No one is praising Fulton County District Attorney Fani Willis’s apparent romantic relationship with Nathan Wade, an attorney in private practice who she brought on board as a Special Prosecutor in the criminal investigation and now prosecution of Donald Trump and 18 co-defendants. We have not yet heard that much of Willis’s side of the story. However, based on what is known so far, it represents poor judgment—especially in a case of this magnitude, even if a prosecutor’s private life is generally none of the public’s business. Willis has already said publicly that she is “flawed” and “imperfect” in her public remarks at Bethel AME Church following the allegations. But whether there were personal failings is not the operative legal test for whether Willis or Wade should be disqualified from the case, and accordingly that question is not the focus of this essay. Prosecutors are human, and they can and do make mistakes. The question here is whether Willis’s and Wade’s apparent mistakes have any bearing on the election conspiracy prosecution in a way the law would require their removal from the case.
The motion filed by defendant Michael Roman seeks primarily to do just that – to disqualify Willis and Wade from further participation in this case. Under Georgia law, however, even if all the factual allegations regarding Willis and Wade were true, there would be no basis for disqualifying them from prosecuting Roman or any of the other defendants in the election conspiracy case.
The key point is that regardless of whether the factual circumstances involving Willis and Wade give rise to separate ethical concerns with respect to his hiring, such questions do not affect the propriety of the prosecution against Roman and his co-defendants. Questions about gifts and related matters go to Willis’s and Wade’s obligations to the Fulton County District Attorney’s office, and have no connection to assuring the defendants a fair trial. These allegations are as irrelevant to the trial as allegations in other situations that prosecutors took office supplies for personal use, drove county vehicles for personal errands, or plagiarized portions of their student law review notes. All of those are legitimate issues—for prosecutors’ offices and those with oversight responsibilities to address—but such allegations do not bring criminal prosecutions to a stop or require that cases be transferred to a different office. Defense attorneys cannot use allegations of prosecutorial ethics violations, real or imaginary, that have nothing to do with a trial to delay or force prosecutors off of a case.
As a matter of both common sense and Georgia law, a prosecutor is disqualified from a case due to a “conflict of interest” only when the prosecutor’s conflicting loyalties could prejudice the defendant leading, for example, to an improper conviction. None of the factual allegations made in the Roman motion have a basis in law for the idea that such prejudice could exist here – as it might where a law enforcement agent is involved with a witness, or a defense lawyer with a judge. We might question Willis’s judgment in hiring Wade and the pair’s other alleged conduct, but under Georgia law that relationship and their alleged behavior do not impact her or his ability to continue on the case.
Although the Georgia law on disqualifying a prosecutor would permit Wade to remain on the case as well, in our view he should voluntarily step down. His continued presence will create a distraction, and his departure, in addition to an on-the-record hearing in court, is the best path to dispense with any lingering concerns. Doing so will avoid any debate about even an appearance of impropriety going forward. Willis is an elected official and has an ongoing obligation to serve her constituents. Stepping down is the honorable thing for Wade to do and at the same time respect the interests of the electorate.
In this essay we provide a detailed analysis of the relevant legal questions. First, we review the law of prosecutorial disqualification in Georgia. Second, we explain why the Roman motion’s factual allegations, even if true, do not give rise to a conflict of interest that warrants disqualification of the prosecutors in Roman’s case.
The Allegations and the Legal Framework
Georgia law recognizes prosecutorial disqualification in exceptionally narrow circumstances, ones that are not alleged by the Roman motion. The Roman motion argues that three primary alleged factual circumstances amount to a conflict of interest warranting disqualification and, even more extremely, dismissal of the indictment against him[1]:
- The alleged romantic relationship between Willis and Wade;
- The financial compensation Wade received as a Special Prosecutor; and
- The alleged personal travel Willis and Wade took together, allegedly paid for by Wade.
As explained below, these circumstances neither individually nor collectively give rise to a conflict of interest in a prosecution.
