Fulton County Superior Court

***EFILED***NY
Date: 3/15/2024 8:45 AM
Che Alexander, Clerk

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

STATE OF GEORGIA
INDICTMENT NO.
v. 23SC188947

DONALD JOHN TRUMP,

RUDOLPH WILLIAM LOUIS GIULIANI,
MARK RANDALL MEADOWS,
JEFFREY BOSSERT CLARK,
ROBERT DAVID CHEELEY,
MICHAEL A. ROMAN,
DAVID JAMES SHAFER,
HARRISON WILLIAM PRESCOTT FLOYD, and
CATHLEEN ALSTON LATHAM.

ORDER ON DEFENDANTS’ MOTIONS TO DISMISS AND

DISQUALIFY THE FULTON COUNTY DISTRICT ATTORNEY

On January 8, 2024, Defendant Roman filed a motion to dismiss the indictment and disqualify

the Fulton County District Attorney’s Office. (Roman Doc. 61). Eight co-defendants later joined

and supplemented the motion, raising additional grounds for disqualification.1 Among other

allegations of disqualifying conduct, the Defendants contend that the District Attorney obtained a

personal stake in the prosecution of this case by financially benefitting from her romantic

relationship with Special Assistant District Attorney (“SADA”) Nathan Wade, whom she

personally hired to lead the State’s prosecution team.

More specifically, Defendant Roman alleges that the District Attorney and SADA Wade

1
(Trump Doc. 114, 1/25/24); (Giuliani Doc. 85, 2/9/24); (Meadows Doc. 69, 2/5/24); (Clark
Doc. 93, 2/5/24); (Cheeley Doc. 77, 1/26/24); (Shafer Doc. 89, 2/5/24); (Floyd Doc. 129,
2/6/24); and (Latham Doc. 70, 2/5/24).
traveled together on multiple vacations with Wade covering many of the associated expenses.

(Roman Doc. 61 at 5-6). Defendant Roman later supplemented his motion with receipts from some

of these travels. (Roman Doc. 70, Ex. B). The State responded with an affidavit, arguing that the

District Attorney had not received any financial benefit through her relationship with Wade, and

that their personal travel expenses were “roughly divided equally.” (State’s Opposition, Roman

Doc. 65, Ex. A).

As alleged, the claims presented a possible financial conflict of interest for the District

Attorney. More importantly, the defense motions and the State’s response created a conflict in the

evidence that could only be resolved through an evidentiary hearing, and one that could not simply

be ignored without endangering a criminally accused’s constitutional right to procedural due

process. After receiving two and a half days of testimony, during which the Defendants were

provided an opportunity to subpoena and introduce whatever relevant and material evidence they

could muster, the Court finds that the Defendants failed to meet their burden of proving that the

District Attorney acquired an actual conflict of interest in this case through her personal

relationship and recurring travels with her lead prosecutor. The other alleged grounds for

disqualification, including forensic misconduct, are also denied. However, the established record

now highlights a significant appearance of impropriety that infects the current structure of the

prosecution team - an appearance that must be removed through the State’s selection of one of two

options. The Defendants’ motions are therefore granted in part.

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Actual Conflict of Interest

Our highest courts consistently remind us that prosecutors are held to a unique and exacting

professional standard in light of their public responsibility – and their power. Every newly minted

prosecutor should be instilled with the notion that she seeks justice over convictions and that she

may strike hard blows but never foul ones. See Berger v. United States, 295 U.S. 78, 88 (1935)

(overruled on other grounds). Most importantly, prosecutors are expected to assume a role beyond

a mere advocate for one side and must make decisions in the public’s interest – not their own

personal or political interest. See State v. Wooten, 273 Ga. 529, 531 (2001); Hicks v. Brantley, 102

Ga. 264, 271 (1897) (“His is a public duty. He represents the entire public.”). Recognizing these

are not empty slogans nor toothless admonitions without practical effect, Georgia courts have not

hesitated to step in and use their inherent authority to disqualify a state prosecutor when required,

especially when that prosecutor labors under an actual conflict of interest. See Ga. Const. Art. VI,

§ I, Para. IV (“Each court may exercise such powers as necessary . . . to protect or effectuate its

judgments[.]”); O.C.G.A. § 15-1-3(4) (“Every court has power . . . [t]o control, in the furtherance

of justice, the conduct of its officers and all other persons connected with a judicial proceeding

before it, in every matter appertaining thereto[.]”); Registe v. State, 287 Ga. 542, 544 (2010)

(“courts have an independent interest in ensuring that criminal trials are conducted within the

ethical standards of the profession and that legal proceedings appear fair to all who observe them”)

(quoting Wheat v. United States, 486 U.S. 153, 160 (1988)).

