The Megyn Kelly Show - BREAKING： Fani Willis Can Stay, But Nathan Wade Has to Go, with Alan Dershowitz, Dave Aronberg, Mike Davis, Phil Holloway, and Andy McCarthy ｜ Ep. 747

00:00:00.560 Welcome to The Megyn Kelly Show, live on Sirius XM Channel 111 every weekday at New East.

00:00:12.100 Hey everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show in a special edition for you today.

00:00:17.240 We were supposed to be off, but a bombshell end to the week brought us back on the air. It's here.

00:00:23.220 Judge Scott McAfee has made his ruling in the Fannie Willis disqualification case.

00:00:28.500 It's 23 pages, and it's a split decision of sorts.

00:00:34.080 Either Fannie and her entire DA's office have to leave this case involving former President Donald Trump and his co-defendants,

00:00:42.380 or the special prosecutor and former boyfriend to Fannie Willis, Nathan Wade, must go.

00:00:49.740 We'll get into all the angles. This thing is not yet over.

00:00:52.580 We, of course, will have Dave Ehrenberg, Mike Davis, and Phil Holloway join me in just a bit, as well as Andy McCarthy.

00:00:58.960 But we begin today where we began yesterday, and that is with Professor Alan Dershowitz.

00:01:04.920 He wrote the book on the Trump trial craziness last year called Get Trump.

00:01:08.860 He also taught at Harvard Law School for some 50 years,

00:01:11.760 and he also predicted this exact ruling when he joined us this time yesterday.

00:01:18.020 Alan, welcome back to the show. What do you make of the judge's decision?

00:01:23.680 Well, I think I deserve my title, the Nostradamus of the law.

00:01:27.220 My wish was that he had disqualified the whole team and actually recommended criminal investigation of Willis and her boyfriend.

00:01:37.020 That's what I wanted.

00:01:37.960 But I predicted he would try to split the baby in half, and I think the baby died.

00:01:44.060 The opinion makes no sense at all.

00:01:47.340 It's not essentially an honest opinion in the end.

00:01:50.720 We all saw, we all saw the obvious conflict of interest.

00:01:55.440 We all saw that she lied on the witness stand about her relationship and when it started.

00:02:01.100 We all saw that she lied when she said she paid back every single penny, although I didn't keep any records of it.

00:02:07.760 There are no ATMs.

00:02:08.980 I didn't take a photograph of the money.

00:02:10.580 I know I have an obligation under the rules of Georgia to make sure that every penny is paid back,

00:02:17.940 but I was just going to have my word be enough to defend that.

00:02:22.200 The judge applied the wrong standard, the wrong legal rule,

00:02:24.760 but most importantly, he didn't tell us what we all know, that this is corrupt to the core

00:02:32.460 and that it can't be solved by sacrificing Nathan Wade and saying, look, let's get rid of him.

00:02:39.540 We'll keep the rest of the office on.

00:02:41.400 I would expect and hope that the Trump team would appeal this.

00:02:45.520 Now, the rules vary all over about whether you can take an interlocutory appeal from an order,

00:02:53.320 which is not a final order, but it's an order which is final insofar as it allows her to continue to remain on the case.

00:03:01.140 If they don't take that interlocutory order now, this will certainly be a major issue on appeal

00:03:07.440 because the judge applied the wrong standard.

00:03:09.060 The judge basically said you had to prove the unprovable.

00:03:11.620 You had to prove by a high standard, you had to prove that the only reason this investigation

00:03:19.180 and prosecution was commenced was in order to enrich Willis and her boyfriend.

00:03:23.380 No, that wasn't the argument.

00:03:25.240 The argument is that they were enriched.

00:03:28.200 They did have a conflict of interest and that the public all saw that.

00:03:32.600 And so I'm very disappointed in the judge.

00:03:34.560 I never believed he would have the courage to look Fannie Willis in the eye and say you can't be on this case.

00:03:44.500 He came close, but close isn't enough when you need to see justice.

00:03:49.120 So I don't think justice is being done in this case.

00:03:51.860 I see this as a judge who found a way to tell us he gets it.

00:03:57.340 He condemns her and Nathan Wade.

00:03:59.860 He doesn't trust them. 0.73

00:04:01.500 He thinks they're liars and unethical, but he saved his own hide.

00:04:05.720 He made sure that he can still run and potentially win re-election in Fulton County,

00:04:11.680 which went 73% for Joe Biden.

00:04:13.860 He found a way to thread the needle to protect himself

00:04:16.840 while throwing them under the bus as much as he felt comfortable.

00:04:20.720 I don't think he threaded the needle.

00:04:22.440 I think he tried to thread the needle, but it didn't work.

00:04:25.020 I think that when you read the opinion, the logic falls apart.

00:04:28.500 All the things he says about her, which are correct, should definitely lead to the conclusion

00:04:34.400 that the defendants are entitled to a prosecutor who didn't commit this act of bad judgment,

00:04:41.840 who didn't engage in all this professional misconduct.

00:04:45.340 A prosecutor is as important to the case as a judge.

00:04:48.940 Prosecutors have to make decisions, not only whether to prosecute, not to prosecute,

00:04:53.140 but how to conduct the trial.

00:04:54.880 There are going to be issues that come up, and the public has the right not to trust this

00:04:59.220 prosecutor to do anything.

00:05:00.920 I hope the public in Fulton County has enough wisdom to throw her out of office in her election 0.97

00:05:07.020 bid, but I now think that they ought to throw the judge out of office, too.

00:05:11.120 Judges need to show courage.

00:05:12.540 He showed some courage.

00:05:13.600 He showed some.

00:05:14.320 But in the end, the decision is not a just decision.

00:05:19.040 There was overwhelming evidence of a conflict convention.

00:05:22.520 People are in prison on the basis of far less evidence than this.

00:05:28.160 When you listen to the evidence about the cell phone records, you know that she committed

00:05:34.880 perjury when she said, oh, we started our relationship only after he was up.

00:05:40.640 When she lies like that in front of this judge on the witness stand, that's disqualifying. 0.92

00:05:47.240 He focused in on the fact that, and quoting here from the opinion, he says this is the

00:05:53.420 most important piece of him not finding an actual conflict of interest.

00:05:57.440 More important, the court finds, based largely on the district attorney's testimony, that the

00:06:02.160 evidence demonstrated that the financial gain flowing from her relationship with Wade

00:06:06.680 was not a motivating factor on the part of the district attorney to indict and prosecute

00:06:12.560 this case.

