The Fani Willis Thing... How Bad Is It?

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:52 Thomas: Hello, and welcome to Opening Arguments. This is episode 1003. I'm your host, Thomas Smith, and before I get on over to Matt, plus a special guest for today, wanted to tell you a couple things. First off, thank you so much for the overwhelming response and for signing up on patreon.com/law. Folks are amazing. Keep it up. I put a Q&A thread up there so that we could do a Q&A and ask Matt some questions, maybe get to know him.

Or if you want to just put in questions about legal news of the day or the week or the month, or even your year, things you want us to cover in the future, any and all questions you can think of on that patreon.com/law Q&A thread and make sure to hit the heart button on questions you'd like to hear answered. That helps us prioritize what to answer. Looking forward to doing that.

I think it'll be a fun kind of, of sorts, getting to know Matt and starting this new era. Else? Oh, if you were blocked by the OA Twitter last year, you're now unblocked. Pretty cool. I'm very much looking forward to being on the schedule starting next week. So that should be Monday, Wednesday, Friday, that Monday deep dive, that Wednesday T3BE and that Friday rapid response. As I mentioned last time, Matt and I did kind of a practice recording to talk about some more news.

We talked about the impeachment attempt, that all that nonsense. Have that up -ish -ly. Now let's get to today's show. About what's going on with Fannie Willis. I get into it in the recording. Only do we have Matt, whom already met, experienced as a defense attorney, but we also have Matt's partner, Casey, who has experience on the other end of things. She's been a prosecutor. She So that is such a fun duo to cover criminal law topics with.

Going to explain what's going on with Fannie Willis. Is there any there there? How bad is it? What really happened? All those questions and so much more after After, non -patrons, an annoying auto add. Sorry about that.

0:02:44 Thomas: I'm joined by Matt and Casey. How are you doing today? Oh, sorry. I should have picked an order. You know, it's been a year. I'm a little out of practice. I'm joined by Matt, followed by Casey. In alphabetical order, though. Casey, how are you doing?

0:03:00 Casey: Good how are you doing

0:03:01 Thomas: Couldn't be more interesting, weird circumstances. The whole, the powers out, the windstorm the that likes of which I haven't heard since very eerily enough, like exactly a year ago, this exact same thing happened. And I had to record like, the last episode I was on of OA, I believe I recorded it without power to my memory. It's very eerie.

0:03:19 Thomas: So like I'm I'm in a weird place right now. I may be traveling through time and space and dimensions that we don't, but if you can hear me, I'll assume that we can record. So we'll just, forgive me if I pop in and out of existence. Matt, how are you doing?

0:03:13 Casey: Wow wow

0:03:19 Matt: That's funny oh I've got plenty of interesting and weird stuff to talk about tonight too dersh

0:03:34 Thomas: Yeah, so Matt listeners will have heard the amazing episode that you and I did just prior to this. Hopefully they listened to that. Check it out if you haven't. But Casey, listeners won't be familiar with you yet. Would you like to introduce yourself, give

0:03:44 Casey: Casey. Matt's wife, which is sort of relevant to what we're going to be talking about today. Also a lawyer. We actually met in law school, and we have been practicing, both of us, separately since 2005. I was a prosecutor for most of my career until, I guess, almost two years ago, I it was a year ago. And prosecuted a variety of cases, district court, superior court appeals. Worked on a number of homicide cases.

0:04:10 Thomas: This were a sitcom, I'm sure you guys would have ended up opposite each other in the courtroom arguing, you know, one for the prosecution, one for the defense. And be a charming thing where like, even the criminal that's condemned like, is laughing along with you guys. Like, oh, this couple, so much chemistry. Did that ever happen? Yes or no? Damn. Well, Damn.

0:04:28 Matt: No, but in Georgia, I think it might actually might be legal in Georgia. We'll find out.

0:04:33 Thomas: Yeah. Yeah. So speaking of great, lead great in, you because will not find any better stand in for the listener than me. I am so good at knowing like three things about the thing we're going to talk about. That's what most people know. They've heard vaguely, wait a minute, Fannie Willis, something's going on. She was in a relationship with somebody and it seems like there's maybe something untoward going on there. However, the second thing I know of the two to three things I know about a given topic is that MAGA and Trump and all that are making absolute hay out of this and saying it means that the whole case should be dropped and all of that. And day and age, I don't know what information to believe, what's been filtered to me. I don't know how bad this is. I don't know how common this is, and I think it's so perfect to have both of you who truly have actual experience in criminal law to take us through this. So, what's going on here with this mess?

0:05:21 Matt: We'll start with the facts. We're just going to take this through kind of like a legal brief. So we're going to talk about the facts, We'll talk about the law, and then we're gonna talk about arguments. And we might actually end up having an argument. We'll see what happens. I'm just going to take you through that the facts actually really matter in this case. And I think, as you said, not everybody's been following everything. So, I just want to make sure we've got the basics down. Fannie Willis was sworn in as a district attorney for Fulton County, Georgia, on January 1st, 2021. Was an ADA in that same office, and she served as a municipal court judge in the same county. Important to note, though, Fultон County is basically Atlanta, so obviously if you want to try to influence a federal election in Georgia, that's probably where you're going to do it. We know, of course, that is what then -President Donald Trump and his weird goons were alleged to have done about 2020. 20. Most notably, they

0:05:26 Thomas: Ooh.

0:06:00 Thomas: When you say alleged, like, does that mean we heard the entire phone call or?

0:06:02 Matt: Are Pending criminal charges, so we have to say allegations, but We have Heard the Phone call, we have all heard it, yes, uh, of many perfect phone calls to Secretary of State Brad Raffensperger. But of course the uh indictments in this also alleged another number of other calls and communications made by a number of the people we'll get into. Willis requested and received a special grand jury to investigate the allegations around Trump's election interference in 2022, at the beginning of the year, about a year ago, two years years ago. Excuse me. Wow.

Special grand jury spent an entire year hearing from 75 witnesses before it issued its report in early 2023. Grand juries don't have the power to indict in Georgia. So the report was referred back to the DA's office to file charges with a regular grand jury. Indictments were finally filed on August 15th, 2023. So just very quickly, these indictments are a pretty complex RICO case, just alleging a conspiracy amongst Trump and 18 other defendants.

You got some familiar characters, you got Trempler, Rudy Giuliani, Sydney Powell, John Eastman, all the way down to some uh local weirdos, we got a county Republican committee chair, bail bondsman. I honestly, I don't even know why there's a bail bondsmen involved. I haven't even bothered finding out. I don't care. Um, obviously he probably did something terrible and

0:06:07 Thomas: Ah, okay. Okay.

0:07:08 Thomas: For one, can't wait to find out why there's a bail bondsman involved. Actually, I'm going to, this is our first argument. Okay. Five minutes each. Why do we want the, yeah, No, I familiar with many of those names, obviously that you you mentioned, and I'm familiar with many of them having pled guilty in something. Is that this, or is there, there's so many trials, there's just so many. Oh, It is this, okay, how

0:07:17 Matt: Best guess. It is this, in fact. Actually, I should mention, there's also a former publicist for Kanye West involved for other reasons that I don't really know why. She's kind of the bottom of the barrel on this one. But four of the defendants actually have already pulled out, including Sidney Powell, most famously, but also Kenneth Chesbrough.

And we don't know the full extent of their cooperation or if they're going to be cooperating, but of course, that's pretty much the purpose of a RICO charge of this size, is to start to get people to cooperate. But very quickly, let's go back for a minute to November 1st, 2021, Fannie Willis appointed one Nathan Wade, a special prosecutor for the upcoming special grand jury proceedings. Attorney Wade was mostly a personal injury lawyer.

The Atlanta Journal Constitution did some reporting on this and determined that he's handled about 75 state and federal criminal cases. There's a lot of dispute about exactly what kind of experience he's got, so I think it's worth mentioning. Some of them have included felonies. There was a dispute on that point. Um, Willis, he was also a municipal court judge for a while. He was contracted in this case at $250 an hour as a special prosecutor and

0:08:22 Matt: I Think That's You Know what I've been hearing people talk about that, like that's not very Much Money

0:08:22 Thomas: Do You Get That Deal There A Yelp Coupon somewhere that Fannie Willis could, a referral code or anything, anyway, go Ahead

0:08:27 Matt: Yeah No I I think, okay, and again, I'm, I'm a lowly immigration lawyer and I've taken appointed cases from the state at $50 an hour, and about 15 years ago, um, Know, $250 sounds pretty good, um,

0:08:33 Thomas: Yeah Wow, because It's state, okay, so that's the key, it's like the state's like, well, well, we can't pay what actual market rates are for some reason, because then we'd attract talent and that talent wouldn't go to corporations or whatever, I think is the reasoning. I don't know. The state can't play as much as you would make anywhere else, right?

0:08:55 Matt: No Anyway No Right, but of course they Mentioned that in the, in Willis's filing, she talks about how there's no way they compare market rate, and basically he's doing them a favor by working at $250 an hour, um, It's worth mentioning this, just because another attorney, that they have a RICO expert who's been brought in on this, this guy literally wrote the book in Georgia on RICO, and He helped, helped to, he draft the statute in Geurgia, and he was paid $150 an hour, and I just think that's worth noting, as for the purpose of what we're talking about here. As of the time of the filing of the motion we're going to be talking about, Wade had personally billed $653,881 for this work.

0:08:59 Thomas: Okay. Yeah. Wow. Hmm.

