Stranger Bedfellows

Did Fani Willis Just Torpedo Her Own Case Against Donald Trump?

Someone should have warned Fani Willis that the cliche “politics makes strange bedfellows” was not intended to be a prosecution strategy.

Instead, we have the Fulton County, Georgia, District Attorney being subpoenaed to give evidence in the divorce proceeding of Nathan Wade, the special prosecutor hired by Ms. Willis to persecute prosecute Donald Trump.

ATLANTA—Fulton County District Attorney Fani Willis has been subpoenaed to testify in a colleague’s divorce proceeding, according to a court filing, a development that could shed light on claims Willis and the colleague carried out an improper romantic relationship as they prosecuted former President Donald Trump and others.

In a court filing reviewed by The Wall Street Journal, a process server said he showed up at Willis’s office in Atlanta on Monday morning with a subpoena seeking her testimony in the Cobb County divorce case of Nathan Wade, a lawyer she hired as a special prosecutor in the Trump case, and his wife, Joycelyn Wade. The process server said he left the subpoena, filed by Joycelyn Wade’s lawyer, with Willis’s executive assistant.

It does not require Clarence Darrow to grasp why Ms. Willis would be subpoenaed to testify in Wade v Wade. If Trump’s co-defendant Mike Roman is correct, Ms. Willis and Mr. Wade spent long hours doing something other than figuring out how to make a case against Donald Trump—something Mr. Wade should have been doing with Mrs Wade rather than Ms. Willis.

Fulton County District Attorney Fani Willis improperly hired and paid a private attorney to aid her office in its racketeering case against former President Donald Trump and others, according to a court filing Monday by one of the defendants in the case.

A lawyer for Trump co-defendant Mike Roman stated that Willis is “in a personal, romantic relationship” with Nathan Wade, a special prosecutor in her office and a lead lawyer on the Trump case. The motion asked a judge to disqualify Willis from the case she brought against Trump and other defendants last year. Roman served as the director of Election Day operations for Trump’s 2020 campaign.

If the allegations raised against Fani Willis are substantiated, she could find herself on the receiving end of a RICO indictment—a fitting irony given the case with which she hopes to convict Donald Trump of daring to question the 2020 election.

If Willis gets disqualified from her own case, Nathan Wade is sure to be disqualified as well (under the time tested legal theory of what is good for the goose being good for the gander). How the case against Donald Trump proceeds forward under those circumstances is far from clear.

By simply being so incredibly careless as to allow her personal life to become entangled with her case against Donald Trump, Fani Willis may very well have torpedoed that case.

You really can’t make stuff like this up!

The allegations being made against Fani Willis go far beyond her meeting with Nathan Wade at places other than the DA’s office. According to Mike Roman’s attorney, Ashleigh B. Merchant, Fani Willis and Nathan Wade managed to profit from their clandestine relationship through improper billing practices.

The lawyer, Ashleigh B. Merchant, said her motion wasn’t filed lightly and that she had research to back up her claims—though she didn’t provide evidence of the alleged relationship in the filing.

“[T]he district attorney and the special prosecutor have been engaged in an improper, clandestine personal relationship during the pendency of this case, which has resulted in the special prosecutor, and, in turn, the district attorney, profiting significantly from this prosecution at the expense of the taxpayers,” Merchant said in the filing.

A spokesman for Willis said Monday night that the office would be responding with a court filing. Wade didn’t respond to a request seeking comment at his law office telephone.

The first item that raises legal eyebrows is that Nathan Wade was hired as a special prosecutor for the Trump case despite having no experience on RICO cases.

The lawyer landed the contract, which started on November 1, 2021, despite having no experience prosecuting a complex RICO Act case like the one against Trump and his associates.

The court filing said the payments made to Wade from Fulton County and his subsequent purchase of vacations with Willis could amount to honest services fraud, a federal crime in which a vendor gives kickbacks to an employer.

The district attorney “personally benefited from an undisclosed conflict of interest”, it continued.

It is also possible this could be prosecuted under the federal racketeering statute, the motion said.

At least one legal ethics expert, Stephen Gillers, professor emeritus at New York University Law School, believes the allegations could be a problem for Willis.

If the allegations are true, Gillers said, “Willis was conflicted in the investigation and prosecution of this case” and wasn’t able to bring the sort of “independent professional judgment” her position requires.

“That does not mean that her decisions were in fact improperly motivated,” Gillers said in an e-mail. “It does mean that the public and the state, as her client, could not have the confidence in the independent judgment that her position required her to exercise.”