00:06:14.060 He doesn't think it's the reason she brought it, pointing out that she was not financially

00:06:18.580 destitute throughout this time or in any great need, as she testified that her salary

00:06:23.860 exceeds $200,000 per year, and thus concluded the defendants have failed to demonstrate that

00:06:29.920 the DA's conduct has impacted or influenced the case to the defendant's detriment.

00:06:35.680 You're saying his conclusion that she wasn't motivated by money in indicting this case is

00:06:41.920 not the proper standard to be applying and figuring out whether there's an actual conflict

00:06:46.200 of interest.

00:06:47.140 That's absolutely right.

00:06:48.520 Moreover, he never should have said that he based anything on her testimony.

00:06:52.420 Nobody should base any conclusion on her testimony.

00:06:56.200 We know she lied about when the affair began.

00:06:59.520 And there's a principle of law, when a witness lies about one fundamental fact, you don't believe

00:07:05.360 the rest of their testimony.

00:07:06.560 So he did a disservice by suggesting that he based this decision somewhat on her testimony.

00:07:12.640 But it's obviously the wrong standard.

00:07:14.940 Just to take an absurd case, let's assume that there was no motivation.

00:07:19.120 There's a perfect reason to prosecute him.

00:07:21.140 But then she gets rich the more if she gets a conviction or gets rich if the case goes on

00:07:28.780 for a long time and her boyfriend then can bill more hours.

00:07:32.400 It's not just how the prosecution began.

00:07:35.460 It's as the prosecution continues, is there a financial issue here?

00:07:41.040 And I think the public has the right to say that $720,000 that she may have gotten a kickback

00:07:48.740 from in the form of American Express proof that she was taken at his expense on these

00:07:56.680 elaborate trips.

00:07:57.640 And then she testifies that she paid him back in cash.

00:08:01.400 First of all, the court has applied the wrong standard there.

00:08:04.560 The burden of proof shifts back to her.

00:08:08.400 Once you can prove-

00:08:09.140 He did not say that.

00:08:09.960 Yeah, this is important.

00:08:10.800 Keep going.

00:08:12.080 Once you can prove that her trips were paid for by American Express cards, once you can

00:08:16.720 prove that, and that they have the burden of proving that, then the burden shifts to

00:08:20.900 her to demonstrate she paid back every penny.

00:08:23.180 And she didn't satisfy that burden because all she said was, you know, it's a black thing.

00:08:27.680 We keep a lot of money around.

00:08:29.380 No, I didn't have any ATM receipts.

00:08:31.740 I didn't have any other records.

00:08:34.020 Under the law, under the rules, she has to pay back every penny. 1.00

00:08:38.260 You'd think any lawyer who'd pay back the money would take a photograph of the money being

00:08:42.540 paid back, would keep records, even make a note of it.

00:08:45.960 Nothing.

00:08:46.620 Absolutely nothing.

00:08:48.100 So I just don't believe it.

00:08:50.180 And I don't think he believes it.

00:08:51.960 But, you know, he wanted-

00:08:53.540 He had a result in mind, I think, judges often do, and he figured out a way of splitting the

00:08:57.980 baby, but it didn't work. 0.99

00:08:59.620 This doesn't work.

00:09:00.900 If I were teaching legal ethics, I would sign this opinion and the students would tear it

00:09:05.140 apart.

00:09:05.420 He downplayed everything that would have led to the actual conflict of interest finding.

00:09:11.100 If it was going to lead him there, he just continued to downplay it.

00:09:14.640 I'll give you a couple of examples.

00:09:16.420 He talked about how she brought in Wade, that she had extended an offer to former Governor

00:09:21.480 Roy Barnes, who declined that the contract gave him $250 an hour, relatively low amount

00:09:26.860 by Metro Atlanta standards for an attorney with Wade's years of service.

00:09:31.300 No evidence was introduced that indicates Wade ever received permission to exceed his monthly

00:09:37.480 hour caps.

00:09:38.700 Okay, you could focus on that, or you could focus on the fact that every single one of

00:09:42.660 his bills was rubber-stamped by Fannie Willis with zero review and paid without question,

00:09:48.680 even though some of them looked very sketchy, like billing 24 hours in an hour, I mean, in

00:09:53.540 a day.

00:09:54.620 So he focused on, okay, well, I didn't see any evidence showing he went over the monthly

00:09:59.700 cap.

00:10:00.100 Well, that shouldn't determine this.

00:10:03.480 Then he went on to talk about their travels together.

00:10:06.220 Between October and May of 23, they traveled together on four occasions, Miami, Aruba, all

00:10:12.560 the trips, Belize and so on, Napa.

00:10:15.200 And he shows you what Wade paid, including their numerous day trips around the Georgia area.

00:10:21.520 And he says, in total, defendants point to an aggregate documented benefit of at most $12,000

00:10:28.140 to $15,000 in the district attorney's favor.

00:10:32.320 Then he says, the DA and Wade testify these expenditures were not meant as gifts and not

00:10:38.180 designed to benefit the DA.

00:10:39.720 Both testified that the DA regularly reimbursed Wade in cash.

00:10:43.560 And if not reimbursed, the DA covered a comparable related expense.

00:10:49.400 For example, she testified she reimbursed him in cash for the Aruba trip, which she estimated

00:10:53.660 cost around $2,000 and that she, quote, gave him money for both cruises.

00:10:57.340 She further claimed she reimbursed him for the entirety of the Belize trip and that she

00:11:01.780 paid for Napa Valley excursions.

00:11:03.560 Finally, while Wade could have bought meals in 2020 totally more than $100, she would also

00:11:08.860 regularly pay for his meals.

00:11:10.260 Then he says the following, Alan, such a reimbursement practice may be unusual and the lack of any

00:11:16.560 documentary corroboration understandably concerning.

00:11:21.140 Yet the testimony, here we go, withstood direct contradiction was corroborated by other evidence.

00:11:29.400 For example, her payment of airfare for two on the 2022 Miami trip and was not so incredible as to be inherently

00:11:39.460 unbelievable.

00:11:41.760 However, as the DA herself acknowledged, no ledger exists other than a best guesstimate.

00:11:47.600 There's no way to be certain that expenses were split completely evenly.

00:11:51.080 And the DA may well have received a net benefit of several hundred dollars.

00:11:56.460 Again, downplaying.

00:11:57.440 Despite this, after considering all the surrounding circumstances, the court finds the evidence did

00:12:02.100 not establish the DA's receipt of a material financial benefit as a result of her decision

00:12:08.500 to hire and engage in a romantic relationship with Wade's.

