Judicial Notice (01.13.24): In The Hot Seat

Fani Willis in trouble, Davis Polk on trial, updates on federal judicial nominations, and other legal news from the week that was.

Fulton County Special Prosecutor Nathan Wade, during court proceedings on October 16, 2023 (photo by Alyssa Pointer via Getty Images).

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Greetings. I hope you’re having an excellent long weekend, including some time to reflect on the life and legacy of Dr. Martin Luther King Jr.

First, a quick housekeeping note. Thanks to the almost 300 of you who voted in last month’s font poll. To my surprise, sans serif won handily, 57 percent to 43 percent—so the font of Original Jurisdiction will remain unchanged. (I did enjoy some of the reader comments, like this one: “If I were raised by wolves, I might select sans serif. Fortunately I was not raised by wolves.”)

Thanks also to everyone who submitted testimonials for Original Jurisdiction, which I’ll share each week in Judicial Notice. I’ll begin with Colin Levy, Director of Legal and Evangelist for Malbek: “Original Jurisdiction is a thoughtful and evenhanded publication that provides the reader with timely and insightful analysis of current controversies within the legal industry. Posts are considerate, engaging, and analytical. I deeply value all of those things. This approach speaks to David Lat’s character, acumen, and humanity.” (The admiration is mutual; I blurbed Colin’s new book, The Legal Tech Ecosystem: Innovation, Advancement & the Future of Law Practice, which is “an invaluable guide to an increasingly important field.”)

Now, on to the news.

Lawyers of the Week: Fani Willis and Nathan Wade.

Fani, we hardly knew ye. Fulton County District Attorney Fani Willis, whose prosecution of Donald Trump seemed to be picking up steam, has been hit with allegations that could end with her ouster from the headline-making case.

As first reported by the Atlanta Journal-Constitution, one of Trump’s co-defendants—Michael Roman, a former Trump campaign official—alleged in a court filing that Willis and Nathan Wade, one of three special prosecutors she appointed to work on the matter, “have been engaged in an improper, clandestine personal relationship during the pendency of this case.” And because Wade has been paid more than $650,000 to date, some of which he allegedly used to take Willis on a Napa Valley trip and Caribbean cruises, both Willis and Wade “profit[ed] significantly from this prosecution, at the expense of the taxpayers.”

Roman’s motion further alleges that despite being hired to serve as a special prosecutor in an extremely high-profile, multi-defendant racketeering case, Nathan Wade has never tried a felony racketeering case—or any felony case, period. He also apparently billed Fulton County for 24 hours of work in a single day in November 2021, which is… not great. Roman seeks to have the charges against him dismissed, and he has also called for Willis, Wade, and the entire Fulton County DA’s office to be disqualified from the case.

How did Roman’s counsel, Ashleigh Merchant, learn about a possible relationship between Willis and Wade? According to the Journal-Constitution, she obtained some information from the case file in Wade’s ongoing divorce proceedings—in which Fani Willis has been subpoenaed to testify. Merchant isn’t sharing information from the divorce file because it was sealed at some point after her review, but she claims it was improperly sealed and has moved to have it unsealed.

What do Willis and Wade have to say? So far, not much. According to Willis’s office, the prosecution will respond through a court filing, and Judge Scott McAfee will then schedule a hearing, expected to take place next month.

But in remarks delivered today (Sunday) at Big Bethel A.M.E Church in Atlanta, Willis alluded obliquely to the controversy. She described herself as “imperfect” and “flawed”—like Dr. King, whose “journey was full of mistakes” and alleged “personal indiscretions.” Without mentioning Wade by name, she praised his “impeccable” credentials—and noted that even though she appointed three special prosecutors, critics are attacking only the Black man.

The consensus among legal experts is that Merchant’s allegations won’t lead directly to dismissal of the indictment, since they don’t affect the factual basis for the charges, but they’re still good news for Trump. If true, they could lead to the disqualification of Willis and her office. If that happens, as explained by Ken White and Josh Barro on Serious Trouble, the Prosecuting Attorneys’ Council of Georgia would pick a new prosecutor. That could cause a lengthy delay in the case—sometimes the Council takes more than a year to appoint a new prosecutor—and it could also result in appointment of a prosecutor who’s not inclined to pursue the case zealously (or at all). What a mess.

In memoriam: Leon Wildes, the well-known immigration lawyer who came to prominence for successfully saving John Lennon and Yoko Ono from deportation, passed away at 90. May he rest in peace.

Judge of the Week: Judge Kevin Newsom.

I’m a fan of the First Amendment, and I’m a fan of Judge Kevin Newsom (11th Cir.). So I was a happy camper this week, with Judge Newsom writing two noteworthy concurrences in First Amendment cases (and joining an opinion by Judge Britt Grant in a third case that vindicated free-speech rights).