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Final Arguments In Fani Willis Disqualification Hearing. Aired 2:30-3p ET
Aired March 01, 2024 - 14:30 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[14:30:00]
HARRY MACDOUGALD, DEFENSE ATTORNEY FOR JEFFREY CLARK: And the lawyers for the D.A., the D.A.'s office, they just sat there and let him do it. They did nothing to correct obviously perjured testimony. In and of itself, that warrants disqualification of every one of them.
The reason they lied and covered it up was to avoid the trouble they're in right now. That served their personal interests to the detriment of their public duties as prosecutors.
The speech at the church, I want to focus on why she did that. Mr. Gillen talked about that. She did it to deflect attention from her own misconduct and that of Mr. Wade.
She violated her public duty as a prosecutor to serve her personal interests and the personal interests of her boyfriend. That is a disqualifying conflict between her personal interest and her public duty. There is actual operational and materialized. And it rests on undisputed facts.
The next thing that she did that was a disqualifying conflict of interests, was the emergency motion for protective order that she filed in the divorce. I filed a certified copy of that as Exhibit 37.
She sought a protective order under the Apex Doctrine on the grounds that she's the D.A. The whole filing is expressly predicated on her status as D.A. In fact, she never let you forget it. She says that 27 times in 12 pages.
In that filing, speaking as D.A., she said the circumstances, quote, "suggests that defendant, Joycelyn Wade, is using the legal process to harass and embarrass District Attorney Willis. And in doing so, is obstructing and interfering with an ongoing criminal investigation."
In the prayer for relief, on page 11, she asked for six months to, quote, "complete a review of the filings in the instant case, investigate and depose relevant witnesses with regard to the interference and obstruction this motion contends."
There's no sugarcoating it. That's a clear violation of Rule of Professional Conduct 3.4-H, which prohibits lawyers from making threats of criminal prosecution to gain advantage in a civil case.
She abused her power, she abused her position to threaten her boyfriend's wife with criminal prosecution to gain advantage for herself and her boyfriend in her boyfriend's divorce.
She violated her public duties not to make that kind of a threat in order to serve her private personal interests and those of Mr. Wade. Another actual operational conflict.
The last category is the conduct of the defense of this hearing. There were a lot of objections made based on attorney-client privilege during Mr. Bradley's testimony.
Most of those objections were made by the state. But the privilege being asserted does not belong to the state. It belongs to Mr. Wade.
That shows that the D.A.'s office is serving the personal interests of the D.A. and Mr. Wade in carrying out further concealment and cover up of their relationship, and not the cause of justice they are sworn to serve.
That is a conflict of interest. It's a continuation of the wrongful pattern of concealment and cover up that they've engaged in since the beginning. But now they've enlisted the entire office in the enterprise.
In the written response to the motion to disqualify, they said this, and I quote, "Should be absolutely clear there is no evidence that D.A. Willis derived any financial benefit from Mr. Wade." That's on page 15.
Flat-out false. Ten lawyers in this case put their name on that, starting with the D.A. So throw another log on the bonfire of conflicts of interests.
The problem here is the D.A. cannot distinguish between her personal interests and ambitions on the one hand, and her public duties as a prosecutor on the other. And apparently neither -- neither can anyone else in their office.
[14:34:59]
Of the six conflicts I've identified, only one is subject to a conflict in the evidence. This is a case study in what happens when you operate under a conflict of interest. It's put an irreparable stain on the case.
Think of the message that would be sent if they were not disqualified. If this is tolerated, we'll get more of it.
This office is a global laughing stock because of their conduct. They should be disqualified and the case should be dismissed.
ADAM ABBATE, ATTORNEY FOR FULTON COUNTY DISTRICT ATTORNEY'S OFFICE: Well, there's not much oxygen left in the room.
If we delineated the times based on the whole presentation, is what would Your Honor consider some time for us in rebuttal?
JUDGE SCOTT MCAFEE, FULTON COUNTY SUPERIOR COURT: No. ABBATE: OK. Well, then could I reserve what I had five minutes for?
MCAFEE: That's fine.
ABBATE: All right. Thank you, Your Honor.
MCAFEE: All right. Let's take a quick five. And we'll be back 2:40-ish to hear from the state.
Thank you.
JESSICA DEAN, CNN HOST: All right. You have been listening to the final arguments there in that disqualification hearing down in Fulton County, hearing from attorneys for the defendants in the broader case.
Just to remind everyone, this is a hearing within that case surrounded on that prosecutor, Fani Willis.
BORIS SANCHEZ, CNN HOST: Yes. Some really interesting arguments to get into.
