If Nathan Wade Was The Gasoline, Fani Willis Was The Match

Did The Pair Just Torch The Case Against Donald Trump?

Yesterday morning, the highlight of the evidentiary hearing into potential misconduct by Fulton County District Attorney Fani Willis and her paramour Nathan Wade against Donald Trump and his numerous co-defendants was Nathan Wade’s indisputably explosive testimony.

Hollywood Could Not Write Fani Willis' Flameout If It Tried

Wade used his business credit card, got cash from Fani Willis, and did not declare any of those trips as deductions on his taxes—meaning those trips were by definition of a personal and not business or professional nature.

There is also the matter of a cash obfuscating the paper trail over said reimbursements. Legal matters aside, use of cash is an Accounting 101 level of poor internal control of which any professional person should be aware. The reason businesses use company credit cards and the like is to have robust and precise documentation on business expenditures, and Nathan Wade’s testimony is amounts to an admission that he and Fani Willis worked in concert to defeat that purpose.

Then Fani Willis took the stand.

Fulton County District Attorney Fani T. Willis (D) walked into the Georgia courtroom Thursday afternoon where lawyers were arguing over whether she would have to take the stand. It was the back half of the long day’s hearing on whether Willis should be removed from the sprawling election tampering case her office has brought against former president Donald Trump and his associates. But the debate between the dueling teams of lawyers became moot when Willis announced that she wanted to testify. Willis settled into the high-backed witness chair. And then she loosed her fury.

She began by declaring that defense attorney Ashleigh Merchant had lied in court filings when she suggested that Willis had slept with special prosecutor Nathan Wade after their first meeting. She fumed that her privacy had been invaded. She reminded Merchant that, “You think I’m on trial. These people are on trial for trying to steal an election in 2020.” And she held up paperwork filed by defense lawyers in a display of disgust. For no small amount of time, it seemed that judge Scott McAfee was a mere bystander in his courtroom.

Setting aside the Washington Post’s predictably fawning treatment of Fani Willis and her bizarre courtroom theatrics, the question now is whether those theatrics helped her remain in her position atop the persecution prosecution of Donald Trump, or if they sealed her fate and ensured that she will be removed, along with Nathan Wade.

While I am no lawyer (and while I look forward to what lawyers such as Jonathan Turley have to say about today’s proceedings!), I cannot see how her combative and at times irrelevant answers were anything but damaging for her.

If Nathan Wade’s testimony was the gasoline, her testimony was unquestionably the match. Together they may very well have just torched their case against Donald Trump in its entirety.

The full proceeding is available on YouTube, for those who want to view it from start to finish.

The pyrotechnics began literally as soon as Fani Willis entered the courtroom. In the midst of one Donald Trump’s attorneys debating with the judge whether she should testify at this hearing, she walked up to the front of the courtroom and, apparently without consulting her attorney, agreed to testify.

Even Judge Scott McAfee was perplexed by her behavior. Ms. Willis is, of course, a lawyer, and so is quite capable of arguing motions before the court (although we must remember the cliched truisim that the lawyer who represents herself has a fool for a client), yet simple respect for decorum and an orderly hearing would have suggested that Willis at least speak with her attorney first, to clarify what she wanted to do—what she was going to do.

Instead, as the video clip above shows, Fani Willis simply walked to the front of the court and blurted out her willingness to testify. Judging by the way she threw a set of what appeared to be notecards on the table where her attorneys were seated, she even displayed a bit of contempt and disregard for her own counsel.

To call the behavior “unusual” would be the gentlest commentary one could make. “Brazen” would perhaps be the more accurate term, and some might even argue it bordered on contempt of court all by itself.

A courtroom is a judge’s domain. For the defendant in a proceeding—and especially for one who is a lawyer and a prosecutor—to attempt to hijack the proceeding is not normal behavior.

The Washington Post attempted to spin her behavior as that of righteous indignation, that she was coming across as a person wronged and who was hitting back against those who were trying to hit her.

She might be more accustomed to asking the questions in a courtroom than answering them, but Willis didn’t have the rigid posture that one so often sees from witnesses who might be fighting off nerves. She sat in the hot seat like it was her throne and she was ready to slice off some heads.