The Law of Prosecutorial Disqualification in Georgia
Under Georgia law, “[t]here are two generally recognized grounds for disqualification of a prosecuting attorney. The first such ground is based on a conflict of interest, and the second ground has been described as ‘forensic misconduct.'” Williams v. State, 258 Ga. 305, 314, 369 S.E.2d 232, 238 (1988). There is no allegation of “forensic misconduct” in this prosecution. A conflict of interest may arise when the prosecutor has “acquired a personal interest or stake in the defendant’s conviction.” Id. “[A] conflict of interest requires more than a theoretical or speculative conflict. An actual conflict of interest must be involved.” Ventura v. State, 346 Ga. App. 309, 311, 816 S.E.2d 151, 154 (2018) (quoting Whitworth v. State, 275 Ga. App. 790, 793 (1)(b), 622 S.E.2d 21 (2005)).
Georgia appellate courts have recognized several discrete categories of conflicts of interest for the purposes of prosecutorial disqualification. First and most commonly, a conflict of interest has “been held to arise where the prosecutor previously has represented the defendant with respect to the offense charged.” Williams, 258 Ga. at 314, 369 S.E.2d at 238. See also Lamb v. State, 267 Ga. 41, 42, 472 S.E.2d 683, 685 (1996) (“[A] conflict of interest would arise if a defense attorney were to ‘switch sides’ and prosecute his former client.”); Frazier v. State, 257 Ga. 690, 693(9), 362 S.E.2d 351 (1987). Second, a prosecutor may be disqualified if he is a fact witness in the case against the defendant. McLaughlin v. Payne, 295 Ga. 609, 614, 761 S.E.2d 289, 294 (2014). Third, a conflict of interest may arise due to the prosecutor’s relationship with a victim. See Battle v. State, 301 Ga. 694, 698, 804 S.E.2d 46, 51 (2017) (“[A] conflict of interest or the appearance of impropriety from a close personal relationship with the victim may be grounds for disqualification of a prosecutor.”); Head v. State, 253 Ga. App. 757, 757, 560 S.E.2d 536, 537 (2002). Fourth, a conflict of interest leading to disqualification exists when a special prosecutor is compensated by a contingency fee that is paid only if a conviction is secured, because that fee arrangement creates “at least the appearance of a conflict of interest between his public duty to seek justice and his private right to obtain compensation for his services.” Greater Georgia Amusements, LLC v. State, 317 Ga. App. 118, 122, 728 S.E.2d 744, 747 (2012) (physical precedent only). See also Amusement Sales, Inc. v. State, 316 Ga. App. 727, 736, 730 S.E.2d 430, 438 (2012) (adopting reasoning of Greater Georgia Amusements to hold that “disqualification was warranted in light of the SADAs having a personal financial stake in the outcome” due to contingency fee arrangement).
The issue of disqualification arose in an earlier phase of the Georgia election conspiracy case. Applying these legal principles from the existing case law, the court swiftly denied motions to disqualify Willis filed by numerous defendants. In the only order granting such a motion, Judge Robert C. I. McBurney held that Willis was disqualified from the prosecution of Lieutenant Governor Burt Jones due to narrow circumstances involving the political relationship between Willis and Jones. At the time of his motion, Jones was the “target” of a special purpose grand jury investigation into the facts of this case. Jones, then a state senator, was also the Republican nominee in the 2022 general election for Lieutenant Governor. Willis had publicly endorsed and held a high-profile fundraiser for Jones’s opponent in the election, Democratic candidate Charlie Bailey. Judge McBurney determined that Willis’s support for Bailey gave rise to a conflict of interest warranting disqualification because, as he explained, “any effort to treat [Jones] differently [from other subjects of the investigation]–even if justified–will prompt entirely reasonable concerns of politically motivated prosecution: is Senator Jones being singled out because of a desire to further assist the Bailey campaign?” Jones Disqualification Order at 4-5 (July 25, 2022). Judge McBurney elaborated that a criminal prosecution “cannot be burdened by legitimate doubts about the District Attorney’s motives.” Id. at 5. Accordingly, “because any public criminal investigation into Senator Jones plainly benefits candidate Bailey’s campaign, of which the District Attorney is an open, avid, and official supporter,” Judge McBurney held that Willis suffered from a conflict of interest that warranted disqualification. Id. at n.6.
