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Final Arguments in Fani Willis Hearing Begin. Aired 1-1:30p ET

Aired March 01, 2024 - 13:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[13:00:57]

BORIS SANCHEZ, CNN HOST: Welcome to CNN NEWS CENTRAL. I'm Boris Sanchez alongside Jessica Dean in Washington.

And in just moments, we're going to see some pivotal arguments in the Georgia election subversion case against Donald Trump and his co- defendants. Attorneys for Trump and his co-defendants are going to deliver closing arguments in their push to disqualify the person who brought that sweeping case, Fulton County district attorney Fani Willis.

They claim that Willis financially benefited from her romantic relationship with one of her top prosecutors, Nathan Wade.

JESSICA DEAN, CNN HOST: Now, the judge will ultimately decide if the defense proved those explosive allegations.

We're going to take you live inside the courtroom once those presentations begin, which we are expecting momentarily.

But, first, let's take you to Zachary Cohen, who is outside the courthouse in Atlanta, and also here with us, CNN anchor and chief legal analyst Laura Coates.

Zach, let's start with you.

How are you expecting all of this to play out today?

ZACHARY COHEN, CNN NATIONAL SECURITY REPORTER: Yes, guys, any minute, we expect defense attorneys for Donald Trump and his fellow co- defendants to enter this courtroom and lay out for the judge in this case, Judge Scott McAfee, why the evidence that they have put forward so far warrants disqualifying Fani Willis, the district attorney here in Fulton County, from the Georgia election subversion case.

And, look, they're going to have to meet the burden. And one of the things we're looking for from Scott McAfee to clarify today is what that burden is exactly. Now, it amounts -- whether the evidence amounts to a conflict of interest, they have argued that the evidence shows that Fani Willis financially benefited from her romantic relationship with Wade.

Or even if the burden is the appearance of a conflict of interest, that could radically change sort of the calculation into whether or not the Scott McAfee is likely to ultimately disqualify Willis.

But, look, the lawyers for the district attorney's office are going to have a chance to push back and make their own case as to why Fani Willis should remain on the case. And I don't have to overstate the stakes here for you guys. It's a pivotal moment in this case.

Sources have told me for weeks now that if Fani Willis is disqualified, people inside the district attorney's office fear that that means this case itself is effectively dead, because nobody else in this state will want to pick it up because of the political taint that would be on it.

And now, look, we're also looking to see more from Scott McAfee if we will offer any clues as to where he might be leaning. Coming into this hearing, all -- a lot of questions coming in, but we're hoping that we could at least get some clarity in whether or not we might be headed toward a resolution over the question of whether or not Fani Willis remains or is disqualified here.

SANCHEZ: Zach, please stand by.

We are watching Judge Scott McAfee. The proceedings appear to be getting under way. A moment ago, we saw the defense team and the prosecution settling into place.

Before we go to the proceedings, let's listen to Laura Coates and what she has to say about what we're expecting today.

It's been steamy. There's been some fireworks. It's been a hot mess.

LAURA COATES, CNN SENIOR LEGAL ANALYST: This has been a hot peach cobbler. We are all the way down in Georgia, right, in Atlanta and thinking about it.

Think about what the stakes are. Zach is right. If Fani Willis is disqualified -- and that's a high burden to meet, by the way. It is having to show that she had a conflict of interest that actually hurt the defendants, that they cannot have a fair trial, not just issues that are salacious and the details that people are leaning into hear about, but did it actually impact the ability to have a fair trial?

They -- those who are moving for it, have to connect those dots. It has to be a financial benefit of some kind. They have had trouble establishing that through thread there. And why? Because her having an additional income or a separate income and going Dutch, so to speak, cannot be enough to establish conflict of interest.

It might surprise people to know that there are romantic endeavors that take place between police officers, prosecutors, defense attorneys, judges. It is the real world. Does it actually hurt the defendants in the case here?

Now, today, this judge has had very little patience up until now about how to have this whole thing go down. It is their burden to prove it, and we're going to see if they actually meet it. DEAN: And so I'm curious too, Laura, what you think about the fact that this controversy, whether or not, whatever happens today, it is now -- has it tainted kind of public opinion on this? And so what's the public opinion piece of it moving forward?

