On Friday, Judge Scott McAfee will hear oral arguments on the disqualification of Fulton County District Attorney Fani Willis. As this is an evidentiary hearing, he alone will decide how much weight to give the testimony, as well as how much weight to give the documents and other physical evidence entered into the record.
While the state and the defense present their arguments in support of their respective positions, keep in mind that arguments by counsel are not evidence. He, not a jury, will decide the fate of Willis.
The most recent witness who testified was Terrence Bradley, the former divorce attorney of special prosecutor Nathan Wade, and the purported star witness for the defense. Bradley took the stand for a last-minute, special hearing Tuesday and delivered…nothing.
The lawyer for Trump co-defendant Michael Roman struggled for more than an hour to get Bradley to concede that he had previously texted to her allegedly damning information.
After conducting a 90-minute closed door hearing on Monday afternoon with Bradley and his attorney, McAfee reopened the evidence. Ruling that Bradley’s invocation of the attorney-client privilege was misapplied to only one specific exchange years ago between Bradley and his then-client, Wade, McAfee allowed more probing of Bradley by all counsel.
Ashleigh Merchant, the lawyer for Trump co-defendant Michael Roman, struggled for more than an hour to get Bradley to concede that he had previously texted to her allegedly damning information that countered the timeline attested to by Willis and Wade about when their personal relationship began. But when pressed by Merchant to admit that his texts were some kind of smoking gun evidence, Bradley instead steadfastly maintained, while under oath, that he was only “speculating” when he shared with Merchant what now seems to have been nothing but idle, salacious gossip. Bradley testified over and over again that he did not have any personal or direct knowledge as to when and how Wade and Willis began their intimate relationship.
Recall that Merchant premised her disqualification motion almost exclusively on her communications with Bradley, so when it came time to present her case, her positions were frustrated and undercut by his unwillingness to affirm her questions. She was visibly irritated and struggled with how to impeach a witness that she thought was going to deliver home-run testimony. In fact, every defense attorney who took a run at Bradley during that hearing struck out. Bradley didn’t budge. He even admitted while on the stand that he might have told lies about Wade.
The Atlanta Journal Constitution and other media outlets now report that Bradley and Merchant exchanged as many as 413 text messages, beginning in September 2023 until just three weeks ago. The disclosure of these messages destroys Bradley’s credibility even further. Within them, he repeatedly disparages Wade and Willis, whilst simultaneously cozying up to Merchant, who he called his “friend.” Feeding what he claimed to her was proof of some kind of inappropriate relationship between Wade and Willis, Bradley purportedly provided a roadmap to Merchant in order to help her pursue the motion to disqualify. Bradley even went so far as to suggest names of individuals Merchant should subpoena for the hearing, including Robin Yeartie, Willis’ former friend and a former Fulton County DA’s Office employee.
It bears repeating that Bradley was Nathan Wade’s attorney, and an attorney-client relationship existed between them. A relationship whose communications are protected by the attorney-client privilege and one wherein the client shares information with the expectation that it remains confidential at all times. Only the client can waive the attorney-client privilege and it survives to the end of the attorney’s retention. The privilege is inviolate except in very specific instances, none of which applies here. In fact, the defense attempted a few weeks ago to assert the crime-fraud exception in order to pierce the Bradley-Wade privilege. However, McAfee ruled that the defense failed to prove that communications between Wade and Bradley dating as far back as 2018, when Bradley was retained to represent Wade for purposes of his divorce, were not done with the intention of committing a fraud on the court several years later.
In chasing that buddy-buddy connection with Merchant and with questionable intentions, Bradley chose to violate his attorney-client relationship with Wade and to inexplicably share information with a third party who also happens to be an attorney on the opposite side of a major case. Based upon his testimony throughout the evidentiary hearing, it seems Bradley decided to share gossip and innuendo that he had heard from other sources, none of which is attributable to Wade or Willis and, more importantly, at this juncture none of which has been confirmed to be true and accurate. Even though Bradley may have finally found his ethical conscience when he was sitting on the witness stand, he still engaged in the destructive art of being a yenta.
His text messages would suggest that Bradley has an axe to grind, although we can’t be certain.
His text messages would suggest that Bradley has an axe to grind, although we can’t be certain. We do know that he left the law partnership he shared with Wade after allegations were made that he sexually assaulted a firm employee and a client. Bradley denied those allegations during his testimony. Whatever his reasons, though, Bradley was the genesis for a multi-week, unnecessary national sideshow into the personal and financial lives of two prosecutors. He was also the genesis for a prolonged, tortured detour into whether Wade and Willis committed perjury. It is noteworthy that after his testimony, the court allowed Merchant to submit her text messages with Bradley into the record. The admissibility of Wade’s cellphone records that were obtained by Donald Trump’s attorney, Steve Sadow, will also be a point of contention as to whether they are admissible and, if so, how they are interpreted.
The only evidence that has been submitted thus far to counter the sworn testimony of Wade and Willis is that of Robin Yeartie who testified that their relationship began in October of 2019. In my opinion, Yeartie presented as a disgruntled former employee whose friendship with Willis ended once she was given the choice of either quitting her job at the DA’s Office or be fired for subpar performance. Like Bradley, Yeartie seems to have an axe to grind and her credibility is suspect at best. Georgia law on the disqualification of a prosecutor is clear: there must be an actual conflict of interest. This conflict must not be theoretical or speculative. As the Georgia Supreme Court held in 1998, a conflict of interest may arise when the prosecutor has “acquired a personal interest or stake in the defendant’s conviction.” In other words, if a prosecutor has a direct financial interest in the prosecution or conviction of a defendant, then disqualification must occur. In this case, however, there has been zero evidence of any direct financial interest by Willis in the prosecution or conviction of any of the defendants. Wade may continue to serve as one of three special prosecutors in this case, but the uncontroverted evidence is that Wade and Willis broke up in June of 2023. I’ve noted before, as well, that Willis has been demanding for months for a jury trial to be set by McAfee. If the defense is right and she appointed Wade in order to derive some financial benefit from his role in this prosecution, then why would she be so intent on cutting off the gravy train by quickly concluding the case? If McAfee grants the motion to disqualify, then under applicable Georgia law and procedure, the entire Fulton County DA’s Office is disqualified as well. The case will be reassigned to a new district attorney; there is no set amount of time that governs when this reassignment shall take place. Once the case is reassigned, then that new lead prosecutor will utilize their own prosecutorial discretion to decide how to proceed with the existing charges. That means that some, all, or none of the current offenses could be pursued by a new DA. I’ve been a careful observer of this case since the very beginning. In watching McAfee, his decisions have thus far been thoughtful, fair, and measured. He must remove all emotion and personal opinion and he must consider only the evidence that has been admitted. This process provides for decisions to be made based on the evidence and not on gossip, innuendo, or “speculation.” The stakes could not be higher for both sides. McAfee’s decision on this one motion has the possibility of altering the entire outcome of this prosecution. The law and the evidence support only one result: the denial of the motions to dismiss and to disqualify.
Katie S. Phang
Katie S. Phang is the host of "The Katie Phang Show," which airs Saturdays at 12 p.m. ET on MSNBC. She is a legal contributor for NBC News and MSNBC based in Miami. She leverages her significant trial attorney experience to provide analysis and commentary on the latest legal issues. 
