Legal experts weigh in on Fani Willis drama: 'There could be a recusal here'

Legal experts said it seems unlikely that Fulton County District Attorney Fani Willis will be disqualified from prosecuting former President Donald Trump — but she may yet be recused from the case.

Willis faces allegations that she had an "improper" affair with special prosecutor Nathan Wade, whom she hired to prosecute Trump and 18 others on racketeering charges for their attempt to overturn the 2020 election in Georgia. Michael Roman, a Trump co-defendant, and defense attorneys have claimed Willis has a conflict of interest because she went on vacations with her lover, Wade, that were allegedly paid for by taxpayer dollars his firm received from working on the case. 

"It is rare for courts to toss out a case based on these allegations," said Jonathan Turley, a George Washington University law professor and Fox News contributor. "However, the court could force Wade and Willis to set aside due to the appearance of impropriety." 

"What is now abundantly clear is that Wade and Willis are undermining the case and the office in their continuing in the case. That is as troubling as the underlying allegations," he said. "They have placed their interests ahead of those of the office and the public. Disqualification presents a difficult challenge for the court after Wade and Willis claimed that all the key transactions were handled with untraceable cash." 

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Fulton County DA Fani Willis winks before being sworn in to testify on the hearing about an allegedly improper relationship with Nathan Wade (Screenshot/Fox News)

Defense attorneys put former friends and colleagues of Wade and Willis on the stand Thursday and Friday to testify that the pair had started a romantic relationship in 2019, years before they said the relationship began in court filings. Both Willis and Wade insisted that their relationship started in 2022, after Wade was hired to prosecute Trump. 

But Robin Yeartie, a former "good friend" of Willis and past employee at the DA's office, contradicted their story. 

Yeartie told the court she had "no doubt" that Willis and Wade's relationship started in 2019, after the two met at a conference. She testified to observing Willis and Wade "hugging" and "kissing" and showing "affection" prior to November 2021, and that she had no doubt that the two were in a "romantic" relationship starting in 2019, to when she and Willis last spoke in 2022.

The defense also called on Terrence Bradley, a former law partner of Wade's — and his one-time divorce lawyer — to testify that the relationship started in 2019. However, Bradley cited attorney-client privilege to avoid answering several questions from defense attorneys. Judge Scott McAfee said Friday he would hold an "in-camera" meeting with Bradley to determine if his privilege assertions are accurate.

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Fulton County Special Prosecutor Nathan Wade testifies during a hearing in the case of the State of Georgia v. Donald John Trump at the Fulton County Courthouse on Feb. 15, 2024, in Atlanta, Georgia. Judge Scott McAfee is hearing testimony whether DA Fani Willis and Wade should be disqualified from the case for allegedly lying about a personal relationship.  (Alyssa Pointer-Pool/Getty Images)

Willis unexpectedly took the stand Thursday and denied allegations of impropriety. The district attorney said she paid Wade back in cash for trips they took to wine country in California, the Caribbean and other destinations. 

She verbally sparred with lawyers for hours, at one point prompting the judge to threaten to strike her testimony.

"You’re confused! I am not on trial. These people are on trial for trying to steal an election in 2020," Willis said in response to a line of questioning. She did not return to the witness stand on Friday.

Her father, John C. Floyd III, testified Friday and confirmed that he taught her to keep large amounts of cash on hand at all times. 

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Scott McAfee, Fulton County superior court judge, at the Fulton County Courthouse in Atlanta, Georgia, US, on Thursday, Feb. 15, 2024.   (Alyssa Pointer/Reuters/Bloomberg via Getty Images)

He also said he did not meet Wade until 2023, and that he was unaware his daughter had a romantic relationship with Wade until about seven weeks ago, when allegations of Wills’ impropriety were first made in court filings. 

Emory University School of Law associate professor John Acevedo told FOX 5 Atlanta the chances Willis will be disqualified from prosecuting Trump appear slim. 

"Here, it's a bit of a stretch," he said after reviewing this week's evidentiary hearings in Fulton County Superior court. "She obviously isn’t getting any of that salary directly, instead the theory that’s been put forward is that she’s getting gifts from Wade from the salary that he’s being paid to prosecute these defendants."

Acevedo suggested the defense has not yet been able to prove a direct benefit Willis had from hiring Wade. But the Emory prof told FOX 5 Atlanta that either way, the case looks bad for Willis, an Emory alumnus. 

"Reimbursement in cash, the discovering about the start of the relationship, that makes it possible that there could be a recusal here simply because of that appearance of impropriety, even if there is nothing actually wrong," he said.

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Fox News legal analyst Gregg Jarrett suggested that the timing of the affair is less of an issue than the fact that it happened at all.

"Both Willis and Wade admitted their sexual affair even though they claimed that it didn’t begin until after he was hired, not before. It doesn’t matter. The affair itself, regardless of when it started, is a severe conflict of interest, an obvious impropriety, and a violation of the cannons of ethics. That merits disqualification," Jarrett said.  

"Whether the judge will see it that way is hard to tell," he said. "Willis has only herself to blame. Her poor judgment and misconduct damaged her own case.  The public's perception has ruined her credibility, and the jury will know that this case is tainted." 

Judge McAfee said earlier in the week that it’s "clear that disqualification can occur if evidence is produced demonstrating an actual conflict or the appearance of one."

If the judge determines that Willis should be disqualified or removed, a new prosecutor would be appointed to handle the election interference case and may choose to scrap it entirely. Otherwise, Willis may continue to pursue her charges against Trump and others, with a trial to come later this year. 

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Turley said Wade and Willis should have already recused themselves.

"The most serious allegation, in my view, is that Willis and Wade made false statements and filings in court," he told Fox News Digital. "They are prosecuting defendants for making and filing false statements. In the case of Wade, this goes beyond the question of when their affair began. Wade signed interrogatories denying any sexual relationship that stand contradicted by his own admissions. Both Willis and Wade should have recused themselves weeks ago."  

Fox News DIgitals' Brianna Herilhy contributed to this report.