0:09:29 Matt: Was being in charge of both the special and regular grand juries. It was pretty much his full -time job, as I understand it, for a couple of years. Again, as a full -term job, getting almost $700,000 for two years, it's pretty good.

0:09:39 Thomas: Yeah. I mean, I'm not doing the math on that. Have you done that? How many hours is that? What What kind of overtime is this guy pulling?

0:09:45 Matt: That is also in dispute because there's at least one place where he billed 24 hours in a day. So, he's long days there. Who doesn't sleep? Yeah,

0:09:50 Thomas: Wow. Dedicated public Now, know we have so much, and so it's hard to pick and choose where to stop and explain. But RICO. Racketeering, blah, blah. Mafia stuff. Is it the kind of thing where it was a New York law, or was it a federal law, or did the states have to make their own? You said RICO in Georgia. Georgia. Can you explain that at all?

0:10:14 Matt: Important. And we'll talk a little about the legal issues too, but we're not going to talk about RICO as much because that's a whole other conversation. But basically, the famous one that everybody knows is the federal RICO. But Georgia has its very own special RICO, and Fannie Willis actually is one of her specialties, is state RICO go prosecution. So it becomes relevant here for the purpose of this proceeding. I do want to point out, though, this is where we're starting to get into the meat of what we're talking about. The day after he was appointed, November 2, 2021, Wade's wife of 26 years filed for divorce. And I really wouldn't want to have to talk about this. Yeah, the day after it was appointed. And it becomes relevant, unfortunately, because three years later, Ashley Merchant, the attorney for Michael Roman, one of the co -defendants in this case, filed a motion to dismiss January 8. And And this motion to dismiss was drawing from their divorce proceedings. And at the time, those divorce proceedings were sealed. So she was basically working from rumors, which apparently you can do in Georgia, we've learned recently.

0:10:25 Thomas: Okay. Oh,

0:11:05 Matt: She didn't have to attach an affidavit or evidence or anything. She basically just said, here's some stuff that's on the street. This is what we're hearing. Astonishing to me, frankly.

0:11:06 Thomas: Wow. Literally word on the street is, and then that, okay.

0:11:14 Matt: Yeah. Yeah. Yeah. No, it's, I mean, you can just just put do it. You can put it in a motion and you file it. And I've learned that that is something that is actually considered normal in Georgia.

0:11:16 Thomas: Wow. I could be like, hey, Georgia courts, I heard Richard Gere did a thing with a gerbil and it's on the, I mean, it's everywhere. Ask anyone, literally ask anyone. And then that's enough evidence, I guess, to, if there's a Georgia gerbil law

0:11:36 Matt: Might not be relevant to this proceeding, but okay.

0:11:36 Thomas: No. Not That I'm just saying in general, this is separate, separate legal issue. Sorry, good. Clarification, this is a separate proceeding.

0:11:41 Matt: Sure, yeah. Sure. If you want to try to get this in for relevance, you can try in here. But I mean, there's a lot of different stuff in here that I wouldn't think would be too relevant that ends up in this motion. So not quite that far. Yeah, so the on word the street is that Fannie Willis and Nathan Wade had gone on some vacations together to California and the Caribbean and other places. And this is the basis for this motion is that they're apparently in a relationship. So, has admitted that relationship as of Friday, which we're now recording on Sunday, February 2nd, but has been adamant of something that is very important that is going to become important as we talk about this. She has insisted that the relationship began after Wade was appointed, and Wade has filed an affidavit in this case stating, under pains and penalties of perjury, that he had no personal relationship with her prior to or at the time of my appointment on November 1, 2021. He states the relationship

0:11:47 Thomas: Yeah. Okay. Man.

0:12:12 Thomas: Interesting.

0:12:31 Matt: Began in early 2022, that he at no time, she at at no time, excuse me, received any of the funds that he was receiving. So he never shared any of it with her. He did take her on vacation, but he didn't give her any money, that they've never shared their finances, and they conducted their relationship as financially independent professionals. So

0:12:47 Thomas: All So this is, this admitted to some degree, you're saying, like, we, if you've heard the rumors, you haven't heard coverage of this, that there's some relationship going on here, that much is like solid, admitted to fact Then.

0:12:58 Matt: Right, he's carefully circumscribing what he's admitting, because it's very important to this motion, as we'll get into as to exactly what the nature of the relationship was and where the money was going. But those are essentially the facts that we're working with. And

0:13:03 Thomas: Yeah. So stopping there for a sec to express a little bit of disappointment because Fannie Willis, feel I like my conception of what she was doing was hitting the media pretty hard about, which I didn't mind. In this Trumpian day and age, it seemed like she was utilizing media to kind of, I don't know what a better word is, but kind kind of boast about her efforts with Trump. And I don't mind that at all. I think that's in this day and age, kind of, you time for another show to discuss how proper that is for a prosecutor. I don'T know, but just as a guy, I was like, yeah, that's fine. But like she was making quite a big deal about how importante this was. I feel like it's important important enough to not do this, you know, like wait a year or two or however long it's going to be before you go on your vacations to the, to California and the Caribbean or whatever it was. Cause it just feels like you could have done that, you Know,

0:13:22 Matt: Sure. Yeah. I feel like you can have a boyfriend or you can Have a guy you're paying $250 to be your special prosecutor, you got to pick a lane. Honestly,

0:14:05 Thomas: And it's a choice we all make, you

0:14:06 Matt: Well, sure, of course. In this case, especially, I mean, honestly, this this is I'm going to tell you, I think this is the most important state criminal case in our lifetimes. I

0:14:15 Thomas: God damn it. So, so, Even more, what I just said, it's Pretty important. Uh Can't Believe Frustrating Very Frustrating

0:14:18 Matt: Gotta Get it right Yeah I Agree it's Only the fifth prosecution Of a former president happens to be the same one that the other three are prosecuting, but uh, you know, there are many more people have walked on the moon than have prosecuted a president, and uh, I feel like you got to be about as careful. So what I'm at with all of this myself, and and we'll talk a little bit more about where this is all going, but it's important to make a distinction, too, between sort of the moral, ethical issues and the legal issues here. And the legal issue is, should she be disqualified? That's what we're going to be talking about today. There's a lot of different takes out there. Some We're going of them, but let's get through the legal. Legal issues first, so we can talk about what the parties are raising. Casey, do you want to get into some of this?

0:14:37 Thomas: Yeah Yeah

0:14:54 Casey: So actually, it's interesting that you mentioned about the public statements Fannie Willis has been making, because that's actually noted in the defense motion to dismiss that was filed. They actually mentioned it in a footnote, and about the public statements made around this case, I which actually happen to think is, you know, I don't know that it's, at this point, it's not a good idea, in my opinion.

Don't know that it's actionable, and I don't think that the defense knows reasonably believes it is either, which is why it's in a footnote at the moment. They actually complain about the public statements in the case, and they threaten to file a motion to prevent her from continuing to make such statements, basically, I would assume, some sort of gag order. They make a claim that it potentially poisons the jury pool, which which is what my concern would be, right?

Actually a special rule that applies to prosecutors, an ethical rule. One of the things that it says is that, and this is the case, I think, in almost every state, certainly but in Georgia and in Massachusetts as well, there's a special role that amongst other things says that prosecutors shall refrain from making public statements other than for for an official law enforcement purpose, and I'm paraphrasing this, that would heighten the condemnation of the accused. And the reason for that is because of the concern that somebody might be deprived of an impartial jury,

0:16:06 Casey: Right, when a case goes to trial. We don't want to try cases in the media is the idea. We don't wanna poison the jury pool, which is what, I don't think it's totally unreasonable of the defense, to be perfectly honest, to raise that as a legitimate concern. I don't think there's anything at this point really to be done about it, but I think it would probably be wise to stop making public comments. They can outline what the charges are and the basis for those charges. And if the person is a fugitive, they can provide some additional information about where they might be found, around whether or not they're armed and dangerous and so forth. But I think that you'll notice that most elected district attorneys do not make a ton of public statements. There's a reason that they have pretty tightly controlled press conferences where they generally offer the bare bones of what the case involves. And I would suggest that's because of the fact that they want to run afoul of the rule, right? It's

0:16:06 Thomas: Yeah So Which

0:16:53 Casey: Something I think most elected DAs and their assistant DAs or deputy PDDs in the case in Georgia, uh, know, they want to avoid prejudicing defendants.

0:17:00 Matt: I I think it's worth mentioning, too. What the statements were. She spoke at an church around Martin Luther King Day weekend. And so Donald filed a motion to join this mission to dismiss. And of course, you might not be surprised to learn, he does not put this in a footnote. He just goes ahead and says that she inappropriately injected race into the case and stoked racial animus. So he has to make it about race, of course. But what she said didn't actually mention the defendants. What she said was that she felt like she was being unfairly targeted because she was a black prosecutor. I have to say this is fair comment. I certainly understand that she is under more scrutiny as a black woman, as a prosecutor. There's no doubt about that. This is fair comment about Yeah.

0:17:37 Casey: No.

0:17:38 Thomas: The complaint about her talking, yeah.

0:17:40 Matt: In the motion are fair comment, a lot of them. Some of them are nonsense, as we'll get into. But

0:17:44 Thomas: Claims in the motion to dismiss.

0:17:46 Matt: So that's what she was commenting on, was she was saying that she felt unfairly targeted, but the fact is that there are legitimate issues potentially to raise around this relationship and what it means, so um.