[13:05:07]

Will it have any bearing on this trial?

COATES: Ask yourself, if you were a juror called to serve in this matter, hoping to focus on the presentation of evidence, and, instead, you're thinking, now, which one of you were involved and what's happening here, trying to get distracted?

Nothing we have heard so far goes to the underlying facts in the case. So that's the most important part here. We haven't touched the allegations against any of those co-defendants. There has been no credible evidence to undermine any of those allegations as of yet.

The focus is that. But the idea that she could be disqualified is not just her. It'd be the entire office. It'd be a separate prosecuting counsel in Georgia, whose job would then be to appoint or assign, because this is not the most attractive case to want to bring, for security reasons alone, let alone the scrutiny and the pay.

DEAN: Right.

COATES: And so the entire office would be disqualified, which means they don't have to even follow the grand jury indictment.

SANCHEZ: Right.

COATES: They don't have to keep this case, keep all the defendants. They could add to the defendants. They could not go forward. Either way, the timeline would be totally thrown off of such a consequential case during a consequential period in American history.

SANCHEZ: Would you say that Trump's team has been successful on those two fronts, if their strategy has been partly to muddy the waters?

As you say, none of what we're watching today or up to this point has really been about the facts of the case, outside of Sidney Powell and Kenneth Chesebro sort of adjudicating their aspect, their angle of this. And then the second part of it is the fact that the Trump team in all of these cases has tried to delay, delay, delay.

It's been a success for that defense team, hasn't it?

COATES: This has been death by 1,000 credibility cuts. Why? Because think about when you're in the courtroom and you're listening to the presentation of evidence and you have a lawyer whose credibility has been challenged, then turning to a witness and trying to challenge theirs on the stand.

Oh, so these documents don't actually say this or I'm expected to believe what you have to say, trying to persuade a jury of 12 people on this, maybe thinking, well, hold on, you're not a blank canvas to me. I don't necessarily give you the benefit of the doubt in the same way. That's a problem.

But, again, we have not touched the actual meat on the bone of the case. And we have some time between now and if there is a trial, amnesia sets in like you wouldn't believe in a lot of cases. And, remember, this is the actual site of the allegations where people's votes were likely affected or sought to be impacted.

And that could actually overrule one's irritation with the more salacious. But make no mistake about it. No prosecutor, Fani Willis, Nathan Wade or anyone on that team, wants anyone thinking about these aspects, as opposed to the facts in this case.

DEAN: Well, that's it. You want them focused on the case.

I mean, Boris, you mentioned I think such a salient point, which is, it's the muddying of the water is their strategy here, because you just said it. We have even gotten to the meat of the case here. This is about just muddy up that water as much as you possibly can.

COATES: Optics are very important.

DEAN: Yes.

COATES: They are important for jurors. They are important if we think about the hint of impropriety. We challenge our Supreme Court justices or judges on conflicts of interest.

But for this judge, his focus ought to be the law. I mean, the optics, we can all agree no one should be hearing about whether someone likes Grey Goose versus wine...

(LAUGHTER)

COATES: ... whether a bartender accepted your cash or not...

SANCHEZ: Yes.

COATES: ... what trips you had the time to take. I didn't have that kind of time to take as a prosecutor. I still don't at CNN.

(LAUGHTER)

COATES: I have an issue with that.

(LAUGHTER)

COATES: But I don't have any issue about thinking about this judge has to be focused. Did you meet the burden? You brought us here because you wanted to qualify an elected official because you say there is a conflict of interest that will mean that these defendants can't get a fair trial.

So he has to synthesize. He has to focus. He has to follow that legal obligation. SANCHEZ: I want to bring Zach back into the conversation. I believe

he's still on. OK, Zach is gone.

But...

COATES: OK. Well, you got me, kid.

(LAUGHTER)

SANCHEZ: Hey, and you can answer this just as well as he can.

DEAN: And we feel good about it, yes.

SANCHEZ: So, one of the things, you mentioned the burden of proof and the challenge that the defense team has to show that there was impropriety...

COATES: Yes.

SANCHEZ: ... that that there was a conflict of interest, et cetera.

So Judge McAfee has said that he's going to allow this report from a private investigator that tracked the cell phone pings of Nathan Wade and put them within a certain distance of Fani Willis at all hours of the night.

