How a prosecutor’s affair could blow up the election interference case against Donald Trump

A stunning personal revelation by the Georgia prosecutor taking on Donald Trump could torpedo the election interference charges against the former president. Here’s why.

Of the four criminal cases that have embroiled Donald Trump, the charges against the former president in Georgia are perhaps the most consequential.

That is not a judgment on the seriousness of the allegations but the upshot of a constitutional quirk: a president can only pardon federal crimes, so if Trump succeeds in his re-election campaign this November, his get-out-of-jail-free card will not help him in Georgia.

A prison term is indeed a distinct possibility if Trump is convicted over his efforts to overturn his 2020 election defeat in the state.

It is an unprecedented situation, one that has inevitably prompted extraordinary scrutiny of the prosecutor who decided to charge him last year.

Donald Trump’s booking photo when he was arrested and charged in Georgia last year. Picture: Fulton County Sheriff’s Office

Now, before Fulton County District Attorney Fani Willis even takes Trump to trial, the biggest case of her professional career could be derailed by a stunning personal revelation.

Earlier this month, under pressure from lawyers for Trump and his co-defendants, Willis admitted she had an affair with the prosecutor she hired to run the election subversion case.

She claimed her relationship with Nathan Wade did not taint her office’s pursuit of the former president, as she rejected suggestions that he was unqualified for the job or that she benefited from the hundreds of thousands of taxpayer dollars he was paid to do it.

But Trump and his allies argue Willis and Wade have a conflict of interest which means they should be removed from the case – a development that would torpedo the charges against the likely Republican candidate for an election rematch against Joe Biden in November.

Fulton County District Attorney Fani Willis at a press conference with Nathan Wade. Picture: Joe Raedle (Getty Images via AFP)

The dispute will come to a head next Thursday (local time), when Fulton County Superior Court Judge Scott McAfee is due to assess the bombshell claims lobbed against Willis a month ago by Michael Roman, a little-known Republican official who was one of 18 people charged alongside Trump in the sprawling racketeering probe last August.

In a shock court filing, Roman’s lawyer Ashleigh Merchant alleged Willis began an affair with the married Wade before she hired him from his law firm in October 2021.

Merchant claimed Wade was unqualified for the job – his private practice focuses on civil matters and his experience prosecuting criminal cases involves mostly low-level charges – but that he had nonetheless been paid more than $US650,000 ($A996,000).

She then alleged Wade used the taxpayer-funded windfall to pay for holidays he and Willis took to California, Miami and the Caribbean. This, Merchant argued, was grounds for disqualification because they had a “personal interest or stake in the defendant’s conviction”.

While she offered little evidence, some soon emerged in Wade’s divorce battle, with his estranged wife sharing bank statements proving he paid for flights for him and his boss.

It took Willis a month to file her 176-page defence. In the meantime, as Trump and other defendants backed Roman’s motion, her only public response came in a half-hour speech at one of Atlanta’s oldest Black churches. Willis ignored the substance of the claims, instead arguing critics of Wade’s appointment were motivated by racial bias (they are both Black).

Norm Eisen, who served as the special counsel for the House Judiciary Committee in Trump’s first impeachment, says Willis appeared naive to the fact that the case was “not being tried merely in the court of law … it’s also being tried in the court of public opinion”.

While he said there was no factual basis for her to stand down, Georgia State University legal ethics expert Clark Cunningham argued Willis should step aside as “an act of public service” in a case of “historic significance”.

“Choosing the option that has the best chance of keeping the case on track, even at a personal cost, is the right decision for Ms Willis to make,” he said.

Donald Trump will almost certainly be the Republican candidate in November’s presidential election. Picture: Timothy Clary (AFP)

But Willis has no intention of walking away. In her court filing, she variously described the accusations as meritless, distasteful, malicious and salacious – a “ticket to the circus” designed to “garner more breathless headlines”.

Willis did admit the affair, although she maintained it only began after she hired Wade, who also filed an affidavit which said Willis “received no funds or personal gain from my position”.

Neither clarified whether they were still in a relationship. However, Willis pointed out that romantic entanglements also existed among lawyers for the defendants.

“Personal relationships among lawyers … do not constitute impermissible conflicts of interest,” she declared.

That may be so. But even the perception of a conflict can be disastrous, as Willis should know. At the outset of the election interference case, the Fulton County Superior Court barred her from investigating Republican Burt Jones because Willis had hosted a fundraiser for his Democratic opponent in the race to be elected Georgia’s lieutenant governor.

Fani Willis is staring down calls for her to step aside from prosecuting the former president. Picture: Getty Images

“The optics are horrific,” said Judge Robert McBurney, who asked: “What are you thinking?”

Almost two years later, a replacement lawyer still has not been appointed to probe Jones – a sign of things to come if Willis is disqualified from prosecuting the former president.

McAfee may well view her affair differently. But for Trump, it is yet more evidence in his mind of what he says is a plot by “insane Democrats” to prevent his re-election. Even if the case goes to trial, he will continue claiming it is “totally compromised” by prosecutors who are “corrupt as hell”.

“The lovebirds should face appropriate consequences,” he said.

State and federal Republicans are also targeting Willis with potential congressional probes, and their digging has already uncovered a 2020 interview in which she promised: “I will certainly not be choosing to date people that work under me.”

For Willis, the irony is that Wade wasn’t even her first choice for the job – she reportedly tried to hire two other lawyers before him. And when she did ask Wade, he initially turned her down because the hourly rate was half what he expected.

It was a costly decision to change his mind.

Originally published as How a prosecutor’s affair could blow up the election interference case against Donald Trump