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Final Arguments In Fani Willis Disqualification Hearing. Aired 1:30-2p ET

Aired March 01, 2024 - 13:30   ET

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

[13:30:00]

JOHN MERCHANT, DEFENSE ATTORNEY FOR MIKE ROMAN: 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, creates structural impairment in the indictment because he had no more business being in the grand jury room than I did. So that's what they're worried about.

And the reason why it's important for the financial piece, Judge, is it's how the money ended up going back to her. She put her boyfriend in the spot, paid him, and then reaped the benefits from it.

That she created the system and then didn't tell anybody about it. She didn't even tell her dad about it.

So I think, in the grand scheme of things, if you're looking at the totality of the facts -- and I've got to sit down here about two minutes to make room for my co-counsel.

If you look at it, everything put together, Judge, is they tried -- they did this. They knew it was wrong. They hid it. And they didn't -- even when they were called out on it, they tried to create an excuse for it by saying it happened after the fact.

We know now from the testimony, Ms. Yeartie confirmed that Mr. Bradley, his text messages were accurate, not his testimony. But -- but that fact was accurate. The motion is accurate.

And so also, I do want to point out there's no paper trail here for the cash. I know that this was -- I know she -- she and her father both testified -- both testified that they kept cash on hand, which -- I mean, keeping cash on hand in and of itself is not a problem.

But when you're a public official and you're required to keep track of gifts that you receive, then you need to keep track of it. But there's no paper trail. There's no deposit history. There's no withdrawal history. There's no receipt. None of that.

So even -- even assuming their testimony could be credible -- and we don't think that it is -- you still don't have enough information to keep -- to track all that money that she received.

And this is just what would --

(CROSSTALK)

JUDGE SCOTT MCAFEE, FULTON COUNTY SUPERIOR COURT: Does the lack of evidence fall on the state?

(CROSSTALK)

MCAFEE: Isn't this -- does the lack of evidence fall on the state? Isn't -- isn't that where burdens come?

MERCHANT: Yes, it -- yes, I think they had an obligation to tell Your Honor, hey, this is where the money went. And they certainly had the ability to do that if they could do it.

Since they didn't do it, we have to assume they can't. And if they can't -- I just want to remind the court of very important piece of testimony from Ms. Willis that I think goes to the credibility of all of the officers of the court who testified.

She met with Wade and they develop, in 10 minutes after talking about the financial piece, I believe, this cash theory that could not be rebutted. We have no ability to do that. They did. And they chose not to do it.

So with that, Your Honor, unless Your Honor has more questions for me, I'm going to sit down and turn the podium over to my distinguished colleague, Mr. Sadow.

MCAFEE: Thanks, Mr. Merchant.

MERCHANT: Appreciate the court's time.

STEVE SADOW, DEFENSE ATTORNEY FOR FORMER PRESIDENT TRUMP: Good afternoon, Your Honor.

I'm going to speak to what I would call a subset of forensic misconduct. And I'm going to assume that all the law that's been provided to you in meetings as well as emails, you know, you don't need me to tell you what the law is.

So I want to just set up -- out the disqualification and then dismissal of the indictment should take place under the subset of forensic misconduct.

Roman's council, Ms. Merchant, filed on January 8th her pleading, her motion to dismiss and to disqualify. We were in court that Friday of that week in which I made it known that we, that is President Trump, may adopt that motion. I waited to see wanted to see what was going to happen before I did so.

That Sunday, which would be January the 14th, 2024, D.A. Willis took it upon herself to go to a historic black church in Atlanta, having not responded at all to the motion of Ms. Merchants client, Roman.

And she made what we've now call the church speech. And Your Honor, has reference to that. You didn't necessarily want evidence on that, but you know what the church speak -- church speech was.

It was videoed. It was clear that Ms. Willis had notes. She was reading from notes that she had prepared. It was a calculated determination by Ms. Willis to prejudice the defendant and their counsel.

[13:35:00]

How so? By making an issue out of the fact that the person that was challenged in the Roman motion was black.

Without telling the public or the church members, or anyone, for that matter, that the reason that Mr. Wade was being challenged was not because he was black. It had nothing to do with race.

It had to do with the relationship that had been alleged and later admitted to by Ms. Merchant. Ms. Willis took full opportunity to prejudice the defendants.

And then comes along later in a pleading and says it wasn't designed or intended to be at the defendants at all, or they're defense council, which, with all due respect, is just nonsense.