Harry MacDougald, who was just speaking, now he's an attorney for Jeffrey Clark, one of Trump's more than a dozen co-defendants, describing what he sees as a conflict of interests for Fani Willis as an irreparable stain, as a bonfire of conflicts of interests.
Asking what message he thinks would be sent if they were not disqualified. They, being the district attorney, Fani Willis, and the entire team, Nathan Wade, included.
Let's bring in CNN's Laura Coates, who has been watching and taking notes alongside us this entire time.
DEAN: I've been learning from Laura as we go.
(LAUGHTER)
DEAN: Asking questions.
SANCHEZ: Yes, so initially, a big part of the discussion that we heard from the defense team had to do with the question of whether there was an actual conflict of interest or the appearance of conflict of interest.
The defense there, at one point, John Merchant, part of the defense team for Mike Roman, seemed to argue that they didn't need to prove actual conflict, but rather just the appearance of conflict of interests.
What did you make of those arguments, of the arguments overall?
LAURA COATES, CNN ANCHOR & CNN CHIEF LEGAL ANALYST: Well, first, on the arguments overall, qualitatively, what a different experience this afternoon has been compared to the sort of meandering, trying to figure out what the theory of the case was going to be earlier.
A lot of testimony, a lot of back-and-forth. This was a streamlined approach based on what they would like the judge to know.
Now, remember, the most persuasive arguments are based on primacy and recency. The first thing I told you and the last thing I told you. But don't forget everything in between.
And they're going to come here at the last part talking about the idea of forensic misconduct. You heard that all day today. What does that mean?
Well, there's two primary ways to disqualify somebody. Either you had a financial benefit that makes it such that the defense cannot have an actual fair trial or you have a personal stake in the outcome of the case.
They are suggesting that this is a blurred line, on one hand, that she is financially benefitting, that they cannot be considered to be truthful at all, and the judge cannot, what they say, credit their testimony, that they are lying somehow.
And therefore, you can't believe anything they have to say. Even going so far as to say they concocted the whole cash theory. We're going to figure out how to make this case go away.
Then there's the idea of the personal stake, meaning whatever the outcome of this is, I'm so deeply invested based on my personal or political ambition.
But there was this huge moment that I thought was so fascinating. And that was coming from the attorney for Donald Trump, Mr. Sadow. He went right into the idea of the church speech.
SANCHEZ: Yes.
COATES: Just a moment. When Fani Willis went to a historically black church and she spoke about and intimated the reason they are focusing on Nathan Wade as but one member of the team as opposed to all others, was because he was a black man.
They want to disqualify him. They wanted to undermine his credentials. They wanted to mask him professionally. This was a moment with the actual attorneys took high interest in.
They suggest that she tainted the jury pool by making that statement. And they play out the timing of this. Forget their relationship. The timing of when she made these statements.
She had not yet responded in her pleadings to the judge to the other filings in the motion. She wanted to have this moment.
And the judges -- or the judge is asking the question, is the ethical allegation that you were raising enough to disqualify. They want them to believe it actually is.
(CROSSTALK)
DEAN: -- Fani Willis right there, who has just, I believe, come into the courtroom.
We have not heard from her attorneys yet, or the attorneys representing her side of this argument. We are expecting to hear from them later this afternoon. But we're just in the middle of a quick five-minute break per the judge.
[14:40:03]
Laura, please finish your thought.
COATES: Well, yet again, what an appearance by Fani Willis.
(LAUGHTER)
(CROSSTALK)
COATES: Remember the last time she came into a courtroom, right, and all of a sudden, she appears ready to testify.
They actually pointed out her testimony in this latest argument to suggest that she was so defiant that she was kind of doing the idea, "me thinks the lady doth protest too much," that she wanted to focus on everything but.
And here was a moment. They've been focusing on a relationship. They want to suggest that they were being cutesy. They were -- it was Wade and Willis who wanted to focus on sexual interactions as distraction to win romance actually began.
But remember, this judge asked a really important question. He asked, well, what is the personal interest? That was a first question out of the gate, which made me think to myself, well, if the judge is asking after all your arguments, what is the personal interest, you've got a problem.
The second really important one was about immateriality. Remember that point? He said, is there an immateriality requirement?
This was the gum part. This was the gum part.
DEAN: Yes.
COATES: This was when we're all thinking, well, if I give you a stick of gum, like in my disqualified? You might need the gum. I might have the gum. I want to give the gum.
That was a really important point because they had an opportunity to say, no, I'm not going to just strain credulity and tell you, yes, everything is fair game.
