0:00

previously on Breakdown. Most

0:03

people, when they go to Napa, if

0:05

they want to lavishly experience Napa, stay

0:08

at the Ritz Carlton, the Four Seasons,

0:10

things of that nature, not a double

0:12

tree. So the allegations and assertions that

0:14

Miss Willis was living the lifestyle of

0:16

the rich and the famous is a

0:18

joke. Whose motive

0:20

in this case is the strongest?

0:23

Fonny Willis, Nathan Wade.

0:26

Because if they, if

0:29

they testify truthfully

0:32

on every point, what happens

0:35

if the relationship started before

0:37

November 1st? They

0:39

get disqualified. Who

0:41

has the best motive of anyone

0:44

to lie? They do. Who

0:46

has the most at stake to lie? They

0:48

do. We're still playing

0:50

the waiting game as Fulton County Superior

0:52

Court Judge Scott McAfee decides whether to

0:55

remove DA Fonny Willis from the election

0:57

interference case. It's, of course,

0:59

a huge decision. As we've

1:01

mentioned in previous episodes, much will

1:03

depend on which standard he uses.

1:06

Does Willis have an actual conflict of

1:09

interest, an appearance of a conflict or

1:11

nothing at all? We

1:14

sure are aching to know where he'll land. And

1:17

because Judge McAfee picked up a challenger

1:19

to his reelection, he made a surprise

1:21

appearance this week on a WSB radio

1:23

show. And when he was asked by

1:26

host Shelley Winter about whether he'd meet

1:28

his two week deadline to rule on

1:30

the disqualification motion by March 15th, he

1:33

gave this answer. I gave

1:35

myself a deadline because I knew everyone wanted an

1:37

answer. And and

1:39

I'll tell you, an order like this

1:41

takes time to write. There's

1:44

a lot that I have to go through.

1:46

And so, you know, I've had I can't emphasize

1:48

this. I've had a rough draft and an outline

1:51

before I ever heard a rumor that someone wanted

1:53

to run for this position. So the result is

1:56

not going to change because of

1:58

politics. I'm calling it as better. I

2:00

can in the law as I understand it.

2:02

So I still feel like I'm on track to having

2:04

that done by the deadline that I put

2:06

on myself. All right then

2:09

so Judge McAfee is an outline guy. We'll

2:11

hear more from him later in the episode. In

2:14

the meantime, we wanted to do something a little

2:16

different with this episode. We

2:18

wanted to ask two of our favorite legal

2:20

minds on each side of the disqualification debate

2:23

what they had to say now that the

2:26

evidence has been submitted and the testimony delivered.

2:28

In this episode, we're giving attorneys Norm

2:31

Eisen and Andrew Fleishman the floor to

2:33

make their own closing arguments on the

2:35

issue. Eisen

2:37

believes that given the evidence that's

2:39

been presented, there's nothing that merits

2:41

the DA's removal and Fleishman

2:43

argues that the DA's office should be stripped

2:45

of the case. You may

2:48

have a firmly held opinion of your own, but

2:50

wait until you hear what these two have to

2:52

say. This is

2:54

episode 34, the cases for

2:56

keeping or disqualifying of

2:58

season 10 of Breakdown. The Trump indictment

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from the Atlanta Journal Constitution. This

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the station 19 season premiere Thursday at a

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new time 10 9 central on ABC.

4:00

and stream on who. Welcome

4:05

back to Breakdown, the podcast by

4:07

the Atlanta Journal-Constitution covering Georgia's most

4:09

important cases. I'm Bill Rankin,

4:11

the AJC's legal affairs reporter. I'm

4:14

AJC senior reporter Tamar Hallerman. And

4:17

I'm AJC senior reporter David Wickert. I'm

4:19

filling in this week for our editor

4:21

and leader Shannon McCaffrey. Bill

4:24

and Tamar, you sat down this week

4:26

with two attorneys Breakdown listeners know well.

4:29

And you had each of them separately

4:31

make their cases for why the Fulton

4:33

DA's office should be removed from this

4:35

case or why it should stay

4:37

in the driver's seat. Exactly.

