Legal AF by MeidasTouch - Judge Issues ORDER on Trump Motion to DISQUALIFY DA Willis

Episode Date: March 15, 2024

Legal AF anchors Michael Popok and Karen Friedman Agnifilo analyze the BREAKING NEWS that Fulton County DA Fani Willis WILL NOT BE DISQUALIFIED and removed from the Georgia prosecution of Trump and the other co-conspirators, as long as she quickly fires her special prosecutor Nathan Wade from the case, nor will the indictment against Trump be dismissed for prosecutorial misconduct. Upgrade your sleep with Miracle Made! Go to https://TryMiracle.com/LEGALAF and use the code LEGALAF to claim your FREE 3 PIECE TOWEL SET and SAVE over 40% OFF. Visit https://meidastouch.com for more! Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to a special edition of Legal AF. We got breaking news. Literally, Scott McAfee, the judge in Georgia, has made the decision that we were waiting on. And I'm going to give you the headline. Fonny Willis has not been disqualified from the case as long as she fires Nathan Wade as the special prosecutor along with her against Donald Trump. Let me repeat, Fonny Willis by order of the court has not been disqualified for either an actual conflict, for a financial interest in the case against Donald Trump, or because of her bad judgment, let's put it, let's call it for what it is, in dating somebody in her office, she's gonna be able to remain in the case. That's her choice. The judge gave her a choice. She can either fire herself and the entire Fulton County attorney's office and turn the case over

to the prosecution counsel in Georgia for reselection of a prosecutor. Let me just fast track that. She's not doing that. Or she can fire Nathan Wade as the special prosecutor and hire somebody else. That's the choice that was made. Now that is at the end of a 20 page decision by the judge in which he went through, just as we had predicted on Legal AF and I'd done on a hot take, he went away that we hoped he wouldn't go, but he felt he had to, which is to say,

I don't find an actual conflict of interest. I don't find an actual financial motive for Fonny Willis to continue to prosecute Donald Trump. That's not why the prosecution exists. It doesn't exist to feather the nest of Fonny Willis. However, I don't like the appearance of impropriety called it the odor of mendacity. The odor of mendacity that hangs over the case. Now I had said in an earlier hot take, and I'm kind of predicting this,

that this is the second time that Fonny has been the subject of a motion to disqualify. And when the then chief judge of Fulton County, McBurney, disqualified her from going after representative or state Senator Jones, Bert Jones, who was also part of the fake elector scheme and turned that over to new prosecutor because she had conducted or participated in a fundraiser for Burt Jones' opponent, he said, what were you thinking?

Appearance of impropriety? I don't like the way it looks. It doesn't need to be hanging over a prosecution. And I said, that is the way McAfee could go. And citing a long line of Georgia cases, the judge says, I don't like the way this looks with Nathan Wade still involved. Some of the facts I don't love, but the other side, the Trump side and the defense side have not carried their burden of demonstrating either actual conflict, what they call forensic misconduct, which

is not really an issue in the case. But I'm going to focus now on appearance of impropriety. And this is my Solomonic, this is my word, Solomonic result, which is get Nathan Wade off the case, or you got to get off the case, but that's the choice you're going to have to make. And look, the defense is not gonna be happy about this. He got into the love life, he got into the people that testified, he got into some bad decision making that he believed Fonny Willis committed,

and he obviously has very little respect for Nathan Wade and some of the positions Nathan Wade has taken, for instance, in his divorce proceeding, but this case has saved the day for the prosecution and for Fonny Willis coming a day after the judge basically kept intact the indictment itself against Donald Trump and the others. Turning it over now to my illustrious colleague, who's going to give us that prosecutorial bent as being a former federal prosecutor about how Scott McAfee handled this case and the way, having now read his decision, the way he came out. Do you think it was fair? I want to hear from Karen Friedman, The Fellow. So a couple of things, Popak. Bottom line is he dropped this early in the

morning on the East Coast. So it's good to see you first thing in the morning to break this news with you. A lot of people were wondering what was Scott McAfee doing dismissing six of the counts yesterday when he dismissed six of the counts of the indictment saying they weren't legally sufficient. And I think it makes sense that he did that first because I think he wanted to establish he's fair, he's impartial because he wasn't going, he knew when he dropped that, that he wasn't going to disqualify Fonny Willis from this case. And so I think this was his attempt to put the defendants on their heels and say, okay, I'm going to give you something because this is what I believe the law says and what I'm

required to do. And since I'm going to rule that way, I'm going to put that out first. And then I'm going to drop the news that I've also already decided, which that the defendant did not meet his burden of proof to disqualify Fonny Willis from the case. So I think it was a very well reasoned decision. He pointed out a few things that I really wanted to highlight this morning. I agree with you.