Disqualification of a prosecutor due to a conflict of interest is thus not a creature of statute so

much as it is a judicial remedy recognized by our appellate courts since their formation, generally

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on grounds of public policy, as “[t]he administration of the law should be free from all temptation

and suspicion, so far as human agency is capable of accomplishing that object[.]” Gaulden v. State,

11 Ga. 47, 50 (1852) (disqualifying solicitor-general on grounds of public policy); Conley v. Arnold,

93 Ga. 823, 825 (1894) (against public policy for solicitor-general to represent clients, though

allegation was untimely); Baker v. State, 97 Ga. 452, 454 (1895) (holding “propriety” demands that

the solicitor-general cannot personally prosecute a case in which he was “personally concerned”);

Howard v. State, 115 Ga. 244, 249 (1902) (finding “[p]ublic policy[,] good morals and justice”

prevent side-switching); Nichols v. State, 17 Ga. App. 593, 606 (1916) (physical precedent only)

(“The administration of the law, and especially that of the criminal law, should, like Caesar’s wife,

be above suspicion, and should be free from all temptation, bias, or prejudice . . .”).

The Georgia Supreme Court has most recently denoted conflicts of interest and forensic

misconduct as the two generally recognized grounds for disqualification. Reed v. State, 314 Ga. 534,

545 (2022) (citing Williams v. State, 258 Ga. 305, 314 (1988)).2 A conflict of interest includes

acquiring a “personal interest or stake in the defendant’s conviction.” Williams, 258 Ga. at 314;

see also Black’s Law Dictionary 374 (11th ed. 2019) (defining “conflict of interest” as “[a] real or

seeming incompatibility between one’s private interests and one’s public or fiduciary duties”). In

such circumstances, no showing of prejudice by a defendant is required. Amusement Sales, Inc. v.

State of Ga., 316 Ga. App. 727, 736 (2012) (citing Young v. United States, 481 U.S. 787, 811 (1987)).

2
While McGlynn v. State, 342 Ga. App. 170, 173 (2017) indicated without citation or further
explanation that disqualification allegations require a “high standard of proof,” neither the Court
of Appeals, nor any other appellate opinion, has provided enlightenment on where exactly this
relative “high standard” falls on the evidentiary spectrum. The Court believes McGlynn offers
little, if any, guidance to the analysis at hand.

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This is so because the prosecutor’s duty to the public creates an additional public interest that

must remain unconflicted in every criminal case.

A determination of whether a prosecutor is laboring under a conflict of interest is a fact-driven

one. See, e.g., Battle v. State, 301 Ga. 694, 698-99 n.5 (2017) (finding insufficient evidence of a

conflict of interest after establishing through testimony the attenuated nature of the connection

between the lead prosecutor and victim’s mother, who worked as an employee at the same office).

In this case, SADA Wade’s manner of payment is not actionable on its own. Whenever a private

attorney - like Wade - is paid by the billable hour, a motive exists to extend or prolong the

assignment. This, however, is a tension that the legal profession has long accepted. It is also the

type of speculative “status” violation that our courts have regularly denied as insufficient grounds

for disqualification absent solid proof of some other conduct. See, e.g., Blumenfeld v. Borenstein, 247

Ga. 406, 408-09 (1981) (finding wrongdoing cannot be imputed to an attorney based on marital

status alone). Thus, a SADA’s oath of office, in combination with the supervision theoretically

provided by a neutral and detached District Attorney, should generally be sufficient to dispel the

appearance of that improper incentive. Nor would a romantic relationship between prosecutors,

standing alone, typically implicate disqualification, assuming neither prosecutor had the ability to

pay the other as long as the relationship persisted. But in combination, as is alleged here by the

Defendants, a prima facie argument arises of financial enrichment and improper motivations which

inevitably and unsurprisingly invites a motion such as this.

As to the financial allegations, the Court makes the following factual findings. On November 1,

2021, the District Attorney hired Nathan Wade to serve as a SADA and lead the investigation that

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produced the indictment in this case. (Def. Hrg. Ex. 15). The District Attorney considered at least

one other option before hiring Wade, extending an offer to former Governor Roy Barnes, who

declined. The contract allowed a $250 hourly rate - a relatively low amount by metro Atlanta

standards for an attorney with Wade’s years of service - and contained a ceiling on the maximum

number of hours permitted. (Id.). Under the terms of the first contract, Wade was not to perform

more than 60 hours of work per month without written permission. (Id.). No evidence introduced

indicates that Wade ever received permission to exceed these monthly hourly caps. His contract

was renewed on November 15, 2022, and again on June 12, 2023. (Def. Hrg. Exs. 17-18).