COATES: Sure.

SANCHEZ: How could that impact what we see in this hearing?

COATES: Well, first let's talk about how the technology would work. If you think about the way in which your cell phone receives data and signals, it's kind of like a baton relay race.

As you go to one area, the baton is passed, the other to pick it up. That's how you're able to sort of track someone's movements. The investigator and how I prosecuted cases in the past, and the FBI often does the same thing, is to figure out what your course was. What was your actual path based on that baton pinging?

Where are you and how long were you there? It doesn't tell you what the text messages, necessarily. It doesn't tell you what the nature of the conversation, but the sheer contact of pinging alone.

[13:10:05]

Why this is important here is because they have said in testimony that they did not begin a romantic relationship before a certain date, that he did not spend the night, I think it was the phrasing that they asked him about, trying to establish that he had visited a particular location where she lived.

They were trying to suggest it was some kind of a love shack, that's why she didn't live at home any longer. You laugh at that phrase.

SANCHEZ: Every time you say it, it gets me. (CROSSTALK)

COATES: I mean, The B-52's have a hell of a song about a love shack. It wasn't part of the trial here, but this is part of the issue.

(LAUGHTER)

DEAN: But it is a terrific song.

COATES: It's a whole thing, right, the tin roof rusted.

DEAN: Yes.

COATES: But that's the implication they're trying to make here. And so they're trying to discredit and saying, you testified in front of this court about certain dates. You have a duty of candor under your ethical obligations in the courtroom. And this judge knows it and they're all lawyers.

They want to discredit that very testimony. Again, though, does it go to the heart of the matter of disqualification and being able to prove that this is going to hurt the defendants in this action? Likely not, but remember as well, here's what's interesting. You have to fight to get that in through an expert that can be qualified as an expert to say what you are presenting it as is actually intended to go to the meat of the matter.

It's interesting to figure out how cell phone data works, but the defense who raised the motion got too cutesy. When they didn't ask precise questions, they said things like, did you spend the night, did you sleep over?

I have prosecuted sex crimes. We have to be quite precise in the language to actually get the testimony in. They tried to dance around an issue. It might hurt them in the end.

DEAN: All right, well let's listen and listen in and see as this begins down in Fulton County.

(JOINED IN PROGRESS)

JOHN MERCHANT, ATTORNEY FOR MIKE ROMAN: ... conflict issue and the appearance of the conflict and what we believe the evidence to show on that issue.

Mr. Sadow, Mr. Gillen will be talking more about the forensic misconduct piece of it, Ms. Willis' church speech, statements made to the media, fraud on the court, frankly, and the book that she gave several interviews for. So I won't be discussing any of those issues, so if you would like to ask me, certainly, I can try to address them, but that's going to be the focus of their presentation.

And then towards the end, other folks may have issue specific-type arguments, either in follow-up to mine or the forensic misconduct. But those are the two lanes that we're going to be covering, but I'm going to do the conflict piece of it for you. And on that issue, Your Honor, this is a matter of first impression in

Georgia. I can't find a single case that's been published by the Court of Appeals or the Supreme Court that is based on these facts. There are, of course, a number of different appellate court cases that deal with conflict-related issues, and, more importantly, appearance of conflict-related issues.

And some of those are based in state law. Some of them are based on the ethical rules that govern lawyers. Some of them are based on the Sixth Amendment right to due process that's implicit in all of what we're doing here today.

I want to remind the court that we're here today on this motion to disqualify DA Willis and her office because of her judgment, frankly. She is supposed to be disinterested under the Sixth Amendment, and she's anything but that.

The fact that these proceedings have taken this long and through the convoluted way we have made it here today explain that. So, as I present my arguments, I want the court to understand that this court represents the guardrails for the Sixth Amendment in this context, and Ms. Willis has already been disqualified once.

So I would encourage the court to remember what Judge McBurney did in his order disqualifying. The same argument was made in that case as to whether or not there needs to be an actual conflict of interest or whether or not the appearance of a conflict of interest might be sufficient under the facts.

I want to make clear to the court that I -- the law in Georgia suggests and is very clear that we can demonstrate an appearance of a conflict of interest, and that is sufficient. There are -- there is -- I'm going to be candid with the court. There is a Supreme Court decision from 1996, Lam v. State (ph), and then there are two court of appeal decisions after that that deal, frankly, in some dicta that suggests that an actual conflict is required.