4:39

These are two observers we go to frequently

4:42

to get their impressions of where the case

4:44

is at any given moment. We were dying

4:46

to get their takes now that we have

4:48

a fuller understanding of the facts or

4:50

at least what Judge McAfee has in front of

4:53

him. And what I love

4:55

about talking to these two is how

4:57

differently they see the situation after being

4:59

presented with the same evidence and the

5:01

same testimony. So we figured we'd

5:03

let you hear from each of them in

5:05

a more detailed and uninterrupted way. First up

5:07

is Norm Eisen. He served

5:09

as President Barack Obama's White House ethics

5:12

czar and advised House Democrats during the

5:14

first impeachment of Donald Here's

5:17

what he had to say. Now

5:19

that all has been

5:21

said and done and

5:24

we've learned far more

5:27

than we wanted to about

5:29

the relationship between

5:32

Fannie Willis

5:35

and Nathan Wade,

5:37

one legal and factual

5:40

conclusion is abundantly

5:43

clear. There is

5:46

absolutely no basis to

5:49

disqualify the district attorney

5:51

or Mr. Wade. Although

5:55

I do think that when

5:57

the dust settles and the judge

5:59

rules as he must if

6:02

he's going to apply the unquestioned

6:04

law of the state of

6:06

Georgia and

6:09

the undisputed findings

6:13

and evidence that are

6:15

supported by the record, he

6:20

must find that there's no basis for

6:23

disqualification. I continue to think that after

6:25

that happens, the right thing to do is for

6:28

Mr. Wade to cap his distinguished

6:32

record of public service,

6:34

including in this case by

6:37

saying this has been a distraction and I'm

6:39

going to move on. The

6:41

law and the fact mandate that

6:44

the books be closed on this

6:47

distraction and that we return to

6:49

what this case is about as

6:51

the DA I thought eloquently and

6:54

powerfully said in her testimony, the

6:58

allegations of the most

7:00

serious criminal conspiracy

7:02

perhaps in

7:05

modern American history, the

7:08

charge that Donald Trump attempted to

7:11

overturn the 2020 election from the

7:14

Oval Office, including in Georgia. Why

7:17

do I say that

7:20

there's no legal or factual

7:22

basis for disqualification? The

7:25

courts of Georgia have been

7:27

very clear that

7:29

there is an extremely high burden

7:31

to knock a prosecutor off of

7:33

a case. We don't want to

7:36

turn every defense lawyer into every

7:38

case in every

7:40

case into

7:43

someone who

7:45

snoops into prosecutors lives

7:48

for matters unrelated to the merits

7:50

of the case. Whatever

7:52

else you say about the

7:54

Willis-Wade relationship, it doesn't touch

7:56

any iota of evidence of

7:58

Donald Trump's alleged wrongdoing. We all

8:01

heard the tape of the January

8:03

2nd, 2021 call. The fact that Willis

8:07

and Wade kiss has nothing

8:09

to do with that tape

8:11

or any other evidence in the

8:13

case, the powerful and I dare

8:16

say overwhelming proof that

8:18

led to already four

8:21

guilty pleas from hardened former

8:24

Trump acolytes like

8:26

Ken Chesbrough, Jenna Ellis,

8:29

Sidney Powell. These

8:33

allegations have nothing to do

8:35

with that. Disqualification is an

8:38

extremely steep burden and

8:40

it's done for actual conflict, not

8:42

for appearance of conflict. In

8:45

fact, the appearance of conflict

8:47

standard as almost 20 ethics

8:49

experts and criminal law

8:52

professionals from Georgia and

8:54

around the country submitted in a

8:57

very important amicus brief. It's

8:59

even been taken out

9:01

and minimized and marginalized in

9:03

the Georgia ethics code, which

9:06

by itself is a separate matter than

9:08

the disqualification rules. You need to have

9:10

an actual conflict and we

9:13

don't have that here as

9:15

a matter of law or forensic

9:17

misconduct, making up evidence. But

9:19

nobody's saying that any of the

9:22

evidence here of the wrongdoing that

9:24

we should be talking about is

9:26

made up. So that legal standard

9:28

as Judge MacPhee

9:31

himself has said, um,

9:35

requires something more than

9:37

just dating, even hiring

9:40

a prosecutor you're dating. The

9:42

judges said, let's focus on

9:44

the financial issues. Even

9:47

there, the burden is very high

9:49

and the defendants have totally and

9:52

abysmally failed to

9:54

introduce proof into

9:56

the record that, uh,

9:58

uh, that

10:00

there was any kind of

10:02

financial impropriety. On the contrary,

10:05

the record evidence

10:08

overwhelmingly establishes through

10:10

the testimony of Wade and the

10:13

powerful testimony, come on, we

10:15

could all see she was telling the truth, the

10:18

powerful testimony of Fonny Willis

10:21

that they went Dutch. Okay,

10:24

maybe there's an argument you can say,

10:26

oh, Fonny Willis set up

10:28

this case to have

10:30

a secret bonus system and

10:32

she wouldn't have otherwise brought

10:35

the case and she was

10:37

passing that through. First

10:40

of all, the overwhelming proof and

10:43

evidence in the case puts the lie

10:45

to any claim that this case is

10:47

about something other than that tape that

10:49

we all heard January 2nd, 2021 and

10:53

the mountain of similar evidence. That's

10:55

what's driving this case. But second,

10:58

she testified compellingly,

11:00

convincingly and definitively.

11:03

They went Dutch. Would

11:05

anybody expect and Wade said the

11:07

same thing and there was nothing

11:09

to contradict that? Would

11:11

anybody who saw that

11:14

presentation on the stand think

11:19

that that fiercely independent

11:22

woman who famously declared, I

11:25

know my wife and daughter loved

11:27

it, a man is not

11:29

a plan, that she was gonna

11:31

be taking handouts

11:36

from Nathan Wade? No,

11:38

and in fact, if anything, the

11:42

evidence that has emerged points the other way

11:45

at CNN where I work. We

11:48

had a story from

11:50

the vineyard in Napa

11:52

Valley, that the two visited where

11:55

the server there remembered, oh

11:58

yes, funny will. It

12:00

is very common. There

12:03

was a lot of

12:06

insulting innuendo about

12:08

the fact that this split

12:10

of the expenses, rough split

12:13

of the expenses that eliminates

12:16

any hint of

12:18

a basis for disqualification. There

12:21

was a lot of innuendo that people

12:23

don't carry cash. That's nonsense.