Between October 2022 and May 2023, the District Attorney and Wade traveled together on

four occasions that resulted in documentable expenses. The first included an extended trip in

October 2022 to Miami and Aruba and a cruise. Wade initially covered expenses for the October

2022 trip totaling approximately $5,223. (Def. Hrg. Exs. 11-12). In December 2022, the two flew

to Miami for another cruise for which the District Attorney paid $1,394 for plane tickets, while

Wade purchased passage for the cruise along with other vacation-related expenses totaling

approximately $3,684. (2/2/24 State’s Opposition, Ex. 4); (Def. Hrg. Exs. 9, 28). In March 2023,

the two traveled to Belize, where Wade covered resort and restaurant expenses in the amount of

approximately $3,000. (Def. Hrg. Ex. 9). In May 2023, they traveled to Napa Valley, where Wade

covered airfare, lodging, and Uber rides in the amount of around $2,829. (Id.). In addition, the two

described taking a number of day-long road trips to Tennessee, Alabama, South Carolina, North

Carolina, and other parts of Georgia. They also admitted to dining out on multiple occasions and

taking turns covering the bill. With seemingly full access to Wade’s primary credit card statements,

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the Defendants did not produce evidence of any further documentable expenses or gifts, nor were

any revealed through the testimony. In total, Defendants point to an aggregate documented benefit

of, at most, approximately $12,000 to $15,000 in the District Attorney’s favor. (Def. Hrg. Ex. 28)

($12,907); (Def Hrg. Exs. 9, 11-12) ($14,736).

The District Attorney and Wade testified that these expenditures were not meant as gifts and

not designed to benefit the District Attorney. Both testified that the District Attorney regularly

reimbursed Wade in cash. And if not reimbursed, the District Attorney covered a comparable,

related expense. For example, the District Attorney testified that she reimbursed Wade in cash for

the Aruba trip which she estimated cost around $2,000 and that she “gave him money” for both

cruises. She further claimed that she reimbursed Wade for the entirety of the Belize trip and that

she paid for the Napa Valley excursions. Finally, while Wade could have bought meals in 2020

which totaled more than $100, she would also regularly pay for his meals.

Such a reimbursement practice may be unusual and the lack of any documentary corroboration

understandably concerning. Yet the testimony withstood direct contradiction, was corroborated

by other evidence (for example, her payment of airfare for two on the 2022 Miami trip), and was

not so incredible as to be inherently unbelievable. However, as the District Attorney herself

acknowledged, no ledger exists. Other than a “best guesstimate,” there is no way to be certain that

expenses were split completely evenly - and the District Attorney may well have received a net

benefit of several hundred dollars. Despite this, after considering all the surrounding

circumstances, the Court finds that the evidence did not establish the District Attorney’s receipt

of a material financial benefit as a result of her decision to hire and engage in a romantic relationship

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with Wade. Simply put, the Defendants have not presented sufficient evidence indicating that the

expenses were not “roughly divided evenly,” or that the District Attorney was, or currently

remains, “greatly and pecuniarily interested” in this prosecution. Nichols v. State, 17 Ga. App. at

606.

In addition - and much more important - the Court finds, based largely on the District

Attorney’s testimony, that the evidence demonstrated that the financial gain flowing from her

relationship with Wade was not a motivating factor on the part of the District Attorney to indict

and prosecute this case. While a general motive for more income can never be disregarded entirely,

the District Attorney was not financially destitute throughout this time or in any great need, as she

testified that her salary exceeds $200,000 per year without any indication of excessive expenses or

debts. Similarly, the Court further finds that the Defendants have failed to demonstrate that the

District Attorney’s conduct has impacted or influenced the case to the Defendants’ detriment.

While prejudice is not a required element for disqualification, it is relevant to considerations of due

process and the Defendants’ requested remedy of complete dismissal.

Defendants argue that the financial arrangement created an incentive to prolong the case, but

in fact, there is no indication the District Attorney is interested in delaying anything. Indeed, the

record is quite to the contrary. Before the relationship came to light, the State requested that trial

begin less than six months after indictment. (Trump Doc. 2, 8/16/23). Soon thereafter, the State

opposed severance of the objecting defendants who did not demand their statutory right to a

speedy trial. (Trump Doc. 37, 9/12/23). The State argued that it only wanted to try the case once

(assuming that such a trial would have been affirmed after any necessary post-conviction appeals).

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(Trump Doc. 37, 9/12/23). The State amended its proposed timeline in November 2023 to request

that the trial commence less than one year after the return of the indictment. (Trump Doc. 87,

11/17/23). And even before indictment, the District Attorney approved a Grand Jury presentment

that included fewer defendants than the Special Purpose Grand Jury recommended. See Order

Entering Special Purpose Grand Jury’s Final Report Into Court Record, 2022-EX-000024, Ex. A

(Sep. 8, 2023). In sum, the District Attorney has not in any way acted in conformance with the

theory that she arranged a financial scheme to enrich herself (or endear herself to Wade) by

extending the duration of this prosecution or engaging in excessive litigation.