0:17:49 Thomas: Okay. Yeah, well, I was hoping that she could just get away with it by doing like a generalized thing, you know, like we've got a problem in this country of ex-presidents not naming that. You know, just doing that, like, "Tough on cry, hey, parents, if your kids are ever approached by an ex-president wanting them to interfere in an election, you," and giving them Halloween candy with, with, or something, you know, not like throwing a lot of that crap. I think it could work, not

0:18:04 Matt: Sure. So.

0:18:05 Casey: Yeah.

0:18:17 Casey: So I think the, the actual meat of the motion and it's, it's kind of, it is styled as a motion to dismiss or to disqualify the, the prosecutors, um. Involved. And I, I think it's worth noting at the, at the outset that as far as I I can tell there's Georgia law, there's not recognized a for dismissal based on any of this.

0:18:35 Matt: Dismissing the indictment is a huge swing, that's, that's ridiculous.

0:18:38 Casey: But And that's fair to try to preserve the issue for appeal. The actual remedy, as far as I can tel, under the case law in Georgia, be disqualification of that, the part of this motion involves we would call a conflict of interest sufficient to require disqualification of, I would assume, both Willis and Wade. So it's pretty well established everywhere that there's a conflict of interest where a prosecutor has a personal interest or any sort of financial stake in the outcome of a criminal case, which, you know, in this case would be a or financial stake in the conviction, right? And that's the case in pretty much every state. And so the argument is essentially that the district attorney has benefited, benefited substantially, indirectly, and continues to benefit from the litigation as a whole. Her boyfriend or partner has made a bunch of money based on this case, and then he's taken her on vacations to places like Aruba and California, as they put it, paying for vacations across the world with money he's being paid by the Fulton County taxpayers, payers, and authorized solely by Willis.

0:19:44 Casey: And it's worth noting there is no direct evidence for that all.

0:19:44 Thomas: That's interesting. Okay. Taking that on board though, now it sounded to me like the rule would maybe be more in place for like, you've got a financial interest in the guy being convicted or something, but is it, do you have a financial interest in a trial happening if you're being paid to, I guess, no, that can't be true. I mean, basically anyone getting paid by the state to help any time would have an interest in like that part of it. So is, yeah.

0:19:59 Casey: Yep. No, exactly.

0:20:11 Matt: Defense attorney Your Appointed Defense attorney, right? I mean, it's just that's Ridiculous. Yeah.

0:20:15 Thomas: Yeah. That would be any, anyone. Yeah, okay. So, so is that a good point then? Like they're trying to argue that that's a financial, like of interest, but that seems like Like, he would be paid regardless if they win or lose.

0:20:17 Matt: Sure.

0:20:28 Casey: Yeah, I think that's exactly right. I think the basic idea is their Do I think this is a good argument? I do not. I also think that this was a really bad idea on her part and his part, but I do Not think this this is a good legal argument. Basically, they're suggesting he's getting paid a lot more than any other prosecutor in her office is being paid, is, which true. I mean, prosecutors are not typically particularly well paid, and they are not paid by the hour. That how special prosecutors are paid. They are paid bythe hour. Is being payed more than some other special prosecutors on the case. Get to that in a minute. But as the DA points out in her response, he's not being paid at a rate that's, that's above similarly situated special prosecutors in other cases.

So they're basically suggesting that of the fact that he got paid so much that you can infer some sort of malfeasance or the fact that there's an interest in continuing this prosecution, I guess, because otherwise the the elected DA who makes almost $200,000 a year wouldn't be able to take a trip to Aruba. Which, lest I check, the flights, at least from Boston, are like, you know, $300 or $400.

0:20:45 Thomas: Hmm. Yeah.

0:21:29 Casey: So I find that a little hard to believe. Maybe they're much more expensive from Georgia. I don't know.

0:21:32 Thomas: Yeah, if we find out there's a private jet or something, then okay, sure. They're flying coach.

0:21:38 Casey: Presumably. Defense also, also they stress Wade's, what they call a lack of qualifications And the essentially says she's known Wade a long time, which we'll get to that in a second because it seems like she has and like they're probably friends, which is interesting.

0:21:39 Thomas: Yeah. Hmm.

0:21:49 Matt: It's kind of funny well They were friends. I don't think they're anymore after this.

0:21:54 Thomas: Yeah,

0:21:54 Casey: Were friends until this. Yes. Claims the defense attorney that he tried cases, anything like this before, and in fact, is not really qualified to be doing this. She essentially says he tried some misdemeanor cases. He's mainly a defense attorney and a personal injury attorney, he wouldn't even be eligible for appointment as a defense Attorney in this case, which would require him having tried at least two criminal cases involving Similar offenses, like RICO cases. And in that case, it would only pay $140 an hour, as opposed to what he's making, which is $250 an hour. So they kind of cobble all this together to try to, well, do one of two things, either sort of muddy the waters and be like, this is so bad that you have to do something about it. I don't really know, what this doesn't really fall neatly into any category, but it's really bad and we should take them off the case, or, only in the alternative, I think what they're really trying to do is say this raises a strong inference that there's something, some sort of malfeasance, at foot foot that,

0:21:54 Matt: Yeah.

0:21:55 Thomas: Yeah. Hmm.

0:22:48 Thomas: I didn't try to subvert the election in 2020, you know? It's a weird reverse time causation thing. It's little counterintuitive as a legal argument. But it is true. I want to pause on that. Don't lose that thread or anything. But I really curious about this idea of the divorce proceedings. Now, it's not as though something was necessarily leaked. It was like rumor on the street kind of thing. But in proceeding now, as this goes forward, is evaluated in some way, which make sure to tell us how that goes, the process exactly. Is there at some point where they're like, all right, pop open those those divorce proceedings so we can look at, you know, kind of the evidence around

0:22:51 Matt: Right, Let's toss this thing. Yeah. So,

0:22:53 Casey: Exactly. Yeah.

0:23:26 Matt: A good

0:23:26 Thomas: This stuff.

0:23:26 Matt: Actually, very good question, actually, because they have been unsealed recently, um, and is scheduled to be an hearing on the 15th of February, in which they're going to call in, I mean, the defense wants wants to call in something like 12 witnesses, I think, so think

0:23:27 Casey: Yes.

0:23:29 Thomas: Okay.

0:23:35 Casey: Were the records actually unsealed, or were they just unsealed for the court to review in camera, okay?

0:23:40 Matt: They were completely unsealed, but the other development in that case was that Willis was actually supposed to testify in the divorce proceedings, and I think she was probably very relieved to learn that there was a settlement in that divorce, so she doesn't have to do that, because that would have gotten really messy.

0:23:47 Casey: Yeah,

0:23:52 Thomas: God, dude, whatever his name is. Yeah. Maybe pay up, you Know, like just separate topic, like, just legal strategy wise for that one dude getting a divorce, like go ahead and cut a check, you Now, like Just end, put an end to all that.

0:23:54 Matt: Yeah. Get get out of this, yeah. Totally, It's

0:24:04 Thomas: Cause you, if he had found a way to somehow end his marriage more amicably without out that whole thing, then I guess we maybe wouldn't even be here.

0:24:02 Casey: Yeah,

0:24:14 Matt: Possible, actually. I mean, who knows, for all we know it was his ex-wife who dropped the dime on him about all this and the sealed proceedings, but, but it will say they've been conducting this relationship pretty publicly, they've seen out a lot, and people seem to know they've been doing this, so they haven't really been trying to hide it well.

0:24:20 Thomas: Sure. It could be. Guess the point I want to make with that, real sorry, quick, was, was curious if any statements in defense they're making about, like, oh, it just started, we dating, blah, blah, if all that was like, well, there could be evidence that comes out that contradicts that in the divorce thing. Um, and so therefore that would maybe inform how you might, like, those comments, uh, or evaluate them. But if it's like, they're saying that knowing that all that crap was either unsealed or presumably could come out, that, don't know, lends a little plausibility to what they're saying, to me. What do you think about that? Well,

0:24:59 Matt: I'm trying to think about it, because that's very speculative, I'm just trying to think about, I was turning your question over, um,

0:25:04 Thomas: Let me rephrase, if, if they are saying stuff like, hey, the relationship didn't start till we were on the case, blah, blah, blah, if they're saying that knowing that, like, a bunch of stuff could get unsealed at any moment, and I would imagine that could contain text that could, who knows, what, what's in there, that, like, that tells me that, like, there would be a hell of a gamble for them to, like, boldly lie about that, figuring that the evidence could be out at any time, right?

0:25:20 Casey: Yeah,

0:25:25 Matt: For sure, that, he's now, under pains of penalties of perjury, like, he's, he'll, he'll perjure himself at that, that point. But the, I will mention, though, that the defense filed a response to Fannie Willis's response within about three or four hours of what she filed. She filed 167 pages, and they shot back, because they were not happy about some things, I think we're going to talk about, but, uh, said basically, if this were going to evidentiary hearing, here's some questions we would have for you, and one of them is, uh, isn't it true that you were more than just friends as of 2019, 19, and so, yeah, this could get really messy in a couple weeks. Yeah.

0:25:33 Thomas: Hmm. Oh, Okay, Yeah, where are we in the process then? So this is, they filed a motion to whatever because these people were in a relationship, and then you're saying Fanny Willis reply, a reply to that, and then we got another reply.

0:26:10 Matt: A quick shot back, uh, just rebuttal and basically just

0:26:12 Thomas: Like a DM, like, the judge, like, hey, what those assholes said, I don't believe you know, or back. Or how and forth do we get here before somebody makes a decision about something?