The purpose of that was to get public sympathy, public empathy for what Ms. Merchant had already alleged in her motion.

Now that was a violation of the professional rules of conduct. It was a violation of 3.8-G. It's no question about it. It wasn't in response to anything that was said. It was a public statement, extra judicial, for the purpose of making a comment upon the defendants.

MCAFEE: Would it -- would it be in response to emotion that it was fine?

SADOW: But it wasn't filed in a response, in a pleading. It was filed in response to a motion. And the motion were allegations made -- as -- if Ms. Willis wanted to respond at that point, she could have said the facts of the matter.

Instead, she misstated what the situation was, took advantage of the opportunity, an ethical violation. And the ethical violation makes it clear that you must refrain from making extradition judicial comments that have a substantial likelihood of heightening public condemnation of the accused.

Can you think of anything more that would heighten public condemnation of the defendants than alleging that defense counsel and the defendants were making their motion based on race and religion? That's just bad as it gets in Fulton County, with all due respect.

That's exactly -- that's exactly what Ms. Willis wanted done. And remember the state still had not responded.

So then what we get from the state is we get an affidavit filed as part of their response. And that affidavit says specifically -- and the affidavit is Mr. Wade -- says specifically in paragraph 26.27 that the relationship did not begin until 2022.

It acknowledges the relationship and says it didn't begin until 2022. And the pleading that's filed, the states pleading, a response, indicates not exactly that, but it says there was no relationship as of November 1st of 2021. And that's on page seven.

So now we know that timing is the issue because Ms. Merchant made it clear that we alleged and had evidenced that indicated the timing was before Mr. Wade was hired, not after.

So the state now has filed an affidavit and a pleading that claims post hiring into 2022. And then Mr. Wade, Willis testified to the same thing under oath.

Now, Ms. Yeartie says it began in 2019. Why would she know? She would know because she was a former friend.

I know, the state is going to get up here and say you can't believe -- essentially what they're going to say is you can't believe any defense witness because their defense witnesses and the only people that would tell the truth would be Wade and Willis.

I suggest to you that that's not accurate. I suggest that the testimony that Mr. Wade gave and Ms. Willis gave -- and I'm specifically dealing now with the timing issue without getting into anything else -- that that brought forth a true concern about their truthfulness.

And being what is required of a lawyer in this state which is candor toward the tribunal. And that's 3.3 of the pressure rules.

Specifically small a-1, make a false statement of material fact or law to a tribunal.

So that's, as I posited to the court, that's the second ethical violation.

[13:39:53]

And then you also have 8.4 of the professional rules. It says it's a violation of the Georgia Rules of Professional Conduct for lawyer to -- and that's a-4 -- engage in a professional conduct involving dishonesty, fraud, deceit, or misrepresentation.

Now do you have to find that Wade and Willis lied? No. What you need to be able to find is that there is a concern, a legitimate concern based on the evidence in this case about their truthfulness, a legitimate concern about the truthfulness.

Which equates to an appearance of impropriety. Because once you have the appearance of impropriety under forensic misconduct, the law in Georgia is clear. That's enough to disqualify.

So why should you find there's a concern with their truthfulness? ERT is the first one. You have that testimony.

But then we go to what is the most obvious indication that Willis and Wade were not truthful on the point of timing, and that's Bradley.

Defense Exhibit 26 came into evidence. Defense Exhibit 26 comes in and says, you know, I went into this the last hearing. It says that on January the 5th, 2024, at approximately 09:49 a.m., there's text messages that are exchanged between Ms. Merchant and Mr. Bradley.

And the text messages go like just date -- and that's from Ms. Merchant. Ms. Merchant says, "Do you think it started before she hired him?" Bradley, who we now know from Defense Exhibit 39, has been texting with Ms. Merchant for a number of months. This is not the first time. This is months within the communications between the two.

Mr. Bradley says, "Absolutely." Now "absolutely" is not a speculative word. That's not speculation. That's a definitive statement. And Bradley, then, unprompted, says this -- and unprompted is important. It started when she left the D.A.'s office and was a judge in south Fulton.

It goes on. Ms. Merchant says -- or she liked "it started when she left the D.A.'s office" with the appropriate emoji or whatever one would call it to say it was liked.