Without sufficient evidence that the District Attorney acquired a personal stake in the

prosecution, or that her financial arrangements had any impact on the case, the Defendants’ claims

of an actual conflict must be denied. This finding is by no means an indication that the Court

condones this tremendous lapse in judgment or the unprofessional manner of the District

Attorney’s testimony during the evidentiary hearing. Rather, it is the undersigned’s opinion that

Georgia law does not permit the finding of an actual conflict for simply making bad choices – even

repeatedly - and it is the trial court’s duty to confine itself to the relevant issues and applicable law

properly brought before it. Other forums or sources of authority such as the General Assembly, the

Georgia State Ethics Commission, the State Bar of Georgia, the Fulton County Board of

Commissioners, or the voters of Fulton County may offer feedback on any unanswered questions

that linger. But those are not the issues determinative to the Defendants’ motions alleging an actual

conflict.

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Appearance of Impropriety

Finding insufficient evidence of an actual conflict of interest does not end the inquiry. Our

appellate courts have endorsed the application of an “appearance of impropriety” standard to state

prosecutors, even without any explicit finding of an actual conflict. See Battle v. State, 301 Ga. 694,

698 (2017) (“Certainly, a conflict of interest or the appearance of impropriety from a close personal

relationship with the victim may be grounds for disqualification of a prosecutor.”) (emphasis

added); Greater Ga. Amusements, LLC v. State, 317 Ga. App. 118, 122 (2012) (physical precedent

only) (“a district attorney may not be compensated by means of a fee arrangement which

guarantees at least the appearance of a conflict of interest”) (later deemed persuasive by

Amusement Sales, Inc. v. State of Ga., 316 Ga. App. 727, 736 (2012)); Head v. State, 253 Ga. App.

757, 758 (2002) (“a prosecutor’s close personal relationship with the victim in a case may create

at least the appearance of a prosecution unfairly based on private interests rather than one properly

based on vindication of public interests. . . . [i]n that case, the individual prosecutor who has the

conflict may be disqualified”); Davenport v. State, 157 Ga. App. 704, 705 (1981) (granting new trial

after concluding that “[u]nder such circumstances there is at least the appearance of

impropriety”); but see Whitworth v. State, 275 Ga. App. 790, 794 (2005) (physical precedent only)

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(labeling appearance-related argument “irrelevant” due to lack of an actual conflict).3 The cases

cited here that resulted in disqualification did not hold that an actual conflict is a necessary

prerequisite. The State nevertheless argues that the facts presented suggested as much, and while

that may be so in some instances, the opinions do not make that finding, and this Court cannot

ignore the explicit language of the Georgia Supreme Court and multiple opinions from the Georgia

Court of Appeals. Further, while Davenport is the first instance this Court can find where the exact

phrase “appearance of impropriety” is used to assess the disqualification of a state prosecutor, the

reference to “Ceasar’s wife” in Nichols v. State, 17 Ga. App. 593, 606 (1916), and the admonition

against “all temptation and suspicion” in Gaulden v. State, 11 Ga. 47, 50 (1852), demonstrate the

principle has long been endorsed in Georgia law.

While formally undefined in Georgia precedent, an appearance of impropriety is generally

considered “conduct or status that would lead a reasonable person to think that the actor is

behaving or will be inclined to behave inappropriately or wrongfully.” Black’s Law Dictionary 122-

3
The appearance verbiage likely owes its lineage to Canon 9 of the Code of Professional
Responsibility (“A Lawyer Should Avoid Even the Appearance of Professional Impropriety”),
which previously applied to all aspects of an attorney’s professional life. See Roberta K. Flowers,
What You See Is What You Get: Applying the Appearance of Impropriety Standard to Prosecutors, 63
Mo. L. Rev. 699, 713 (1998) (detailing national origin and evolution of Canon 9). Criticized for its
vague and varying application, the American Bar Association dropped the appearance standard in
its 1983 Model Rules of Professional Conduct. Id. at 717. Georgia eventually followed suit,
supplanting its professional code in 2001 with the adoption of the Georgia Rules of Professional
Conduct. See, e.g., Herrmann v. Gutterguard, Inc., 199 F. App’x 745, 755 (11th Cir. 2006) (labeling
the appearance of impropriety standard as “outdated”). Yet despite its removal as an explicit
professional requirement, Georgia appellate courts continue to apply an appearance standard in
both criminal (as previously cited) and civil contexts. See, e.g., Hodge v. URFA-Sexton, LP, 295 Ga.
136, 141 (2014); First Key Homes of Ga., LLC v. Robinson, 365 Ga. App. 882, 885 (2022);
Shuttleworth v. Rankin-Shuttleworth of Ga., LLC, 328 Ga. App. 593, 596 (2014).

