How Bad Is This for Fani Willis, Really? Legal Experts Weigh In.

It might seem like Fulton County District Attorney Fani Willis’ criminal indictment of Donald Trump and 18 co-defendants is perilously close to ending before it even started—but legal experts have doubts about the strength of the allegations against her.

Last month, Willis was accused of not only dating a member of her staff but improperly hiring him and misusing public funds for her own benefit. On Friday, Willis acknowledged that she had developed a personal relationship with special prosecutor Nathan Wade, but only after he had been hired. She also denied financial misconduct or that the relationship will have an impact on her ability to prosecute the case.

Could this scandal lead to the dismissal of the case? None of the four legal experts we consulted thought so.

“The claim that Mike Roman and his lawyer Ashleigh Merchant are seeking—to have the case dismissed—should be a non-starter,” said Ankush Khardori, a lawyer and former federal prosecutor. “These are not allegations that, even if true, would warrant the dismissal of the case.”

Back in early January—about five months after Willis announced a 41-count indictment alleging a “criminal enterprise” to illegally keep Trump in the White House—Ashleigh Merchant, the lawyer representing co-defendant Mike Roman, filed a sprawling motion accusing Willis and Wade of being in an “improper, clandestine personal relationship.” It accused the couple of taking trips together, paid for by Wade through wages he earned working for Fulton County, which Merchant argues presents a personal and financial conflict of interest. She also alleges Wade was improperly hired and is underqualified and overpaid for his job. Before he was hired by Willis, Wade worked as a municipal judge, mostly dealing with traffic tickets, and then moved to private practice, focusing on family law and contract disputes.

Merchant is seeking to have all of Roman’s charges dropped and for Willis and Wade to be disqualified from prosecuting this case. (Trump has joined the motion.)

In her counter motion last week, Willis addressed each of Merchant’s allegations. The DA conceded that she is in a romantic relationship with Wade, but maintained that there is no conflict of interest. She called the allegations about Wade’s qualifications inaccurate and malicious, highlighting his experience trying state and federal felony cases and teaching judicial training classes to newly appointed Georgia judges. And as a duly elected DA, Willis said she was “well within her constitutional duties and responsibilities contracting with Nathan Wade.” In a sworn affidavit, Wade also said he never shared any compensation he received from Fulton County with the DA and that travel expenses between the couple “were roughly divided equally between us.”

The fact that Willis is in a relationship with another prosecutor does raise red ethics flags for Stephen Gillers, an ethics law professor at New York University School of Law and former vice dean of the school. However, Gillers said he doesn’t believe the relationship itself has any bearing on Willis’ ability to prosecute her case, and isn’t grounds to dismiss the indictment.

And that’s the biggest issue with Merchant’s motion, as it doesn’t connect the dots between Willis and Wade’s personal relationship and any decisions made in the indictment, Gillers said. She alleges prejudice, but “to disqualify [Willis], the motion papers would have had to show a significant reason to believe that she could not make the independent decisions she has to make prosecuting the case,” said Gillers. “And the fact that they may have had a romantic relationship does not do that. That’s not enough.”

Merchant also accuses Wade of being overpaid as special counsel for Fulton County and points to airline tickets he purchased for himself and Willis as proof that Willis was cutting checks that she would personally benefit from. (Court records reviewed by the Atlanta Journal-Constitution show Wade has been paid nearly $654,000 since January 2022—an hourly rate of about $250.)

These arguments don’t hold water for J. Tom Morgan, former DA of Georgia’s DeKalb County and now an ethics professor at Western Carolina University, for two reasons. No. 1: Wade’s pay isn’t all that strange, he said. In fact, “most attorneys in Atlanta charge a lot more than $250 an hour,” in his experience. Plus, Wade is lead counsel on “probably one of the biggest cases in the country,” so even if his pay seems high, it’s not the red flag that Merchant is trying to make it out to be. (In Willis’ counter motion, she defended Wade’s pay as a “steeply reduced hourly rate” and noted that all of his invoices were approved by the chief financial officer of Fulton County.)

Reason No. 2 is that Willis has produced an unprecedented criminal indictment of a former president, and there’s no playbook for Judge Scott McAfee to consult when weighing these misconduct allegations. Based on Morgan’s reading of Georgia’s ethical code, a special counsel taking the DA on a few trips does not come “anywhere close to what the ethical code was meant to do.” Morgan explained that when considering the ethical code, “you’re thinking about kickbacks, you’re thinking about harming someone [if] their conviction benefits you personally. That is not what we have here. We have some great, salacious gossip.”