00:12:12.360 The defendants have not presented sufficient evidence indicating that the expenses were not

00:12:17.960 roughly divided evenly, to your point of who's got the burden, or that the DA was or currently

00:12:23.820 remains greatly and pecuniarily interested in this prosecution.

00:12:29.960 Look, I don't believe that.

00:12:31.620 And I have to tell you, I don't think the judge believes that.

00:12:34.160 I just think he found that.

00:12:35.460 You know, you talk about four hours a day billing.

00:12:38.040 I remember a lawyer who framed in his office a bill in which he charged for 27 hours in a day

00:12:45.020 because he had traveled internationally and it had changed the time.

00:12:49.580 And, you know, yeah, it's possible.

00:12:51.780 But I have to tell you, no jury would believe that.

00:12:55.340 And a judge should not believe that.

00:12:57.360 She would not.

00:12:58.080 If she had been charged criminally with accepting money, she'd be convicted.

00:13:03.160 There are people in jail on far, far less evidence.

00:13:06.940 And when you know she's lied, lied, lied, lied about when her relationship began, why do

00:13:12.980 you believe her on these issues of undocumented payments?

00:13:16.860 His decision is scandalous.

00:13:19.520 And it's not his naive take, because I think he's smart.

00:13:22.840 I think he just did everything in his power to be able to say to an appellate court, look,

00:13:29.000 I've evaluated all the evidence, it raises questions, but there's not enough here to find

00:13:34.500 that she materially benefited.

00:13:36.040 She materially benefited probably to the tune of thousands of dollars.

00:13:41.380 And she had an affair that started before she hired him and she committed perjury on the stand.

00:13:47.700 And when that happens, the prosecutor should be disqualified.

00:13:52.120 This is the wrong decision made for all the wrong reasons.

00:13:56.000 He goes on to say, I mean, the opinion is full of criticisms of her and Nathan Wade.

00:14:02.440 So he's trying to telegraph to us what you said, that he knows, he knows what you and

00:14:07.300 I know.

00:14:08.020 He just didn't have the stones to actually do what was right.

00:14:10.780 He says on page nine of the opinion, again, this is him denying that there's an actual conflict

00:14:17.460 of interest.

00:14:18.020 And so the audience is clear.

00:14:19.260 He then went on to say, but notwithstanding the absence of evidence of an actual conflict

00:14:23.380 of interest, the appearance of a conflict, the appearance of impropriety is enough for

00:14:28.700 me to do something, but it's not enough for me to DQ them.

00:14:32.360 I'm going to give them the opportunity to cure.

00:14:35.100 They have the opportunity to cure their impropriety.

00:14:37.780 And that's how we got to the place where he said, either bounce Wade or bounce yourself.

00:14:41.820 But back on the first point of actual conflict.

00:14:44.420 Without sufficient evidence that the DA acquired a personal stake in the prosecution or that

00:14:49.200 her financial arrangements had any impact on the case, the defendant's claims of an actual

00:14:53.640 conflict must be denied.

00:14:55.540 Then he goes on to add, this finding is by no means an indication that the court condones

00:15:00.660 this tremendous lapse in judgment or the unprofessional manner of the district attorney's

00:15:05.740 testimony during the evidentiary hearing.

00:15:08.500 Rather, it is the undersigned opinion that Georgia law does not permit the finding of an actual

00:15:13.100 conflict for simply making bad choices, even repeatedly.

00:15:17.760 And it is this trial court's duty to confine itself to the relevant issues and applicable

00:15:21.760 law.

00:15:22.400 And then quickly, Alan, he adds, this is important.

00:15:25.520 We're going to talk more about this as the hour goes on.

00:15:27.880 Other forums or sources of authority, such as the General Assembly, the Georgia State Ethics

00:15:33.040 Commission, the State Bar of Georgia, the Fulton County Board of Commissioners, or the voters

00:15:37.760 of Fulton County, that's five at least, may offer feedback on any unanswered questions

00:15:43.820 that linger.

00:15:45.480 But those are not the issues determinative to the defendant's motions alleging an actual

00:15:48.900 conflict.

00:15:49.540 To me, this is him basically saying, I know these are dirtbags.

00:15:53.100 I get it.

00:15:53.740 Trust me.

00:15:54.380 But that's a matter for these five other agencies to now pursue and investigate vigorously.

00:15:58.540 For purposes of this case, the farthest I'll go is, choose one.

00:16:02.540 Fannie or Wade stays.

00:16:04.440 But he left out the most important agencies, and that is prosecutorial agencies.

00:16:10.120 There ought to be a criminal investigation.

00:16:12.280 There ought to be a criminal prosecution.

00:16:14.340 There is, in my mind, proof beyond a reasonable doubt that they committed a perjury.

00:16:19.460 He, in fact, says, unprofessionally as a witness.

00:16:22.600 What does that mean?

00:16:23.440 Unprofessionally as a witness, she didn't act disrespectfully or anything like that.

00:16:29.920 She lied.

00:16:30.820 That's more than unprofessional.

00:16:32.940 That's perjury.

00:16:33.880 This is a clear, open and shut case of perjury and probably conspiracy to commit perjury and

00:16:40.120 probably obstruction of justice, maybe witness tampering.

00:16:43.440 And if they don't open a criminal investigation, who will guard the guardians?

00:16:48.440 Who will prosecute the prosecutors?

00:16:50.260 We're all at risk when prosecutors can act the way she did without any possibility that

00:16:57.360 they will be prosecuted for what seems obvious to have been perjury about so many different

00:17:03.600 things.

00:17:04.140 As I said before, people that she has prosecuted and are in prison are in prison based on far,

00:17:10.560 far less evidence than the evidence against her and Wade.

00:17:15.200 And there ought to be prosecutions, and I believe prosecutions here.

00:17:19.300 He went on to say on page 17 of the opinion, this is where he's more focused on, was there

00:17:24.780 an appearance of impropriety?

00:17:26.480 And he concludes, yes.

00:17:27.800 He says specifically, reasonable questions about whether the DA and her hand-selected lead

00:17:34.480 special assistant DA, meaning Nathan Wade, testified untruthfully.

00:17:40.280 Reasonable questions remain about whether they both testified untruthfully about the timing

00:17:45.920 of their relationship, which further underpins the finding of an appearance of impropriety.

00:17:51.940 And then he adds, and the need to make proportional efforts to cure it.

00:17:58.100 So this is, he uses their lies to say appearance of impropriety and someone has to go.

00:18:05.140 But he doesn't use their lies to get to, they were lying about the money and that proved

00:18:12.220 there was an actual conflict of interest.