0:26:16 Matt: Yeah, It's going to go to a hearing on the 15th, and they've, they filed a bunch of subpoenas to bring people in, but I think that they just couldn't, I've done this before, I gotta tell you, myself, like, sometimes you just can't resist when they, when there's something that you have to respond to, you file a rebuttable as quickly as you can, it's

0:26:26 Thomas: Hmm.

0:26:31 Casey: I don't think it's unusual, to be honest, like, I think it is pretty normal for you one party to file their, their, their brief for their main motion, for for the other party to file their opposition, and then for the original party just to fire back or apply, in some cases, depending on the lawyers involved, that can kind of go back and forth for a while, but I think that, I think this is pretty normal, honestly.

0:26:48 Matt: Fun, I I love it personally, but a great time, it's one of my favorite things to do, exactly.

0:26:52 Thomas: My last email, Court. In mind, you know, how many people we have listening who don't know anything about these processes. So I wasn't sure if there's some rules about like, well, you get to file a thing and they get to refile reply and then donezo. Or if it's like you getと just keep sending as much mail to the court as you want.

0:26:53 Matt: Right, yep, sure.

0:27:09 Matt: Until they tell you to stop. So

0:27:11 Casey: I mean, yeah, I would have to look at the Georgia court rules, like, in Massachusetts you can file as much as you want, it's basically basically just called drowning the other side with paper, that's a strategy, um,

0:27:17 Thomas: Okay. Great thing about our system should,

0:27:24 Matt: We should talk about Fulton County Code of Laws 266 real quick, because, Casey, you pointed out this was cited in the uh defense motion, and doesn't necessarily help the defense motion, I

0:27:31 Casey: So one of the things they point out in support of this sort or overarching suggestion that she has acted with the appearance of impropriety, right, which I think is, it's probably true that it, this doesn't look good, right? So, so she cites, to the defense sites, to the Fulton County Code of Laws, and points out that that Faulton County Court of Law's says that officers and employees of the county, know, should avoid the appearance of impropriety. But so there's two things.

One is Fonny Willis points outthat she's actually a state officer, officer she's not a county employee, and so I think it's probably questionable whether this applies to her to begin with, but, know, I could be, I could be wrong about that, but even aside from that, they, defense quotes a pretty big chunk of statute, and the second portion of it actually says that in order to to not throw up unnecessary barriers against people entering public service, the types of restrictions we put put on people's personal conduct should only be those that are really necessary, only essential, right? Because we don't want to have people say, you know what, like, I could go into private practice, and, you know, only the rules of professional conduct apply to me, and I follow those. And so I can date whoever I want to. I go on vacations wherever I want to. And so

0:27:54 Thomas: Quote, keep it in their pants, end quote. Weird. Weird. Hmm. Yeah. Yeah,

0:28:47 Casey: I'm not going to waste my time taking a pay cut going into public service where I'm not going to be able to, you know, conduct my affairs in a way that that's ethical and appropriate, but that I have the county looking over my shoulder every five minutes.

0:28:47 Thomas: Yeah.

0:28:58 Thomas: Mean, no kidding. I kind of made the point earlier, but it's like, hey, you know what? We all want not corruption in our state officials. How do we accomplish that? Well, I know. Let's make it as miserable and low paid as possible and make it impossible to live up to the standards. And then it'll be great. It'll work out amazing for everyone. No one will ever want to accept any sort of bribery.

0:29:18 Matt: And Also make it so you can never date a lawyer, which, honestly, now that I say that out loud, might be a bonus, but now Only lawyers can marry lawyers, that's, that's a pretty uh pretty well established rule as

0:29:29 Casey: Yeah,

0:29:24 Thomas: Oh, shots fired, we're gonna have another divorce percent, no, I'm just kidding. Oh, okay, that's the rule. I

0:29:32 Casey: That's the essential problem with all of this, right, is that everybody involved knows lawyers, people in the same offices, and frankly, even people on either side of the aisle are constantly dating each other and marrying each other. And it's very well known. And obviously, you have to avoid actual conflicts of interest, right, or potential conflicts of interests. But the suggestion that people who are lawyers are not regularly involved within each other is just not true.

0:29:37 Thomas: Mean

0:29:56 Matt: Actually comes up in this motion, um, we'll get to that in a second, I'm sure. But I

0:29:59 Casey: Yeah.

0:30:00 Thomas: The judges just wear robes, they don't even get dressed, they just yeah, now I know, why I thought that was like a fancy thing. It's actually just a, a very, there's laid back, okay, I get it now. Well, especially too, in seriousness, a lot of jobs where it's like, if you are at night, who knows if he was bullshitting about the, you know, working 24 hours in a day. But like, if it is a job where you are putting in long hours and you basically have no time for anything, but the job you're doing, it's pretty hard to be like, so I guess you don't get to have any sort of life or talk to anyone in a romantic way because you're at work all the time. And so I kind of see the argument you're making there, which is like, eh, people are gotta be humans to some degree, but there must be a standard of, something um, that, that hold to so that it doesn't look, um, something's wrong or something, or something's unfair or whatever.

0:30:03 Casey: Yeah,

0:30:03 Matt: Very convenient, uh True, and I, we should move on here to the last kind of thing they're arguing and in terms of the, uh, conflict of interest. Is it just saying that the, the defense is alleging violations of the rules of professional conduct, which, Casey, what do you think about that?

0:31:01 Casey: I think that's a bar issue. That's not...

0:31:03 Matt: I don't know why it's in the motion.

0:31:04 Casey: I I Think it's a red herring. Think quite a lot of this motion is red herrings, frankly.

0:31:09 Matt: Big Big barrel of them.

0:31:10 Casey: Again, that's not to defend her conduct. I lawyers would be pretty surprised by this and think it wasn't a particularly good idea for an elected DA. But but types of claims about violations of rules of professional conduct, like I just don't really see how they're they're relevant to getting a dismissed, for instance. Instance.

0:31:26 Matt: Totally. The prosecution had a lot of fun responding to all of this.

0:31:30 Casey: Prosecution basically says of this is irrelevant, that the defense is trying to just bring out all these salacious details to sort of gin up some sort of manufactured conflict of interest on the part of the district attorney that's not supported at all by the law. They refer to the defense as offering, quote, "only fantastical theories and rank speculation," and say that none of the circumstances that could support a finding of a financial conflict, as that term is understood in Georgia law, can be found here. Actually also that perhaps what this is about is not just the intent to disqualify this particular prosecutor, but that maybe what it's really about is to substitute somebody else that would be more, more favorable to the defendants.

0:32:14 Thomas: Yeah. Yeah, because just thinking about it, okay, I, I know we've all said it, but to say it again, like, obviously this was a, bad a goddamn idea, shouldn't have been done, and, uh, you know, morally speaking, not, not great, it seems like. But Um, speaking legally, or me trying to think through it legally, what what is the thing you would be worried about with this?

Like what you, what I think you would be worrying about, what do I think the state or a voter or whoever would be worry about is, Hey, I don't want you, uh, an elected prosecutor who has all this power. I don't want you hiring your friends who actually suck at law. Don't do a good job, lose a case and then get paid way too much money.

That And feels like it would be the issue where it's It's like, hey, they if do a bad job, they lose the case or if they don't like that risk, I guess, is the reason you shouldn't do that. But I really think of a logical connection to like, and therefore the criminal should get away with it or and therefore it's it does anything to sully the case against Donald Trump.

0:33:09 Matt: It's a little too far. Taking a good joke a little far there.

0:33:12 Casey: I think the situations where courts, including in Georgia, have found conflicts of interest based on personal relationships are pretty few and far between. But the types of cases where the courts have found actual conflicts of interest involve things like contingency fees in criminal cases, which I guess I'd be very surprised if those are permissible anywhere. But they're certainly not in you decide as a lawyer to switch sides, say you're a defense attorney and you've represented somebody in a case and then you switch sides you become a DA, a prosecutor, which is something that happens, right? Like people go back and forth between being prosecutors and being defense attorneys.

0:33:31 Thomas: Yeah.

0:33:47 Thomas: In the middle of the trial, do they get up and go to the other side? Oh.

0:33:51 Casey: I meant over the course of people's careers.

0:33:52 Thomas: No, that was me making a

0:33:55 Casey: Careers.

0:33:55 Thomas: Joke. Gasps in the courtroom. They off take their jersey and they're wearing the other jersey for the other team. And then, wow, big trade.

0:33:59 Casey: Was my strategy in dodgeball, actually, as a child, was

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Allow myself one large coffee in the morning and that's about the amount of caffeine I can handle. I can't really mess around with that. And so it is so importante to me for it to be good. Like I can't, if someone's like, oh why yeah, don't you just grab some coffee from that, you know, that tin bull that that'll be like in in hotels or whatever. I'm like, I, nothing to me. I'm sorry. That's actually nothing to be. It me tell you, trade coffee is delicious.

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0:35:33 Casey: Yeah.

0:35:33 Thomas: Mean, isn't that the remedy here?

0:35:33 Casey: Yeah,

0:35:34 Matt: You've got that choice in November. You've got a chance in November to not vote for her if you live there.

0:35:38 Casey: Yeah,

0:35:36 Thomas: Yeah, right. I mean, the Supreme Court will tell us the solution to not having any voting rights is to vote. So like, I feel like I know that's not directly relevant law but I feel Like the spirit of the argument of is, you have a remedy for this, I guess. And it's the it's election, not the criminal gets to go free for some reason.