12:26

I am the child of two

12:28

migrants, a Holocaust survivor and a

12:30

Holocaust refugee who came to

12:32

this country. My dad never left the

12:34

house without a giant wad

12:37

of cash in his pocket. And

12:39

he had a huge stack of it at home

12:41

at all times in case he

12:44

needed it for any purpose. In

12:47

my parents' case, they thought they

12:49

might need to run on a

12:51

moment's notice because that was their

12:53

historical experience. Other historical experience comes

12:55

to bear on the very widespread

12:57

practice in Georgia

13:00

and elsewhere of people keeping

13:02

cash at home. It was

13:04

entirely credible, as was

13:06

the split of expenses, eliminating

13:09

any establishment of a conflict of

13:12

interest in this case. There's

13:14

no legal basis for

13:16

disqualification. The evidentiary effort

13:19

has totally failed. Things

13:21

like these cell phone

13:23

records, these wild distractions,

13:28

those have been proven to

13:30

be unreliable. There's other reasons

13:32

that Nathan Wade might have

13:34

been in a predominantly African-American

13:37

neighborhood. The DA has said

13:39

that sometimes when supposedly those

13:41

records indicated she was there

13:44

establishing to

13:47

the contrary, that she can prove

13:50

that she was not in

13:52

the neighborhood. The notorious 2000

13:54

mules face plant was also

13:56

based on these kinds of

13:58

records. they

14:01

cannot be conclusively relied

14:03

upon and falling as

14:05

they do into a

14:07

fallow field of the

14:11

lack of other evidence

14:13

supporting disqualification, they must

14:15

wither and with

14:17

them the rest of this

14:22

case is utterly unavailing,

14:24

let's get back to

14:26

the evidence

14:28

of wrongdoing, let's

14:31

get that trial that Fani Willis

14:33

has requested for August on the

14:35

books, there will be an opportunity

14:38

this summer for a second election

14:41

interference case after the New York

14:44

Alvin Bragg 2016 campaign corruption and

14:49

cover-up case involving gush money, what

14:52

better bookend for that than

14:55

the Georgia 2020 campaign

14:59

corruption and cover-up

15:01

case, the election interference case,

15:04

the alleged attempted coup as it

15:06

hit Georgia, we don't know if

15:09

there will be a federal case

15:11

because that case is at the Supreme

15:13

Court, let's whilst the

15:16

Supreme Court proceeds, let's they'll

15:18

finish no later than June, let's get

15:20

this case on the books for August

15:22

or even earlier July and let's

15:25

get the accountability that the

15:28

American people want and

15:30

they want to know by a

15:33

jury of their peers, a jury

15:35

of people in Fulton County, just

15:38

like the people of Georgia, just

15:40

like the people of America, they

15:42

want to know did Donald Trump

15:45

abuse the office that he's trying

15:47

to recover criminally to

15:49

attack the elections, the foundation

15:52

of our democracy, let's close

15:55

the chapter on this distraction

15:57

and get back to what

16:00

That's the funny Willis case is

16:02

all about and Judge McAfee

16:04

can start doing that by

16:06

throwing out this baseless disqualification

16:08

and setting a trial. Don't

16:11

wait till August. Set it for

16:13

July. There'll be plenty of

16:15

opportunity to start then. Thank

16:18

you, ladies and gentlemen of

16:20

the breakdown jury. I

16:23

asked Eisen about the defense attorney's

16:25

argument that their clients have a

16:27

right to a disinterested prosecutor who's above

16:29

reproach. I agree that

16:35

in the perfect world that

16:38

we study in

16:42

my religious tradition, the Jewish

16:44

tradition in our Talmud, we

16:47

study the heavenly court where

16:50

the prosecutors and defense lawyers

16:52

are angels and perfect

16:55

ethereal beings. That

16:57

is not the planet we live on. Prosecutors

17:00

are human beings. It was a mistake

17:03

to have this relationship.

17:05

The relationship is now

17:07

established by record evidence

17:09

began after Wade was

17:12

hired. It ended before

17:14

the scandal and funny

17:16

Willis didn't benefit financially. The

17:19

law countenances the

17:22

humanity of prosecutors and

17:24

defense lawyers and defendants for

17:26

that matter, judges. The

17:29

rules do not require

17:31

the perfection

17:36

that I would like to have.