00:18:14.860 He chose to believe them on the one lane, but not on the other.

00:18:19.680 But the underlying lies are sort of the predicate for both findings.

00:18:25.120 Yeah.

00:18:25.820 No, I've never quite read an opinion like this because it's so clear that he knows they're

00:18:30.980 lying.

00:18:31.640 I mean, he almost says it, but he somehow believes that that's not enough to disqualify.

00:18:38.680 I've never seen an opinion that doesn't disqualify somebody after concluding that reasonable basis

00:18:45.380 exists for believing they may have committed perjury.

00:18:48.720 I hope this case goes further.

00:18:50.600 This is not the end of it.

00:18:51.920 This is a great gift to Donald Trump and his defendants because this will hover over the

00:18:57.940 entire trial.

00:18:59.320 Everything that the prosecution office does in this case will be suspected because this

00:19:04.400 is not an office that now can be trusted.

00:19:06.620 You don't have to quote me on that, quote the judge.

00:19:09.720 It's an office that shows bad judgment, that shows unprofessional conduct.

00:19:14.100 Would anybody want to be prosecuted by an office that was so tainted in this very case?

00:19:19.680 I think here we have a real, real conflict of interest.

00:19:24.300 So what I mean, the good news I see here for the defense is this case was rolling along

00:19:31.060 and seemed very likely to cause some major problems for Trump, given the makeup of the

00:19:35.900 likely jury pool in Fulton County.

00:19:37.660 And we know the D.A. is genuinely out to get him.

00:19:40.920 And now, thanks to her completely ridiculous decisions and behavior, the whole thing's been 0.98

00:19:48.320 thrown into chaos. 0.96

00:19:49.520 She's lost her co-lead prosecutor.

00:19:51.580 She's been personally and professionally disgraced in the public eye, which includes the Fulton 0.68

00:19:57.120 County jury pool.

00:19:58.300 And most importantly, in front of this judge who now knows he's dealing with a dishonest

00:20:03.420 broker who's going to try the case in front of him.

00:20:05.940 And your credibility as an attorney is everything.

00:20:08.100 It's everything for her in this case.

00:20:09.920 And it's everything for her as an attorney before any judge forevermore.

00:20:14.040 They'll now know she's been called a liar by this judge. 0.63

00:20:17.500 So that's a win for the defense, not the one that they wanted, but it's at least better

00:20:22.380 off than they were three months ago.

00:20:24.840 So, I mean, I have to give the defense plaudits because they found something.

00:20:29.220 They made the absolute most they could have with it.

00:20:31.420 She walked right into it.

00:20:32.580 She made it worse for herself. 0.96

00:20:33.880 And this judge, though he didn't have the stones to do the full what's right, he did cast

00:20:39.520 dispersions on her that are going to last a long time.

00:20:42.500 Now, yeah, go ahead.

00:20:44.660 The only way this hurts the defense is that Nathan Wade won't be prosecuting them. 0.81

00:20:50.200 And that would be a gift because he's such an inadequate and incompetent lawyer with no 0.96

00:20:54.680 experience. 0.95

00:20:55.760 They would have been much better off if Nathan Wade prosecuted them.

00:20:58.460 Well, she was no prize either, and neither was her assistant district attorney at that

00:21:01.920 hearing.

00:21:03.020 Yeah, but now they may get somebody much better to prosecute the case.

00:21:06.140 So it's a mixed victory for the Trump people.

00:21:09.820 But it's delay, which works to Trump's benefit, right?

00:21:12.640 This case was rolling along as of January 4th, and then boom, here we are three months later.

00:21:17.380 All we've been talking about is Fannie Willis's ethical conflicts. 0.98

00:21:21.000 And as you know, if Trump can get this past November and he wins, we've never seen this

00:21:26.380 before.

00:21:26.640 But most people believe this prosecution goes away as a practical matter because he'd be

00:21:30.120 the sitting president of the United States.

00:21:32.200 Is that what you think would happen?

00:21:33.820 Yeah.

00:21:34.560 Yeah.

00:21:34.860 Except, of course, it's a state case.

00:21:36.980 And so it's not that the state can't prosecute.

00:21:40.240 There's no Supreme Court decision on that.

00:21:42.760 It's part of federal policy not to prosecute a sitting president.

00:21:46.400 But I imagine the state court could try, and then that would be litigated.

00:21:51.340 I just also want to commend the lawyers for having brought this lawsuit.

00:21:55.240 Look, according to CNN, there was never anything to it.

00:21:58.200 It was nonsense.

00:21:59.240 It was never getting anywhere.

00:22:01.100 It's all done for this and that and bad reasons.

00:22:03.600 But it turns out, you know, there were good reasons for it.

00:22:07.080 And I think they've been vindicated by the decision, even though it didn't go as far as

00:22:12.120 it should have gone and maybe will go on appeal.

00:22:15.420 Look, I don't know whether they're going to appeal this or not.

00:22:18.160 If they can, under Georgia law, bring a collateral attack at this point, they ought to do it because

00:22:25.160 they have a very good record on which to bring it.

00:22:27.200 So do you think do you actually like their chances on appeal?

00:22:30.060 The audience should know you are, I mean, one of, if not the most famous appellate lawyer

00:22:33.620 in America.

00:22:34.460 This is what you would be brought in to do.

00:22:37.120 Do you see grounds for an appeal?

00:22:38.680 Because this is largely, largely factual.

00:22:41.220 Like the evidence didn't convince me that she had a financial benefit, but also legal,

00:22:45.960 which is better for an appeal.

00:22:47.360 And did he apply the right standard?

00:22:49.020 Oh, I think I could win this appeal on the basis of the improper standard, improper burdens

00:22:54.460 of proof.

00:22:56.340 And also that, you know, even though it's credibility and even though it's factual, the judge basically

00:23:03.620 made enough findings that I think an appellate court might say, it's enough that there is a

00:23:09.020 reasonable basis for believing she may have lied.

00:23:11.940 That's enough.

00:23:13.180 You don't have to go beyond that in order to disqualify.

00:23:15.920 This isn't a criminal case in the sense that nobody is saying there's enough to prosecute.

00:23:20.340 I think there is.

00:23:21.440 But even under the judge's ruling, if he says there's a reasonable basis to question the

00:23:27.400 credibility of the prosecutor, I would think an appellate court might look kindly on a mandamus

00:23:35.100 petition seeking to review that and reverse it.

00:23:38.200 If not now, then if there is a conviction later on on appeal.

