Judicial Watch

Tom Fitton on X

I've carefully reviewed a new court filing by one of the defendants caught up in Georgia Democratic politician Fani Willis' unprecedented scheme to jail Trump and other Americans for attempting to dispute the 2020 election. The explosive court filing alleges that Ms. Willis and her appointed Special Prosecutor Nathan Wade (who is helping direct the prosecution of these matters) have been having an affair and have, in effect, been using the controversial prosecutions to improperly convert tax monies (upwards of $1 million) for their personal use and benefit. The filing alleges ethics violations and potential criminal violations of state and federal law. The defense team for defendant Michael Roman also asks the court to dismiss the indictment and disqualify Willis, Wade and their offices from any further involvement in the prosecution.

It would be no surprise, given the obvious political abuse of power in these "get Trump" prosecutions, that there would also be base personal corruption by the Democratic politician and her "special prosecutor." The introduction of the astonishing legal brief that could very well upend all these prosecutions follows:

"The instant Motion is not filed lightly. Nor is it being filed without considerable forethought, research or investigation. Nonetheless, this Motion must be heard, as the issues raised herein strike at the heart of fairness in our justice system and, if left unaddressed and unchecked, threaten to taint the entire prosecution, invite error, and completely undermine public confidence in the eventual outcome of this proceeding.

There are fewer positions of authority in Georgia’s justice system more powerful than an elected district attorney. The district attorney has incredible control and influence over the entire criminal judicial process, including the power to decide who and when to charge and how to charge them, which cases will get tried and which cases will be resolved, and, importantly the power to allocate public monies provided for the operation of the district attorney’s office. Historically, there have been few checks on this power in Georgia, and district attorneys have largely been able to act with broad discretion in deciding how to utilize public monies and making prosecutorial decisions.

This case presents a unique opportunity for this Court to review this authority and determine if the district attorney here overstepped her legal discretion and authority and whether she and the special prosecutor violated the law and their obligations under the Georgia Rules of Professional Conduct when they engaged in a personal, romantic relationship that has ultimately yielded substantial income to the special prosecutor. The important issues raised in the instant Motion suggest that the elected district attorney for the largest district attorney’s office in the State of Georgia has used the instant prosecution to pay her partner a large sum of money that was originally allotted to clear the backlog of cases in Fulton County following the Covid pandemic.

Normally, the district attorney’s use of funds allotted pursuant to a county’s prior approval would not be newsworthy or legally actionable. But this case is different. The district attorney sought additional funds from Fulton County to clear the Covid backlog, including making a detailed presentation to the Board of Commissioners in 2021, and she ultimately received that funding from Fulton County. But she has not used those funds for that purpose. She apparently has used them to prosecute this case. Even assuming that were proper and could be forgiven, even within the contours of this prosecution, there is a separate and very important concern about her use of the money. As the layers unfold, it becomes clear that the district attorney and the special prosecutor have been profiting personally from this prosecution at Fulton County’s expense. Instead of handling this case within her office, as she could have done given the influx of Covid money, she chose to hire a private special prosecutor to preside over the case. Once again, on its face, this is not earth-shattering, and generally well within her discretion—but there are several important facts that distinguish this case from the typical one, and which render the indictment invalid as a matter of law.

Under Georgia law, the district attorney was required to obtain Fulton County’s approval prior to appointing the special prosecutor to work on the case. The reason for this requirement is simple; it ensures that the district attorney cannot act unilaterally with regard to public monies and is subject to the control and supervision of the governing body, i.e., Fulton County so that public has confidence in how the money is used. Undersigned counsel has found no evidence that the district attorney sought or received such approval to appoint the special prosecutor from Fulton County. This is not a mere technicality. It is a requirement the Georgia Supreme Court has held must be followed when a special prosecutor is appointed, and, therefore, a prerequisite for any special prosecutor’s work on a case including the instant case.

Since the district attorney was fully capable of asking for authority for additional funding following the pandemic, then it is clear she knows how to do that. So that begs the question of why she did not do so with regard to the approval for the special prosecutor in this case. One could assume it was an oversight, but digging deeper the potential reason becomes obvious. As has been pointed out in prior filings, the special prosecutor’s oath of office was never filed. While this may have been an oversight, it may have been purposeful—a specific attempt to shield from public knowledge the fact that the special prosecutor had, in fact, been appointed without legal authority. Perhaps more important and enlightening, however, is the identity and qualifications of the specific person the district attorney chose to put in charge of this prosecution.

The district attorney chose to appoint her romantic partner, who at all times relevant to this prosecution has been a married man. Admittedly, this is a bold allegation considering it is directed to one of the most powerful people in the State of Georgia, the Fulton County District Attorney. Nevertheless, the district attorney’s fame and power do not change the fact that she decided to appoint as the special prosecutor a person with whom she had a personal relationship and who is now leading the day-to-day prosecution of this case. Even assuming this type of nepotism might be forgiven in the abstract, a review of the amount of money that the special prosecutor has been paid by the district attorney and the personal activities of the district attorney and the special prosecutor during the pendency of this prosecution shed light on just how self-serving this arrangement has been.