17:41

These imperfections are

17:44

not legally cognizable. We set

17:47

a high standard. We

17:49

don't want defense lawyers snooping and

17:51

prosecutors private lives for irrelevant side

17:53

issues. It doesn't go to the

17:55

evidence in the case. There's

17:58

no indication of financial. benefit

18:00

or the other triggers under Georgia law

18:02

or national law. I agree with you

18:05

that there was some foolishness here and

18:07

that's why I think Wade should, when

18:09

the judge says no DQ, Wade should

18:15

voluntarily step aside. That was my

18:17

first reaction and it's my last

18:19

reaction. He's not required

18:21

to do it legally but

18:23

voluntarily he must step

18:26

away when the judge

18:28

rules assuming the judge

18:30

does not disqualify Willis

18:33

in order to clear

18:35

the air and get us back on

18:37

track. The country needs a resolution of

18:40

this case. So there you

18:42

have it for Isen. He certainly didn't

18:44

need much prompting after we teed up our

18:46

question to him. Just ahead we

18:48

hear from Criminal Defense Attorney Andrew

18:51

Fleishman also Willis and

18:53

Judge McAfee get political challengers

18:55

and the disqualification fight spills

18:58

into the Georgia Senate and

19:00

the Fulton Ethics Committee. This

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on the fly visit website for more

20:02

details. Next

20:06

up is Andrew Fleishman. He's a criminal

20:08

defense attorney here in Atlanta who spent

20:10

several years as a public defender. He's

20:13

no fan of Trump's, but has long been

20:15

critical of Willis's charging strategy in this case.

20:18

He thinks she should have pursued a more

20:20

narrow set of charges, such as making false

20:22

statements, rather than using a broad tool

20:24

like RICO. Here are his

20:27

thoughts on removing the DA's office from the case.

20:30

Let's start with the obvious. Everybody,

20:33

everybody, everybody is

20:35

entitled to due process. And

20:37

it does not matter how guilty they are or how

20:40

serious the crimes they are accused of, everyone

20:42

is entitled to it. And

20:45

part of how we guarantee due

20:47

process is through certain structural protections.

20:50

Stuff like jurors need to be

20:53

unbiased. People need to be able to see

20:55

the trial. The judge needs to

20:57

be unbiased. Your lawyer needs to be

20:59

looking out for your best interest. And

21:01

prosecutors, like everyone else in the courtroom,

21:04

cannot have disqualifying conflicts of interest.

21:06

Now we've talked about an actual appearance in propriety

21:08

and an actual conflict. And which one of these do

21:11

we have in this case? It

21:13

doesn't matter. There's an actual conflict of interest. And

21:15

you don't have to look at any sort of

21:17

new or newfangled rule. Every

21:19

government agency would agree that you cannot

21:21

hire someone with whom you have an

21:24

undisclosed romantic relationship because you would make

21:26

choices that you otherwise would not make.

21:28

That's why they have that rule. Federal

21:30

prosecutors are bound by a rule that

21:32

prevents them from participating in a case

21:35

where someone with whom they have a close personal

21:37

relationship has a substantial financial stake. Nobody

21:40

put these rules out to hurt Fonnie Willis.

21:42

They have existed for decades. And while she

21:44

argues they do not apply to her, there

21:46

was certainly a reason why the people who

21:49

wanted to make rules about conflicts of interest

21:51

sat down and decided on those rules. Now

21:55

the state says, well, you can't prove prejudice,

21:57

but I don't have a wiretap. I

21:59

don't have... access to funding will assist text. You can't prove

22:01

that she made a decision based on anything. But

22:04

she made choices repeatedly that were to

22:06

Nathan Wade's financial benefit. And they were

22:08

not choices that every prosecutor would have

22:10

made. She put a special

22:12

grand jury on this case. Almost

22:15

half a million dollars of what Nathan Wade

22:17

was paid was because of that extremely unusual

22:19

maneuver. And she did it in

22:21

a case where she had recorded conversation with the former president

22:23

of the United States, with

22:25

many of the elements of the crime she was trying to charge. She

22:29

chose to indict 19 food defendants. And she chose

22:31

to indict them in such a way that this

22:33

trial would take one to two years to try.

22:35

That's not an unrealistic estimate based on what we've

22:38

seen from other cases in this jurisdiction. And that

22:40

would mean millions of dollars for Nathan Wade, potentially.

22:42

On top of the $728,000 he was already paid,

22:44

bear in mind, this

22:49

case has not gone to trial. And he has built nearly

22:51

3,000 hours. That

22:53

is what you would expect an attorney at a big

22:55

law firm having an insane year to bill. And

22:58

that's what he's built just before trial in this case.

23:01

And it's not just the conflict and the fact

23:03

that Nathan Wade was hired, but what billing

23:05

was accepted. You know, ethics

23:07

experts have looked at this and called it the

23:10

worst billing they've ever seen. You see Nathan

23:12

Wade billing 24 hours in a day. You see

23:14

him billing eight hours to read case summaries, eight

23:16

hours to sit through a PowerPoint presentation, eight

23:18

hours to sit in the meeting day after day

23:20

after day. Meanwhile, I'm not

23:23

familiar with any filings in this case that

23:25

he actually drafted. Not

23:27

one. Not in three years. How

23:30

can you do so much work and create so

23:32

little work for him? How can you do 3,000

23:34

hours worth of work? A normal

23:36

employer would have looked closely at those bills. Any

23:38

one of us whose lawyer bills like that would

23:41

ask questions. And the fact that those questions were

23:43

not asked is part of the same

23:45

concubilist's interest issue everywhere else in this case. You

23:49

know, again, if I

23:51

tried to tell a client that, oh, I spent eight hours

23:53

reading case summaries, they would be

23:56

like, I'm not paying you for this. That's

23:58

not reasonable. We reminded

24:01

Fleischman about Willis's financial disclosures being

24:03

put into evidence in which she

24:05

did not report any of the

24:07

airline tickets, cruises and hotel rooms

24:09

Wade purchased with his credit card.