But the Supreme Court of Georgia, since those decisions came down, has made quite clear that the appearance of a conflict standard still applies. And the reason that's important is, I think, under the Sixth Amendment, which is where we're at, in order to preserve the defendant's rights under that provision and under the corollary provisions of Georgia law, you have got to consider the appearance of a conflict.

And the reason why the appearance of a conflict is so prescient here is because, if this court allows this kind of behavior to go on and allows DAs across the state by its order to engage in these kinds of activities, the entire public confidence in the system will be shot and the integrity of the system will be undermined.

[13:15:05]

And so, with those sort of public policy and constitutional principles, I wanted to turn to the law in Georgia on disqualification. And, Your Honor, I'm going to give you the law and I'm going to talk about the facts and how they apply to the law at the end.

If you want to talk about the facts earlier, jump right in and I will be happy to do that. I'm sure Your Honor is very well-prepared and probably knows all the law that I'm going to cite to you.

But to give the skeleton outline, the original seminal case that deals with conflict of interest from the Georgia Supreme Court is Williams v. State. That's 258 Georgia 305. And there are basically two methods by which you can disqualify a district attorney. One of them is a conflict of interest -- and I will suggest to the court that doesn't mean an actual conflict -- that could mean an appearance of conflict as well -- and then forensic misconduct.

Importantly, in the Williams case, though, in footnote four -- and I think this is important for the court's analysis about the facts and which box it fits into -- the court said there was no clear demarcation line between conflict of interest and forensic misconduct, and a given ground for disqualification of the prosecutor might be classifiable as either.

And I think that's important because we have facts that fit in both boxes. So if a state stands up and says, well, there's no actual conflict here, Judge, that doesn't mean necessarily that it doesn't apply to the forensic misconduct.

Typically, forensic misconduct relates to statements of the prosecutor designed to impugn the character of the defendant before trial and to affect the jury pool, which we have here, which I'm not going to discuss, but the facts that we have here very much relate to that issue.

And there's crossover. Importantly -- and I think this is important for the court's consideration of what effect the court's ruling may have, is, if you deny this motion, there's a good chance, if it's reversed, that we would be granted a new trial.

So that means we're going to have to do this all over again. In Amusement Sales v. State 316 Georgia Appellate 727, that's a case that cites Whitworth, which is physical precedent only, the court said: "If the assigned prosecutor has acquired a personal interest or stake in the conviction, the trial court abuses its discretion in denying a motion to disqualify him and the defendant is entitled to a new trial even without a showing of prejudice."

So that means, if we show the court today -- and I think we have through the proceedings today and before -- that Ms. Willis has developed a very personal interest in this case, and Your Honor denies this motion, we're coming back all over again if the appellate courts say you were wrong.

JUDGE SCOTT MCAFEE, SUPERIOR COURT OF FULTON COUNTY, GEORGIA: So what is that personal interest?

MERCHANT: So the personal interest can be -- there's no definition of that under George law. And it could be a personal financial interest. It could be a personal interest related to bias against a particular defendant, which sort of falls into the forensic misconduct box.

But we have here a very personal financial interest that's been laid out in terms of money received by Ms. Willis as a result of the scheme that she set up. And to get to the issue of the personal interest in the context of an appearance, I think that's important.

I do want to suggest to the court that there are a number of cases that postdate this actual conflict of interest language that suggests in some of the cases from the '90s that you have to pay attention to what this looks like to the public.

And I agree with all of the law, and I'm sure the state's going to stand up here and say, it can't be a speculative or a conjectural type of personal interest. We don't have that here. We have something very concrete, and, as Judge McBurney put it, actual and palpable, not speculative and remote. That's exactly what we have here.

We have demonstrated through the testimony of the witnesses, some of whom impeached themselves, that we have a very personal interest. And the seminal United States court case that deals with prosecutorial impropriety is Young v. U.S. That's a 41 U.S. 787 case.

In that case, it's the opportunity for conflicts to arise that created at least the appearance of impropriety. And that's the case that requires that the prosecutor be disinterested, since a scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant and impermissible factors into the prosecutorial decision.