The quote that everyone's going to pick up on is when he said there was the odor of mendacity hanging over this head. And I think that Judge McAfee did a really nice job, though, of going through not only the legal standard, but also the evidence of what was brought out at the hearing and what the burden that the defense did not meet. Also interestingly, several people after the hearing when Fonny Willis literally called herself to the witness stand and testified. The judge actually credited

her testimony and cited to it several times saying that apparently he said, although unprofessional at times, he thought that she was a little emotional perhaps, that he credited her testimony and it was evidence that she brought out through her testimony where he found there was no actual conflict or appearance of impropriety. So to the extent that people didn't think that she should have testified, I think that was significant for the judge

and it was important for the judge to establish what the truth is and what did happen and what didn't happen. He also called out that, look, there was sloppy record keeping, that she basically paid in cash so they can't verify whether or not she paid him back or not. But he credited her testimony that she did and said that at most there's a couple hundred bucks here and there that maybe it was an exact half and half and so they didn't meet their burden or the standard. He called her out though for making the comments in the church and he said he reminded everybody that

prosecutors and it's a good reminder you know people often think it's prosecution versus defense and somehow there's an equivalency, right? There really isn't. Prosecutors have a much, much higher burden of doing the right thing, of making sure that it's not just about getting a conviction. It's about justice, fairness, and defense attorneys can be very eccentric. They can make arguments. They have to zealously advocate for their client, but prosecutors have to be above all

of that. They're almost like the judge in that way, that they have to be above all reproach, actual and appearance. That's where he said she fell short. He reminded her of this higher burden and this higher ethical standard that all prosecutors must meet so that so that there's confidence in the justice system and there's confidence in in any sort of conviction. And he said that's where she fell, fell short.

And the forensic misconduct that they were referring to, I was confused by that because it's not what we would call forensic misconduct. I think they were referring to her comments at the church that were broadcast on television. And he definitely commented that that was not appropriate. She shouldn't have done it, but certainly not enough to get her off the case. So this is he's chalking this up to bad judgment and shouldn't have done it and do better next time, but it's definitely that that's not enough to be a disqualifying conflict of interest. She will definitely take Wade off the case. And Bonnie Willis is one of Georgia's leading Rico experts. She doesn't need Nathan Wade on the case. And so this isn't going to have any impact. Oh, one other thing that I like that he called out was was he said one of the things

that would be a financial conflict of interest in these hours is because he's being paid hourly, which which the judge said in the Atlanta Fulton County metro area is a low wage for a competent attorney. So he put that issue to bed. But he also said in hourly cases, it's always been, and but this happens all the time, there's always this incentive to bill more hours to make more money. And but courts have reconciled that and said, just because that exists doesn't necessarily mean that's going to be a problem. But he said here, there was absolutely no evidence that Fonny

Willis or Nathan Wade wanted this case to go on longer so that they could bill more hours and make more money. In fact, quite the contrary, Fonny Willis has answered ready for trial and has been asking for a speedy trial date, which flies in the face of this argument that somehow there's this financial interest for him to bill more hours and make more money So I thought it was a really well reasoned good fair Fair decision without even

Coordinating you and I because we've been friends and colleagues and podcast hosts for four years now We ended up wearing almost the identical outfit That are watching us. Let me turn to actual to kind of for this particular, those that are watching us. Let me turn to actual, to kind of amplify things, Karen, that you just said, let me read from the actual order in some places I think are important, including with the church comment and the church speech. When we saw that, I kind of, my nose automatically

sort of scrunched up like, hmm, what is she doing? I know why she's doing it, but should she be doing it, given how she was already reprimanded by Chief Justice, Chief Judge McEarney earlier in the case, somebody who's singed once in the fire doesn't normally put their hand back in. But you know, there's many things we love about Fonny Willis and her tenacity is one of them. For those speaking of tenacity, let's talk about mendacity. That's not a good thing for those that are fumbling around trying to look it up Mendacity means when they say an odor of mendacity hangs over the case

We have a definition up there that means an odor of lying and Deceit hangs over the case and that was the judge's sort of pithy way of Summarizing what he saw as two and a half days of testimony about trips. Now, another takeaway, he did not find that Fonny Willis lied to him, committed perjury, in the words of the defense, about the timing of the relationship between her and Nathan Wade. It's not even really mentioned at all in the order. And so that's a good thing because we were afraid that that is what the focus was on at some point.