24:12

It's not just that the relationship was undisclosed, but

24:14

that the gifts were and that everything was repaid

24:16

in cash. So you

24:19

have something as suspicious as when Bob Benendez

24:21

was found with gold bars in his home.

24:25

It's not a crime to have gold bars in your home. It's not

24:28

a crime to pay in cash. But when

24:30

someone goes to Nathan Wade's office, he says clients

24:32

often pay him in cash. Why did they do

24:34

that? Because they don't want that money easily transferred.

24:36

That's why you make that choice. On

24:38

top of that, you have other things

24:40

that seem odd now in hindsight. Terrence

24:43

Bradley built a thousand hours on a

24:45

tank team, doing nothing but privilege work.

24:47

What is and what is not privileged.

24:50

He would not be anybody's first choice for that

24:52

work. At trial, it sometimes seemed as

24:54

though he did not know what privilege meant. Why,

24:58

other than his connection to this firm, was he

25:00

given that role? So,

25:03

certainly, no one can prove that these choices

25:05

were made because of a romantic relationship, but

25:07

that's not the standard for actual conflict. You

25:10

look at the person's behavior and you say,

25:12

hey, could it have been affected by this?

25:14

Here it could have. The state says

25:16

speculation. The only way to get past that

25:18

speculation is with a search warrant. And

25:21

it can't be the defendant's burden to go get the text

25:23

messages and the wiretaps in order to make this claim. We

25:26

simply have to look, as we do in

25:28

all other cases, at the person's incentives and

25:31

whether they could potentially affect the case. The

25:34

state says no prejudice. This is a structural

25:36

problem. The United States Supreme Court, in a

25:38

case called Young, called it a structural problem.

25:40

Which means, just like kicking everybody out of

25:42

the courtroom and holding a secret trail, you

25:45

can't have an interested prosecutor. And

25:47

it doesn't matter how strong or weak

25:49

the evidence is or how bad the

25:52

conflict alleged is. So,

25:54

there's more than that. But just on

25:56

what is admitted in this case, Ian

25:59

Fonney-Willis' own opinion, admission. She's in

26:01

a relationship in 2022. She

26:03

has received some money from Nathan Wade. She's paid

26:05

them back in cash as her claim, but even

26:07

her testimony does not account that all that was

26:10

paid back. You don't need to make any findings

26:12

of credibility at all to find a

26:14

disqualifying conflict of interest in this case. But

26:17

then there's all the stuff that also happened. All

26:19

the appearance and impropriety. First up,

26:21

there's a speech at the church.

26:23

Now, Ms. Willis claimed that this

26:25

was not about the allegations, but they

26:27

immediately followed the allegations. She said

26:29

she used a pronoun, good lord, they're not going to,

26:31

you know, they're going to get mad at me when

26:33

they hear me talking about their nonsense. Who was she

26:36

talking about? He's not defense counsel in this case. And

26:38

how did she choose to talk about it to the

26:40

prison of religion and race? And to say that because

26:42

she was a black woman, because Nathan Wade was a

26:44

black man, there was unfair discrimination against them. What

26:47

goal did that serve but to heighten her discrimination

26:49

against the descendants in this case and to ridicule

26:51

their counsel? Now, maybe that by

26:53

itself wouldn't be enough. Certainly

26:55

getting disqualification for forensic misconduct is

26:57

difficult anywhere you go. But

27:00

was it an appearance of impropriety? Yes,

27:02

it was on top of the actual

27:04

conflict that we already have. And

27:06

then there was the behavior in court. Okay,

27:09

so Nathan Wade testified in ways Judge Mackenzie

27:11

clearly found unpersuices when he claimed that he

27:13

did not think he had relied on his

27:16

interrogatory when he said he had not been

27:18

with anyone during his marriage, because what he

27:20

meant was he had not been with anyone

27:22

during the happy period of his marriage. That's

27:24

hard to believe. Nathan Wade has been a family law

27:27

attorney for 20 years. He's got more

27:29

expertise about that than he has in

27:31

criminal law. How could he have possibly

27:33

been mistaken on something so elementary and

27:35

to repeat that understanding in court? It

27:38

does not seem like he felt bound to tell the

27:40

truth in that tribunal. Funny

27:42

Willis took the stand. And while I

27:44

thought she was as credible as you could possibly

27:47

be in saying that she repaid everything in cash,

27:49

it is, I'm sorry, suspicious for a

27:51

public official expected to keep track of gifts

27:53

and who has given her things to make

27:55

all her repayments of untraceable cash. That is

27:58

a suspicious choice. And her

28:00

demeanor would have gotten any

28:02

ordinary person, anybody without the special role

28:04

of prosecutor, remanded into custody. When

28:07

she called Ashley Merchant a liar, when

28:09

she gave non-responsive answers. And

28:11

some of what she said non-responsively itself gave

28:14

an insight into why this is a conflict

28:16

of interest. Remember, she talked about how lonely

28:18

she was as a district attorney,

28:20

how isolating the job was. All

28:22

the more reason why having someone who

28:24

apparently is part of her team, who

28:27

she was apparently maybe dating, why she would

28:29

maybe make choices to benefit that person she

28:31

might not otherwise, because she had no other

28:33

support system. She talks

28:35

about herself as a fluctuating being, and she is, and

28:37

everybody is better than the worst thing they've ever done.