Even if the conduct alleged does not rise to the level of requiring the charges to be dismissed, having that conduct be proven true would be a substantial blow to the prosecution.

“I would be surprised if any of this requires dismissing the indictment,” said Nathan S. Chapman, a law professor at the University of Georgia who teaches a course on ethics issues, “but if the allegations are true, it’s a pretty disastrous own goal by team Willis.”

He added that while he was not an expert on Georgia laws against public corruption, “I would not at all be surprised that the conduct violates some of those laws.”

The allegation that Nathan Wade took Fani Willis on vacations to Napa Valley, as well as on Caribbean cruises, while being paid by Fulton County for his work on the Trump case, is potentially even more serious. In addition to being a rather severe conflict of interest, that Willis herself might have benefited from arranging for her presumptive paramour to be on the Fulton County payroll raises the possibility of a fraud charge¹ against Willis and Wade.

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation occurs in relation to, or involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declared major disaster or emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)), or affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

Specifically, Willis and Wade could have conspired to engage in what is known as “honest services fraud”²:

For the purposes of this chapter, the term “scheme or artifice to defraud” includes a scheme or artifice to deprive another of the intangible right of honest services.

Fani Willis may also have improperly retained Nathan Wade as a special prosecutor. According to Ashleigh Merchant, there is no record in the minutes of meetings of the Fulton County Board of Commissioners that Nathan Wade was ever discussed by the Board—and Board approval is required for the hiring of any special prosecutor.

Wade’s contracts to work for the prosecutor’s office were improper, the filing claims.

Contracts like those for special prosecutors are supposed to be approved by the Fulton County Board of Commissioners, but Merchant reviewed the minutes of every meeting the board held from the time Willis took office and found no record that Wade’s contract was ever discussed, she said in an interview Monday evening. 

Despite the apparent non-approval by the Board of Commissioners, Fulton County has paid Nathan Wade anywhere from $700,000 to as much as $1 million to work on the Trump case.

Wade is also a potential problem for the prosecution for another reason: politics.

Specifically, buried in Nathan Wade’s billing records to the Fulton County DA’s office are two charges for meetings apparently with the White House.

But also embedded in the filing are invoices for the Law Offices of Nathan J. Wade. One invoice calls attention to "Fulton County District Attorney’s Office."

Wade billed the county for a May 23, 2022, event described as "Travel to Athens; Conf with White House Counsel." Wade charged $2,000 for eight hours at $250 an hour.

Several months later, Wade billed for "Interview with DC/White House" on Nov. 18, 2022. Wade again charged $2,000 for eight hours at $250 an hour, according to the documents.

The subject of the meetings remains unclear.

It is difficult to see how Dementia Joe would be a witness to a criminal case against Donald Trump, even one involving the 2020 election. If Dementia Joe is not a witness to the case against Donald Trump, Wade’s meetings raise the very ugly specter of politics guiding a criminal prosecution.

If the Biden White House has been directing the Georgia case against Donald Trump, Dementia Joe could be guilty of a most Nixonian abuse of Presidential power.

Tennessee Senator Marsha Blackburn has tweeted out images of what appear to be Nathan Wade’s invoices to the Fulton County DA’s office and which substantiate the claim that Wade did, in fact, bill Fulton County for meetings with the White House.

At a minimum, the billings raise serious ethical questions about the entire prosecutorial effort against Donald Trump in Georgia. At most they show the White House improperly (illegally?) involving itself in a criminal case against an acknowledged political adversary. In either scenario, Wade’s invoices are a problem for Fani Willis.

Not for nothing has the House Judiciary Committee decided to open an investigation into Nathan Wade and the case against Donald Trump.

The committee, in a letter addressed to Wade, expresses its belief that he may "possess documents and information about the coordination of the Fulton County District Attorney’s Office (FCDAO) with other politically motivated investigations and prosecutions, as well as the potential misuse of federal funds."

Wade is accused in the letter of receiving a substantial amount of money from Fulton County, which he reportedly spent "extravagantly on lavish vacations" with his superior, Fulton County District Attorney Fani Willis.

The letter further points out that invoices submitted by Wade for payment by the Fulton County District Attorney's Office shed light on the "collusion" between FCDAO and other politically motivated prosecutions. Specifically, the new information seems to substantiate the House Judiciary Committee's concerns that "Ms. Willis's politicized prosecution, including the decision to convene a special purpose grand jury, was aided by partisan Democrats in Washington, D.C."