I will leave the final judgement of her behavior in the courtroom to the reader. What can be fairly said is that Fani Willis herself interrupted another attorney (Donald Trump’s attorney), and talked over the judge himself, who seemed inclined to give her some latitude (perhaps too much latitude).

One bit of her unusual behavior as she took the stand warrants further mention: as she took her seat she appeared to wink at someone.

Was she winking at Nathan Wade? The camera does not show. Still, it comes across as an odd bit of bravado on the part of a defendant testifying in court.

And so Fani Willis took the stand—or, rather, she took control of the stand and attempted to take control of the proceeding.

Fani Willis’ combative performance did not end with her taking the stand. Once on the stand she seemed willing to argue just about everything, including whether or not Ashleigh Merchant (the attorney who filed the initial allegations against Ms. Willis) would be allowed to consider her a hostile witness.

"I am not a hostile witness. I very much want to be here. Ms. Merchant's interests are contrary to democracy, your honor, not to mine."

While Ms Willis delivers the line with convincing firmness tinged with a bit of anger, as Judge McAfee clarified, Ms Willis is undeniably an “adverse witness”, who obviously as the defendant wants to see a different outcome to this hearing than Ms Merchant does.

Whether one uses the term “adverse” or “hostile” is immaterial. Fani Willis’ testimony at every turn would be expected to favor her and not Ashleigh Merchant—that makes her a hostile witness by definition¹:

A witness at a trial who is so adverse to the party that called him or her that he or she can be cross-examined as though called to testify by the opposing party.

As a lawyer and a prosecutor, it is inconceivable that Fani Willis would not understand the meaning of the term “hostile witness” within the context of the proceeding, and yet she sought to dispute the term itself. Exactly what she hoped to gain by that little contretemps is something of a mystery, and yet that is exactly what happened.

Where Fani Willis clearly did not help herself was when she acknowledged that, for most transactions, she used a service known as CashApp.

CashApp, of course, is a payment service designed to facilitate individuals sending money to each other.

Cash App is a P2P payment app that lets individuals quickly send, receive and invest money. Block, Inc., formerly Square, Inc., launched the app, initially named Square Cash, in 2013 to compete with mobile payment apps like Venmo and PayPal.

Yet Fani Willis did not use CashApp to reimburse Nathan Wade for their trips, et cetera. Instead, she used actual cash, and with no receipts.

As a lawyer, Fani Willis should have known that was not a good idea. Given that she had hired Nathan Wade as a special prosecutor on the Donald Trump RICO case, she has a clear ethical obligation to ensure there was not even the appearance of any impropriety. Instead, she chose the one mode of reimbursement for her payments to Nathan Wade for which no inherent documentation trail can be established. There is no CashApp transaction record, there are no receipts, there are no cancelled checks.

Presumably, Fani Willis would not have reimbursed Nathan Wade in that fashion for any expenditures made on behalf of the case itself. If, for example, instead of flying to Belize, Willis and Wade had flown to Florida to consult with potential witnesses, would she have reimbursed Wade for those with cash? Or would she have followed the Fulton Country District Attorney policy on expense re-imbursement?

Yet for personal expenditures she would only pay in cash with no paper or audit trail? How could any lawyer not recognize that this is over the line improper?

Fani Willis would get combative over this topic of cash reimbursements more than once. When Ashleigh Merchant asked if Fani Willis went to an ATM to get the cash she gave to Nathan Wade, Willis shook her head said “No, lady”, as if she had more to say than that. She then went on to explain that she has always kept a significant amount of cash in her home—as much as $15,000.

When Ashleigh Merchant sought to clarify where Ms. Willis obtained the cash she used to reimburse Nathan Wade, Fani Willis again descended into an unusually combative answer, claiming “I do know where it [the cash] came from. It came from my sweat and tears”.

Alas for Fani Willis, without receipts and without a paper trail of where she withdrew the cash from her checking count, even this statement utterly lacks corroboration—which was the point Ashleigh Merchant was teasing out of her. If Ms. Willis’ only source of income was her salary as Fulton County District Attorney (Fulton County like most employers pays via direct deposit), at some point Willis needed to visit either an ATM or a bank to withdraw cash. There is, of course, nothing illegal or improper someone withdrawing cash from their own checking account, but Willis’ somewhat snarky answer about “sweat and tears” was in reality non-responsive. She did not in that moment clarify whether she had withdrawn a substantial sum at a bank teller window, as most ATMs limit cash withdrawals to a few hundred dollars.