The Court may well be wondering, and for good reason, “How do you know this?� and “Why does it matter?�

How Do We Know This?
• Open records requests to Fulton County reveal that the district attorney did not obtain county approval to appoint the special prosecutor. Why would the district attorney not obtain this approval prior to appointing the special prosecutor?
• The special prosecutor has admitted his oath was not filed prior to his work on this case. Why would the special prosecutor not just file the oath, a simple administrative task for a lawyer?
• The special prosecutor is seeking a divorce in Cobb County and sought successfully to seal those records, hiding them from public view. Why would a private citizen such as the special prosecutor shield filings related to his income and spending from public view?
• While the filings in the divorce case are sealed by Court order (the legality of which is open to question), information obtained outside of court filings indicates that the district attorney and special prosecutor have traveled personally together to such places as Napa Valley, Florida and the Caribbean and the special prosecutor has purchased tickets for both of them to travel on both the Norweigan and Royal Caribbean cruise lines. Traveling together to such places as Washington, D.C. or New York City might make sense for work purposes in light of other pending litigation, but what work purpose could only be served by travel to this traditional vacation destinations?
• The district attorney and the special prosecutor have been seen in private together in and about the Atlanta area and believed to have co-habited in some form or fashion at a location owned by neither of them.
• Sources close to both the special prosecutor and the district attorney have confirmed they had an ongoing, personal relationship during the pendency of the special prosecutor’s divorce proceedings.
• According to these sources, the personal relationship between the district attorney and the special prosecutor began before this prosecution was initiated and before the district attorney appointed the special prosecutor.
• Undersigned counsel knows the special prosecutor and has researched his litigation experience. That research reveals that the special prosecutor has never tried a felony RICO case. The State of Georgia and the City of Atlanta has several lawyers who specialize in the prosecuting and defending RICO cases. Despite having access to these resources, why would the district attorney, instead, appoint someone who has never tried a felony RICO case, particularly in a case with such national significance as this one?
• The special prosecutor, based on his lack of experience in this type of felony, would not be qualified under Fulton County’s standards to be appointed to represent any defendant in this case given the complexity of the charges. If the special prosecutor is not qualified to defend this case under Fulton County’s standards, then how is he qualified to prosecute the case? Is that why the district attorney did not seek approval for his appointment? If so, why did she seek to appoint an unqualified lawyer without approval to preside over this prosecution?
• Since being appointed as special prosecutor, the special prosecutor has been paid an estimated almost $1,000,000.00 in legal fees. Of course, additional fees would be expected when private counsel is hired, but that would assume they are not in a relationship with the district attorney and they were qualified to do the work they were hired to do.
• The special prosecutor’s fees have been lucrative in comparison by any reasonable measure. The district attorney’s yearly salary, including state and county supplements, is $198,266.66 and the total annual budget for the Fulton County District Attorney’s Office for fiscal year 2022 was $31,541,968.00.
The district attorney lobbied for additional money from Fulton County to hire lawyers and staff to clear the backlog after Covid. Why didn’t she use that money to hire qualified in-house staff to try this case? Why did she, instead, use that money to retain the special prosecutor?

Why Is This Important?
• The district attorney’s failure to obtain the required approval to appoint the special prosecutor prior to him obtaining indictments against Mr. Roman renders the special prosecutor’s service in that role a nullity and without effect under Georgia law, so the indictments he assisted in securing suffer from a structural and irreparable defect and must be dismissed.
• In light of the district attorney’s personal relationship to the special prosecutor prior to his appointment as the special prosecutor, his appointment created an impermissible and irreparable conflict of interest under Georgia’s Rules of Professional Conduct, which requires the disqualification of both lawyers and their respective offices and firms.
• The district attorney’s apparent intentional failure to disclose her conflict of interest to Fulton County and the Court, combined with her decision to employ the special prosecutor based on her own personal interests may well be an act to defraud the public of honest services since the district attorney “personally benefitted from an undisclosed conflict of interest� which is a crime under 18 U.S.C. § 1346 as well as a predicate act which could result in a RICO charge against both the district attorney and the special prosecutor.
• Putting aside both the legal and ethical implications of their conduct, their conduct also undermines the sanctity of the criminal justice system, erodes public trust in our judicial system, and would place them above the law. To allow this conduct to go unchecked by a powerful, public, elected official threatens to undermine the very principles of democracy that the district attorney herself claims to defend in this prosecution. It seems hard to believe that such a powerful person could escape scrutiny and accountability for such egregious conduct simply because she believes she maintains a moral high ground and holds one of the powerful positions in
the State of Georgia. This is particularly true since she has used that platform and the megaphone it provides to tour the country giving interviews in her pursuit of a conviction.

It is for these reasons and the other important reasons set forth below that the instant motion is being filed. The actions of the district attorney and the special prosecutor are indefensible under the law and our Rules of Professional Conduct and have ultimately created a fatal and irreparable defect in the indictment against Mr. Roman and a conflict of interest that has tainted the entire prosecution. To allow either of them to stand above the law would be to invite and encourage the same behavior in the future, so Mr. Roman respectfully requests that the Court grant the instant and dismiss the indictment in its entirety as to Mr. Roman. Mr. Roman also respectfully requests that the Court disqualify Willis, Wade and their respective offices and firms from any further involvement in the prosecution of this matter."