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23 (11th ed. 2019).4 Borrowing from federal judicial recusal standards, a reasonable person is not

an uninformed member of the public with only a passing knowledge of the facts at hand. See Cheney

v. United States Dist. Court for Dist. of Columbia, 541 U.S. 913, 924 (2004) (Scalia, J., sitting alone).

This must be the standard, as otherwise in this case a casual, uninformed, or misinformed observer

might believe the District Attorney must recuse herself merely because her father shares a last

name with a co-defendant. Nor is a reasonable person “hypersensitive or unduly suspicious”

without an understanding of the “relevant legal standards and judicial practice.” In re Sherwin-

Williams Co., 607 F.3d 474, 478 (7th Cir. 2010) (citing In re Mason, 916 F.2d 384, 386 (7th Cir.

1990)).

The appearance standard recognizes that even when no actual conflict exists, a perceived

conflict in the reasonable eyes of the public threatens confidence in the legal system itself. When

this danger goes uncorrected, it undermines the legitimacy and moral force of our already weakest

branch of government. See, e.g., Inquiry Concerning Judge Coomer, 316 Ga. 855, 855 (2023) (“The

judiciary’s judgment will be obeyed only so long as the public respects it[.]”) (citing The Federalist

4
An appearance standard has been defined and regularly applied to judges as part of the Code of
Judicial Conduct. See In re Inquiry Concerning a Judge (no. 97-61), 269 Ga. 425, 425 (1998) (“The
test for the appearance of impropriety is whether the situation would create in reasonable minds a
perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality
and competence is impaired.”). Notably, this applies to both a judge’s professional and personal
conduct. See Ga. Code of Judicial Conduct Rule 1.2 cmt. (3); Whitworth, 275 Ga. App. at 793 (“the
neutrality required of a judge is necessarily of a higher degree than that required of a prosecutor”).
In contrast, only an attorney’s professional behavior is subject to scrutiny through a disqualification
motion. Nor is a private attorney held to the strict non-partisan standards of a judge. So, to say that
an appearance standard inappropriately holds prosecutors to the same ethical standards as judges
is inaccurate, although the distinction is less apparent here as the conduct at issue involves an
intermingling of the professional and personal life of the District Attorney.

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No. 78 (A. Hamilton)). “Thus it is that sometimes an attorney, guiltless in any actual sense,

nevertheless is required to stand aside for the sake of public confidence in the probity of the

administration of justice.” Love v. State, 202 Ga. App. 889, 891 (1992) (citing State v. Rizzo, 69

N.J. 28, 30 (1975) to disqualify criminal defense counsel). This Court finds that it can - and indeed

must - consider the appearance of impropriety as a basis for a state prosecutor’s disqualification,

especially in recognition of the critical role that the prosecutor plays in the criminal-justice system.

One final observation can be gleaned from a careful study of our appellate decisions applying

this standard: the remedy can vary. Unlike an actual conflict, the finding of an appearance of

impropriety does not automatically demand disqualification. Our Supreme Court has previously

analyzed disqualification under an appearance standard in a civil case using a continuum,

recognizing that disqualification is not always the appropriate outcome:

At one end of the scale where disqualification is always justified and indeed
mandated, even when balanced against a client’s right to an attorney of choice, is
the appearance of impropriety coupled with a conflict of interest or jeopardy to a
client’s confidences. In these instances, it is clear that the disqualification is
necessary for the protection of the client. Somewhere in the middle of the
continuum is the appearance of impropriety based on conduct on the part of the
attorney. As discussed above, this generally has been found insufficient to outweigh
the client’s interest in counsel of choice. This is probably so because absent danger
to the client, the nebulous interest of the public at large in the propriety of the Bar
is not weighty enough to justify disqualification. Finally, at the opposite end of the
continuum is the appearance of impropriety based not on conduct but on status
alone. This is an insufficient ground for disqualification.

Blumenfeld v. Borenstein, 247 Ga. 406, 409-10 (1981); Stinson v. State, 210 Ga. App. 570, 571 (1993)

(applying Blumenfield to criminal defense counsel). The Supreme Court further noted that

disqualification due to an appearance of impropriety should rarely occur where there is no danger

that the actual trial of the case will be tainted. Blumenfeld, 247 Ga. at 407-08; see also Board of

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Education v. Nyquist, 590 F2d 1241, 1247 (2nd Cir. 1979) (“when there is no claim that the trial will

be tainted, appearance of impropriety is simply too slender a reed on which to rest a disqualification

order except in the rarest cases”). Similarly, in Billings v. State, 212 Ga. App. 125, 129 (1994),

although the Court of Appeals found the existence of an appearance of impropriety, it noted that

the appearance could be cured through screening the affected prosecutor from participation or

discussion of the affected case. See also Head, 253 Ga. App. at 758 (“Moreover, to insure that no

conflict of interest or the appearance of one might develop, the district attorney took the prudent

step of ordering the investigator to take no part in the investigation or prosecution of the case.”).