0:35:38 Casey: Yeah.

0:35:54 Matt: This isn't tainted evidence. It's this, you know? Yeah.

0:35:56 Thomas: Yeah.

0:35:56 Casey: That would be my take on it, too. I mean, there if are situations where conflicts of interest have come up because of prosecutors relationships, but the ones I know of, and this includes in Georgia, are, ones where prosecutors had an intimate relationship with a victim. And you can see the reason for that, Right? If you're prosecuting a case and that you really might have a conflict that to favor the victim's side of things and perhaps might not act with the best interests of the state in mind or that you might act unfairly towards the defendant, that you might not be impartial. But it hard for me to see what the conflict would be here. The and only one that I think the defense really kind of articulates in any sort of clear way has to do with the money.

0:36:09 Thomas: Yeah. Sure. Yeah.

0:36:32 Matt: Still don't have the facts for that, but they try. Uh, we should also talk about there's a little bit of trolling going on in both of these sides. Uh, and do enjoy some legal trolling. And prosecution makes the point that there are personal relationships amongst the uh defense in this case, because there's obviously 19 defendants, so obviously you got a lot of lawyers. And yeah, Definitely.

0:36:37 Thomas: Oh, you don't say some of them are boning. Sorry. It's just odds wise. Your honor. Odds wise. Some of, you know, the birthday paradox is like that.

0:36:51 Matt: Right. Yeah. Uh, and in fact, uh, are two attorneys representing two co-defendants with conflicting potentially defenses who are in a relationship. And the

0:37:04 Thomas: Ah, caught him. They're making out while you're making that. I got it. They're right there. Knew it.

0:37:09 Matt: Prosecution is very happy to point that out. And is not a romantic relationship, but they also point out that the defense attorney herself, Ashley Merchant, who filed this motion, used to be friends - well, assume used to be friends - based on what's going on here with Nathan Wade. And I'm going to send you something right now in a Facebook message, Thomas, just so you can enjoy this. This is in the motion, and if you want to describe what I'm sending to you right now, um,

0:37:30 Thomas: Looks like a Facebook ad that a boomer would click on. That's like, hey, meet some conservative women at something. Okay, now I'll actually look at what it is. Merchant is at Marietta Greek Festival. Vote Nathan Wade. Oh, 2016. Okay. Vote Nathan Wade, enjoying some Greek music while getting the word out. An interesting uh of data there.

0:37:54 Matt: Resist putting the picture in of her wearing shorts and a t-shirt. The Nation Wade, Nathan Wade t-shirt

0:37:54 Thomas: Uh, Yeah,

0:37:57 Casey: Well, and a belly dancing skirt, it looks like I

0:38:00 Thomas: Yeah, Yeah, well, disqualified, I'm sorry, by this, by this rationale who hasn't dated Wade. Yeah.

0:38:06 Casey: Think to be that they were friends, like, I don't think that right, it's I think

0:38:08 Matt: This No, they're not inferring

0:38:08 Thomas: No, Yeah, just just a joke, I

0:38:10 Casey: Okay.

0:38:09 Matt: That, but I was gonna say, this might explain why she fired back her response in three hours. I don't think she liked this very much, much.

0:38:15 Casey: The fact they cut and paste that into the the opposition.

0:38:17 Matt: Yeah, it's not in the appendix or, you know, in the attachments. It's right there in the motion. I love it.

0:38:21 Casey: In the opposition itself.

0:38:22 Matt: Love a good photo in a motion.

0:38:23 Thomas: Was gonna say, do you normally put pictures and things like that, or That

0:38:26 Matt: Sotomayor does, remember, from that we were talking about the other day.

0:38:28 Thomas: One Time when it's serious enough. Yeah. Hmm.

0:38:30 Matt: Yeah. That was kind of trolling in itself too, actually. So I have to appreciate that.

0:38:33 Casey: Point they're trying to make is that today she's saying - the defense attorney, today she's saying, you know, this is somebody that's totally unqualified to be working on this, this case, whereas a couple of years ago she was out campaigning for him and making Facebook posts about how extremely qualified he, he is and how he handled all kinds of different cases, both as a prosecutor, a defense attorney, that was an eminently qualified person. That today she's saying that this is someone so wildly unqualified that you can infer that there was some type of impropriety in him being appointed to work on the case at

0:39:04 Thomas: Now So that's interesting, because on one hand, yeah, obviously that seems um like a good argument, of course, but also, just legally speaking, though, does that work? Like, attorney's job is to make the argument, the best argument, in defense of their client or whatever, in favor of their client, right? Does it matter what they've said, you, before in their lives about something?

0:39:17 Casey: Well,

0:39:21 Matt: We're laughing about this, but this is kind of inappropriately personal, I think, of the DA's office, frankly. Yes.

0:39:21 Thomas: Hmm.

0:39:26 Casey: I mean, I will say, though, I think that both kind of take that tone. Yeah, I means, it might not have been the nicest thing to do. But, you know, I think it was in keeping with the motion that was filed.

0:39:29 Matt: That's true. I mean, this, this woman had just laid out their entire personal relationship and made a bunch of allegations in her motion, so fair game, really.

0:39:39 Thomas: Hmm.

0:39:41 Casey: You Know, I Think It's Also I Just I Noticed That And You'd I Think Actually Looked Into This That You're Not Required Lawyers Aren't Required, I Guess, In Georgia To File Affidavits With Their Motions, Which Is Unusual For Us. And So They Defense Attorney And The Prosecution Both Included Quite A Few Allegations Of Fact Within The Body Of their motion and their opposition that would have to support with an affidavit. Apparently But that's not required. And so I don't know if this is sort of normal in state where maybe make they these types of factual allegations. Normally, this seems fairly unusual, but if they kind of make factual allegations in motions, of as a matter of course, without affidae.

0:40:17 Matt: Foreign to us, but, you know, it's Georgia, so who knows.

0:40:20 Casey: And to be fair, Nathan Wade did file an affidavit in support, but the, the defense attorney, um, did not, I don't believe.

0:40:22 Matt: Right, Correct. Um, we should move on real quick to, I is a particularly interesting issue for me, because again trolling, I guess, it's just in the general theme of trolling, the attorney in the motion basically says, you're going to say we did RICO, we're going to say you did RICO, um, yeah. Exactly, That's Right.

0:40:38 Thomas: Puppet, no, puppet. You've, yeah. No.

0:40:40 Matt: You're the puppet.

0:40:41 Thomas: RICO. You, you RICO. What?

0:40:41 Matt: Exactly. So there's something, there's a federal charge, and I don't know why she's talking about this federal charge, because she's saying, basically, that she thinks she's making an argument that the DA's office could now be charged with a RICO violation under federal statute, which isn't really relevant in this state motion, but here we are. It's a bad faith troll, frankly, but, and it gets, it's actually clearly bad faith for a reason I'll describe in a second, but there's something called honest services fraud. It's federal statute, uh, 18 U.S.C. 1346, and it's used as a RICO predicate, in the federal level, to, it's just an easy way to get people on RICO charges.

And she actually completely ignores the fact that the Supreme Court of the United States has limited honest service uh fraud, just basically to bribery and kickback schemes, not to just kind of like self-dealing or, you know, arranging for yourself to get money or whatever, but like straight up bribery and kickback. Now you could argue, maybe this is a kickback, but you're going to have to prove that, that he's actually like systematically giving her money.

So it's, a funny troll, they, but, conclude this, this troll with saying, "It's not our intention here to find ways to prosecute the prosecutor." You know, God, God forbid, we don't want to do that, "but it must be brought to the attention of the court that the actions of the two lead district attorneys in this case arguably constitute crimes under federal law." They just had to throw that in, it's really pointless, but I just wanted to mention

0:40:57 Thomas: Yeah. That's Dumb.

0:41:51 Matt: It. Yep.

0:41:51 Thomas: Yeah, no, you get, I mean, okay, question. Oh, for the two experts, how big of fans are judges of nonsense trolling, like Are they big fans?

0:42:00 Casey: Uh, not typically big fans in my experience, uh, judges you know, judges have, have senses of humor, I think, but, um, a point like, I, I wouldn't imagine that the average judge would, would be thrilled to get either this motion or this response, um, or really by this whole situation.

0:42:06 Matt: Wasting time uh a point uh, And actually, the next argument, the judge really didn't like, because the judge, of like, 14 other times, said this argument isn't appropriate to, from the other defendants, uh, there's something, I think this is kind of funny, I'd actually read up on this a while back, I went on the weird rabbit hole about this, but a lot of states have what's called a loyalty oath that you have to file. It's a Cold War thing. And you actually have to file a loyalty that says that you support the government of the United States and that you're not a communist, basically, you're not a subversive.

0:42:25 Thomas: Oh, God.

0:42:43 Thomas: Still have...

0:42:43 Matt: It's you got to sign off on that. So swear to you, this is this is in the motion and the defense motion. I'm just mentioning it because Casey thinks this is too stupid to mention. But I just want to mention it because I think it's too stupid not to mention, frankly.

0:42:43 Thomas: God, it's so stupid.

0:42:54 Thomas: Well, I'll be the judge, I guess.

0:42:57 Matt: The Sedition and Subversive Activities Act of 1953 in Georgia requires each applicant employee to complete and sign, etc, etc. A subversant person is defined as one who commits, advocates, or teaches any act intended to overthrow or destroy the government, United States, etc, etc. So the argument is literally here that Nathan Wade did not file his loyalty oath until approximately two years into the case. Yeah.