00:23:41.540 Yeah, it's almost like Judge McAfee was telegraphing upward.

00:23:45.400 Help me.

00:23:46.480 Help me.

00:23:47.200 I'm running for I realize it wasn't the right move, but it's always like, hey, there's an

00:23:51.420 opportunity here to help me out.

00:23:52.700 Look what a terrible person I'm dealing with.

00:23:54.620 We'll see.

00:23:55.440 I'm sure the Trump team will try to appeal this one way or another, if for no other reason

00:23:59.280 than delay.

00:23:59.920 But I actually think on principle, they think they've got the better argument.

00:24:03.340 Alan, congratulations, Nostradamus.

00:24:05.700 Once again, you nailed it.

00:24:07.780 Thank you so much.

00:24:08.760 I appreciate it.

00:24:09.400 Always love being on your show.

00:24:11.200 Oh, likewise.

00:24:11.900 OK, up next, Andy McCarthy, former federal prosecutor who also not only tried cases,

00:24:17.240 but did a lot of appellate work, weighs in on why he thinks this ruling is actually quite

00:24:22.120 good for Trump.

00:24:23.300 Plus, we'll get into what this judge said about Nathan Wade, who other than Terrence

00:24:28.280 Bradley, I think, took the biggest hit in this opinion.

00:24:30.840 Stand by.

00:24:31.280 We'll be back with much, much more.

00:24:32.420 Joining me now with reaction to the breaking news that Judge Scott McAfee has not disqualified

00:24:41.920 Fannie Wade, but says it's either Fannie or Nathan, one of them has got to go, is National

00:24:48.000 Review's Andy McCarthy, former federal prosecutor.

00:24:51.460 Andy, thank you so much for being here.

00:24:52.800 So I haven't gotten to the headline that this judge on page 16, notwithstanding the fact

00:24:57.960 that he didn't mandate they both go, said, quote, an odor of mendacity remains, saying

00:25:04.540 while he's under no obligation to ferret out every instance of potential dishonesty from

00:25:09.400 each witness, meaning these two, he can note that there's a problem here that needs further

00:25:16.480 investigation and saying there are reasonable questions about whether this DA and Nathan

00:25:22.520 Wade testified untruthfully to this court.

00:25:26.280 So what's your reaction to the ruling?

00:25:27.540 Well, as a practical matter, I think it's the best thing that could have happened to

00:25:32.060 Trump and the co-defendants because she's just destroyed in terms of her reputation,

00:25:41.040 which she deserves by the way she conducted herself, but she's still in the case.

00:25:46.200 And my thing with this from the beginning, Megan, has been I've tried to explain to people

00:25:51.000 on the basis of this sprawling blunderbuss indictment that she's incompetent, you know, 1.00

00:25:58.560 that she she's indicted a RICO case that's not a RICO.

00:26:01.640 She's tried to do an overarching conspiracy that's not a conspiracy. 0.98

00:26:04.560 And, you know, everybody sort of says, oh, OK, well, that's and then we see this situation

00:26:10.540 where you get an up close view on how these guys operate.

00:26:17.560 And you have to ask yourself after watching this performance, do you really think these

00:26:22.520 guys can run a RICO case, which is a sophisticated criminal prosecution?

00:26:27.500 So from Trump's perspective, it seems to me it's like a triple play for him because she's

00:26:35.000 a tainted prosecutor.

00:26:37.040 This is an issue that I believe you can appeal.

00:26:39.460 I heard you and Alan talking about this at the end.

00:26:41.460 I think you can appeal this under Georgia law.

00:26:44.280 So he also gets the delay that he's looking for, but he gets to keep her in the case and

00:26:49.440 she'll screw the case up. 0.99

00:26:50.700 So I don't see how, you know, legally, I feel very differently about it.

00:26:55.280 Legally, I think the judge is off his rocker.

00:26:57.660 I've never heard of a thing where you have a conflict situation and the judge is oozing

00:27:03.120 off every page is that there are lingering questions, continuing questions, the cloud

00:27:08.140 over it, the, you know, the scent of mendacity.

00:27:13.420 Those are the cases where you disqualify the person, you know, I mean, if you have a situation

00:27:18.760 like the classic one in in that I saw many times in federal law, especially if you're doing

00:27:24.300 like drug cases and racketeering cases where you get some dirty lawyers occasionally is

00:27:29.000 if you have a situation where the lawyer and the client are both under investigation by

00:27:34.820 the same prosecutor's office, the lawyer has to get out of the case because he's got a

00:27:41.120 motive to curry favor with the government that lingers throughout the proceedings.

00:27:46.480 So with every decision that the lawyer makes, you have to try to decide, is he serving his

00:27:52.160 own interest or is he serving the client's interest?

00:27:55.000 And even though it's not as obvious, that works the same way for the prosecutor as it

00:27:59.680 does for the defense lawyer.

00:28:02.760 She's got a lot of problems here. 1.00

00:28:05.100 She's got potential federal investigation. 0.99

00:28:07.240 She's got potential state investigation. 0.75

00:28:09.100 She's got professional investigation. 0.59

00:28:10.640 And she's got a lot of motives that are her personal motives that may collide with some 0.83

00:28:17.340 of the things that would be best for the case and the best for Fulton County.

00:28:21.480 That's the kind of case where there's such an appearance of impropriety.

00:28:24.780 The lawyer's got to go and you don't solve it by taking out half the problem.

00:28:29.800 Well, the reason he did that, the way he styled it was it could be ongoing.

00:28:36.260 She testified that even though they allegedly stopped their romance last summer, that they're

00:28:41.540 quote, closer than ever.

00:28:43.320 And given that a reasonable person could think, oh, the benefit to her or to him will be ongoing

00:28:51.200 or could resume even their, their romantic relationship, which is like, what are you saying?

00:28:57.020 All the proof of the prior conflicted behavior is right here in front of you on a silver platter,

00:29:03.520 whether it's ongoing or potentially likely to resume is not the standard for determining

00:29:11.020 whether there's an actual conflict or the appearance of one.

00:29:14.520 Yeah, this is, this is like, uh, uh, with all due respect to Dr. Phil, this is a trial.

00:29:18.940 I'm not Dr. Phil, right?

00:29:20.780 So the judge's responsibility, believe it or not, is the case.

00:29:25.080 Um, Nathan and Fannie are going to have to work their relationship out on their own and they'll

00:29:30.000 have to go to another forum for that.

00:29:31.680 Right.

00:29:31.940 But the judge is responsible for the integrity of the case, the public integrity of a judicial

00:29:38.460 proceeding.

