Judge in Trump Georgia case in 'unenviable position' as final arguments loom

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Fulton County Superior Court Judge Scott McAffee listens to motions being presented on October 5, 2023 in Atlanta. (Photo by Erik S. Lesser-Pool/Getty Images)

FULTON COUNTY, Ga. - Both sides in Georgia’s high-profile election interference case involving former President Donald Trump are preparing their final arguments over whether Fulton County District Attorney Fani Willis should be disqualified over her personal relationship with a special prosecutor on the case, Nathan Wade. 

After a drama-filled two-day hearing on the motion to disqualify Willis, the public is now waiting for the next steps.

First up is an in-camera hearing with Judge Scott McAfee and the defense’s so-called "star witness," Terrence Bradley. A source confirmed to Fox News this hearing has been set for Monday, Feb. 26.

Fulton County DA Fani WIllis holds up documents while on the witness stand accusing defense attorneys of lying during her disqualification hearing in the Trump Georgia election interference case on Feb. 15, 2024 (FOX 5)

Bradley could barely get a word out during his testimony last Friday as lawyers for the state, as well as Bradley’s own lawyer, both called out objections to nearly every question. 

The arguments centered on whether Bradley’s testimony would violate attorney-client privilege since he was Wade’s divorce lawyer for a time. 

Anthony Kreis, a law professor at Georgia State University, described the little information Bradley was able to share in open court as "basically a dud."

However, what is said behind closed doors in the upcoming hearing could change that. The judge is likely to determine whether Bradley’s answers actually break attorney-client privilege and how much weight to give any testimony that ends up being admissible.

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After that, a final hearing is expected, during which the state and defense would summarize their evidence and present their final arguments on the issue. Multiple sources told Fox News this will likely be scheduled for sometime next week, but an exact date is still being finalized. 

Kreis pointed out that there has been "no clear precedent" in this case and that it "all comes down to what standard of ethics Judge McAfee applies." 

The prosecution stated that it wanted the judge to use the standard of an actual conflict needing to be proven, while the defense has argued that even an appearance of conflict is enough to disqualify Willis. 

"Judge McAfee is really in a pretty, I think, unenviable position of having to wade through the law, wade through this particular case… and then make a decision accordingly," Kreis explained. 

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The bottom-line questions are whether Willis’ relationship with Wade appeared to create a conflict of interest in the case, if there was an actual conflict of interest, and which legal standard the judge would believe is the right one to use. 

Kreis said typically, the standard for prosecutors would be a concrete conflict of interest. He suggested that if that was what the judge was to choose in this case, "there’s an unlikely scenario the DA’s office will get kicked off the case," considering the evidence presented in hearings so far.

Regardless of the outcome, it is very likely an appeal will be filed immediately, according to Kreis. 

Under Georgia law, defense attorneys could file what is called a "certificate of review." This is essentially a court filing asking the judge if they could appeal his decision. If the judge were to say yes, it would go to the Georgia Court of Appeals. If the judge were to decline, then the defense would have to wait until after the entire trial is over before they could bring it to the state appeals court.

Still, Kreis noted, "The appeals court here in Georgia doesn’t necessarily have to take it up, so it’s discretionary on their part, as well."

He said he believed, though, that McAfee would grant any appeal because of his "by-the-books" approach to the case so far. "He seems to understand that this case is so important and that everything should be followed methodically."

It is unlikely McAfee will rule from the bench, Kreis said. He anticipated a more detailed ruling filled with supporting legal memorandum, rather than a definitive decision from the bench.

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