And then Ms. Bradley -- Mr. Bradley says, "they met at the Municipal Court CLE Conference." Again, unprompted. He's now definitively telling Ms. Merchant when this relationship started. Ms. Merchant said, "That's what I figured when he was married."

And then Ms. Merchant says -- and we're now talking about a couple of hours later. She texts and says, "Upon information and relief, Willis and Wade met while both were serving as magistrate judges and began a romantic relationship at that time."

And Mr. Bradley responds, "No, municipal court. Thank you." It doesn't say it didn't start then. He doesn't suggest that she's wrong, other than magistrate court/municipal.

Now, we have that. And it's in evidence. And what does Bradley do? He knows that he's put himself in a position, that if he testifies truthfully on the witness stand, Your Honor is in a position to be able to find, if you choose to, that both Willis and Wade lied.

So what does Bradley do? Look, you were an assistant U.S. attorney. You know how this works when you have witnesses in this situation.

Mr. Bradley did everything he could possibly do to evade answering questions. No recollection, couldn't remember, it was speculation, anything he could possibly say that would cause Your Honor not to believe that Bradley knew when this relationship started.

I suggest they were clear-cut lies, and the truth isn't Defense Exhibit 26.

MCAFEE: And so if we take that view that he thoroughly impeached himself, but he did not give truthful conduct, what's left standing? Generally, you would see someone who's impeached perhaps we have some kind of core that you could point back to and say that's the time he was telling the truth.

In these text messages, is it ever definitively shown how he knew this and that he actually did know it, other than just an assertion outright, "Absolutely?"

[13:44:59]

Usually, if a state has a witness that goes sideways, they've got them locked in and they've sat down with a detective, got a full statement. We don't have that here.

SADOW: Well, what you have is a text message, which is a prior statement of Bradley that he did on his own, that was not given to him by someone else?

The only thing that the court, as just noted, is, how do we know he wasn't speculating? Because you don't have to accept the fact that he wasn't speculating.

The cases that I provided, I think by email yesterday, the first dealing with that, you can disbelieve that testimony and draw a negative inference. That's the Ferguson case.

On Lee, the other case, you can simply take the prior and consistent statement as substantive evidence. It has the same value.

And that's what I'm asking you to do, to take what was the unprompted statement in Defense Exhibit 26 of Bradley. And take that on its face -- face value, that that is an indication that Bradley, in fact, knew and had said he did.

If you accept that, you have to have concerns about the truthfulness of Willis and Wade on the timing issue.

MCAFEE: And I don't know if this is something maybe one of your co- counsel were going to address as well. We heard about the law, how it applies. We're outside kind of the orbit of the core of cases were used to dealing with here where it deals with sides switching more where someone is in the relationship, the client relationship.

The proposition you're putting forward now is that if a representative of the state, a lead prosecutor, the district attorney themselves, says something that's untruthful on the record, that is something that immediately has to be proactively policed by the trial court?

That basically what I'm getting at is, where in the law that we find the remedy to an untruthful statement? Generally, we send you down the street to the bar, right?

SADOW: And that's why I gave you the cases of Regista (ph) and Edwards yesterday. While those aren't prosecutorial cases or dealing with prosecutors, they deal with counsel.

And in both those cases, the trial judge found ethical violations on the part of defense counsel or potential ethical violations. Went through the ethical violations and said, based on that, you are disqualified, you cannot be the attorney of record in this case.

What's good for the goose is good for the gander. If defense counsel can be kicked off of a case because of ethical violations, I suggest the same thing can happen for prosecutors.

When ethical violations deal with truthfulness, candor to the court, extra judicial statements, those are the things that this court can rely upon and say, based on those, again, I find an appearance of impropriety.

MCAFEE: Where -- where would be the limiting principle? The district attorney signs every indictment assigned to this courtroom.

SADOW: Yes.

MCAFEE: Does that mean she's off every case?

SADOW: No, it would be when --

MCAFEE: If I've found that she's untruthful, is that what you're kind of suggesting that --

SADOW: You don't have to find -- again, I'm not saying you have to find she was untruthful or that Wade was untruthful. You don't have to make a finding of fact that they lied.

All you have to do is make a finding of fact that you have genuine, legitimate concerns about their credibility, about their truthfulness.

And once you find that, then you can apply Regista (ph) and Edwards.

MCAFEE: Well, but it's the same principle though. If I have genuine concerns about her truthfulness on a particular occasion, how do those not spill over into every criminal case a district attorney brings?

