Could Georgia’s Fani Willis be removed from prosecuting Donald Trump?

Allegations Fulton County District Attorney Fani Willis had inappropriate relationship with special prosecutor she hired fueled calls for her to step back

Accusations that Fulton County District Attorney Fani Willis had an inappropriate relationship with a special prosecutor she hired to seek convictions of Donald Trump and others for interfering in Georgia’s 2020 election have led to renewed calls to remove Willis from the case.

Willis has defended her hiring of Nathan Wade, who has little prosecutorial experience and has not directly denied a romantic relationship. The allegations were first made public in a motion filed earlier this month by defence attorney Ashleigh Merchant, who represents former Trump campaign staffer and White House aide Michael Roman.

Merchant alleges that Willis’ office paid Wade large sums and that Willis improperly benefited when Wade then paid for the two of them to go on vacations. Merchant has not offered any proof of the alleged relationship. But a filing last week by Wade’s wife in their divorce case includes credit card records that show that Wade bought plane tickets for Willis to travel with him to Miami and San Francisco.

Willis, an elected Democrat, has shown no signs of stepping down, but there are ways she could be removed. Here’s a look at some options:

What can the judge do?

Merchant’s motion asks Fulton County Superior Court Judge Scott McAfee to remove Willis and Wade and their offices from any further prosecution of the case. McAfee has the power to do that.

In fact, another judge, Fulton County Superior Court Judge Robert McBurney, took that step in July 2022 when he was presiding over the special grand jury investigation that preceded the indictment in the election case.

Then-Sen. Burt Jones, one of 16 Georgia Republicans who signed a certificate falsely stating that Trump had won the election and declaring themselves the state’s “duly elected and qualified” electors, had been told he was a target in the election case. He argued that Willis had a conflict of interest because she had hosted a fundraiser for his Democratic opponent in the lieutenant governor’s race.

McBurney ruled in Jones’ favor, writing that the situation had gone beyond bad optics and had created “a plain — and actual and untenable — conflict.” He prohibited Willis and her office from prosecuting Jones in the case.

If McAfee decides to take similar action and to remove Willis and her office from the election case, it would be up to the Prosecuting Attorneys’ Council of Georgia to find another prosecutor to take the case. That person could continue on the track that Willis has taken, could choose to pursue only some charges or could dismiss the case altogether.

Finding a prosecutor willing and able to take on the sprawling case could be difficult, former Gwinnett County District Attorney Danny Porter said. Only a few district attorneys in the state — all around Atlanta — have the resources to handle such a case, he said.

District Attorney for Fulton County, Fani Willis (AP)

Could Willis step away from the case in order to save it?

If Willis were to recuse herself, it’s likely her whole office would have to step away from the case, Porter said. In that scenario, too, it would be up to the Prosecuting Attorneys’ Council to find someone to take it on.

Attorney Norm Eisen, who served as former President Barack Obama’s ethics czar, said in a press briefing Saturday that based on what he knows so far, “there is absolutely no legal basis under Georgia law” for Willis or Wade to be disqualified.

But, Eisen said, “the wise thing to do at this point is for Mr. Wade to voluntarily end his time on this case.” Even though he is not legally required to do so, Eisen said, “at this point, the conversation about these issues has become a distraction” from the “overwhelming amount of evidence justifying the decision to prosecute Mr Trump and his co-conspirators.”

Could an oversight commission remover her?

Many Republicans would like to see Willis investigated by Georgia’s new Prosecuting Attorneys Qualification Commission. That body was created last year to discipline and remove prosecutors. But it hit a snag after the state Supreme Court refused to approve the commission’s rules.

Lawmakers this year are seeking to remove the court’s required approval, allowing the commission to begin operating. The commission would be able to remove district attorneys from office or discipline them for a conflict of interest, “conduct prejudicial to the administration of justice which brings the office into disrepute” or for “willful misconduct in office.”

However, it’s unlikely that the commission could remove Willis just from the Trump case, unless she agreed to step aside in a negotiated settlement.

Could state lawmakers impeach Willis?

A few lawmakers have proposed impeaching and removing Willis, an idea Trump endorsed over the summer. However, Georgia’s General Assembly hasn’t impeached anyone in more than 50 years. And a two-thirds majority of the state Senate is required to convict. That’s a tough hurdle because Republicans currently control less than two-thirds in the 56-seat Senate. A Republican is likely to win a vacant seat, bringing the GOP majority back to 33. Even then, five Democrats would have to vote to convict.

Also working against an impeachment proceeding: All of Georgia’s lawmakers are up for reelection this year. Taking up impeachment could keep them in session and off the campaign trail.

State Sen Colton Moore of Trenton tried to persuade fellow Republicans to call themselves into special session over the summer to go after Willis, but never got close.

Could the state bar step in?

The State Bar of Georgia, which regulates lawyers, adopted special rules in 2021 governing prosecutorial misconduct. But those rules dealt with a prosecutor’s duty to disclose evidence that might prove someone’s innocence.

If Willis were to face consequences from the bar, she would have to be disciplined under the rules applying to all lawyers. The bar has rules against conflicts of interest, but they are mostly geared to private lawyers who may mistreat clients. It’s unclear how those rules might apply to this case.

Are there other consequences?

A Fulton County commissioner, Republican Bob Ellis, sent Willis a letter Friday demanding information on how she spent county money and “whether any payments of county funds to Mr. Wade were converted to your personal gain in the form of subsidized travel or other gifts.” Commissioners could cut Willis’ budget in the future, but Democrats hold a majority on the commission. Fulton County’s government has a code of ethics, but the county doesn’t appear to prohibit consensual relationships. The county Board of Ethics could fine and reprimand Willis, but doesn’t have the power to remove her.

Republican state Sen. Greg Dolezal of Cumming on Monday proposed a special Senate committee to investigate Willis, saying a “thorough and impartial examination” would “ensure transparency, accountability and the preservation of the integrity of our justice system.” Dolezal’s proposed resolution suggests legal or budget changes could follow any inquiry.