Materiality goes to the idea of, OK, is what is being exchanged or given enough to disqualify you because the defendant can't have a fair trial.
A stick of gum, come on, a coffee, come on. But they pointed to her statements and signing off on limitations of what she got. As we were going, I know.
SANCHEZ: You knew it, yes.
COATES: A hundred dollars.
SANCHEZ: Yes. She signed documents. This is Richard Rice, Robert Cheeley's defense attorney, saying that she -- she did not receive any gifts, none in excess of a hundred dollars.
The defense team here is pointing to some $9,000 or so dollars that they believe were unaccounted for in these trips that Nathan Wade and Fani Willis took.
I mean, it isn't that glaring that there's 9,000 bucks that they don't really know where it went?
COATES: The devil is in the details. And they think is glaring. And they also think that the fact that this argument seems to be, yes, but I paid you back. So all's well, that ends well? That's going to be enough?
SANCHEZ: Yes.
COATES: When reality -- they pointed out, what if you were in a money- laundering case? Now, of course, Fani Willis is known for one of the biggest RICO cases in Georgia.
(CROSSTALK)
COATES: She's litigating it right now. She has this other huge one involving the former president of the United States. She's a seasoned prosecutor. She knows full well, if someone were and I say, oh, hold on, you can't prosecute me because I paid that back, that would be laughable.
They're making that same argument now to suggest, you can't just say I paid this person back. It's fine.
But you still have to connect this very important set of dots. The money that she is spending, yes, may come from the salary from being an elected official and employee but is that the motivation for why this case is happening?
(CROSSTALK)
DEAN: -- updating that?
COATES: Yes.
DEAN: No. Keep going.
(CROSSTALK)
COATES: No. Is that why it's happening? Is that -- are you -- are you suggesting, which is what they're trying to argue, that they went into this entire case because they wanted to sustain a romantic relationship and use these indictments as a kind of legal beard, right?
To say, hey, you know what, how can we hang out more? How can we road trip to Nashville? I know were going to indict the former president of United States and 17 other people. That's what they're trying to suggest.
But make no mistake. They want this judge to find, if there was an ethical violation, that's enough risk qualification, and that is what they have to prove to this judge.
SANCHEZ: But we also have former deputy assistant attorney general, Harry Litman, with us.
It appears that proceedings are soon to get underway, so we'll cut to it.
But, Harry, quickly, your impressions of these arguments from the defense?
HARRY LITMAN, FORMER U.S. ATTORNEY: Yes. They are just very long on accusations of romantic activity, but very short on what they need, either financial conflict of interests.
It's an interesting point that Laura just raised about this $100. But that's not the same as what you need to say there's a bona fide financial conflict of interest and that's why they're doing it. I think Laura's discussion just -- just showed why that's so tenuous.
And then otherwise, in some way, what if you don't have confidence in her, Judge, or maybe you don't credit everything she said, that also is not the standard.
So I think, basically, they've -- they've been very salacious and tough on Fani Willis, but haven't presented anything to really give McAfee a reason to actually disqualify her, which is a very extreme move obviously.
DEAN: All right, Harry, stick with us.
Laura, stay with us.
Let's go back into the court, the courtroom, and listen.
ABBATE: And Mr. Bradley would be able to impeach their knowledge by saying that they -- he specifically in there, in their presence or to him, said that Ms. Willis and Mr. Wade were in a romantic relationship and that Ms. Willis and Mr. Wade were cohabitating, that they all knew that.
And I would submit to the court, we didn't hear from any of those individuals. Mr. Bradley impeached no one. And I say no one because he did not impeach Mr. Wade.
[14:45:08]
In order to properly impeach a witness, you have to confront the witness with the specific statements. Mr. Wade -- and you can look back at the YouTube of the entire hearing over the last couple of days.
Mr. Wade wasn't once confronted with a statement that he claimed or said or that is claimed that he said to Mr. Bradley.
The way you properly impeach somebody, you have to get -- you to confront the witness. Here would be Mr. Wade. And once he makes a statement that you believe to be inconsistent, and you have a witness who can prove that inconsistency, that's when you call that witness.
And when Mr. Wade was on the stand, not once was he asked, did you tell Mr. Bradley this in a confidential conversation and in your conference room that was not covered under attorney-client privilege? That was not asked. The specifics of that conversation was not asked.
So any testimony that Mr. Bradley testified to is impermissible. It is improper impeachment because they did not confront Mr. Wade with it.
So that's where the state would -- would begin with the comments that Mr. Merchant made about me referencing his wife as lying. I never called Ms. Merchant a liar. I never used those words.