SADOW: Well, it's because she testified under oath. And so did Mr. Wade. They didn't have to testify falsely. They could have testified truthfully. They could have indicated that the relationship, the timing was in fact, before Mr. Wade was hired. They chose not to.

And in that sense, that dishonesty, that constitutes a violation of their ethical responsibilities.

This is not signing an indictment. This is not filing a pleading in which both sides have their own positions. This is a requirement that every witness has to tell the truth under oath.

And if they don't tell the truth under oath, or there's a significant concern about their credibility, then they're violating their ethical rules.

And as anyone will tell you, as Your Honor already knew from when you were a prosecutor, prosecutors are held to a higher standard. They're the ones that are supposed to be seeking justice.

They don't have a particular -- they're supposed to be disinterested. When you have the lead prosecutor and the D.A. giving what I suggest to you is untruthful testimony, based on what Yeartie has said, based on what Bradley said in his text, based on the whole way it was presented to you.

Bradley didn't want to testify. He first came up with this attorney- client privilege thing on that. And Your Honor was -- fortunately, went into that.

[13:50:06]

And then when Bradley knew he had to testify about it, you saw what happened. You can draw the inference, as I've suggested, on Bradley, that what he said in the text message, Defense Exhibit 26, is true, the relationship, in fact, started prior to November 1st of 2021, that Yeartie says that.

And now, without getting into any detail, the cell phone records.

The cell phone records show that during that period of time from, let's say, April 1st of 2021 to November 1st -- I'm sorry -- November 30th of 2021, that there was a number, a considerable number of 35 or more occasions where it appeared that, based on the records, that Mr. Wade was down in the area where Ms. Willis was staying at Yeartie's apartment.

But more important is there are two occasions. And the state has not challenged those. There are two occasions where the records reflect that it appears Mr. Wade spent the night at that apartment.

State may say we don't accept that but they didn't challenge it. And even when they brought forth what they brought forth today, supplemental two and three, they didn't challenge it again.

So what does that suggest? That's corroborating evidence of what Yeartie had said, of what Bradley said in his text message. It's also impeachment evidence as to what Wade and Willis said about how many times.

MCAFEE: Is that a significant -- in terms of just the times, didn't Mr. Wade testify that he was there at least 10 times during that timeframe. You've now found 35.

SADOW: Well, minimum of 35.

MCAFEE: OK.

SADOW: But never overnight. He said he never spent overnight.

MCAFEE: Put that to the side though. Just in terms of the fact that he did say he'd been over there, that he visited the place, and I presume he wasn't obviously keeping a very good accounting of it, but that wasn't something that was entirely denied.

SADOW: I -- if you're asking me, do we win on the point that he said more than 10 are around 10 and we say 35, do we win on that point or no?

MCAFEE: OK.

SADOW: It's not determined.

MCAFEE: The overnight might raise some more concerns, understood.

SADOW: It does. And that's the reason why we highlighted it in the affidavit of Mr. Middlestaff (ph). Because that is suggestive that they were not being honest to the court.

So then -- how much time have I used?

(CROSSTALK)

(LAUGHTER)

MCAFEE: I'm letting them use the hook. So suggestive. Again, raising issues. I'm wondering about burden, as it -- we're dealing with a preponderance standard?

SADOW: We are dealing with the preponderance standard and it's our burden.

MCAFEE: Yes.

SADOW: No question about that.

MCAFEE: So does "suggest" get us there?

SADOW: No, but it is corroborating evidence, of evidence that we did put up, and that's what the purpose of the cell phone records. They corroborate what Yeartie says. They corroborate what Bradley said in Defense Exhibit 26. And they impeach, to that extent, Wade's and Willis' testimony.

So if you find, by a preponderance of the evidence -- I'm sorry, so I can finish this up.

If you find by a preponderance of the evidence that my what I call subset of forensic misconduct, ethical violations has been shown and that there is a significant and legitimate concern about the truthfulness of Wade and Willis, they're disqualified.

Now, obviously, factual findings are yours. But the law allows you to do that. You don't have to do it through an actual conflict. That's the other side of the equation.

And that's what I've argued. And I think that's what Mr. Gillen wants to argue.

MCAFEE: Before I let you go, though, this is an interesting classification. You're saying forensic conduct isn't just commenting publicly about the case indicating guilt. You're saying forensic conduct is just anything a district attorney says.