0:43:18 Thomas: Okay. On you, public. I was such a communist in that two years. I was doing so much communisting. You have no idea the means of production I seized in that two years. But now I'm, you know, I'm I'm don't do it anymore. That's That's the old me.

0:43:21 Matt: And Totally. Subversive.

0:43:23 Casey: Oh

0:43:33 Matt: Want you to believe that everything he did during those two years, that's part of the motion to dismiss, right? That like it can't be counted because he didn't file his loyalty oath. So the court, is already in every other defendant's case, this has been raised and they've already thrown this out. And they And they mentioned, they mentioned in the motion, "We know you don't like this argument, but we're bringing it anyway." Yeah.

0:43:50 Thomas: That'S worse. You see how that's worse, right? I can imagine the judge being like, OK, I didn't like it then. And now you're sending to me a 15th time acknowledging how many times I've not liked it. What do you think is going to happen here? Like, case scenario.

0:43:51 Casey: Yeah,

0:44:04 Matt: Well, Court might like it, so got to throw it in there, you never know. And

0:44:06 Thomas: Okay, you got to issue keep live, I guess.

0:44:09 Casey: Basically the, I think the last thing is there's another sort of, in my opinion, silly procedural issues. It's, don't I think merits discussion, But I the only other question is whether or not this motion requires an evidentiary hearing. And the district attorney is suggesting that no evidentiary hearing is necessary, that they can just rest on Wade's sworn affidavit saying that he and the DA had no relationship before his appointment. And then almost immediately, like Matt said, the defense attorney shot back a saying, no, you absolutely have to have an evidentuary hearing. And here are some of the questions I would like to ask, you you have an evidentiary hearing, which you definitely should. And then, you list out couple, a it's actually not that many questions. It's, I about three.

0:44:22 Thomas: But

0:44:46 Matt: Kind of funny.

0:44:47 Casey: Basically says that Wade's affidavit itself demonstrates that a hearing, an evidentuary hearing is needed. An evidentiary hearing basically is what it sounds like, right? It's a hearing where the court takes testimony from witnesses, hears from witnesses. And, you know, maybe also probably in this case, you are admitted into evidence through those witnesses for the court to consider. And this sort of thing could take a very long time,

0:45:07 Thomas: Is say This is where I can jump in with my legal experience, everyone, one. Uh, this, the kind of thing where we all know Trump's game plan in basically everything ever in his life, of all time, has been delay, delay, delay, you, to fight another day, or Or when he's, you, screwing subcontractors, it's like, well, if I keep screwing you over long enough in the courts, you're just going to give up, kind of think is this along those lines where if I can get another couple hearings before the hearing before the hearing with whatever, that's going to add, okay, well now you have X days to reply to that. And then they're going to have X day to do their reply to that. Drawing it out and drawing it out until, oh, we're in November and then maybe he's president or something.

0:45:08 Casey: Right. Yeah. Yeah, yeah. So that's pretty much what I can tell you what I would expect. So if this is supposed to be on for a hearing on February 15th, and she you has what, Matt, did you say like a dozen witnesses that the defense wants to call?

0:45:55 Matt: Trying To call Yeah.

0:45:56 Casey: All. So that's not a one day hearing. That's a multiple day hearing and, you know, people have, have calendar conflicts and so forth. And so maybe that gets dragged out over the course of a couple of weeks between direct examination and cross-examination. Knows, then And one side and keep in mind there, you Know, there are multiple co -defendants you want to file you hearing filings and proposed findings of fact and, You know, legal arguments and so so forth. So that goes on for a little while as well. And like you said, maybe the judge time limits that and gives them seven days to file and seven days to reply. But that drags it out a little bit. And then from there, the judge obviously has to write a decision, which maybe that takes some time. And then what I would expect is that expect that the defendants, if it doesn't come out the way that they want it to, that they would try to take an interlocutory appeal. And that type of thing is not usually hugely successful, but it does have the effect of drawing, the proceedings out further

0:45:56 Matt: And Again, for the central purpose of determining when these people hooked up, that's really what we're talking about, it's not Great, right.

0:46:50 Thomas: Yeah.

0:46:50 Casey: And what, what they were doing with the money, right? Like whether or not somehow Fanny Willis was, was all these great riches that her office was distributing to her, her partner and, and pocketing them and spending them on, you t -shirts and Aruba. Bro.

0:46:53 Thomas: Yeah, well, here's where I got to imagine, I don't know if this is something that the prosecutors can do, or if the judge would just evaluate this, but at a certain point, couldn't you be like, like, all right, fine. Pretend we admit that. What What does it matter? Right. I mean, like couldn't, isn't part of this argument going to be fine. We, when he took me on so many vacations, it was amazing. I ordered the code red. You're goddamn right. I did. And then we, then we took a, fun a vacation to the Caribbean after ordering the code read. And impact does that have? Why should that mean he gets off scot -free on, on trying to subvert an election um that going to be part of it or is it the thing where there's too much risk that if the remedy is maybe like well now you need a different prosecutor then we're talking a whole new can of worms in terms of delay

0:47:36 Casey: Yeah. Yeah, I would not concede that issue. If I were them, like, I think because arguing the alternative is fine. I think it's I think argument in the alternative is always a good idea. But yeah, concern would be and I don't think you this would happen. But my concern would be about conceding an issue like that is that maybe a court down the line thinks that this behavior is bad enough, especially if you kind of muddy the waters a little bit more and maybe some more facts come out and maybe they're particularly salacious and, you know, maybe there was more money involved and they went more places and there's photos and, who knows what else comes out. Maybe some court somewhere looks at that and they say, you don't know what this just goes too far. And we carve out a special little exception for this type of circumstance. And this is a new type of conflict of interest that we're going to create you know I don't think that would happen um that's why I wouldn't concede it

0:47:45 Thomas: About arguing in the alternative Sure, yeah.

0:48:29 Casey: But um, I think it's fine to, yeah, argue in the alternative and just say, yeah, you know, and even if, even if this were the case, it doesn't, it doesn't make a difference. That's not the remedy.

0:48:29 Thomas: I Hope. They get too detailed in their alternative, like, yeah, even if we did go to dinner on that night. That one rain. Glistening from the top of The, yeah.

0:48:42 Matt: And Or the 300. Bottle of brute, you know. But I will point out too, again, let's just get back to what they're actually going to be talking about at this hearing, because this is a Trump's dream. This is exactly the kind of stuff that Trump loves, right? Because literally, one of the questions she wants to raise, in paragraph 17 of your affidavit, you swore you met Ms. Willis in October 2019 in a municipal court training. Isn't it true that you began more than just a friendship at that conference? That's something she wants wants to ask them so imagine that on the stand the DA having to be asked that question she really should just get out of this. Honestly, this is not going to get any better for her.

0:48:46 Thomas: Yeah. Oh,

0:48:51 Casey: Oh, yeah, Yeah. Yeah.

0:49:15 Thomas: How is that an option? Oh,

0:49:15 Matt: Oh, yeah, she could step aside for sure and law allows her to appoint her, her deputy, to just take over for a while. It's

0:49:21 Thomas: Okay.

0:49:22 Casey: Well, She could step down. Then, actually, you're right, that that actually might be a better way to deal with it because if she were disqualified because of a conflict, right, if a court made her step down, uh, her whole disqualified. Yeah. But

0:49:33 Matt: Messy, yeah.

0:49:31 Thomas: Wow. Okay. That's, that's kind of big. I was gonna ask earlier, um, exactly is the target here, if it's her, if, or the dude. It sounds like it's her because she's the the person in in charge, charge of the whole thing. So does what, he have to step down, or is it just like, would step down, and then it sounds like that would maybe solve the issue or no.

0:49:48 Matt: I Actually it's a allegation of corruption against her essentially, so I don't think his, he's really kind of immaterial at this point, he's

0:49:53 Casey: If she were conflicted out, it would conflict out the whole office and Then it's something, I think, called the prosecutor's council in Georgia, um, appoint someone to to take it over, um, she stepped down voluntarily, that, that case, I think Matt's saying, right, that her deputy district attorney, yeah, take the case over.

0:49:56 Matt: Yeah.

0:50:07 Matt: I looked into this, right? Take over Yeah. Take over the office.

0:50:11 Thomas: That's cleaner that so, but, but this effort to disqualify them, would that be dismissed or interesting?

0:50:12 Matt: That's That would go away, I mean, it's it's dependent on her. I think at that point, that's my read, maybe.

0:50:19 Thomas: Interesting.

0:50:18 Casey: Well, I Think they would want to disqualify him as well, still, right?

0:50:23 Matt: Yeah, for sure, I'm sorry, yeah, but if they were both out of the picture, I think then the prosecution proceeds. Which is really needs to proceed, like, this is going to really mire it down obviously, so

0:50:29 Thomas: Yeah.

0:50:26 Casey: Yeah. But we have the other questions, right, the, so besides Um, isn't it true that you met Ms., uh, Willis in October 2019 at a municipal court training and began more than just a friendship at that conference, which is almost certainly due to some type of personal information that the defense attorney has or some sort of rumor, I would assume. Uh, next one is, uh, paragraph 31 of your affidavit, you swore you've never cohabitated with Miss Wells, but the attached documents show you shared a king-size bed with her in Aruba from November 1st of 2022 until November 4th of 2022, which is apparently Cohabitating, I

0:50:33 Matt: Yes. The other questions This is so stupid. A vacation. Aruba is cohabitating.