Again, Fani Willis had to have known better. Without receipts and without even a clear paper trail establishing where she accumulated that much cash, one is left to wonder if there is any other possible source of Willis’ cash.

Assume for the moment that Fani Willis did not make any visits either to bank teller or an ATM machine. From where would she get $15,000 in cash? Could it have come from some illegal activity? How did she acquire $15,000 in cash?

If she had been to the bank or an ATM, her bank records would show the withdrawals and would quickly establish whether the cash she kept in her house came from her DA’s salary or from somether source.

Once again, documentation would have resolved that argument. Even if Willis had done no more than keep a manual ledger of how she spent the cash she kept in her home, that would have gone a long way towards laying the matter to rest even without the courtroom theatrics. Using CashApp to pay for cash transactions where possible also establishes an audit trail showing how monies which may reasonably flow to a District Attorney and therefore a practicing lawyer.

Yet somehow Fani Willis failed to document the most important set of cash transactions in which she could engage—reimbursements to her paramour Nathan Wade.

What proof is there, then, that Fani Willis reimbursed Nathan Wade at all? Yes she “claims” she did—but where is the corroboration? It seems there are none.

Yet by far the oddest moment in her entire testimony was when she began waving around copies of Ashleigh Merchant’s filings with the court, claiming they were full of lies.

When Ashleigh Merchant asked Fani Willis if Nathan Wade had ever visited her in her home, “in the place where you [Fani Willis] laid your head”, after a few moments of bobbing and weaving about when and where said visits might have occurred, Willis picked up copies of the previous court filings and began accusing Merchant of lying.

Let’s be clear because you’ve lied in this. This let me tell you which one you lied and right here…No, no, no, no, this is the truth. It is a lie.

At that point Judge McAfee called for a five minute recess for tempers to cool down.

What makes the exchange bizarre is that even in that exchange, Fani Willis acknowledged that there had been a romantic relationship between her and Nathan Wade. Having admitted that much, there seems little purpose in denying that Nathan Wade spent one or more nights with her (that being the typical behavior for people in a romantic relationship).

However, there is a possible reason for Fani Willis’ evasions on this point. Asking when Nathan Wade spent the night with her leads into establishing a physical confirmation of the chronology of that romantic relationship. If at any point Merchant could establish that Nathan Wade visitied or spent the night with Willis at a time prior to when Fani Willis claimed the relationship began, then she might have stumbled into another count of perjury. As it was she was arguably attempting to avoid getting pinned down on dates regarding the timeline of her relationship with Nathan Wade, as she would not have known what either Nathan Wade or Robin Yeartie had told the court.

Of course, such uncertainty is one reason attorneys rarely want to put their clients on the witness stand. Such uncertainty is good reason that Fani Willis would have been better served by not simply agreeing to testify the way she did.

MSNBC, which has not pulled any punches on their assessment of the entire hearing, brought in former US Attorney Chuck Rosenberg to weigh in on Fani Willis testimony, and he aptly described the performance as ugly:

Rosenberg said, “There is conflicting testimony. A woman named Robin Yeartie testified earlier this morning that she had been close friends with Willis and that she knew, saw, observed that Ms. Willis and Mr. Wade had a romantic relationship. She described seeing sort of the things you might see when two people are dating. You know, affection. Contrast that with what Mr. Wade just said on the stand, which was that they did have a romantic relationship, but it did not start as early as Ms. Yerdy said it started. It started, to your point, after he was hired by the district attorney on a contractual basis to work on this case. So, what is it that mean? You have two different stories.”

There can be little doubt but that conflicting testimony between Nathan Wade and Fani Willis is lethal to them remaining on the Trump case. However, Rosenberg went further, pointing out that prosecutors have a duty to more than simply win at trial.

He added, “This is not going well for the state. It could turn out okay, and it might turn out worse. But I think a district attorney, a U.S. attorney, you know, a prosecuting official has a special obligation to the case. In fact, you know, I had grabbed some language from a 1935 Supreme Court case.”