28:40

But here, she had to meet a

28:42

bar of excellence that she did not meet. What it

28:44

comes down to is, you

28:47

have this personal, you have what seems like a real

28:50

personal lack of support in her life,

28:52

that she described without prompting. She's describing

28:54

her own thought process in a credible

28:56

way. And yes, that does heighten the

28:58

possibility of a conflict of interest here.

29:02

On top of that, you have Terrence Bradley, and I'm sorry,

29:05

but he's not credible when he

29:07

says that he does not remember why he speculated

29:09

why these things were true. He's

29:11

not credible when he says that. And there

29:13

is some information in the record to

29:16

suggest that people were calling him and telling him not to

29:18

testify. I don't think in any gang

29:20

case that a Fulton County prosecutor would just

29:22

accept that a witness suddenly was unable to remember why they

29:24

had said the things they had said at the police station.

29:27

And the fact that this happened at all, it's

29:30

concerning. It is an appearance of impropriety. Even if

29:32

Fonny Willis had nothing to do with it, that

29:35

is not the sort of thing you want to see coming

29:37

out in a case about a public official who's held to

29:39

a high standard. And

29:41

listen, even though he was speculative and

29:43

he was not based on anything, we

29:45

also heard him and Nathan Wade and

29:47

the state of Georgia say that the

29:49

basis of Terrence Bradley's text was privileged

29:52

information. The basis was

29:54

that Nathan Wade told him something. Everybody who

29:56

said that was a lawyer who knows what

29:58

privilege is, or I hope they are. And

30:00

a privileged communication is communication between a

30:02

client and their lawyer in the course's

30:04

scope of representation. That's what that means.

30:08

So either Bradley's

30:10

knowledge plausibly came from what Nathan Wade told him,

30:13

which is what all three of those people asserted,

30:15

or they made a bad faith claim in court

30:17

with no basis just to keep out some information

30:20

they wanted kept out. And neither of those alternatives

30:23

strike me as something above the appearance of impropriety. Ultimately,

30:26

what it comes down to is you have an

30:28

actual conflict established in the record. You don't have

30:30

to make any credibility findings to find that. And

30:32

then you have a lot of troubling conduct that

30:34

follows. And this is not about

30:36

recriminations against Lonnie Willis. This

30:39

is about the standards that we should hope

30:41

that every single defendant in America gets. Fair

30:43

judge, fair jury, fair

30:45

procedure. We cannot claim

30:47

to be saving democracy while eliminating some of the

30:49

most powerful safeguards we have in our system of

30:51

justice. This case should

30:53

move to a different prosecutor who is not going to

30:56

raise these concerns. We asked

30:58

Fleischman what he thinks Judge McAfee should do.

31:01

If I were McAfee, I would do everything in

31:03

my power not to make this a credibility decision.

