On Friday, Fulton County Superior Court Judge Scott McAfee issued his ruling on the motion to disqualify District Attorney Fani Willis and special prosecutor Nathan Wade from the election interference case against Donald Trump and his co-defendants in Georgia.
The judge determined that Willis and her office could stay on the case – so long as her former lover, Wade, was removed. Wade submitted his letter of resignation Friday afternoon, which Willis accepted and responded to. In her own letter, she praised her ex-boyfriend for being “brave enough to step forward and take on the investigation and prosecution” and applauded his “courage to accept the role, even though [he] did not seek it.”
On Tuesday’s show, Megyn was joined by Ashleigh Merchant, the criminal defense attorney representing Trump co-defendant Michael Roman who filed the motion to disqualify in January, to discuss why she was so surprised by Judge McAfee’s decision.
‘I Was Shocked’
While McAfee’s ruling may have allowed Willis and her office to stay on the case against Trump, his 23-page opinion by no means cleared her of wrongdoing. Megyn laid out just a few of the issues the judge raised in relation to the district attorney’s conduct.
First, she noted that “he described Willis’ behavior as ‘concerning… a tremendous lapse in judgment… [and] unprofessional,’ and he found that she made ‘bad choices repeatedly… [created] an odor of mendacity [and] the appearance of impropriety.’”
Additionally, Megyn pointed out that McAfee found that Willis’ public statements attacking the defendants during a January speech at her church “cast racial aspersions… [were] legally improper… create[d] dangerous waters… [and] may have ancillary prejudicial effects yet to be realized… [underscoring] the danger of public comment by a prosecuting attorney.”
Furthermore, Megyn said “he noted the reasonable belief that ‘the D.A. is not exercising her independent professional judgment totally free of any compromising influences’ and encouraged at least five different ethical boards and groups to consider the many ‘unanswered questions’ in this case.”
With all of that in mind, Merchant admitted she was “shocked” and “very surprised” by McAfee’s decision. “I was surprised that the judge did not go all the way – he sort of played it down the middle, split the baby, very Solomon-esque of him,” she shared. “Obviously, we think that it was an actual conflict of interest… [but] the appearance is enough.”
‘The Safe Play’
Given the laws on the books, Merchant explained that she thought the ruling on the motion would have to be all or nothing. “That was never what I imagined happening because there is law and order that says if one person in the case is bad, the whole case is bad,” she said.
In fact, Willis and her office were removed from a case due to a potential conflict of interest. In July 2022, a judge ruled she could not bring charges against Georgia lieutenant governor Burt Jones for a possible fake elector scheme while he was a state senator because she hosted a fundraiser for a candidate who ran against him.
Merchant said the judge in that situation – who is not involved in the Trump indictment – chose to disqualify the whole team. “The law that he followed said if she’s got a conflict, the whole office has a conflict,” she explained. “So in my opinion, that’s what the law says… and I do think [Judge McAfee], in his order, was telling her you should step aside.”
In that respect, Merchant admitted McAfee’s decision is in keeping with what judges often do. “If they have the choice of not deciding, that’s what they do… If they can push it back on the parties to make the decision, that’s commonly what happens and I think that’s what we saw here,” she speculated. “We saw the safe play… of putting it back on Fani Willis to make the tough decision – ‘either you go, he goes, or I invite you both to go’ is how I read the order.”
‘They Should Be Prosecuted’
While Merchant said the judge was likely “hoping that [Willis] would do the right thing,” it is clear she does not intend to go anywhere. “She, for some reason, very, very much wants to continue on this case, which is surprising,” she noted. “I can tell you in 20 years of practice, I’ve [rarely] seen a D.A. who had a motion to disqualify not voluntarily just [go].”
But that doesn’t mean Merchant foresees Willis being the person who will ultimately try this case if it makes it before a jury. “I don’t think that the fight is over,” she shared. “We’re going to file an appeal, and we’re going to continue to pursue this and hopefully get what we sought in the beginning… a neutral prosecutor to actually look at this case from a neutral, non-political, non-biased lens.”
With multiple investigations by multiple agencies now looking into Willis and Wade’s behavior, there is a possibility they themselves could ultimately face charges. Merchant believes an investigation into perjury, in particular, is important. “If someone lies to the court and that’s allowed, it undermines our entire system of justice,” she concluded. “I think it should be investigated… and I think they should be prosecuted.”
You can check out Megyn’s full interview with Merchant by tuning in to episode 748 on YouTube, Apple Podcasts, or wherever you like to listen. And don’t forget that you can catch The Megyn Kelly Show live on SiriusXM’s Triumph (channel 111) weekdays from 12pm to 2pm ET.