Now, there are a number of Georgia cases that sort of repeat that theme. Reeves v. State, 231 Georgia Appellate 22, that's a 1998 case, stated a potential conflict of interest existed and the appearance of impropriety existed.

[13:20:00]

Davenport v. State, 157 Georgia appellate 704, that's a 1981 case. That was decided seven years before Williams. "When there is at least the appearance of impropriety, a defendant is denied fundamental fairness in the state's prosecution of the charges against him or her."

There are also rules that govern prosecutors. Lawyers in general are bound to preserve and avoid even the appearance of impropriety. That's Brown v. State, 256 Georgia Appellate 603, 202, 2002. Head v. State: "The prosecutor's close personal relationship with the victim in a case may create at least the appearance of a prosecution unfairly based on private interest, rather than one properly based on vindication of public interest."

ABA criminal justice standards for the prosecution function standard 3-point -- 3-1.2C: "A prosecutor should avoid appearance of impropriety in performing the prosecution function" -- 3-1.7F: "The prosecutor should not permit the prosecutor's professional judgment or obligations to be affected by the prosecutor's personal, political, financial, professional, business, property or other interests or relationships."

So the rules that govern her in her own profession say that this is wrong because she's developed a financial interest in this case and, at the very least, created the appearance of unfairness towards these defendants by setting up a relationship, a prosecutorial relationship, with her boyfriend that she'd been dating for two years, according to the testimony.

So before I move, Your Honor, to the specific facts, I -- you asked what's personal interest? And I think, frankly, as I was trying to figure this out, I think you know it when you see it. It's just like in the concurrence in Jacobellis v. State of Ohio, the Supreme Court case from 1964, Justice Stewart in his concurrent opinions said "I know when I see it" talking about obscenity.

I think you know it when you see it. I think there's enough facts in front of you that you know it when you see it. And so I think that governing principle helps enlighten some of the facts here. And, also, I think it's not just financial.

In McLaughlin v. State, I think the court is very familiar with that case, 295, Georgia 609, 2014, the Supreme Court essentially said that because the acting DA had become a witness in the case and developed a personal interest in the case due to his daughter's relationship with the victim, that he was disqualified.

And not -- and because he was disqualified, his entire office was disqualified. So, turning to the facts of the case, Your Honor, I think I have got -- my role is 20 minutes, so I have got about eight minutes left.

To why -- why -- the relationship, why did we spend so much time on a relationship between these two people? We, frankly, couldn't care less if they had a personal relationship outside of work. That is not what the issue is here.

The issue is that they began this relationship in 2019. They were dating for two years, and then she awarded him a contract where public money, either from Fulton County or the state of Georgia, ended up in his pockets. That decision alone was improper.

But what's even more improper is that then she and he used that money to go on personal vacations and trips. If Your Honor will remember, exhibit 9, 11, and 12 dealt with the expenditures by Wade on trips. If you do the math on that, if you look at what he spent and then you look at the testimony about what was paid back by Willis, because the cash reimbursement theory, I will talk about in a second.

But he -- if you do the math on what he actually paid for and what they testified she paid back in cash, you still have over $9,200 -- $9,200 and -- $9,247, to be exact is the amount of money they cannot account for in their testimony.

And as Your Honor will remember, there was no mention of cash in Mr. Wade's affidavit when -- the best and first opportunity to raise that issue would have come up is when the state filed their response in his affidavit. That is nowhere to be found in there. The first time we heard about cash was here in this courtroom.

And so I think she had a -- so she's received a personal financial benefit of over $9,200 in this case that she can't account for and the state can't account for. And the reason we can't account for it is because they came up with a cash theory.

Cash theory only raises...

MCAFEE: Before we get into this, let me ask you this.

Let's say they couldn't have -- let's say the theory wasn't even there that they had paid it back or that there had been any exchange. Should there first be a consideration of a materiality requirement?

[13:25:04]

MERCHANT: No.

(CROSSTALK)

MCAFEE: Have you seen that in this jurisdiction -- or not in -- it's not in this jurisdiction? Have you seen that in any other jurisdiction?

MERCHANT: I haven't seen that, Judge.

And if it was $6, that would still be improper.