So far, Fani Willis has been unable to make anything but a politically-tinged response to the allegations raised regarding her and Nathan Wade—an extended “non-denial denial” that has become a veritable verbal art form in political circles. In remarks made at the Big Bethel African Methodist Episcopal Church during a service celebrating Martin Luther King, Jr., Day, Ms. Willis tried to portray the allegations raised against her and Nathan Wade as a racist smear campaign bereft of substance.

During her remarks Sunday, which were livestreamed, Willis repeatedly referred to herself as "flawed" and "imperfect."

Willis also said she was "a little confused" why so many questioned the decision to bring in multiple special prosecutors to the case, and though she never mentioned Wade by name, she called him a "great friend" who was paid equally to others while extensively defending his "impeccable credentials" for the job -- suggesting the attacks on him were motivated by race.

"I appointed three special counselors. It's my right to do. Paid them all the same hourly rate," Willis said. "They only attack one. I hired one white woman: a good personal friend and great lawyer, a superstar, I tell you. I hired one white man: brilliant, my friend, and a great lawyer. And I hired one Black man, another superstar, a great friend, and a great lawyer."

However, there is one small flaw in her defense of retaining Nathan Wade—her insistence that all the attorneys she hired were “friends”. There is also the acknowledgement that Nathan Wade is her “great friend”.

Were these attorneys retained because of their skills, their track records in RICO cases, or their friendship with Fani Willis? Ms. Willis did not actually close off that third option, and that means she did not close off the possibility that the allegations made by Ashleigh Merchant are true.

Willis also spoke about the emotional toll the case has taken on her.

Speaking for more than 30 minutes, Willis' emotional speech Sunday detailed at length the difficulties she has faced in her position as Fulton County DA and prosecuting the Trump case. She spoke about feeling "isolation," "loneliness," "backstabbing" and facing constant death threats that have forced her out of her home.

"I am tired of being treated cruelly," she said.

While no one should ever receive death threats, one has to wonder at her political naivete in apparently believing that a politically charged case against a former President would not come without personal cost. That she never even sought to explain the reasons behind the subpoena issued for her to testify in Nathan Wade’s divorce trial—testimony where she is most likely going to be questioned about her having an intimate romantic relationship with a married man.

If she denies it and it turns out there is proof, she could find herself in an ethics whirlwind. If she admits it, she validates Ashleigh Merchant’s legal arguments. If there is no improper relationship, then Fani Willis has missed multiple opportunities to lay the matter to rest.

Does this mean that it is certain she and Nathan Wade have been carrying on an illicit affair while mounting a RICO case against Donald Trump? No, it’s not certain. However, at present, it is not at all improbable—and that’s a problem for Ms Willis and her prosecution team.

Yet even before the courts have a chance to weigh the evidences against either Fani Willis or Nathan Wade, these allegations highlight the fatal defect in not just the Georgia case but all the criminal cases arrayed against Donald Trump: they are clearly and brazenly political in their origin and even their substance.

At every turn, both Jack Smith and Fani Willis are proving themselves to be more political operators than actual prosecutors. At every turn, the cases against Donald Trump grow more and more suspect, as they are revealed to be more an more political and politicized.

The very thing I warned against when these cases first began to be filed is clearly coming true: the indictments against Donald Trump are becoming the centerpiece of his re-election campaign.

Political Paradox: The Trump Indictments Are Becoming The Trump Campaign

In a very real sense, the charges being leveled against Donald Trump are becoming Donald Trump’s campaign message and campaign theme. The more Trump supporters see these charges as a political persecution of Donald Trump, the more that even disaffected nominal independents such as Alex Berenson—who is no fan of Donald Trump and his “reality TV” tactics—perceive a grotesque injustice in pursuing Trump for what are debatable crimes at best, while allowing those close to the White House to evade charges despite considerable evidence of tax evasion, drug possession and even drug trafficking, as well as innumerable instances of official corruption including bribery, the more the Democrats risk being seen as simply too corrupt to be tolerated any further.

That the Democrats are willing to burn down the nation’s criminal justice system simply to “stop” Donald Trump is a political message that, if it takes hold in the broader electorate, could make even for those not particularly enamored of Trump a second Trump Presidency a better option than a second term of naked corruption and cynical abuse of our governing institutions.

When the prosecutor is found to be more corrupt than the defendant, the probability of a fair trial in which that defendant receives justice is exactly zero.

In the Georgia case, there is a very real possibility that Fani Willis is about to be shown to be far more corrupt than Donald Trump. What will be particularly damning to the Democrats is the equally real and highly ironic possibility that, in her zeal to find a crime with which to convict Donald Trump, Fani Willis may herself have committed a serious crime or two.

1. 18 U.S. Code § 1341

2. 18 U.S. Code § 1346