31:06

And that's why I would focus on what Fonny Willis has

31:08

already admitted to if I were the defense, because if he

31:10

makes credibility call that Fonny Willis lied on her oath, it's

31:13

a massive nuclear bomb. If he

31:15

says that he found her credible when the relationship started

31:17

in 2022, well, she probably wasn't telling

31:19

the truth, and we are going to keep finding out

31:21

new stuff that supports that. I

31:23

just have a hard time believing those cell phone records are

31:28

totally fictitious. Finally,

31:30

Fleischman says he thinks this all could

31:32

have been avoided. I just

31:35

feel like, and I will say this, if

31:37

Fonny Willis had been at the beginning of this, you know what,

31:39

I was dating Nathan Way. I

31:42

didn't let it affect my decision-making. We've broken up. I

31:44

understand there's a conflict. I'm not taking him off the

31:46

case. There would probably be no question here. This

31:48

would already be over. There probably wouldn't even be a

31:50

hearing if she had just owned up to everything and

31:53

been like, you know what, I

31:55

was dating him. I chose

31:58

him because I trusted him, but I did. It didn't affect

32:00

and it's all the other stuff

32:02

she did afterwards that make you go, gosh, she

32:04

must really be hiding something because this is not

32:07

lining up with extrinsic evidence and

32:09

she's being so strident about it. If

32:11

my client came into court and testified like that, I would pull him

32:13

out by his ear. I don't recall a

32:15

five-minute recess and I was screaming at him. Stop

32:18

doing that. Everyone's going to hate you. And of

32:20

course, she got a you-go-girl response from lots of

32:22

people because she is who she is but

32:25

it's not the way you're supposed to act. And

32:27

Maccacy was clearly horrified. So

32:29

that's another way to look at it. When

32:31

we left you on our last episode, Judge

32:34

Scott Maccacy had qualified for his first campaign

32:36

for office. Remember, he was appointed by Governor

32:38

Brian Kemp in late 2022 and he's now

32:40

seeking a full four-year

32:44

term on the bench. Well, he

32:46

now has two challengers. One

32:48

is Robert Patillo, a civil rights attorney

32:50

and talk radio host who could have

32:52

a built-in political base. Patillo

32:55

is the former executive director of

32:57

the Rainbow Push Coalition. That's

33:00

the civil rights group founded by

33:02

the late Reverend Jesse Jackson. He's

33:04

also a criminal defense attorney, a

33:06

cable news pundit, and a former

33:08

candidate for State House who has

33:10

described himself as a conservative Democrat.

33:13

One question popped into all of our

33:16

minds when Patillo's name surfaced. Did

33:18

he have a connection to Willis? Steve

33:21

Seydow, Trump's lead attorney, wasn't shy

33:23

about asking the question more publicly

33:26

and giving us two cents. He

33:28

posted this on X, once known as Twitter.

33:31

Quote, in our democracy anyone can

33:33

choose to run for public office,

33:36

but does anyone following the Willis-Wade

33:38

Fulton County fiasco really believe it's

33:40

a coincidence that this particular gentleman

33:42

has been chosen to run against

33:45

Judge Maccacy? I don't. And

33:48

if choosing this particular judicial candidate is

33:50

intended by the pro-Willis faction to put

33:52

political pressure on the court to rule

33:54

in her favor, I truly

33:57

believe they completely underestimate the character of

33:59

Judge MacCacy. The

34:01

next day, Patillo appeared on the

34:03

Shelley Winter show on Atlanta's WSB

34:05

radio. Winter read

34:07

Sadow's post and asked Patillo to

34:09

respond to it, and he refers

34:11

to Judge Christopher Brasher, McAfee's predecessor.

34:14

I would say to him to back up anything

34:17

that he's saying. That this,

34:19

one, when I started thinking about running

34:21

for the seat was before Scott McAfee

34:23

was even appointed, because remember

34:25

he replaced Judge Brasher on the bench. And

34:27

when that seat became open, it started to

34:29

be the thought pattern, what it would take

34:32

to potentially run for that seat later on.

34:34

So this has little to nothing to do

34:36

with the Willis case. So I understand the

34:38

people who want to take the kind of

34:41

this crude conceptualization where Robert Patillo's

34:44

black, Fawney Willis is black, so they must be

34:46

friends. But it's not all the case.

34:48

I've tried cases against Fawney Willis. We did not particularly

34:50

get along during those cases. But I

34:52

think it's very much, I

34:54

would rather people look at my record

34:57

as opposed to my race when making

34:59

these determinations about my motivations for running.

35:02

Lo and behold, guess who showed up

35:04

on Winter's radio show the next day?

35:06

None other than his honor. And

35:09

Winters asks Judge McAfee the question,

35:12

do you think as some others do

35:14

that Patillo is challenging you as part

35:16

of a pressure campaign by those who

35:18

support D.A. Willis to make sure

35:20

you quote, do the right thing

35:22

when deciding the disqualification issue? Here's

35:25

the judge's response. No,

35:28

I couldn't tell you that. And I haven't met

35:30

him. I haven't seen him around the courthouse. And

35:32

like I said, I think he seems sincere. So

35:34

I'm not the type that I'm going to presume

35:36

the worst of that sort. And

35:40

I'm not one to jump at conspiracy theories like

35:42

that. And the biggest thing that I wanted to

35:44

come on and make sure I told you today

35:46

that even if it is, it doesn't matter because

35:48

it is absolutely not going

35:50

to play into my decision in any way. No

35:53

job is worth my integrity.

35:57

And when you ask that question, what I

35:59

think about is you know, I've got two

36:01

kids, five and three. They're too young to have

36:03

any idea of what's going on or what I

36:05

do, but what I'm looking forward to

36:07

one day is maybe they'll grow up a little bit

36:09

and they ask me about it and I'm looking forward

36:11

to looking them in the eye and telling them I

36:13

played it straight and I did the best I could.

36:16

Just as we were in the middle of recording this show,

36:19

we learned that Judge McAfee has a second

36:21

challenger, Attorney Tiffany Johnson.