SADOW: No.

MCAFEE: It falls under that box?

SADOW: No. I'm saying that --

MCAFEE: Improper --

(CROSSTALK)

SADOW: -- forensic misconduct as a subset of that would include violations, ethical violations which impact the ability of the defendants to get a fair trial.

As well as impact the courts ability to have faith that the prosecutors, these two prosecutors, are acting in good faith in their own conduct.

Same idea dealing with, as I said, defense counsel in the two cases I mentioned, ethical violations can give rise to disqualification, and I suggest we have that here.

MCAFEE: All right. Thank you, Mr. Sadow.

SADOW: Thank you.

CRAIG GILLEN, DEFENSE ATTORNEY FOR DAVID SHAFER: Where's the shot clock when you need it, right?

(LAUGHTER)

GILLEN: Your Honor, I want to address very directly here what we have is a -- a systematic, continuous pattern, a calculated plan evidencing a design to prejudice the defendants in this case in the minds of the jurors. This -- this is what we have seen.

[13:55:10]

This isn't an -- the problem that the district attorney has, it's not that the district attorney had some sort of brief off-the-cuff statement in an interaction with a reporter like in Williams. That's not what we have here.

We have someone who sat down, wrote out her speech, wrote out her plan, who wrote as -- sat down for, whether it's six, two, three or six times with the editors of "find me the votes" and told and got her message out about this case before it was supposed to be tried in this courtroom.

MCAFEE: So, I mean, we have a pattern of public statements being made. I take it you and your team has dived into and read the book. I know she was asked about specific portions in it.

The only case that I can find actually talking about when someone crosses the line on public comments is that Williams case. And it talks about the lasting implication of saying the defendant, a particular defendant is guilty. (CROSSTALK)

MCAFEE: And it even denied it, right? So have you found any case in Georgia where they actually said that a prosecutor had gone too far in their public comments? Does one exist?

GILLEN: Well, number one, thank goodness it doesn't happen often. Sadly, it's already happened here.

Now, in Williams, the prosecutor had one response to an inquiry and the court found it was improper but did not -- doesn't necessarily mean a comment about the quote, "guilt or innocence," although that was a pattern in Williams.

It's the improper comments by a prosecutor. For example, in Williams, they cite the nature and consequences of forensic misconduct in prosecution of criminal case, a 1955 Laws of Columbia Law School article, and how prophetic that was.

When they went -- when Williams cites that case in their law school article, they talk about an awful lot more than simply comments about -- about specific guilt, references to guilt.

Which you have here, Your Honor, is a comment and we can't look at it -- it doesn't apply only if a prosecutor said, I think the defendant is guilty in my mind. No. It's more pernicious than that.

A woman who sat down and drew up a plan for two reasons, drew up a plan for two reasons. And what she did reminds me of what the coordinate STV Texas (ph) talks about.

And that is that pretrial can create major problems for a defendant, indeed, more harmful than publicity during a trial, for it may set the community opinion as to guilt or innocence.

That's what we have here. That's exactly what we have. And the court in Estes talks about the power of the television camera.

So what -- what do we have and what did -- what did this prosecutor do? What she chose to do is sort of what was criticized by the Supreme Court in Sheppard v Maxwell.

Legal trials are like -- are not like elections to be won through the use of meeting halls, the radio, or the newspaper. That's exactly what we have here.

What we have is a deflection. What this is all about is it's more insidious than just making the comments that she's made. It's a deflection.

What she chose to do was to say, OK, I have done my best to hide the relationship with Nathan Wade and Nathan Wade has done his very best by filing false documents in his divorce case to hide his relationship with Ms. Willis.

Now, well, when Ms. Merchant filed the motion to disqualify, now the game plan has to change. The game plan -- I call the deflection -- begins to take place.

The deflection is when the -- when the -- when the district attorney sat down and wrote out. But look at the -- look at the -- I'm sure the court has.

When you look at that video, it's in evidence of her speech at church. She has written out everything and she's reading from it. She chooses to deflect.

[13:59:47]

The court asked earlier, wasn't she really responding to the motion that had been filed against her? Would that she had.

Because if she had, she would have looked at members of that church in the face and say, I have been -- there's been an allegation that I had a romantic relationship with Mr. Wade. And, ladies and gentlemen of this congregation, it's true.

She didn't do that. She chose to deflect --