These cases indicate that a trial court can consider alternative solutions to cure the appearance of

impropriety.

Nor would the finding of an appearance of impropriety on the part of the District Attorney

herself, in contrast to an actual conflict, necessarily result in the disqualification of the entire

Fulton County District Attorney’s Office. The district attorney in McLaughlin was “absolutely

disqualified” due to a personal interest in the prosecution. McLaughlin v. Payne, 295 Ga. 609, 614

(2014). As a result, assistant district attorneys appointed by the district attorney lacked any

authority to proceed. Id. at 613. McLaughlin did not address an appearance standard and made a

point to limit the total disqualification to instances of “absolute disqualification.” When the

appearance of a conflict exists, only the affected prosecutor, be they elected or appointed, is

affected. Head, 253 Ga. App. at 758 (“the individual prosecutor who has the conflict [based on at

least the appearance of impropriety] may be disqualified from participation in the case, but not all

the other prosecutors who work with him”); Frazier v. State, 257 Ga. 690, 694 (1987)

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(distinguishing Davenport, 157 Ga. App. 704, an appearance of impropriety case, by noting that the

district attorney’s disqualification did not require disqualification of the entire office).

With these principles in mind, the Court finds that the record made at the evidentiary hearing

established that the District Attorney’s prosecution is encumbered by an appearance of

impropriety. This appearance is not created by mere status alone, but comes because of specific

conduct, and impacts more than a mere “nebulous” public interest because it concerns a public

prosecutor. Blumenfeld, 247 Ga. at 410. Even if the romantic relationship began after SADA

Wade’s initial contract in November 2021, the District Attorney chose to continue supervising and

paying Wade while maintaining such a relationship. She further allowed the regular and loose

exchange of money between them without any exact or verifiable measure of reconciliation. This

lack of a confirmed financial split creates the possibility and appearance that the District Attorney

benefited - albeit non-materially - from a contract whose award lay solely within her purview and

policing.

Most importantly, were the case allowed to proceed unchanged, the prima facie concerns raised

by the Defendants would persist. As the District Attorney testified, her relationship with Wade

has only “cemented” after these motions and “is stronger than ever.” Wade’s patently

unpersuasive explanation for the inaccurate interrogatories he submitted in his pending divorce

indicates a willingness on his part to wrongly conceal his relationship with the District Attorney.

As the case moves forward, reasonable members of the public could easily be left to wonder

whether the financial exchanges have continued resulting in some form of benefit to the District

Attorney, or even whether the romantic relationship has resumed. Put differently, an outsider

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could reasonably think that the District Attorney is not exercising her independent professional

judgment totally free of any compromising influences. As long as Wade remains on the case, this

unnecessary perception will persist.

The testimony introduced, including that of the District Attorney and Wade, did not put these

concerns to rest. During argument, the Defendants’ focus largely pivoted from the financial

concerns to disproving the testimony of the District Attorney, namely that her romantic

relationship actually predated the November 2021 hiring of Wade. On that front, the Court makes

a few brief observations. First, the Court finds itself unable to place any stock in the testimony of

Terrance Bradley. His inconsistencies, demeanor, and generally non-responsive answers left far

too brittle a foundation upon which to build any conclusions. While prior inconsistent statements

can be considered as substantive evidence under Georgia law, Bradley’s impeachment by text

message did not establish the basis for which he claimed such sweeping knowledge of Wade’s

personal affairs.5 In addition, while the testimony of Robin Yearti raised doubts about the State’s

assertions, it ultimately lacked context and detail. Even after considering the proffered cellphone

testimony from Defendant Trump, along with the entirety of the other evidence, neither side was

able to conclusively establish by a preponderance of the evidence when the relationship evolved

into a romantic one.

However, an odor of mendacity remains. The Court is not under an obligation to ferret out

every instance of potential dishonesty from each witness or defendant ever presented in open

5
For that reason, the Court finds it unnecessary to reopen the evidence to consider the testimony
of Cindi Yeager or Manny Arora, as proffered by Defendants Shafer and Latham respectively.
(Shafer Doc. 106, 3/4/24); (Latham Doc. 83, 3/4/24).

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court. Such an expectation would mean an end to the efficient disposition of criminal and civil

proceedings. Yet reasonable questions about whether the District Attorney and her hand-selected

lead SADA testified untruthfully about the timing of their relationship further underpin the finding

of an appearance of impropriety and the need to make proportional efforts to cure it.

Ultimately, dismissal of the indictment is not the appropriate remedy to adequately dissipate

the financial cloud of impropriety and potential untruthfulness found here. See Olsen v. State, 302

Ga. 288, 294 (2017) (“Dismissal of an indictment is an extreme sanction, used only sparingly as a

remedy for unlawful government conduct.”) (quoting State v. Lampl, 296 Ga. 892, 896 (2015)).