36:24

She's a former prosecutor and criminal

36:26

defense attorney who now works as

36:28

a senior staff attorney for Fulton

36:30

Judge Melanie Leftridge, focusing on civil

36:32

cases. So McAfee, Patillo

36:35

and Johnson will be squaring off on

36:37

May 21st, raising the possibility

36:39

of a runoff in mid-June if no

36:41

candidate gets more than 50 percent of

36:43

the vote. We also

36:46

learned just before we recorded this on

36:48

Friday that Willis will also have two

36:50

challengers, one from her right and the

36:52

other from her left. Former

36:54

prosecutor Christian Wise Smith filed paperwork

36:56

to challenge Willis for the Democratic

36:58

nomination for D.A., but

37:01

he told our colleague Greg Blustein

37:03

he is still weighing his options

37:05

about how vigorously to pursue his

37:07

challenge. He indicated he could

37:09

wait for the outcome of the disqualification

37:11

effort before deciding whether he needs to

37:14

wage a more concerted campaign. Wise Smith

37:16

is a former city solicitor who once

37:18

overlapped with Willis in the Fulton D.A.'s

37:20

office. Four years ago, he

37:23

finished third in the Democratic primary for

37:25

Fulton D.A. against Willis and the then

37:27

incumbent Paul Howard. He ran on a

37:29

progressive platform that included vows

37:32

to no longer seek the death penalty, eliminate

37:34

cash bail and decriminalize

37:36

drug possession. Also

37:39

on Friday, an election attorney named

37:41

Courtney Kramer qualified to run as

37:43

a Republican. She worked as a

37:45

litigation consultant for Trump's legal team

37:47

after the 2020 election and

37:50

she helped handle other election-related

37:52

matters for state GOP legislators

37:54

and the Georgia Republican Party.

37:57

She also appears to have previously worked with

38:00

two defendants in the election

38:02

interference case, former state GOP

38:04

Chairman David Schaeffer, and

38:06

attorney Ray Smith. Also,

38:09

she was in the room when

38:11

Republican electors cast ballots for Trump

38:13

in 2020, even though multiple

38:15

vote counts showed Biden had won the

38:18

state of Georgia. We say that because

38:20

a former law school classmate of Cramer's

38:23

posted a photo of Cramer inside

38:25

the room. He posted it

38:27

on X. Willis is still the

38:29

odds-on favorite to hold the seat. She's

38:32

one of the most recognizable political figures

38:34

in the state, has the benefit of

38:36

incumbency, and has amassed a small fortune

38:38

in her campaign account. But

38:40

Cramer seems poised to turn the campaign

38:42

into a proxy fight on the election case

38:45

and Willis's relationship with Wade. We'll keep tabs

38:47

on how the campaign unfolds and let you

38:49

know how things shape up. There

38:52

were two other noteworthy events in the case this

38:54

week. We were expecting the Fulton

38:56

County Board of Ethics to take up

38:58

two complaints against Fonny Willis related to

39:00

her relationship with Nathan Wade. But

39:03

on Thursday, the board determined it did

39:05

not have jurisdiction over Willis because she

39:07

is a state constitutional officer, not a

39:10

county official. So those complaints

39:12

essentially go away. Perhaps

39:14

more important, the board's determination would

39:16

seem to undermine the defense attorney's

39:19

claim that Willis violated county ethics

39:21

rules by not disclosing her relationship

39:23

with Wade, who was contracting with

39:25

her office, and by accepting

39:27

trips that he paid for. The

39:29

Georgia Senate's new investigative committee focused on

39:32

Willis also held its first hearing this

39:34

week. Defense attorney Ashley

39:36

Merchant, appearing under subpoena, was

39:39

questioned for more than three hours

39:41

about the origins of her investigation

39:43

into Willis and Wade's relationship. It

39:45

was mostly a retread of issues covered in the

39:48

courtroom and in various court filings, but

39:50

Merchant got the benefit of not having

39:52

prosecutors objecting to almost every statement she

39:54

made. It was also

39:57

interesting to hear more about her

39:59

process, how her investigation was done.

40:01

unfolded and her scores of records

40:03

requests that ultimately landed her the

40:05

information she included in her failings. As

40:08

we mentioned in previous episodes, there's only

40:10

so much the legislature can do here.

40:13

They don't have the power to directly

40:15

punish Willis, though they can embarrass her

40:17

publicly. Republican supporters say

40:20

the committee's goal is to determine

40:22

whether Willis misspent any state funds,

40:24

particularly on her trips with Wade,

40:27

and whether any budgetary changes are

40:29

needed. It's important to

40:31

note that most of Willis's budget is funded

40:33

by Fulton County, not by the state.

40:37

It was still an interesting preview of what

40:39

Senate Republicans may highlight as they trained their

40:41

spotlight on Willis. Among the

40:44

things they dwelled on, the process

40:46

surrounding Wade's appointment, how he billed

40:48

for his work, the way counties

40:50

hire outside lawyers, and how special purpose

40:52

grand juries work. So,

40:56

there you have it. We'll be back with a

40:58

new episode as soon as we hear from Judge

41:00

McAfee. As always, thanks so

41:02

very much for listening. McDown's

41:05

producer is Alexandra Zaslow. Thanks

41:08

to our presentation specialist Pete Klorsen,

41:10

our colleague Shane Beckler, Deputy

41:13

Managing Editor Jennifer Brett, President

41:15

and publisher Andrew Morse, and

41:17

the AJC's Editor-in-Chief Leroy Chapman. You

41:21

can follow our daily coverage on our website,

41:23

ajc.com, and if you really

41:25

want to support local journalism, please subscribe

41:27

to the AJC. Be safe

41:30

and take care. Until next time, I'm

41:32

Bill Rankin. I'm Tamar

41:34

Hallerman. And I'm David Wickard. This

41:36

is Breakdown from the Atlanta Journal-Constitution.

41:43

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