00:29:39.400 Um, so, you know, I, I'm sure they very much appreciate his advice about how they can steer,

00:29:44.700 um, the future of their relationship and their prospects.

00:29:48.100 And, um, you know, we'll all be clutching our pearls over that, but his job is, is the,

00:29:53.180 is the appearance of impropriety in a judicial proceeding, which can't be erased by taking out.

00:30:00.880 If you've, if you've now developed a record where you have two people in collusion who

00:30:06.200 there's very powerful evidence that they misled the court, even if the judge shies away from

00:30:11.680 drawing the conclusion of that, but like lays out every dot for everyone with an IQ of 11

00:30:16.980 to be able to connect that that's what they did.

00:30:19.200 Um, it doesn't solve the problem by taking away one of the people who was colluding, leaving

00:30:28.720 the other one in under circumstances where you, the judge are admitting that there's a

00:30:34.440 lingering problem here, that there are lingering suspicions, that there are lingering motives

00:30:39.520 that she has to act in her own behalf, as opposed to the state's behalf.

00:30:43.940 And again, that's a layup to remove the lawyer. 0.98

00:30:48.720 Yes.

00:30:49.340 This reminds me of, uh, Jonathan Turley was on Fox earlier this morning and he has such

00:30:54.700 a way of putting these things.

00:30:56.020 He's entertaining to listen to.

00:30:57.500 And this is, listen to how he described the judge's decision here.

00:31:00.900 Sot one. 0.58

00:31:02.640 It's like, you know, finding two people in a bank vault and taking one off to jail.

00:31:07.440 I mean, it, the question is, you know, the appearance, uh, problem that the judge identified

00:31:13.480 with regard to Wade, uh, was directly related to his relationship with Willis.

00:31:18.640 Only one of them, uh, was disqualified.

00:31:22.440 And so that's going to lead to these questions.

00:31:25.140 I mean, well, why should Willis escape that same penalty?

00:31:30.800 It, the opinion leaves this feeling like the court went and shot the wounded.

00:31:34.700 I love that.

00:31:36.880 It's like two people in the bank vault and only one got arrested.

00:31:39.420 It's true because they were like, well, we won't, we won't keep stealing in this bank

00:31:43.240 vault.

00:31:43.820 We're only just going to keep the money we already stole.

00:31:46.060 But you know, if you just break up Bonnie and Clyde here, they can't do as much damage

00:31:50.260 on a go forward basis.

00:31:51.940 Yeah.

00:31:52.420 And that your last, uh, a couple of words there is the thing it's a go forward basis, right?

00:31:59.640 This isn't like a snapshot that you can freeze in time.

00:32:02.160 And this is a dynamic situation where she has a lingering conflict.

00:32:07.300 So I, I just, you know, I, I, I think as a practical matter, it works fine for the defense

00:32:14.940 because, you know, she is who she is.

00:32:18.400 And this case is obviously way beyond her.

00:32:23.240 Um, and I think that you see that not only from the sprawl of the indictment, but look

00:32:28.340 at the police, the police she's taken so far, nobody's pled guilty to Rico.

00:32:33.320 She's taken four pleas. 0.99

00:32:35.140 If you combine the four defendants and all the things that they've pled guilty to, which

00:32:39.540 are minor crimes compared to the histrionic she indicted this with, no one's going to do

00:32:44.580 an hour in jail for a case where, which she portrayed as our democracy hanging by a thread. 0.98

00:32:52.040 And they tried to steal the election and, you know, all the, the hot rhetoric that came

00:32:56.340 out of this.

00:32:56.940 And the reason she's had to, to like do fire sale type pleas is she doesn't have a case.

00:33:04.020 You know, if she had to actually prove Rico against one of these people, they couldn't

00:33:07.780 even go in.

00:33:08.500 She couldn't even get one of the people who pled to come in and say, yes, I'm guilty of

00:33:14.280 Rico.

00:33:14.680 Here's what I did.

00:33:15.860 Here's what president Trump did.

00:33:17.160 Here's what the other people did.

00:33:18.540 That's what, that's like prosecution 101.

00:33:21.460 When you have the first bunch of cooperators who come in the door, you get them to plead

00:33:27.020 to the main count so that now the public can understand and the court can understand that

00:33:31.280 you actually have a case, but she's given away the store because she doesn't have a case, 0.97

00:33:35.440 at least not on the things that, uh, that, that she's advertised.

00:33:39.240 Now I've said from the beginning, Megan, that I'm not saying that nothing happened here.

00:33:44.160 What I'm saying is it's not a Rico. 0.98

00:33:47.000 It's not a big conspiracy because for a conspiracy, you have to agree to something that's a violation

00:33:52.680 of law and what the people agree to here, to the extent they agreed at all.

00:33:57.640 And I know, I think most of these people probably don't even know each other.

00:34:00.580 Um, they wanted to keep Trump in office.

00:34:03.360 You may think as a policy matter or as a personal matter, that was a bad objective, but as far

00:34:09.500 as the law is concerned, it's not an illegal objection, objective.

00:34:13.220 Every state in the country has a procedure by which you can challenge election results.

00:34:18.740 So conspiring to keep somebody in office is not a crime.

00:34:23.100 Um, now it doesn't mean.

00:34:25.700 Well, I remember you saying, you saying another hit, you said, um, the, it appears that most

00:34:30.540 these people don't even know each other and the only thing they're doing quote in concert

00:34:34.140 or together is winding up, getting sued by Fannie Willis, accused by Fannie Willis and

00:34:38.560 a couple of them copping, please.

00:34:40.220 But there's no, there is no cooperation between any of these people in a way you'd see in a

00:34:45.020 typical Rico case.

00:34:46.260 Let me just read this Andy, cause we just got an exclusive statement here from Ashley

00:34:50.140 Merchant defense attorney for Michael Roman, who started this whole thing.

00:34:53.400 And honestly, this woman is the heroine of this entire story.

00:34:57.040 She's the one who got this.

00:34:58.640 She's the one who filed the motion.

00:35:00.300 She's the one who led the hearings.

00:35:02.060 Um, and she gives this to the Megyn Kelly show. 0.97

00:35:04.900 We are evaluating what this ruling means for an appeal or any additional filings.

00:35:09.680 This coupled with the court's ruling yesterday, meaning the dismissal of those six counts,

00:35:14.240 the indictments, uh, the, the, the counts against Trump and the others, uh, are something

00:35:19.320 we must consider together.