I don't know why she made the material misrepresentations. It could be because Mr. Bradley lied to her. I don't know the reason.
So -- but I can submit to the court that those were material misrepresentations that were made to this court on the day, a few Mondays ago, as everyone was arguing the motions to quash certain subpoenas.
I'd also bring to the court's attention that during that motion to quash subpoenas, certain subpoenas, Ms. Yeartie's attorney appeared, Mr. Partridge.
And he made very clear on that Zoom that Ms. Yeartie had absolutely no knowledge of a romantic relationship and absolutely no knowledge of cohabitation. Those are -- those are the specific references that he made.
So what I would submit to the court, as those are -- those are considered adaptive admissions that his client has made based on the statements he made because of the representations she made to him.
So, I let sounds convoluted. But what I would say that the court is Ms. Yeartie told Mr. Partridge, because Mr. Partridge told the court that she had absolutely no information about a romantic relationship and she had absolutely no information as in regards to --
MCAFEE: Wait. You're you making an argument? I should make inference based. Now these would be attorney-client privileges, or communications then.
(CROSSTALK)
MCAFEE: She's communicating with Mr. Partridge about what her upcoming testimony is. That's why she's hired him. And you're telling me I should infer things based on her communications to him?
ABBATE: Absolutely. Because they're not attorney-client communications anymore when he discloses them to the court and everybody else as they watch the Zoom and attend the hearing.
The difference is, is there was no request to go in camera. There was no request to go -- a tab, a private conversation with you as was done with Mr. Bradley. That would have been the proper procedure.
So, yes, I'm asking you to infer that, 100 percent. I'm asking you to infer that her testimony was, at best, inconsistent.
Because the testimony of Ms. Yeartie, when she testified, was vague. Very little description.
When asked in a very leading manner, is it true or do you know that Ms. Willis and Ms. -- Mr. Wade were in a relationship from 2019 into the time you were fired for -- excuse me -- you were forced to resign from the district attorney's office in March of 2022, she said, yes.
And then further when pressed by Mr. Sadow, he talks about why she believed they were in a relationship. And what was interesting from Ms. Yeartie's testimony that they were pretty close friends up until she left the D.A.'s office, that she asserted to the court that, on a yearly basis, Ms. Willis said, I'm in a relationship with Mr. Wade in 2019.
Oh, by the way, I want to tell you again, in 2020, because we're in a new year, I'm still in a relationship with Mr. Wade.
And again, in 2021, the assertion is Ms. Willis then went back to Ms. Yeartie and confirmed, hey, I just want to reconfirm me and Mr. Wade are still in a relationship. It's absurd. It's absolutely absurd.
[13:49:59]
More importantly, what Mr. Sadow asked her about why she believed that they were in a romantic relationship based on her own observations, she said something he said, he actually asked her, do you see them kissing or hugging? She said yes.
But there was no description or qualification about when it occurred. What she actually saw. Was it a kiss on the cheek, things of that nature?
So I would ask you to frame her testimony from that standpoint when you're addressing her credibility, as the court is going to do with each and every witness that you heard during the testimony of all the witnesses during the hearing.
I'm going to see if my screen will share.
Now I want to talk a little bit about the standard and the burden here in this instance as it relates to defense counsel and the claims that they have made in the motion to disqualify. And as I was doing a whole lot of research, I came a pound -- I came upon this law review article from Cornell Scholarship, reading or publication. And they made very clear that courts have been relatively reluctant to exercise their power to disqualify prosecutors for any reason.
And that goes along with the standard that state would submit to the court, is that the defense has to show an actual conflict. And in this instance, they have to show the actual conflict would be that Ms. Willis received a financial benefit or gain and did it based -- or got it based upon the outcome of the case.
It doesn't make any sense. It makes absolutely no sense.
And during the three days of the extensive testimony of all of the witnesses and the prolonged examinations of the witnesses by multiple defense counsel, they still got nowhere. We're in the same position we were in on Monday.
The same assertions that were made on Monday have no answers today, as we did before, Your Honor.
They were not able to provide any evidence as to the contrary of Ms. Willis and Mr. Wade's assertions of when their relationship began. There's absolutely no evidence that contradicts that the relationship did not begin later than or around March of 2022, Your Honor.
I further submit to the court, because of this failure, that their assertion or their requests that, one, the indictment be dismissed, there's absolutely no evidence that the defendants in this case, they're due process rights have been harmed in absolutely any way.
There was zero evidence, not a single shred of evidence was produced to any of the exhibits or the witness testimony showing how their constitutional rights, their due process rights were all, were at all affected by the relationship that began in March of 2022 with Ms. Willis and Mr. Wade.