0:51:06 Thomas: Yeah, we bought a place in Aruba for three days.

0:51:12 Matt: We've attached the mortgage statement, yeah, come on, so

0:51:14 Thomas: Got one of those three mortgages.

0:51:17 Casey: Then the next one, like, kind of inexplicably, I'm not sure why this, this one isn't the one that references cohabitation. Additionally, witnesses will testify you cohabitated with Miss Willis at her home in South Fulton until her father moved in with her, and then you began to cohabitate at the apartment of a friend of hers in East Point, Point, I

0:51:36 Thomas: Is this what they're calling it these days? The cohabitation?

0:51:39 Matt: I want to point out that, like, just to get back to, like, what the merits of this actual hearing would be and how messy it would get, this is going to be like straight up Clintonian, you're just asking, like, they say in the affidavit it, that there was no personal relationship, right? So the alternative, I guess, is that they were just hooking up or they were just, you know, talking, as the kids say now. You're going to have to get into like a whole dissection of what the relationship was and what they were doing.

0:52:00 Thomas: Were those questions the time that allegedly they hadn't started dating yet? Or was that... I couldn't keep track of the dates.

0:52:06 Matt: Oh, the first one. So the first One, they're basically, the inference in that first question about October 2019 is that They got together in some way. If they didn't have a personal relationship, that they hooked up. So that's not something I don't think a district attorney wants answer on the stand and is gonna be live streamed. I

0:52:07 Thomas: Oh, okay. Okay. Okay. I want to get the originalists on the Supreme court to answer. Okay, what is just an F buddy versus what is a personal relationship versus,

0:52:31 Matt: Think Thomas Jefferson would have some things to say about that, actually. Yeah. You want to go originalist. Yeah.

0:52:31 Thomas: Oh. Yeah. Because At a certain point, some of those sounded like, well, if they already admitted that they're in a relationship now, like, that that isn't more salacious to be like, "and you shared a room somewhere." But I guess if it's saying like, before they allegedly started a relationship, then I suppose, uh,

0:52:49 Matt: If you can catch Nathan Wade committing perjury, then you're on to something else. Then we're on another level. Yeah. It's getting bad because then you're getting into the Clinton thing, right, where you, you can't catch him lying in an affidavit about a sexual relationship.

0:52:53 Thomas: Really? Geez. But He's not the president. What is he? I don't understand. In, yeah.

0:53:02 Matt: Mean, it's still like, it's just another way to just continue to muddy this thing, and we're, we're getting further and further away from the fact that the president of the United States told somebody in a recorded phone call to find him some votes. And that's what we should be talking about.

0:53:10 Thomas: That's a good point. Hmm.

0:53:12 Matt: But, you know, we're talking about this. I want to run down, just kind of in closing here, we're going to run done the kind of prevailing takes, what's out there in the takes ecosystem.

0:53:23 Thomas: The takes-a-sphere.

0:53:24 Matt: Yeah, the takes -a -sphere.

0:53:24 Thomas: The Tako sphere. I, that the takosphere.

0:53:27 Matt: I, I see what's going on out there. I like, find out what people are saying, and what the experts are saying, and there are people smarter than us looking at this, people arguably less smarter than us looking at this as well, and we'll maybe talk to them. So, I, the defense can actually prove that she had any financial gain whatsoever from this appointment, that's a headshot. That's it, right? As far as I can tell, am I wrong, Casey?

0:53:44 Casey: Not sure that is correct, is it? I mean, because I think, think the what law is, is that she has to have had a financial stake in the outcome of the the case, not just that she has some sort of, um, to financially gain, right? I mean, she, she gets paid to be a

0:53:57 Matt: He's writing a check every month out of his proceeds, if he's giving her 5 ,000 bucks a month or something, then that would be a problem.

0:54:02 Casey: I think it looks super bad.

0:54:03 Matt: Yeah, that might be disqualifying.

0:54:03 Casey: I think it's, it might be, maybe. Yeah, the essential question is whether or not there's a conflict that prevents prosecutor from approaching a case, you based solely on the interests of pursuing justice as opposed to some financial interest.

0:54:18 Matt: That leads to the next one, actually. A couple of people have raised this, including, I'll mention Andrew Fleischman, who wrote in the Daily Beast, the New York Times, he's a criminal defense attorney I've been following for a while on Twitter and has made the point that there is at least a colorable claim here at this point that she made a very complex RICO case, and now the defense has the right to go back and say, is this case way more complicated than it needs to be? Did she bill a bunch of extra hours, you know, or allow her boyfriend to bill a much of extra dollars by creating a more complicated case? From

0:54:43 Casey: I'm Not sure what to say about that. My understanding is, is Willis is a RICO specialist. That's her thing. I think people are generally expecting that this is how she would approach this. And I think it's pretty well known that RICO is generally the best way to go after associated group of people with the same criminal aims. And it is complicated, it is also probably the best to tie all of the defendants together. Just indicting Trump by himself would have let the rest of them off the hook and made it, it looked like it was purely a political prosecution of. And, you, it's also fair to say that there are pretty harsh potential sentences for RICO charges, which might be a pretty good way to encourage cooperation from some of the co- -defendants.

0:55:21 Matt: Say A bill bondsman or Kanye West publicist, yeah, but

0:55:24 Casey: Yeah, I don't want to suggest that anything improper going on, but I think that it's generally known The people that are less involved may be more likely to cooperate, especially if they're penalties facing that maybe seem disproportionate with their actual role in the case. And the reality is, is these cases take time to build, right? Any paper case, it takes time to built. It takes time put a case into the grand jury. Like said before, people have scheduling conflicts. Court essentially takes longer than you think it should. Anyone who's ever been in court knows that.

0:55:54 Thomas: No, well, What action, what cause of action, if that's the right term, would that even be like, hey, uh, honor, too complicated, this RICO thing stinks, would that still be something? I guess you mentioned, like, would it be an individual, uh, would be like, hey, this should never have been a RICO and therefore I shouldn't have these harsher penalties, or, and I shouldn't, whatever, or is this yet again a question of like, all right, well, you don't like the job she's doing, then don't elect her again next time, you-

0:56:24 Casey: I think the argument, right, is that she was trying to draw out the amount of time it would take in order to rack up the bills for her partner, who then, I, inference is supposed to be that then she somehow would profit from that, you know, with another, I know, trip to Aruba or Napa Valley.

0:56:39 Matt: And Randall Eliason, the law professor, points out that, uh, you, most of the time when you have a special prosecutor, it's very much in the DA's interest to not spend more money because they're trying to watch the budget, right? But here you have somebody who might have some incentive to maybe allow him to bill a few more hours. That's an argument.

0:56:54 Thomas: I was just trying to bring it back to, as, as you keep doing, Matt, that this is about the election interference case, I'm wondering what of complaints, because we're all acknowledging like this isn't great. It's not at a minimum, not a great look, as they say, like no arguments there. But if argument of, well, it's a little more complicated, maybe, you know, on purpose, maybe billing more, etc., etc. What is that? If the judge were to accept that argument, what does that mean? What does that do and for whom?

0:56:59 Matt: Right. You'd

0:57:21 Casey: Acquires some type of financial in the proceedings. But again, it wouldn't really be a financial stake in the outcome of the proceedings, right? Right? Like she doesn't have any more incentive to, yeah, exactly, to,

0:57:30 Thomas: Yeah, that's what I keep coming back to.

0:57:33 Matt: Have to prove a kickback. That's the only way it works.

0:57:35 Thomas: You proved a kickback, though, that still not an incentive in how the case goes, right? Like, if you win or lose, you'd still get the same kickback. It's not good. I mean, she should, yeah.

0:57:43 Matt: But if you take two more years to prosecute it than you would have, then that's a pretty big incentive. Making a lot more money.

0:57:49 Casey: But that's different than the outcome of the case. I think you would have to rely on the courts maybe carving out new interpretation of what a financial stake in the outcome of a case means, which could happen if it was bad enough, right? I mean, if it it was extreme enough, that could happen, maybe.

0:58:00 Matt: Yeah, this is pretty unusual. An unusual set of facts, for sure. it'S not likely to come up. Koenig, the former has pointed out that Willis jury chained pool. We talked about this a little bit, but I just wanted to get into it. Was a very popular candidate. She was elected with a pretty big majority in Fulton County. These prejudicial comments presumably will be heard, and a jury pool may well have heard them by the time we get there.

0:58:23 Thomas: Says, Your Honor, the prosecutor won her election too hard. You can only win by a bare, yeah, oh

0:58:27 Matt: Yeah, she's too popular. What do we think about that case?

0:58:32 Casey: Think it's an interesting argument. But those statements that Willis so tainted the jury pool that it would be impossible for a judge to impanel an impartial jury. And so the defendants would be deprived of their rights to due process under under the Constitution. So there's a line of cases from the Supreme Court, and presumably also in Georgia, and certainly in other states, has come up in the context of motions for a change of venue.

When there's ton of pretrial publicity, defendants typically move to the venue that the case is being heard in, making this same sort of argument, saying you can't possibly, we couldn't possibly impanel an impartial jury because of all of this extremely prejudicial pretrial publicity. Motions are pretty rarely granted. That, even beyond that right, even when they are denied, which is very frequently, cases are very rarely reversed on appeal.