00:35:20.360 We also need to await the district attorney's decision on how she intends to cure the conflict

00:35:25.720 that the judge so clearly found, meaning is she going or Nathan's going earlier?

00:35:29.420 Ashley had released the following statement.

00:35:31.900 While we believe the court should have disqualified Willis's office entirely.

00:35:35.080 This opinion is a vindication that everything put forth by the defense was true, accurate

00:35:39.460 and relevant to the issues surrounding our clients right to a fair trial.

00:35:42.380 The judge clearly agreed with the defense that the actions of Willis are a result of her

00:35:46.160 poor judgment and that there's a risk to the future of this case.

00:35:49.220 If she doesn't work quickly to cure her conflict, while we don't agree that the courts with the

00:35:53.140 courts suggested, oh, that his suggested cure is adequate in response to the egregious conduct

00:35:58.180 by the DA, we look forward to the district attorney's response to the demands by the court.

00:36:01.860 We'll continue to fight for our client.

00:36:03.540 I continue to say a huge, huge win for Ashley Merchant and the defense here, even though

00:36:08.360 they didn't get everything they wanted.

00:36:10.620 Yeah, I think that's right.

00:36:11.400 The tone of her statement is exactly right, because, you know, you do have to go back

00:36:16.100 and try when whenever this case is going to happen, they are going to be in front of Judge

00:36:20.300 McAfee.

00:36:20.920 So I think her tone was was respectful, but making clear where where she disagrees.

00:36:28.280 The one thing I would say about the the end of the last statement you read is I think if

00:36:33.040 I were they, I would be taking the position that her that her her conflict can't be cured

00:36:38.120 rather than like it's on her to cure it.

00:36:40.820 I think, you know, they the consistent position, if I were they, that I would take is that,

00:36:45.340 you know, this is we're beyond that.

00:36:47.320 She's got to go.

00:36:48.520 Yeah.

00:36:48.840 Yeah.

00:36:49.080 This is stage five pancreatic, not curable.

00:36:51.640 Sorry.

00:36:52.320 It's it's this is the really bad diagnosis when the judge is calling you dishonest,

00:36:57.040 outright over and over and speaking about how he feels misled and the state bar might

00:37:01.620 want to get involved.

00:37:02.440 I mean, this is just absolutely devastating.

00:37:04.840 So, OK, he's going to appeal.

00:37:07.160 They'll they'll appeal.

00:37:08.020 The Trump defendants will appeal.

00:37:09.140 And you think the court, the court of appeals will likely take it because normally, as we

00:37:13.300 were talking about, if you go up into an interlocutory appeal, meaning while the case

00:37:16.420 is still pending before everything's been settled, then usually the court of appeals does not

00:37:20.320 have to take it and they tell you to wait.

00:37:22.100 So do you think the court will have to take it?

00:37:25.920 I just don't know Georgia law well enough.

00:37:29.220 I think that if what the court was concerned about, you know, what the problem, Megan, with

00:37:36.760 a with a conflict situation is it it doesn't just go to the due process rights of the

00:37:42.960 defendant, which which is a profound problem.

00:37:45.440 It goes to the legitimacy of the tribunal and the public integrity of judicial proceedings.

00:37:51.800 And if the court decides and I think this would be a sensible decision that every day this

00:37:58.240 goes on and continues, it's more of a debacle for the court, then I think they have to take

00:38:04.680 it because it's not just about at that point, can these people get a fair trial?

00:38:10.540 It's about do we want the national reputation of the courts of Georgia to be that we're a

00:38:15.380 clown show?

00:38:16.000 Well, and I think they have an interest in not being one. 0.97

00:38:19.400 Mm hmm.

00:38:20.160 OK, can we just talk about the fact that the court wound up amazingly?

00:38:25.860 He really didn't take on what became the core issue of whether they lied about when their

00:38:31.580 relationship began.

00:38:33.140 They tried to claim it didn't begin until after she had hired Nathan Wade.

00:38:36.760 And there was testimony from Robin Urte, her longtime friend, that that was a lie that had

00:38:42.900 gone back to twenty nineteen.

00:38:44.300 Then there was Terrence Bradley, his former law partner and friend who had texted actually

00:38:49.540 merchant everything.

00:38:51.560 They were having sex in the Robin Urte condo.

00:38:54.160 This is the name of the friend.

00:38:55.720 Go subpoena Fannie's original security team from when she took office in twenty twenty.

00:39:00.200 They're going to know where all the bodies are buried.

00:39:01.700 They saw it all.

00:39:02.760 I mean, it went on and on.

00:39:04.160 But the judge says as following as follows.

00:39:06.440 First, he says.

00:39:09.960 OK, hold on.

00:39:10.720 Um, he's talking about whether they, you know, had this relationship.

00:39:17.280 I'm just going to go back far enough.

00:39:19.600 OK, an outsider in this case could reasonably think the D.A.

00:39:25.120 is not exercising her independent professional judgment, totally free of any compromising

00:39:29.060 influences.

00:39:29.760 As long as Wade remains on this case, this unnecessary perception will persist.

00:39:34.000 The testimony introduced, including that of the D.A. and Wade, did not put these concerns

00:39:38.520 to rest.

00:39:39.100 During the argument, the defendant's focus largely pivoted from the financial concerns

00:39:43.600 to disproving the testimony of the district attorney, namely that her romantic relationship

00:39:48.320 actually predated the November twenty twenty one hiring of Wade.

00:39:51.760 On that front, the court makes a few brief observations.

00:39:55.300 First, the court finds itself unable to place any stock in the testimony of Terrence Bradley.

00:40:01.060 Right on, judge.

00:40:02.040 We agree.

00:40:02.900 The world agrees. 0.69

00:40:04.500 His inconsistencies, demeanor and generally non-responsive answers left.

00:40:08.680 Far too brittle a foundation upon upon which to build any conclusions.

00:40:13.640 Then here's where he dismisses the impeachment with those prior texts.

00:40:18.240 While prior inconsistent statements can be considered as substantive evidence under Georgia

00:40:22.520 law, Bradley's impeachment by text message did not establish the basis for which he claimed

00:40:29.540 such sweeping knowledge of Wade's personal affairs.

00:40:32.940 He's not satisfied that Terrence Bradley had personal knowledge or whether he was just speculating

00:40:37.520 in those texts to Ashley Merchant.

00:40:39.960 Then here he goes, Andy.

00:40:40.980 In addition, while the testimony of Robin Urte raised doubts about the state's assertions,

00:40:48.480 it ultimately lacked context and detail.