He continued, “I wanted to read a sentence. ‘The prosecutor is the representative not of an ordinary party to a controversy but of a sovereignty whose obligation is to govern impartially and that that obligation is as compelling as its obligation to govern as all and whose interests, therefore, is not that it shall win a case but that justice shall be done.’ Prosecutors have a higher obligation. It’s not personal. It’s not egotistical, it’s not about you, it’s about the office and the pursuit of justice. To your point, it might be appropriate for Ms. Willis to consider removing herself from this case now and turn the reins over to a senior official in the district attorney’s office and have him or her handle it. It’s getting ugly, it’s getting messy, and my guess is it is not going to get better.”

Regardless of where one stands on the propriety of Donald Trump’s actions in the immediate aftermath of the 2020 election, regardless of how one views his efforts to get his slates of electors certified as the official electors for Georgia (or any of the other states Donald Trump contested in 2020), Rosenberg’s point is appropriate here. It is not the job of the Fulton County District Attorney to pursue any sort of vendetta against any defendant, nor is the job of any prosecutor to seek to make a name for himself or herself by contorting the law and the evidence in order to convict a person of prominence of any crime. It is the job of prosecutors to enforce the law and to use the legal process to bring justice down on those who break the law.

It certainly is not the job of prosecutors to employ their lovers and paramours in high visibility prosecutions where potentially hundreds of thousands of dollars might be expended by a prosecution team in legal fees.

Yet even Fani Willis herself admitted that she and Nathan Wade were lovers, which is to say that she indisputably had put someone who was or would become her paramour at the top of a high visibility prosecution. There is no doubt that Nathan Wade billed Fulton County for his work, and there is no doubt that Fulton County paid him handsomely. There is no doubt that Nathan Wade used some of his money—arguably money from Fulton County—to pay for romantic trips for both himself and Fani Willis.

Both Wade and Willis claim she reimbursed him. Yet that entire claim rests not on any bank statement or credit card statement or even ATM receipt, but solely on the word of Nathan Wade and Fani Willis.

Fani Willis herself stated she uses the CashApp payment service for most transactions—but never used it to reimburse Nathan Wade.

Thus that claim of reimbursement comes down to the credibility of both Nathan Wade and Fani Willis.

This is not a small point, either. If it should come out that Fani Willis in fact did not reimburse Nathan Wade for the trips, then the question immediately arises whether or not Fani Willis accepted illegal gifts from Nathan Wade in the form of travel to exotic locations such as Belize. That would be a crime by Fani Willis.

Moreover, both prosecutors and defense counsel alike have an obligation at trial not to make their own conduct part of the case. If Wade and Willis had not violated that principle before the evidentiary hearing, Fani Willis’ conduct alone at the evidentiary hearing crossed that line. With attitudes, comments, and behaviors that could have invited a contempt citation from Judge McAfee at any time, Fani Willis made certain that who Fani Willis is as a person, what is in her character and what is not in her character, are now inextricable from the substance of the case against Donald Trump.

If Willis and Wade remain on the prosecution team, it will forever taint the case (not that it isn’t already tained by politics, but this is taint by poor ethics).

MSNBC’s legal commentator during Nathan Wade’s testimony grapsed the gist of it—this hearing was not about two consenting adults in an adult relationship. This hearing was about whether or not Fani Willis and Nathan Wade lied to the court. This hearing is about whether or not corrupt process might have been used to assemble and prepare the case against Donald Trump.

At day’s end, we are left with the sinking suspicion that Fani Willis and Nathan Wade did, in fact, lie to the court. We are left to ponder how Nathan Wade was reimbursed for payment for travel with Fani Willis to exotic locations.

At the end, we are left with Chuck Rosenberg’s accurate assessment of Nathan Wade and Fani Willis’ involvment with the prosecution of Donald Trump: ugly, messy, and getting uglier and messier.

Fani Willis’ had an obligation to the case and to herself not to let this case become personal for her. Fani Willis indisputably proved one thing by her testimony: this case is personal for her, and by letting this case become personal for her she has made herself a part of the case. The one thing no lawyer should ever do is the one thing Fani Willis proved in Judge McAfee’s court that she did do.

It will now be up to Judge McAfee to decide what he is going to do about that.

1. "hostile witness." West's Encyclopedia of American Law, edition 2. 2008. The Gale Group 15 Feb. 2024 https://legal-dictionary.thefreedictionary.com/hostile+witness

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