MCAFEE: Would it be improper where it's a per se disqualification if someone buys their boss a stick of gum? Is that per se disqualifying? Because there's no materiality requirement?

MERCHANT: It -- I -- I don't disagree that it may not meet a materiality requirement, but it's a personal benefit. I won't say that giving pack a gum is justification for disqualifying a district attorney.

I think that's part of the issue, Judge. I think it's a fact-based inquiry by you.

MCAFEE: So there's a continuum involved here?

MERCHANT: Yes, but I think the continuum involves you looking at whether or not, on the grand scheme -- in the grand scheme of things, it violates the Constitution and whether or not there's an appearance of a conflict, and the appearance suggests that she actually received a benefit.

And we know that she did. They admitted it. We don't have to speculate about that. They said that they -- she said she got a benefit, and she said she paid back certain amounts. So, would it -- so, in that regard, Your Honor, I don't know. Would $100 be enough? Would $200 be enough? I think you have to look at it kind of globally and consider all of the witnesses, consider all of the facts.

Consider the credibility of the witnesses, frankly. MCAFEE: OK.

MERCHANT: I mean, Your Honor sat here and watched everybody, so I haven't spent a lot of time going into the specific testimony because Your Honor's well aware of it.

But you get to evaluate the credibility of the witnesses as a fact finder. And just...

MCAFEE: Just from a legal perspective, though, you're saying we can't just say dollar amount, look no further? There has to be a totality of the circumstances analysis?

MERCHANT: I think it's fact-specific, Judge. I don't really want you to pin me down on that, because there's no law on it. I can't give you a straight answer because I haven't seen anything like that.

I don't -- and I think if we build a materiality requirement into the case law, then you're down a slippery slope then, because then it's going to be very -- the appellate court's going to be deciding, well, is $50 enough? Is $100 enough? So I think it's not necessarily the amount of the money. It's the fact that she received it, and it's not insignificant.

And I don't think your order has to say, because she received $9,200, she's disqualified. I think, if we go back to the 20,000-foot level, where's the -- what's the appearance here? Is this fairness to the defendants? Is -- does it appear that she is interested in this prosecution or does it appear that she's disinterested?

She took the stand. You can tell, she's not a disinterested person when it comes to this proceeding, but we also argue she's not a disinterested person when it comes to the prosecution as a whole.

I'm going to leave for -- I will resist the temptation to defend my wife and who I believe to be an excellent lawyer and a member of the bar for 20 years in good standing, but I will say this, Judge. You don't just evaluate the credibility of the witnesses. You evaluate the credibility of the lawyers.

And Mr. Abbate stood up here in open court in front of national news and the national public and called her a liar. I need to address that for one minute.

The text messages that are now part of the record, which now are substantive evidence for you to consider, prove everything that she put in that motion, everything that she tried to elicit for Mr. Bradley was absolutely 100 percent true. Not only was it true. She verified through the witness himself that the motion was accurate before it was filed.

So for the state to get up here and impugn her credibility, it's not only improper. It violates Berger v. the United States, which is a case that says, the state can't just get up here and make any argument it wants. And I encourage the court to call him out on it when he steps up here. We have to have candor towards the tribunal. You cannot lie to the

court, cannot lie to the public, cannot lie to the jury. And I think that's what he did.

So there's other corroboration of our view that she was in this relationship. I think, frankly, based on Mr. Bradley's testimony, Your Honor can separate the wheat from the chaff when it comes to credibility, but he -- Mr. Bradley had two chances to correct information that he suddenly developed amnesia about, but he just didn't do it.

MCAFEE: How does the timing of the relationship impact a financial interest?

MERCHANT: Because it's part of the scheme she created intentionally in order to give benefits to her boyfriend.

So they had -- there's a reason why they fought so hard on this, Judge. I mean, there's a reason that every single subpoena was objected to, every single question we asked Mr. Bradley was objected to, jumping up and down, all of the obfuscation. There's a reason for that. They know that, if Your Honor finds that that relationship started in 2019, that the appointment of Wade itself was improper.

And if that was improper, then he had no business, as an average citizen, along with the fact that he didn't have approval from -- they didn't have approval from Fulton County to appoint him in the first place. That undermines the indictment. It creates a structural impairment in the indictment, because he had no more business being.