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thought it was odd that she didn't keep a better ledger or record of it, but didn't find it to be a disqualifying event. In fact, he says, in addition, on the same page, and much more important, the court finds based largely on the district attorney's testimony, that's Fonny Willis, that the evidence demonstrated that the financial gain flowing from her relationship with Wade was not a motivating factor

on the part of the district attorney to indict and prosecute this case. And that goes to Karen's point about the power of her testimony. Now we all were sort of armchair quarterbacks criticizing, and I certainly was a little bit critical of certain aspects of her testimony. But not the fact that she barged into the back of the courtroom, took the stand, couldn't wait. Although the fighting with Ashley Merchant, I didn't think actually covered her

in glory, but the judge did find compelling and credited her testimony related to that. And as Karen said, there's nothing to indicate that the district attorney was interested in prolonging the case quite the opposite. So he kind of dispatched the whole personal stake in the prosecution angle in it. And on page nine, he says at the bottom last paragraph, without sufficient evidence that the district attorney acquired a personal stake in the prosecution or that her financial arrangements had any impact on the case, the defendant's claims of an actual conflict

must be denied. Later he says, rather it is the undersigned's opinion, the judge's opinion, that Georgia law does not permit the finding of an actual conflict for simply making bad choices, even repeatedly. That's his criticism of some of the evidence that he observed, some of the behavior he observed in the courtroom related to Nathan Wade and Phony Willis, and he said it's the trial court's duty to confine itself to the relevant issues and applicable law properly before it.

Now having done that, he says on page 10 that our inquiry is not over because of the actual conflict. And this is where Norm Eisen of Just Security, I did a hot take similarly, that he was probably going to go down the route of appearance of impropriety at some point, which gave us pause because there was a lot of smoke and noise around and we were like, wow, if a young judge who's fresh on the bench handling these issues, because he's never been a judge before and he's like 30 something,

they probably didn't handle it in his private practice as a lawyer or even when he was working under Fonny Willis, for those that don't know or don't remember, he was working under Fonny Willis in the Fulton County DA's office at some point, Jr. in his career. If he hadn't handled these issues, we're like, uh-oh, in the wrong hands, some of this case law could come out the wrong way for Fonny Willis. But I agree with you, Karen. I think he picked through the case law well, including some older Georgia case law dating back to 1916 about the appearance of impropriety and why a prosecution,

as you know well as a former prosecutor, shouldn't be burdened, can't be burdened with the public perception of an appearance of impropriety. Now, when he turned to the church, yeah, he didn't like that. And he basically invited the defense to file a motion to limit the prosecutor's continued public comments. He said, I'm not going to do it now, but the time might have arrived for us to have a formal order in place. Now, some people in our audience might be saying, oh, sure, he, Donald Trump gets barely gagged. Now the prosecutor's going to get back, get gagged. But look, I think it goes to Karen's point, your point, Karen, that prosecutors are held to a higher standard because they represent the state and

justice in their role as public officers, as opposed to defense lawyers like McMe, that have to throw everything against the wall to hope to put on a proper case and save my client from going to jail in that regard. On the relationship, he did have negative comments about Nathan Wade. Let's look on page 15 and at some of the witnesses that went up on the stand. He said, at the bottom of 15 over to 16, most importantly, were the case allowed to proceed unchanged,

meaning with Nathan Wade still in place or Fonny Willis still in place, the prima facie concerns raised by the defendants would persist. As the district attorney testified, her relationship with Wade was only cemented after these, that's her words, after these motions and is stronger than ever. Wade's patently unpersuasive explanation,

this is an attack on Nathan Wade, for the inaccurate interrogatories he submitted in his pending divorce about his money indicates a willingness on his part to wrongly conceal his relationship with the district attorney. This is not a great ruling for Nathan Wade. There's no other way to put this. As the case moves forward, the judge says, reasonable members of the public could easily be left to wonder whether the financial exchanges

have continued resulting in some sort of benefit to the district attorney. In other words, it would have been better if that relationship ended, the opposite happened. It looks like they got stronger as a result of it. And so at the end, the judge said the testimony about it doesn't help. Now on Terrence Bradley, we spent a lot of time

and the Midas Touch Network of course broadcasted all of the testimony, riveting testimony in this case, including of Terrence Bradley on page 16, as we predicted the judge did not find credible anything that Terrence Bradley said about text message exchange with Ashley Merchant, a lawyer from Michael Roman, in which he tried to suggest that the relationship between Fonny Willis and Nathan Wade started a long time ago, much earlier even before the indictment. In fact, the court says on page 16, on that front, the court makes a few observations. First, the court finds itself unable to place any stock in the testimony of Terrence Bradley. His inconsistencies, demeanor, and generally non-responsive answers

left far too brittle a foundation upon which to build any conclusions. While prior and consistent statements can be considered as substantive evidence under Georgia law, Bradley's impeachment by text message did not establish the basis for which he claims such sweeping knowledge of Wade's personal affairs. That is a criticism of Ashley Merchant and how she handled the quote unquote impeachment issue in court. In addition, while the testimony of Robin Yerty,