There has not been a showing that the Defendants’ due process rights have been violated or that

the issues involved prejudiced the Defendants in any way. Nor is disqualification of a constitutional

officer necessary when a less drastic and sufficiently remedial option is available. The Court

therefore concludes that the prosecution of this case cannot proceed until the State selects one of

two options. The District Attorney may choose to step aside, along with the whole of her office,

and refer the prosecution to the Prosecuting Attorneys’ Council for reassignment. See O.C.G.A. §

15-18-5. Alternatively, SADA Wade can withdraw, allowing the District Attorney, the Defendants,

and the public to move forward without his presence or remuneration distracting from and

potentially compromising the merits of this case.

Forensic Misconduct

The Georgia Supreme Court also recognizes forensic misconduct, or improper comment, by

the State as grounds for disqualification. One example of such forensic misconduct is “expression

by the prosecuting attorney of his personal belief in the defendant’s guilt.” Williams v. State, 258

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Ga. 305, 314-15 (1988) (finding pretrial public comment that a conviction would be the “right

result” constituted an impermissible, but not disqualifying, expression of the prosecutor’s opinion

concerning the merits of the case) (citing State v. Hohman, 138 Vt. 502 (1980) (overruled on other

grounds). As guidance, Williams instructs that the trial court should “take[] into consideration

whether such remarks were part of a calculated plan evincing a design to prejudice the defendant

in the minds of the jurors, or whether such remarks were inadvertent [] utterances.” Id. at 315.

Williams also notes that while a prosecutor’s comments may be considered improper, they must

be “egregious[ly]” so to justify disqualification. Id. at 314.

This Court has not located, nor been provided with, a single additional case exploring the

relevant standard for forensic misconduct, or an opinion that actually resulted in disqualification

under Georgia law. Left unexplored, therefore, is how other examples of forensic misconduct can

manifest, such as whether statements that stop short of commenting on the guilt of a defendant

can be disqualifying. Nor has it been decided if some showing of prejudice is required - and how a

trial court should go about determining whether such prejudice exists. Nor is it clear whether the

analysis differs depending on the pretrial posture of the case. Unmoored from precedent, the Court

feels confined to the boundaries of Williams and restricts the application of the facts found here to

its limited holding.

The Defendants have exhaustively documented every public comment made by the District

Attorney concerning this case through their motions and supplemental filings. Many of these have

already been addressed through a pretrial challenge made on similar grounds brought by

Defendants Trump and Latham. See Order on Motion to Quash, Preclude, and Recuse, 2022-EX-

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000024 (July 31, 2023). This Court incorporates and adopts the sound reasoning of Judge

McBurney and finds that any comments made by the District Attorney prior to July 31, 2023, did

not amount to disqualifying forensic misconduct. Id. at 6 n.12 (“Public comments about the need

for and importance of the investigation fall far short of the type of bias, explicit or implicit, that

must be found.”). Similarly, more recent comments describing the charges in the indictment, the

procedural posture of the case, the office’s conviction rates, and personal behind-the-scenes

anecdotes are not disqualifying. This includes the District Attorney’s unorthodox decision to make

on-the-record comments, and authorize members of her staff to do likewise, to authors intent on

publishing a book about the special grand jury’s investigation during the pendency of this case.

Such decisions may have ancillary prejudicial effects yet to be realized, but the comments do not

rise to the level of disqualification under Williams.

The same cannot so easily be said of the District Attorney’s prepared speech delivered before

the congregation of a local Atlanta church on January 14, 2024. In these public and televised

comments, the District Attorney complained that a Fulton County Commissioner “and so many

others” questioned her decision to hire SADA Wade. When referring to her detractors throughout

the speech, she frequently utilized the plural “they.” The State argues the speech was not aimed

at any of the Defendants in this case. Maybe so. But maybe not. Therein lies the danger of public

comment by a prosecuting attorney. By including a reference to “so many others” on the heels of

Defendant Roman’s motion which instigated the entire controversy, the District Attorney left that

question open for the public to consider. The Court finds, after considering the statement as a

whole, under all the circumstances surrounding its issuance, that the District Attorney’s speech

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did include Defendant Roman and his counsel within its ambit, whether intentional or not.6

More at issue, instead of attributing the criticism to a criminal accused’s general aversion to

being convicted and facing a prison sentence, the District Attorney ascribed the effort as motivated

by “playing the race card.” She went on to frequently refer to SADA Wade as the “black man”

while her other unchallenged SADAs were labeled “one white woman” and “one white man.”

The effect of this speech was to cast racial aspersions at an indicted Defendant’s decision to file

this pretrial motion.