As for Merchant’s accusation that Wade is underqualified, Clark Cunningham, law and ethics professor at Georgia State University, doesn’t think that’s any kind of smoking gun. “If anything that helps Michael Roman, if his opponent is inexperienced, right? And if he’s making too much money, how does that hurt Michael Roman?” Khardori, the former federal prosecutor, added that “lawyers acquire different skills that can be useful in different contexts over the sweep of their careers. So a defense lawyer can actually be very useful in the prosecution.”

Plus there’s the fact that former co-defendants Sidney Powell, Jenna Ellis, Kenneth Chesebro, and Scott Hall each secured plea deals with Willis. “Why did they offer sweetheart deals to the four defendants, if all they wanted to do was make money?” Cunningham argued, since more defendants means a bigger and larger case that creates more billable time.

While Merchant’s motion revealed “ignorance of how the rules operate,” said Gillers, there is enough in it to warrant a hearing, which Judge McAfee has scheduled for Feb. 15. One area that Gillers believes could be cause for concern is Wade’s invoices to Fulton County. They reveal that the special prosecutor has been billing his time in whole-hour increments—five, six, seven hours at a time—with “very sparse descriptions of the work he’s doing,” said Gillers. “No sophisticated client, corporate or government, would ever permit such generic billing. They would insist on greater detail on each bill he’s provided.” In her motion, Willis said all of Wade’s invoices are reviewed and approved by Fulton County’s CFO before being paid out.

However, Gillers said McAfee could rule that Willis and Wade’s personal relationship indicates a possible violation of Georgia’s internal accounting rules about hiring special prosecutors, since she has a hand in approving his bills. In that scenario, McAfee would likely send Willis’ misconduct case to a different Georgia court, one that manages internal disciplinary issues. But, Gillers emphasized, “violating internal rules or other conflict rules in the decision to hire Wade will not lead to dismissal of the indictment or disqualification of Willis.”

All the sources Slate spoke to were clear that it is exceptionally rare for a DA to be pulled off of a case, let alone to have an entire criminal indictment dismissed. If Willis were to be removed, the Prosecuting Attorneys’ Council of Georgia would pick her replacement, and there’s no guarantee that the indictment’s scope or charges filed would remain the same. While some experts have argued that Willis should willingly step down from her post to preserve the integrity of her indictment, Morgan doesn’t see that happening “unless she really believed that there was a legal basis for it and her counsel advised her that she should.”

Khardori doesn’t think having Wade step down solves anything, either, since the question at hand is whether Willis engaged in some impropriety, not the special prosecutor. However, it’s not completely outside the realm of possibility, especially if McAfee feels he needs to take a remedial step to sufficiently address the situation. “At that point, it’s very conceivable to me a judge could say, ‘You shouldn’t have done this, but this is the step to take. That’s sufficient,’ ” said Khardori.

Another factor to consider is the future jury pool, as Giller believes this scandal has hurt Willis’ credibility as a disinterested prosecutor, even if she’s allowed to stay on her case. Morgan is more optimistic—having worked as a DA himself on hundreds of different cases, he believes stories like this one are generally short-lived in the minds of a jury.

Khardori also strongly believes Merchant’s allegations deserve more scrutiny: “The fact that she attached a bunch of bills, that is not evidence. Where did you get them from? How did you get them? What is the timeline?” Merchant also claims an unnamed source confirmed that Willis and Wade’s personal relationship began before the DA’s case was initiated and before Wade was hired on—but an anonymous claim may not be sufficient in a court of law. (Wade’s sworn affidavit says he was hired in 2021 but the couple’s personal relationship started in 2022, a year after the DA’s investigation had started.) “It is the case from time to time that lawyers can cite anonymous sources, but there are procedures for that and it’s not as simple as somebody told me something and I don’t want to tell you who or what.”

On the whole, Morgan said, Merchant’s motion seems light on substance and like it’s designed to do one thing: embarrass the DA. That’s what Willis has been saying, too. She insists Merchant only wants to “intrude even further into the personal lives of the prosecution team in an effort to embarrass and harass the District Attorney personally,” and has asked McAfee to cancel the upcoming Feb. 15 evidentiary hearing and quash Merchant’s motion “without further spectacle.”