who was, who used to be a friend of Fonny Willis, raised doubts about the state's assertions, it ultimately lacked context and detail. Even after considering the proffered cell phone testimony from defendant Trump, along with the entirety of the other evidence, so that is now crediting Steve Sada, the lawyer for Donald Trump, neither side was able to conclusively establish by a preponderance of an evidence when the relationship evolved into a romantic one. So there goes the perjury charge, yet the very next sentence tells you where the judge is left in his mind. This is where, however,

an odor of mendacity that's lying, not telling the truth, remains. And the judge says, I'm not going to ferret out every instance of it, but I'm troubled by it. Now, at the end, he says the dismissal of the indictment is not appropriate. We knew that was coming, that he wasn't going to dismiss the indictment because he wouldn't have gotten rid of six counts of it if he was going to dismiss the next day the entire indictment. So, he took some cold comfort from how he did that. And at the end, the judge says, as Karen, you said on page 19 about the prepared speech that she gave to the Bethel Church, historic church in Georgia, he did not like that speech. He did not like that she's doing that.

And at the very end, he said about public comments on page 20 over to 21, but it was still legally improper providing this type of public comment creates dangerous waters for the district attorney to wade further into. 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. But that is not the motion presently before the court. That's the invitation by the court for the defense to file the motion, which he's going to grant to sort of gag Fonny Willis going forward. But the conclusion is all we needed. The conclusion is she has one of two choices, Karen.

I want to hear your view of what she does. She either disqualifies herself and takes the entire Fulton County office with her, or she fires Nathan Wade. What happens next? I suspect Nathan Wade is going to do the right thing and voluntarily resign so that she does not have to fire him and she's not going to get off the case. I do have two more things I just want to mention.

Number one, this invitation to gag Fonny Willis better be a gag on both because it really is not a situation that any prosecutor should ever be in where they can't respond if there are lies or comments made by a defendant in a case. And so we understand that Donald Trump is going to continue to speak about this case as are his co-defendants and she has to be able to respond if they mislead the public or say anything that could be prejudicial to the case. So I do think any order should be carefully crafted when when he does grant it, because, as you said, Popak, that was an invitation for for such emotion.

So it'll be there as a matter of time. And the only other thing I wanted to mention is Joyce Vance, who's a brilliant lawyer, just tweeted out that under Georgia law, the defense has to apply for a certificate of immediate appeal ability. There's no automatic appeal. So unlike the motions to dismiss earlier this week where judge McAfee indicated he would grant one his order today is silent. So I thought that was very interesting about the

very good observation headline headline is the Trump prosecution. With, with some indictment, uh, uh, changes that may be coming with a, with a superseding indictment in the future that the judge invited is on solid footing. It goes forward. The prosecutor will not be removed by judge order nor by her own decision-making. I agree with you that Nathan Wade will step aside. It could happen as early as today. We'll do another set of hot takes on that and pick it up on the weekend edition of Legal AF. But the Georgia prosecution remains on foot along with the indictment. Right now,

Fonny Willis kind of reinvigorated the old line, what doesn't kill you makes you stronger. I don't think she could be any stronger. She'll now restaff the case. She's got Rico experts, one in particular on her staff that she's used in the past. He'll take the front and center with her. She'll try this case and she will move forward, I am sure, with trying to get another indictment against Donald Trump to clean up a couple of the counts if she feels she needs it or unless she goes the whole racketeering, influence, and corrupt organization act route to get a quick trial. I think it's going to depend on when she gets a trial and if she wants to delay it by another

period of time to impanel a grand jury again to issue a new indictment, or she's just going to live or die on the sword of her own indictment that's present now as whittled down by the judge, that'll be another prosecutorial decision that will follow closely. I think it's going to be tied to when the judge is going to get around to setting trial. Hopefully now he's busy with all this other sideshow stuff set the trial of Donald Trump For some reasonable time and let the prosecutor prepare the case that that's where we are We'll continue to follow this on legal af we do it karen freeman and I do our show on wednesdays

On 8 p.m Eastern time on this youtube channel and then ben myself and I pick it up on saturdays And then the leaders of legal af karen ben and, we do hot takes like this one on cutting edge issues about every hour right here one place, the Legal AF and the Midas Touch YouTube channel. Free subscribe, help them get the three million free subscribers before the election. That's a goal that you can help us meet. And then if you like what we're doing here, leave a comment and you can talk back to us in the chat and we'll be happy to con you know,

we've been known to jump back in and have that dialogue with you. So until our Karen and my next hot takes until our next legal AF says Michael Popock and Karen Friedman, Nick Nifilo signing off. Hey Midas Mighty. Love this report. Continue the conversation by following us on Instagram at Midas Touch to keep up with the most important news of the day. What are you waiting for? Follow us now.