However, the speech did not specifically mention any Defendant by name. Although not

improvised or inadvertent, it also did not address the merits of the indicted offenses in an effort to

move the trial itself to the court of public opinion. Nor did it disclose sensitive or confidential

evidence yet to be revealed or admitted at trial. In addition, the case is too far removed from jury

selection to establish a permanent taint of the jury pool. As best it can divine, under the sole

direction of Williams, the Court cannot find that this speech crossed the line to the point where

the Defendants have been denied the opportunity for a fundamentally fair trial, or that it requires

the District Attorney’s disqualification.

But it was still legally improper. Providing this type of public comment creates dangerous

waters for the District Attorney to wade further into. The time may well have arrived for an order

preventing the State from mentioning the case in any public forum to prevent prejudicial pretrial

6
Worth noting is that there may be an issue of standing for the other five Defendants’ challenge of
this speech. Although counsel for Defendant Trump expressed in open court the possibility that
he would join the motion after conducting his own investigation, each Defendant only formally
joined Defendant Roman’s motion challenging the hiring of SADA Wade after the speech had been
made.

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publicity, but that is not the motion presently before the Court. The Defendants’ motions

demanding disqualification and dismissal based on forensic misconduct are denied.

Other Grounds

The Defendants invoke a range of other constitutional, statutory, and county provisions in

support of disqualification, including Ga. Const. Art. I, § II, Para. I (the “Trustee Clause”),

various provisions of the Fulton County Code including financial disclosure requirements, and

alleged payment and hiring violations pursuant to O.C.G.A. § 15-18-20. As to the latter, a district

attorney may appoint private attorneys to assist with criminal cases independent of any specific

statutory authorization. State v. Cook, 172 Ga. App. 433, 437 (1984). This statute does not place

limitations on the appointment of a SADA to work on a specific case, as opposed to county approval

of a general employee. See Amusement Sales, Inc. v. State of Ga., 316 Ga. App. 727, 736 n.5 (2012).

While SADA Wade’s contract did not limit his work to any particular case, the testimony

established as much, and the Defendants have not produced any evidence demonstrating that his

work ever expanded beyond this prosecution. Further, to the extent the Defendants argue the

circumstances of Wade’s loyalty oath create independent grounds for disqualification, the Court

incorporates its previous Order on the subject and denies the motions. See Order on Defendant

Chesebro’s Motion to Dismiss Indictment for Failure to Comply (Chesebro Doc. 98, 10/6/23).

As for the remaining provisions and arguments, the Court has not been presented with any

authority that such violations, even if proven, amount to an actual conflict of interest, nor that an

appearance of impropriety can apply to any instance of inappropriate or wrongful behavior. In each

case applying the appearance standard, the impropriety was connected in some way to an allegation

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of a potential, and previously recognized, actual conflict.

In a separate motion adopting the arguments of her co-defendants, Defendant Latham presents

an additional theory. She asserts the right to call the District Attorney as a witness at trial to

examine her biases toward the Defendants and demonstrate that she brought a politically motivated

prosecution. Accepting the sole citation raised in support, Duncan v. State, 58 Ga. App. 551 (1938)

(physical precedent only) (allowing impeachment of the “prosecutor” for improper motives or

bias), requires ignorance of the opinion’s surrounding context. Actually reading the case and the

authority upon which it relies, and not simply quoting a headnote, reveals that the Court of

Appeal’s antiquated use of the word “prosecutor” referred not to the legal officer handling the

criminal case on behalf of the public, but rather the “main witness for the State.” Duncan, 58 Ga.

App. at 553 (Broyles, C.J., dissenting). Defendant Latham asserts a claim accurately categorized as

one of selective prosecution, and the United States Supreme Court has recognized that such claims

are not a defense on the merits to any criminal charges themselves. United States v. Armstrong, 517

U.S. 456, 463 (1996). Instead, a claim of selective prosecution must be brought in the form of a

motion asking the trial court to exercise its judicial power on equal protection grounds. Id. at 464-

65. Lacking such a showing here, or any foundation in law or the rules of evidence, the motion is

denied.

Conclusion

Whether this case ends in convictions, acquittals, or something in between, the result should

be one that instills confidence in the process. A reasonable observer unburdened by partisan

blinders should believe the law was impartially applied, that those accused of crimes had a fair

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opportunity to present their defenses, and that any verdict was based on our criminal justice

system’s best efforts at ascertaining the truth. Any distractions that detract from these goals, if

remedial under the law, should be proportionally addressed. After consideration of the record

established on these motions, the Court finds the allegations and evidence legally insufficient to

support a finding of an actual conflict of interest. However, the appearance of impropriety remains

and must be handled as previously outlined before the prosecution can proceed. The Defendants’

motions are therefore granted in part and denied in part.

SO ORDERED, this 15th day of March, 2024.

___________________
Judge Scott McAfee
Superior Court of Fulton County
Atlanta Judicial Circuit

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