And because of that, the motions to disqualify should be denied. And Ms. Willis, the district attorney of Fulton County, and Mr. Wade, as the special prosecutor assigned to this case, to be allowed to remain on this case and continue and continue to prosecute the case to the end, Your Honor, until the trial is set by the court and to begin.
Now, the issues -- obviously, you've heard a lot from defense counsel as to what the issues are for you to, I guess, determine. And here, it would the state's contention is that you must find that there's an actual conflict if you were or are to come to a conclusion that you should disqualify Ms. Willis and the district attorney's office.
And looking at -- and -- what --
MCAFEE: Are you talking about Ms. Ventura?
ABBATE: It's McGlynn v. State, McGlynn v. State 342, Georgia Appeal 170. It's a 2017 case. In that case, as it talks about the standard of proof that the defense -- of the burden that the defense must show and go to show an actual conflict.
[13:55:00]
Is they say it's a high standard of proof, which is definitely not a preponderance of the evidence, which is a much lower burden for any party who's trying to meet that standard of preponderance.
But it's very clear that what the standard is, is that as a high standard of proof for both when determining whether there's an actual conflict and when there's forensic misconduct that is found, Your Honor.
And I want to go through some of the cases that defense counsel has referenced.
They argued here today and in their filings and, I guess, the bright- line standard or the standard in the grounds for which disqualification is appropriate for Your Honor to be determining in all of the cases as relates to disqualify in the electric -- the elected district attorney.
Is that you either find that there's a conflict of interest or that there's been some sort of forensic misconduct. Those are, I guess, the two areas that, Your Honor, that is in your purview when you are looking to resolve an issue regarding disqualification.
Now, in a recent case, Levy State, which is 224 Georgia -- I'm sorry, Lexus 31. I'm -- it's a February of 2024 case here out of our appellate courts.
And in that case, Justice Pensone (ph) wrote that "a trial court did not abuse it's discretion by failing to disqualify an assistant district attorney absent an actual conflict of interests."
And that is the case that was ruled on by the Georgia Court of Appeals about a month ago, Your Honor.
Now, the case -- the cases in which defense counsel has relied on in their briefs and here today, I would submit to the court the cites are misleading, are an -- inapplicable, and some of them actually support the state's position.
And what I would say to you is that defendants in many instances combined language from the multiple cases and kind of what I would say is misstates the law as it relates to what the law or what is required in order for an elected district attorney and they're office to be disqualified.
And what I would submit to the court is
MCAFEE: Let's go back -- let's go back to that. Show me how.
ABBATE: Yes. Show you how --
MCAFEE: So I think the first one decided was Battle v. the State. Certainly a conflict of interests or the appearance of impropriety can be the grounds for disqualification.
Well, there are a number of these cases that seemed to exclusively rely on the appearance of impropriety,
ABBATE: Right. But what --
(CROSSTALK)
MCAFEE: But they -- they acknowledge that there's some ambiguity here, that sometimes Wentworth -- Wentworth gets cited of Ventura and we've got this quote that comes up where it's just they only cite to an actual conflict that must be involved.
They -- they acknowledged the ambiguity. You're saying there's no ambiguity whatsoever?
ABBATE: I'm -- I am saying that. And why -- why I am saying that, why I submit that to the court is, in all of those cases, they do reference the appearance of an impropriety, but they reference that because they also find there's an actual conflict in each one of those cases.
MCAFEE: So your position would be in your review of the case law, there's never been an appellate opinion that relied only on an appearance of propriety.
ABBATE: As it relates to a prosecutor, a district attorney, yes. That is what I'm saying.
What I would say is, in those cases, they do reference the fact that there is an appearance of impropriety, but they reference that fact, because when you have an actual conflict, there's always an appearance of impropriety. And those are what those cases stand for.
And -- I guess that is the main example of what I referenced as they kind of combine the language from separate and different cases and tell you that the standard is an appearance of impropriety.
And I would submit to the court that is not the standard. And my first reading, I'm like, Your Honor, I did notice that the cases, each reference, the appearance of impropriety, but also that that appearance arose from the fact that the court found an actual conflict in each one of those cases.
So I won't belabor the point in going through all of the cases that the defense had cited.
But what I would submit to the court and in reading those cases is that I found that there -- it kind of fell into five categories.
[14:59:53]
That some that didn't concern disqualification at all. Some that determined -- that were about, I call it divided loyalty, which is a conflict that arises from representing a -- becoming a prosecutor and then having represented the defendant prior to becoming a prosecutor.
