court later.
In his absence, the judge is hearing arguments about how much, if anything, Bradley can say, given attorney-client privilege issues. Ashleigh Merchant, one of the defense lawyers, says that Bradley can help prove that the romantic relationship preceded Wade’s hiring by the district attorney’s office.
In a surprise as the hearing begins, the district attorney’s office says they don’t need to summon Fani T. Willis back to the stand.
We have begun Day Two of the hearings on the question of whether the prosecutors in the Georgia election interference case should be disqualified. Notable: Trevian Kutti, one of Donald Trump’s 15 co-defendants, is here. Kutti is a self-described former publicist for Kanye West, and is accused of intimidating a Georgia election worker on behalf of the Trump campaign.
The second day of this hearing delving into the romantic relationship between the two lead prosecutors in the Georgia elections case will start with Fani Willis, the district attorney, back on the stand. There will not be a conclusion today to these proceedings, given the number of witnesses left and the fact that the judge has said he will not rule from the bench. Fulton County District Attorney Fani T. Willis in August.Credit…Kenny Holston/The New York Times
The stakes are high as a judge in Atlanta decides whether the Fulton County district attorney, Fani T. Willis, should be disqualified from leading the prosecution of former President Donald J. Trump on election tampering allegations.
If Judge Scott McAfee concludes that Ms. Willis has a conflict of interest because of her intimate relationship with the prosecutor she recruited to supervise the case, and that it justifies disqualification, his ruling would, by extension, disqualify her whole office.
The case would then be reassigned to another Georgia prosecutor, who would have the ability to continue with the case exactly as it is, make major changes — such as adding or dropping charges or defendants — or to even drop the case altogether. The decision to drop the case would end the prosecution of Mr. Trump and his allies for their actions in Georgia after the 2020 election, when the former president sought to overturn his loss in the state.
It would be up to a state institution called the Prosecuting Attorneys’ Council of Georgia to choose someone else to take up the case. More precisely, the choice would go to the council’s executive director, Pete Skandalakis, an experienced former prosecutor.
In an interview on Wednesday, Mr. Skandalakis said that he could ask a prosecutor to take up the Trump case willingly. But he could also select a prosecutor to undertake the job — whether that prosecutor wanted or not.
Mr. Skandalakis said he could potentially try to locate a lawyer in private practice to replace Ms. Willis. But that is an improbable scenario, he said, because he could only pay such a lawyer around $70 per hour.
Mr. Skandalakis’s options may be limited, because few prosecutors’ offices in Georgia have the size, or the funds, to pursue a sophisticated racketeering case that targets 15 defendants, among them a former president of the United States and his former chief of staff.
Picking a replacement would also be a politically complicated decision sure to raise the hackles of partisans in one party or another. Two of the larger district attorney’s offices in the state — with staffs and budgets that might be able to handle the Trump case — are those in DeKalb and Cobb counties, which cover populous swathes of the Atlanta suburbs. Those offices are currently headed by Democrats.
Mr. Skandalakis, a Republican, could even potentially opt to nominate himself as the new prosecutor.
Mr. Skandalakis is considered to be fair-minded by a number of prominent Georgia Democrats. But he has also been criticized for moving slowly in the process to select a prosecutor to evaluate whether Georgia’s lieutenant governor, Burt Jones, could face charges linked to the Trump issue.
A judge in July 2022 prohibited Ms. Willis from advancing a case against Mr. Jones, who functioned as a false pro-Trump elector, because Ms. Willis had held a fund-raiser for one of Mr. Jones’s political opponents. No replacement prosecutor has been selected.
This week, Mr. Skandalakis declined to say how quickly he would be able to locate a substitute for Ms. Willis in the Trump case, if it were necessary
At the heart of the campaign to disqualify the prosecutors in Donald J. Trump’s election meddling case is the notion that the love relationship between Fani T. Willis, the Fulton County district attorney, and Nathan J. Wade, the special prosecutor she selected, caused a conflict of interest.
That argument has been put forth primarily by Ashleigh Merchant, the lawyer for Michael Roman, a former Trump campaign official and a co-defendant in the case. Ms. Merchant accuses the district attorney of hiring Mr. Wade after they became romantically involved, and notes that the pair took several vacations together that were paid for by Mr. Wade.
But Mr. Wade says the romantic relationship began after he was hired. And according to Ms. Willis, they “roughly divided” the expenditures of the excursions.
Ms. Merchant said in a recent court filing that the pair had “personally enriched themselves off the case.” That enrichment, she wrote, “is a form of self-dealing, which creates a personal interest in the case. In other words, the more work that is done on the case (regardless of what justice calls for) the more they get paid.”
That personal interest, she continued, is “at odds with the district attorney’s obligation to seek justice.” Ms. Merchant and other defense lawyers have also contended that the arrangement violates multiple laws and the State Bar of Georgia’s rules of professional conduct.
Some legal observers have rejected out of hand the idea that the relationship and Mr. Wade’s financing of the couple’s vacations amount to a conflict of interest under Georgia law. But the presiding judge in the matter, Scott McAfee of Fulton County Superior Court, has indicated that he thinks that it is at least possible that such a conflict exists, depending on what additional details emerge in testimonies.
“The state has admitted that a relationship existed,” Judge McAfee said earlier this week. “And so what remains to be proven is the existence and extent of any financial benefit — again, if there even was one.”
He warned that even “the appearance of” a conflict could lead to disqualification.
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