The unifying principle in the Georgia disqualification cases, including in Judge McBurney’s prior opinion in this case, is that a conflict of interest warranting prosecutorial disqualification is present when, and only when, the factual circumstances indicate the prosecutor may seek a conviction or otherwise treat a defendant through improper means or with an improper purpose. The Supreme Court has explained that “[t]he responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.” Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 803 (1987) (quoting Ethical Consideration (EC) 7-13 of Canon 7 of the American Bar Association (ABA) Model Code of Professional Responsibility (1982)). As the American Bar Association elaborates, a “prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.” Model Rules of Prof’l Conduct r. 3.8 cmt. 1 (Am. Bar. Ass’n 2015). See also Young, 481 U.S. at 804 (stating that prosecutors are “appointed solely to pursue the public interest in vindication of the court’s authority”); Town of Newton v. Rumery, 480 U.S. 386, 395 n.5 (1987); Marshall v. Jerrico, Inc., 446 U.S. 238, 249 (1980).
The first two categories of Georgia cases recognize the risk of an unfair advantage for the prosecution in seeking a conviction. A prosecutor who formerly represented the defendant for the offense charged may leverage his knowledge of privileged and confidential information about the defendant that he learned through his prior representation. A prosecutor who is a fact witness in the case may color his testimony to favor the prosecution. The second two categories of Georgia cases recognize the risk that the prosecutor may seek conviction even when doing so is not in the public interest. A prosecutor who has a prior personal relationship with the victim may seek vengeance rather than justice. And a prosecutor who receives a fee only upon conviction may seek personal profit rather than the public good. In all cases, the central issue is whether the alleged conflict compromises the prosecutor’s efforts to seek a fair and just prosecution and conviction.
1. The Alleged Romantic Relationship Between Willis and Wade
Georgia courts have resoundingly rejected romantic relationships between attorneys as a basis for prosecutorial disqualification. “[T]here is no per se rule of disqualification based on marital status.” Jones v. Jones, 258 Ga. 353, 354–55 (1988); see also Blumenfeld v. Borenstein, 247 Ga. 406, 408, 276 S.E.2d 607, 609 (1981) (“Absent a showing that special circumstances exist which prevent the adequate representation of the client, disqualification based solely on marital status is not justified.”). The Georgia Supreme Court has explained that even married attorneys on opposing sides of litigation do not suffer from a conflict of interest. See Jones, 258 Ga. at 354–355 (“We have found no authority, and none has been cited to us, for the proposition that married lawyers who are involved in active litigation on opposing sides of a case must be disqualified.”). Georgia courts have explained that, “[w]hile we cannot disagree with the proposition that the marital relationship may be the most intimate relationship of a person’s life, it does not follow that professional people allow this intimacy to interfere with professional obligations.” Ventura, 346 Ga. App. at 311, 816 S.E.2d at 154. The opportunity for conflict and potential impropriety between spouses on opposing sides of litigation are greater than those on the same side of a case, working toward the same outcome. Accordingly, there is no plausible argument that non-married attorneys in a romantic relationship who serve together as prosecutors in a case create a conflict of interest for the defendant.
2. The Financial Compensation Wade Received as Special Prosecutor
Wade’s hourly compensation as a Special Prosecutor does not give rise to a conflict of interest because that fee arrangement does not create a financial incentive for Wade to seek conviction rather than justice. Georgia law expressly contemplates that district attorneys may appoint lawyers in private practice as special prosecutors who may be compensated for their work. Ga. Unif. Super. Ct. R. 42.1 (“Special assistant district attorneys appointed by the district attorney including attorneys from personnel of public agencies may prosecute criminal cases.”). See Isaacs v. State, 259 Ga. 717, 722, 386 S.E.2d 316, 322 (1989) (“The appointment of assistant attorney general William Hill as a special assistant district attorney in this case was authorized under Rule 42.1 of the Uniform Superior Court Rules.”); State v. Cook, 172 Ga. App. 433, 437, 323 S.E.2d 634, 639 (1984) (“[T]he appointment by a district attorney of a Special Assistant District Attorney … is premised upon the inherent authority of the district attorney to obtain assistance in the performance of his prosecutorial duties.”) (emphasis in original).
