ATLANTA — After months of questions, there is now an answer in the disqualification controversy surrounding Fulton County District Attorney Fani Willis.
In a 23-page ruling, Superior Court Judge Scott McAfee said Willis can remain on the Georgia 2020 election interference case against former President Donald Trump and his co-defendants -- but only if special prosecutor Nathan Wade steps down.
In a new development Friday afternoon, Wade announced that he was stepping down from the Georgia 2020 election interference case.
The takeaway was that D.A. Willis has a big choice to make: McAfee told her in his order that if Wade stayed, her whole office, including Wade, would have been removed from the case. If Wade stepped aside, which he did, Willis would be allowed to continue to prosecute the case.
The pair, who shared a romantic relationship, were accused by defense attorneys of improperly financially benefiting from the case and creating a conflict of interest that damaged their ability to impartially prosecute it. But Judge McAfee ruled against that argument, finding that any financial gain flowing from the D.A.'s office to Wade in his role as hired special prosecutor "was not a motivating factor on the part of the District Attorney to indict and prosecute this case."
However, the judge wrote that the relationship, the contract, and testimony provided at earlier hearings "established that the District Attorney's prosecution is encumbered by an appearance of impropriety." Adding that a major source of that appearance was Wade's own conduct and testimony.
Robert James, a former DeKalb County district attorney, said McAfee's decision highlights those concerns.
"The judge is saying, 'Look, I don't think there's any evidence that anything really bad went on here -- inappropriate maybe -- but not bad in the legal sense. But it doesn't look right. And you can cure it by getting him off the case and moving forward.'"
So far, the D.A.'s office has not commented on the ruling.
Here are some other takeaways from Judge McAfee's ruling on Fani Willis' disqualification.
Defendants did not prove financial gain
During testimony, defense attorneys grilled Willis and Wade about vacations they took during the course of their relationship, accusing the D.A. of personally benefitting monetarily from the trips and claiming that she had a motivation to drag out the case to continue benefitting.
Both Wade and Willis testified, however, that Willis would reimburse Wade in cash, and if not reimbursed, the D.A. would cover a comparable expense.
"Such a reimbursement practice may be unusual and the lack of any documentary corroboration understandably concerning. Yet the testimony withstood direct contradiction, was corroborated by other evidence ... and was not so incredible as to be inherently unbelievable," McAfee wrote.
However, he acknowledged there is no way to be certain expenses were split completely and that the D.A. might have received a net gain of several hundred dollars in the long run. Even still, he said evidence did not back up that she received a benefit from her decision to hire Wade and engage in a romantic relationship or that it was a motivating factor to indict and prosecute the case.
"With seemingly full access to Wade's primary credit card statements, the Defendants did not produce evidence of any further documentable expenses or gifts," the judge wrote in the ruling. Nor, he added, did the defendants prove that the financial arrangement between Wade and Willis created an incentive to "prolong the case," pointing to Willis' original request to begin the trial in less than six months.
Judge McAfee admonishes Willis
Despite Judge McAfee not finding enough evidence to support disqualifying Willis, he added that the ruling "is by no means an indication that the Court condones this tremendous lapse in judgment" to engage in the relationship or the "unprofessional manner" of Willis' testimony.
McAfee said that the D.A.'s office is "encumbered by an appearance of impropriety," because of her conduct, writing that the lack of a financial split creates the appearance that the D.A. benefited, and that if the case were to continue unchanged, concerns raised by the defendants' attorneys wouldn't go away.
"Reasonable members of the public could easily be left to wonder whether the financial exchanges have continued resulting in some form of benefit to the District Attorney, or even whether the romantic relationship has resumed. Put differently, an outsider could reasonably think that the District Attorney is not exercising her independent professional judgement totally free of compromising influences," the ruling states.
"As long as Wade remains on the case, this unnecessary perception will persist," it added.
Still, McAfee wrote, "impropriety does not automatically demand disqualification."
Witnesses testimony 'too brittle'
During testimony, attorneys for the defendants called Wade's former law partner and divorce attorney Terrance Bradley to the stand, but McAfee said the court was "unable to place any stock" in his testimony because of "inconsistencies, demeanor and generally non-responsive answers." McAfee added that another witness, Robin Yeartie's, testimony "raised doubts" about the circumstances but lacked "context and detail."
"However, an odor of mendacity remains," McAfee wrote.
McAfee appears to leave open the door for a gag order
While chastising Willis for her decisions, McAfee also appeared to be open to preventing anyone connected to the case from speaking publicly about it in the future.
The judge pointedly addressed comments Willis made during a speech to the congregation of Ebenezer Baptist Church over the Martin Luther King, Jr. holiday weekend, in which she decried criticism from defense attorneys of her handling of the case as potentially racially motivated.
"The State argues the speech was not aimed at any of the Defendants in this case. Maybe so. But maybe not," McAfee wrote. "Therein lies the danger of public comment by a prosecuting attorney."
Despite the comments, McAfee agreed that they did not directly address any particular defendant nor disclose sensitive or confidential evidence; he also added the case is too far away from jury selection to have any "permanent taint" on the jury pool.
"The court cannot find that this speech crossed the line to the point where the Defendants have been denied the opportunity for a fundamentally fair trial," the ruling says. "But it was still legally improper."
"The time may well have arrived for an order preventing the State from mentioning the case in any public forum to prevent prejudicial pretrial publicity."