An Atlanta judge said on Monday that he would go forward with a hearing later this week delving into a romantic relationship between the two prosecutors leading an election interference case against former President Donald J. Trump and a number of his allies.
The revelations about the relationship, and accusations by defense lawyers that it has caused a conflict of interest, have created turmoil around the case. The defense is seeking to disqualify the two prosecutors — Fani T. Willis, the Fulton County district attorney, and Nathan J. Wade, who she hired to run the case.
“It’s clear that disqualification can occur if evidence is produced demonstrating an actual conflict or the appearance of one,” the judge, Scott McAfee of Fulton County Superior Court, said at a hearing on Monday afternoon.
He added that “because I think it’s possible that the facts alleged by the defendant could result in disqualification, I think an evidentiary hearing must occur to establish the record on those core allegations.”
During the Monday hearing, Judge McAfee declined to quash subpoenas sent by the defense team to a number of witnesses, including Ms. Willis and Mr. Wade. If those witnesses testify, it is likely to turn the hearing scheduled for Thursday into a public airing of details about the romantic relationship.
But the judge also ruled out delving into the qualifications of Mr. Wade, who defense attorneys have said lacked relevant experience and was unqualified to take on such a high-profile case. The judge said that, “in my mind, as long as a lawyer has a heartbeat and a bar card” the appointment would be “a matter within the district attorney’s discretion.”
The allegations of a relationship between Mr. Wade and Ms. Willis first surfaced in a motion filed on Jan. 8 by Michael Roman, a former Trump campaign official. Mr. Roman, along with Mr. Trump and 13 others, is facing criminal charges for efforts to overturn the former president’s 2020 election loss in Georgia.
After declining to address the allegations for nearly a month, Ms. Willis and Mr. Wade acknowledged the relationship in a recent court filing. They said it began only after Mr. Wade was hired in November 2021, though Ashleigh Merchant, Mr. Roman’s lawyer, says she has a witness who can undercut that.
Ms. Merchant argues that the relationship created a conflict of interest, and should be grounds for disqualifying Mr. Wade, Ms. Willis and her entire office from the Trump case — a situation that would throw the case into disarray.
Ms. Willis has returned fire with filings that paint the effort as a publicity stunt with no legal merit.
Ms. Merchant’s conflict of interest argument is based in part on the fact that Ms. Willis took a number of vacations with Mr. Wade that he paid for. That, Ms. Merchant argues, has given rise to “a form of self-dealing,” and a scenario in which “the more work that is done on the case (regardless of what justice calls for) the more they get paid.” (Ms. Willis has said that the costs of joint personal travel have been “divided roughly evenly” between her and Mr. Wade.)
In court on Monday, Ms. Merchant made clear that much of her argument relies on the testimony of Terrence Bradley, a lawyer who used to work with Mr. Wade, and who for a time represented Mr. Wade in his pending divorce case. The judge at one point referred to Mr. Bradley as Ms. Merchant’s “star witness.”
But Anna Cross, a lawyer who appeared on behalf of the district attorney’s office, said “the timeline that’s being represented” by Ms. Merchant is “either mistaken” or “simply fabricated.” She also argued that it would be improper for Mr. Bradley to appear, given his attorney-client relationship with Mr. Wade.
“The defense is not bringing you facts,” Ms. Cross said. “The defense is not bringing you law. The defense is bringing you gossip, and the state cannot, and the court should not, condone that practice.”
The judge’s decision to go forward with a hearing is, in the short term at least, a blow to Ms. Willis, who had hoped to avoid a hearing and have the judge throw out the disqualification effort as a matter of law.
A number of outside legal observers have said that the disqualification effort is built on shaky legal arguments, but some have said the judge could be swayed by the idea that the relationship gives the appearance of impropriety and an unfair prosecution.
Caren Morrison, an associate law professor at Georgia State University, said that Thursday’s hearing will likely provide more ammunition to Mr. Trump and his allies, and their argument that the prosecution is unfair.
“While she may eventually win and show that there wasn’t any actual conflict of interest,” Ms. Morrison said of Ms. Willis, “this is still just very bad news for the case generally, in terms of public perception.”
The allegations do not change the underlying facts of the case, which accuse Mr. Trump and his allies of conspiring to subvert Georgia’s 2020 presidential election results as part of a broader plan to thwart the will of voters in swing states.
Four of the 19 original defendants have pleaded guilty in the Georgia case, including some of Mr. Trump’s most zealous defenders after the 2020 election.
First appeared on www.nytimes.com