Special Prosecutors may be paid according “to whatever private arrangements regarding compensation are mutually agreeable to the district attorney and the appointee.” Cook, 172 Ga. App. at 437, 323 S.E.2d at 639 (citing Vernon v. State, 146 Ga. 709, 711, 92 S.E. 76 (1917)). The prevailing practice in Georgia is for Special Prosecutors to be compensated at an hourly rate. All three Special Prosecutors in Roman’s prosecution were paid by the hour, and it appears undisputed that at least one of the other two was paid the same $250 rate as Wade. See Fulton County DA Fani Willis explosive accusations: New documents in special prosecutor controversy, Fox5 Atlanta (“Documents show that Anna Cross was also paid $250 an hour.”). Compensating special prosecutors by the hour is not limited to the Fulton County District Attorney’s Office. For example, the Office of the Attorney General of Georgia engaged hundreds of Special Assistant Attorneys General (SAAGs) in Fiscal Year 2023. See Office of the Attorney General, Outside Counsel Fee Information. Those records reflect that in 2022, 18 SAAGs were paid precisely the same $250 an hour as Wade, and some SAAGs made well over $1,000 an hour.
The financial compensation paid to Wade is consistent with well-established practice in Georgia and does not give rise to a conflict of interest warranting prosecutorial disqualification. Neither Wade nor the hundreds of other Special Prosecutors in Georgia who are paid by the hour have an improper financial incentive to seek a conviction to the disadvantage of a defendant. Publicly available documents indicate that Wade’s compensation was not contingent on the outcome of the prosecution against Roman or anyone else.
By contrast, the only two cases in Georgia that found that a Special Prosecutor’s financial compensation created a conflict of interest involved contingency fees which were expressly tied to the outcome of the case. In both Amusement Sales, Inc. v. State, 316 Ga. App. 727, 730 S.E.2d 430 (2012), and Greater Georgia Amusements, LLC v. State, 317 Ga. App. 118, 728 S.E.2d 744, 747 (2012), the district attorney appointed several Special Assistant District Attorneys to prosecute actions seeking in rem forfeiture of assets that were “used or intended for use in the course of, derived from, or realized through the foregoing pattern of racketeering activity.” Amusement Sales, 316 Ga. App. at 728, 730 S.E.2d at 433 (quoting OCGA § 16–14–7(a)). In contrast to Wade’s compensation, “[t]he SADAs were in private practice and entered into a contingency fee arrangement with the State to prosecute and recover a percentage of any forfeited proceeds.” Id. The Georgia Court of Appeal rejected that financial arrangement, explaining that “disqualification was warranted in light of the SADAs having a personal financial stake in the outcome.” Id. at 738. That contrasts sharply with an hourly fee like Wade’s, which does not depend on the outcome of the prosecution. Accordingly, because Wade’s hourly compensation does not create an improper motive to seek conviction, it does not give rise to a conflict of interest.
Nor is there a plausible argument for disqualification based on Wade’s purported financial incentive to initially bring or continue the prosecution of Roman and his co-defendants regardless of its ultimate outcome. Every special prosecutor paid by the hour would have a similar financial incentive, and as noted above both Georgia case law and well-established practice approve of such appointments and financial arrangements. Moreover, the factual record refutes the suggestion that the prosecution is financially motivated. Independent analyses released prior to the issuance of the indictment determined that the charges that Willis ultimately brought were well-founded in law and fact. See, e.g., Fulton County, Georgia’s Trump Investigation: An analysis of the reported facts and applicable law: Second Edition, Brookings Institution (Nov. 14, 2022). The evidence against Roman in particular appears more than sufficient to justify prosecution. See, e.g., Exclusive: Recordings, emails show how Trump team flew fake elector ballots to DC in final push to overturn 2020 election, CNN (Dec. 28, 2023). Moreover, the prosecution’s legal and factual merits have been supported by the multiple defendants who have pleaded guilty to felonies.