Convictions are very, very reversed on appeal because a motion for a change of venue based on this theory has been denied. But there's a very famous case from Supreme Court that involved a great deal of publicity a very small town called Irving v. Dowd. In that case, a conviction was overturned for that reason. But I think what's really important is that remedy here would not be disqualifying a prosecutor or dismissing indictments. What it would be first would be to voir dire the jury, impanel right? A jury, you the jurors a variety of questions. Yeah,

0:59:50 Thomas: We don't even have a jury yet.

0:59:51 Casey: Exactly. And so the way that you deal with this is you see if you can, in fact, impanel an impartial jury. And if you have a problem with that, if it takes three weeks and every juror comes up and says, or two -thirds of them come up and they say, I absolutely could not be fair and impartial because I heard what Fannie Willis said, I think that these defendants are racist because she said so, that's then the point at which maybe a judge considers a motion probably to change venue as opposed to dismiss an indictment. And there may be some rare circumstances where somebody absolutely could not get a fair trial anywhere because of the level of pretrial publicity, right? Because, in this case, I guess, an elected official has made such incredibly prejudicial comments. But I don't know of any case where that has actually ever happened. And I think it would have to be very extreme.

0:59:56 Thomas: Yeah.

1:00:36 Matt: And that includes right here in Boston, where someone actually bombed the marathon on our favorite day in the city and still had to have a jury trial here.

1:00:44 Casey: Filed numerous motions to change venue, making the same sort of argument that the pre-trial publicity had been really damaging to their client, uh, it was extremely damaging, um, it still didn't change the venue, um, that was my, I believe that was upheld, um, was another issue with with sentence in that case. But, court, you didn't say, let's move the venue because of it.

1:00:51 Thomas: Yeah, yeah.

1:01:03 Thomas: We're saying that anytime, but when it's the literal president that was their president, anytime but that it's exactly conservatives who are tough on crime, nobody should have any, all this stuff is nuisance, you're just trying to cheat the system with your motions you're filing, it's all blah blah, and then but when it's orange, orange guy, they're like, well, okay, we should hear this out. I mean, you guys have worked, obviously, this way more than, uh, I have, personally I've spent very little time as a prosecutor, none that I can remember, now that I think about it, but I mean, what do you think about that? This feel like a lot of these arguments, um, the kind of things that conservatives are are usually very, uh, loathe to accept?

1:01:42 Casey: Yeah, I mean, I don't think this is a serious legal argument. I do, like, think that, like I said before, I think DAs should be very careful in terms of what they're saying to the press. As an ethical matter, as a moral matter, I, you Know, I think they should be very careful. I think it is important not to prejudice potential jurors against a defendant. But serious legal argument, at least not at this point. I tend to think that when it came to Johar Tsarnaev, that they probably weren't overly concerned about whether the pretrial publicity was prejudicing his ability to get a fair jury in the federal court in Boston. Yeah.

1:01:42 Thomas: Oh. Okay.

1:02:14 Thomas: In question, are they about the original case, or are they about Trump at all going after Fannie Willis's office in this motion to dismiss?

1:02:26 Matt: Those, but she, she also did make some other comments about the president's possible guilt, I believe, uh, even before the the grand jury had resembled So yeah.

1:02:32 Thomas: OK, fair enough. Fair enough. I like, like the decision on whether or not this particular motion, the instant motion, isn't that usually what they say? Mean, a jury is not deciding, yes, Fannie Willis did something wrong. So let's, do I whatever the hell I guess Trump wants. Like, let's give him a new trial or charges dismissed. Isn't that just a judge that's usually going to be deciding something like that? Affect things here? If it's like, OK, well, if she's making comments about this motion and about their treatment of her in this motion, is that separate than comments

1:02:39 Matt: That's

1:03:00 Casey: I see. What you're saying, I think, is that the defense argument basically would be that when you, you say that the defense team are a pack of racists that are targeting the district attorney and her her partner based on race, that might have a tendency, and especially in a heavily black area, to taint the jury pool against, I guess, against the defense as a whole. I think, I think that would be the argument.

1:03:23 Thomas: OK, that's fair. Well, in That case, you know what? I think we need an evidentiary hearing into how racist these people are. Let's write some questions up, hey, how many, uh, meetings have you all gone to, how many, you know, like, let's drop those questions in the same way, talk about legal trolling, what do you think, Matt, did I get mad on on my side with that one, it's just the scene from, uh, Miracle on 34th Street, with all the letters coming in, your honor, here is all the racism we found on the part of the the defendants here, bags

1:03:25 Matt: Legit Uh,

1:03:37 Casey: Um,

1:03:39 Matt: This collection of people, it's going to take a few years to hold those evidentiary hearings, I I think, but just piling up. Yeah, sadly,

1:03:59 Thomas: And bags of racism, okay.

1:04:01 Matt: Are pretty much the takes that are out there. There's also just the general idea that Wade's lack of qualifications, and the fact that he was paid a lot more, and the fact that they were together, like, there's just kind of a whole lot of smoke here that adds up to a fire, that there has to be some kind of impropriety. But I have to say, I, without somebody coming and saying that we know for sure that she accepted money, and even if she did accept money, I mean, it's pretty bad, but I don't know if it's immediately disqualifying, but I think it would be an open question, but there's nothing in evidence yet that would actually allow us to say anything about this, so

1:04:26 Thomas: And to make very clear, can we all, okay, I, I appreciate you taking us through some of the takosphere, I like that, um, I would love to get any and all opinions, uh, willing to give on this, um, sounds like worst case, yeah, Willis, maybe, maybe she shouldn't win her next election. Like if this is truly if if the worst facts are true and like she's going to kick back and this guy wasn't qualified, et cetera, et cetera. OK, maybe worst case, she shouldn't win her next election. And I guess maybe worst worst case she should step down. Someone else should take over. But I don't feel like there's any world in which this has any implication truly on whether or not that phone call was perfect, right?

1:04:40 Matt: Sure.

1:05:03 Thomas: Citizen Just looking at this whole thing.

1:05:02 Matt: This indictment is not going anywhere and is very likely, after this hearing, not going anymore, unless she wants to, um, that's, I have to say, it's because we will have this hearing one way or another, it sounds like there's going to be a hearing on February 15th, I'm sure after all this, but I don't, if I'm her, I don't think I want to go through this hearing, I don't think I want any more of my personal life coming out than it's going to, and and the defense is saying pretty clearly in these motions that they're going to put it all out there. They're going bring in a bunch of witnesses to say that they saw you at this hotel at whatever date, and you're going have to talk about what you were doing there, and we're going to get so far from the facts of any of this. And we've all agreed at this point that legally, whether or not she should be disqualified, she's in a bad position, and she put herself there.

1:05:05 Thomas: Yeah.

1:05:40 Thomas: Well, hold on, just to make sure I'm clear. Are you saying they're going to do that on the 15th? Or if the judge grants the evidentiary hearing thingy, they would do that?

1:05:46 Matt: They're gonna try.

1:05:50 Casey: If the judge grants the evidentiary hearing, I mean, I know. I think there's kind of a couple schools of thought when it comes to evidentiary hearings, right? School of thought that says, well, why not have the evidentuary hearing and it removes one ground for appeal, right? So even if it doesn't really go anywhere and even if it's kind of a waste of resources and maybe it's not the the best use of time, that you just, you have the hearing, um, and you get it resolved. And then, you on the defendants can't say that, you that you didn't give them that hearing. Um, I think the other issue is that, is um, the type of thing that it could eat up a lot of resources. It could divert from, you know, attention from real issues. It could be confusing and misleading and unnecessary. Um, I I'm not sure, honestly, what what the judge will do with it, because I think there are those two competing interests in terms of whether or not to have an evidentiary hearing.

1:06:04 Thomas: Yeah.

1:06:34 Thomas: If the judge did order that, could Fani Willis at that point be like, all right, well, that I'm not going to step down, And then we've gotten rid of the whole thing or what?

1:06:43 Matt: Anytime she wants, she could end this, I think.

1:06:45 Thomas: Okay. So, so it seems like it's worth her rolling the dice on the 15th and staying put until then or

1:06:52 Matt: To see how bad it gets, I don't know. Know. But I mean, honestly, my prediction, just from everything that I've looked into in the last couple of days, I think she's pretty likely on what we have so far to win the motion. Won't be disqualified by the court. But that's not a victory. I mean at the end of the day, she's still got this massive problem. Trump is going to hammer this every day until she steps down.

1:07:04 Thomas: Okay. Yeah.

1:07:10 Casey: Don't think that this, this I motion is really going anywhere in its current format. I mean, I think it's probably calculated to try to just dig up more evidence of, of some unspecified sort of misconduct or impropriety that they can then try to make more out of. Then from there, like I said, I think it's probably mainly likely to delay the proceedings further. And I think it's likely, assuming it's denied, just to, I, you think they probably want to have grounds for appeal for the defendants that do up going to trial later on. So I think they probably want to just preserve the issues for appeal.

1:07:38 Matt: Just Just a big old mess.

1:07:40 Thomas: All right. Well, Matt, Casey, I really want to thank you. I feel like I understand this way better than I did. And was a lot of fun. Thanks so much for taking us through that.

1:07:47 Matt: Yeah, anytime.

1:07:48 Casey: Thanks for having us.

1:07:49 Thomas: It in your pants, prosecutors, all right, cool

1:07:53 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

1:08:10 Thomas: Was doing so much communisting. You have no idea the means of production I seized in