By: Donald V. Watkins
Copyrighted and Published on February 17, 2024
An Editorial Opinion
Last week, viewers around the nation were glued to their television sets and computer screens as Special Counsel Nathan Wade and Fulton County, Georgia District Attorney Fani T. Willis tried to put their illicit love affair in the most positive light possible. It was a spectacle to behold.
No matter how Fulton County Superior Court Judge Scott McAfee rules on defense attorney Ashleigh Merchant’s motion to disqualify Willis and her prosecution team, the Willis-Wade love affair has damaged the prosecution team’s chances of winning the RICO case against Donald Trump.
The alleged love affair is now a confirmed fact. This situation gives Trump and his co-defendants an arsenal of defensive ammunition that they never had before.
New York Attorney General Letitia James, Manhattan District Attorney Alvin Bragg, and Special Counsel Jack Smith have avoided giving Trump this kind of ammunition in his other three criminal cases.
What Do Experienced Trial Lawyers Look for in High Profile Cases?
I watched the hearing from the perspective of a prosecution and defense attorney, as I performed both roles in high-profile cases during my four-decade legal career.
Like Judge McAfee, I have read: (a) defense attorney Ashleigh Merchant’s 127-page motion to disqualify Willis and her prosecution team, (b) Willis’ 176-page response, and (d) Merchant’s 122-page reply to Willis’ response.
I understood why Willis and Wade fought hard for weeks to keep from testifying in Wade’s divorce case and at McAfee’s February 15-16th hearing. Once prosecutors become witnesses, their credibility is at issue (as is the case with other witnesses).
I also understood why the first hour of the hearing was consumed with a buzzsaw of objections from attorneys for the state and subpoenaed witnesses. For a host of reasons, the prosecution team did NOT want Wade and Willis on the witness stand. Wade and Willis lost that battle.
Wade took the witness stand first. Within the context of the 425 pages of documents filed with the court in connection with Merchant's motion to disqualify the prosecution team, Wade’s testimony at the hearing was awful. His demeanor on the witness stand was horrible, as well.
Judge McAfee’s body language signaled that he was completely turned off by Wade’s answers to Merchant’s questions, especially when Wade talked about receiving cash reimbursements from Willis for expenses incurred by Wade, with no documentation whatsoever to support these reimbursements.
The “cash reimbursement” defense is typically used in cases involving drug dealers, mafia dons, and gang members.
Wade’s poor performance on the witness stand is what prompted Willis to abandon her game-plan (i.e., fight every effort to compel their testimony) and storm into the courtroom Thursday to voluntarily take the witness stand.
This was a huge mistake, which caught Willis’ attorneys off guard. No prosecutor should ever voluntarily agree to be cross-examined by defense counsel.
Now, there is a transcript of Willis and Wade discussing the nature and scope of their illicit love affair, under oath, and all within the context of Trump's RICO case.
What is worse, this illicit love affair was NOT voluntarily disclosed to the grand jury prior to the indictment of the defendants in this RICO case or to Judge McAfee at the beginning of the case last August. Instead, these lovers were “outed” by Merchant on January 8, 2024.
The illicit love affair changes the dynamics of the case. Instead of focusing on the allegations of election fraud and Donald Trump’s phone call to Georgia Secretary of State Brad Raffensperger, defense counsel will: (a) wallow in the sex scandal between Willis and her married special prosecutor, (b) relive the romantic trips these two lovers took to exotic ports of call, (c) divert attention from the counting of votes in a presidential election to the thousands of dollars in cash that supposedly changed hands between Willis and Wade, without proper documentation, (d) take jurors on a guided tour of Willis' financial disclosure forms, and (e) pontificate, out loud, about whether Willis and Wade resorted to lying and perjury when the affair was “outed.”
Lies, sex, and exotic trips between illicit lovers always mesmerize trial jurors. They rarely make it back from this journey to the real reason for the trial -- the criminal conduct alleged in the indictment.
Willis and Wade Gave the Trump Defense Team This Gift
Willis and Wade gave this gift to Donald Trump and his other RICO defendants when they commenced an illicit love affair and failed to disclose it to the proper authorities.
Despite a mountain of stonewalling and barrage of objections, Ashleigh Merchant succeeded in forcing Nathan Wade and Fani Willis to testify about their love affair in open court. Merchant cherry-picked the testimony she needed from Wade and Willis to fill-in the gaps in her written documents.
There was no need for Merchant to browbeat Wade or Willis on international TV. Her record on the motion to disqualify was about 70% complete before she started questioning Wade on Thursday.
Under GA Code § 24-6-611 (2022), Wade and Willis were deemed "hostile witnesses" or "adverse parties." Judge McAfee will weigh their testimony, accordingly. He will decide if they lied on any portion of their testimony, or not. He will also decide whether Willis and Wade coordinated, synchronized, and rehearsed their testimony.
No matter how Judge McAfee rules on Merchant’s motion, Donald Trump’s RICO case is now dripping with "reasonable doubt." Here are five simple examples of such "reasonable doubt:"
1. Was Donald Trump investigated and prosecuted for the purpose of enriching Nathan J. Wade?
2. Did Nathan J. Wade have a financial motive and pecuniary interest in seeking an indictment in Donald Trump’s case that was NOT disclosed to the grand jurors?
3. Were the contracts executed between the District Attorney’s office and Wade’s firm approved by Willis AFTER he became her lover? The date that Willis and Wade became lovers is hotly disputed by the witnesses.
4. Did Fani T. Willis benefit, directly or indirectly, from any payments she approved for Nathan J. Wade and his law firm?
5. Did Fani Willis know that the contracts executed between the District Attorney’s office and Wade (and his law firm) provided the source of funding for her romantic interludes with Nathan J. Wade to exotic ports of call?