In a related point, Roman’s motion to disqualify also complains that Wade has “never tried a felony RICO case.” That argument ignores the fact that Willis has separately retained as special counsel one of Georgia’s and indeed the nation’s preeminent experts on RICO, John Floyd. He brings the requisite experience to the team, as does the District Attorney herself. An effective team leader need not have experience in all dimensions of the case. Indeed, this case is so unusual that no one lawyer has all of the requisite experience required and assembling a team is necessary. Willis has said she brought in Wade, who is by all accounts a well-respected lawyer, to manage the team as someone who would be strong in the face of criticisms and who could “wipe off their wounds and we can get back to work.” Finally,Wade’s effectiveness has been amply shown by the successes the team has secured under his leadership over the pendency of the investigation and prosecution. Whatever one may think of the other arguments made by Roman, this one need not detain us long.
3. Personal Travel by Willis and Wade
The allegations regarding personal travel together that Wade allegedly paid for also do not give rise to a conflict of interest warranting disqualification. Although no case in Georgia addresses allegations of a similar factual circumstance, the principles that the Georgia courts have adopted strongly indicate the absence of a conflict of interest warranting disqualification in the prosecution of Roman and his co-defendants.
As explained above, Wade’s hourly compensation as a Special Prosecutor does not give rise to a conflict of interest that warrants disqualification because it does not create a financial incentive to seek a conviction rather than prosecute the case fairly. The Roman motion alleges that Wade paid for personal travel for Willis and himself, possibly using funds that he derived from his hourly compensation as a Special Prosecutor. Even if that allegation is true–and even if the sole source of Wade’s funds was his hourly compensation as a Special Prosecutor–that financial arrangement between Willis and Wade similarly does not create a financial incentive for Willis to seek a conviction rather to prosecute the case fairly. In particular, Wade will be compensated the exact same amount of money over the course of the prosecution regardless whether any defendant is convicted or not. As a result, Wade will have the exact same amount of money as a result of his service as a Special Prosecutor to pay for personal travel with Willis regardless whether any defendant is convicted or not. Accordingly, even if Wade pays for personal travel with Willis, she has not “acquired a personal interest or stake in the defendant’s conviction” and therefore disqualification is not warranted. Williams, 258 Ga. at 314, 369 S.E.2d 232, 238 (1988). If it were otherwise, Georgia law would look into the expenses of marital couples who work together on prosecutorial teams, but as discussed above that is a non-starter when it comes to a legal basis for claiming a true conflict of interests.
Conclusion
For the reasons above, a conflict of interest requiring disqualification from the cases does not exist as to either Willis or Wade under Georgia law. We expect Judge Scott McAfee will deny the Roman motion in its entirety after the evidentiary hearing. As a practical matter, Wade’s voluntary resignation would help resolve the controversy, enabling the Fulton County District Attorney’s Office to continue to serve the people of Fulton County in a manner that comports with the public interest.
Conversely, an unfounded disqualification of Willis would unjustifiably threaten to delay the case unnecessarily. That is because when the District Attorney herself is disqualified, the matter is transferred to the Prosecuting Attorneys’ Council of the State of Georgia for reassignment. See McLaughlin v. Payne, 295 Ga. 609, 613, 761 S.E.2d 289, 294 (2014); OGCA § 15-18-5 (2022). That was what happened with the disqualification in July 2022 with respect to Burt Jones (discussed above). Today, 18 months later, we have yet to see a prosecutor assigned to the Jones case, much less a decision on whether to indict Jones. Whereas if Willis were otherwise sanctioned by ethics or county government authorities as a result of any separate inquiries (e.g. into her hiring decision involving Wade), it would not have this effect. The case would remain in the Fulton County District Attorney’s office.
A likely delay in the prosecution of Trump and his co-conspirators occasioned by moving the case is inconsistent with the public interest. There is a paramount need to resolve the question as soon as possible of whether Trump previously criminally abused the office he is seeking to recover. Accordingly, the stakes could not be higher for accurately applying the law of disqualification.
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[1] The Roman motion cites no authority supporting its request for dismissal, and there is no basis in Georgia law for that relief even if a court finds a prosecutor is disqualified due to a conflict of interest. See McLaughlin v. Payne, 295 Ga. 609, 613, 761 S.E.2d 289, 294 (2014) (“[I]n the event that the elected district attorney is wholly disqualified, the statutes contemplate” transfer of the case to another prosecutor) (citing OGCA § 15-18-5(a)).