00:40:51.920 Even after considering the proffered cell phone testimony from Donald Trump, this is the text

00:40:57.120 messages and all the cell phone tower evidence that Wade was overnight at Willis's house when

00:41:01.740 they were allegedly not sleeping together, along with the entirety of other evidence, neither

00:41:07.320 side was able to conclusively establish by a preponderance of the evidence that's only 51%

00:41:14.020 more likely when the relationship evolved into a romantic one.

00:41:18.460 However, an odor of mendacity remains.

00:41:21.260 I'm sorry, Andy, but if the, if this defense did not prove by a preponderance that this thing

00:41:26.200 began before, you know, she hired him in 2022, then nothing's provable.

00:41:30.580 They had Urte, they had the Brad, the Terrence Bradley texts, they had the cell phone tower

00:41:36.780 overnight stays, the thousands of text messages and calls when they were allegedly not having

00:41:42.360 an affair, which nobody engages in to that extent, unless they're 14.

00:41:46.940 And I, this isn't, this is the part of the opinion where he just consciously made a decision

00:41:51.600 to keep her upright, to keep her available on this case.

00:41:55.860 Yeah, well, she, he certainly didn't want to make a finding that she lied.

00:42:00.760 As you, you know, when you're talking before about her, his failure of courage, I think

00:42:04.940 that's, that's it in a nutshell.

00:42:07.300 And now I'm, I'm otherwise making, trying to figure out how to say this in a way that

00:42:11.540 like my mother won't stop talking to me, but I feel like we have the, the McAfee standard

00:42:17.420 developed from this case, which is basically in order to prove this, you'd have to add, they've

00:42:23.780 had to had, had a threesome where somebody then came forward and said, yep, I saw the

00:42:29.940 whole thing.

00:42:30.840 Otherwise I don't see how you, right.

00:42:33.660 But you need like, like somebody has got to be there.

00:42:36.920 And, you know, may, I understand why he doesn't like why he came up short of making a finding

00:42:43.520 about the district attorney's credibility.

00:42:45.260 He didn't want to, that was a bridge too far for him.

00:42:48.320 But I got to say in the criminal law and, and, you know, this as well from the, from

00:42:54.000 the civil law, we prove an awful lot of cases where we don't have like a film of the thing

00:42:58.480 happening or like, you know, somebody who can come in and say, yeah, I saw the whole

00:43:02.900 thing.

00:43:03.560 Um, you know, you prove things the way, uh, you just described with these other witnesses

00:43:09.520 and the corroboration.

00:43:10.680 And then you say, okay, well, here's their version of events.

00:43:13.860 This is what supports it.

00:43:15.060 And here's the opposite version and the, the stronger one is the one you go with.

00:43:19.360 And what he seems to be saying instead is that unless you caught them in flagrante delicto,

00:43:25.040 then you're out of luck.

00:43:27.720 It's really absurd.

00:43:29.180 That's not the standard.

00:43:30.180 I think Alan's right about, you know, their chances of saying he, he used the wrong legal

00:43:33.820 standard, although the appellate court won't want to get into the facts and the credibility

00:43:37.900 of witnesses.

00:43:38.840 If he used the wrong legal standard, they have a shot.

00:43:41.920 So can you just speak to us as an attorney?

00:43:44.700 I mean, because I think there are a lot of people online just feeling very down on this

00:43:49.700 opinion and down on the judge for understandable reasons.

00:43:52.140 But I really think there's a huge silver lining here for the defense and the absolute destruction

00:43:56.420 of the DA's credibility.

00:43:58.380 Like this is the DA in the Trump prosecution.

00:44:01.900 And this is the judge who will be hearing that case.

00:44:05.840 It matters that he doesn't trust her at all.

00:44:09.520 Yeah, it not only matters, and I heard you make this point with Alan, and when you were

00:44:15.580 saying it, it occurred to me, it matters, but it really matters with the prosecutor.

00:44:22.700 You know, in a criminal case, juries and everyone else who's an observer is willing to cut defense

00:44:31.340 lawyers some slack for playing fast and loose with things.

00:44:34.780 Not that it's good to play fast and loose with things, but your only obligation is to

00:44:40.220 represent the client and make sure the client gets a fair trial.

00:44:44.080 And everybody knows that in most criminal cases, you're dealing with a Goliath in the

00:44:49.180 government.

00:44:49.780 And the only thing the defendant has is the defense lawyer.

00:44:53.100 So I think courts are willing to give the defense lawyers a little bit of rhythm to stretch things,

00:45:00.640 especially because their job is to test the government's case.

00:45:04.160 They don't really have to prove anything.

00:45:07.380 Whereas with the prosecutor, if the judge loses confidence in the prosecutor, the case is almost

00:45:13.540 over.

00:45:14.440 I mean, that is a catastrophe of a case.

00:45:16.520 And most good prosecutors will tell you that when they realize they've made a mistake or

00:45:24.080 something has gone wrong, the first thing they want to do is get back to the judge and

00:45:29.480 disclose it, because there's nothing that's more important in terms of how you are perceived

00:45:35.320 by the court, which translates to how you are perceived by the jury, that you are an upright

00:45:40.760 figure who exudes integrity.

00:45:43.560 That's what you're aiming for.

00:45:46.380 And you don't have to be the greatest lawyer on the planet as long as you have that going

00:45:50.300 for you, because what ultimately has to happen in a criminal case for the for the government

00:45:54.860 to succeed is the jury has to believe that the government's playing it straight.

00:46:00.300 And so she's way behind the eight ball on that. 0.94

00:46:04.240 Yeah.

00:46:04.420 And the jury will be able to see that this judge does not believe in her.

00:46:07.720 It'll be obvious if it didn't hit their jury pool television sets.

00:46:11.520 It's there's just something people human nature understands that.

00:46:15.260 But so last but not least, what is likely to happen to her now?

00:46:18.840 Because her problems are not over.

00:46:20.380 As you know, Andy, she's got a judge here saying there's an odor of mendacity about her 1.00

00:46:25.540 conduct.

00:46:26.480 Reasonable questions about whether she testified untruthfully remain and saying other forums,

00:46:33.540 such as the General Assembly, the Georgia State Ethics Commission, the State Bar of Georgia,

00:46:36.820 the Fulton County Board of Commissioners, the voters of Fulton County may offer, quote,

00:46:40.160 feedback on some of these issues.

00:46:42.340 So what is likely to happen to her next?

00:46:46.180 You know, Megan, I've been so wrong on on this question.

00:46:50.300 Let me just like give you a comparison to Tish James. 1.00

00:46:54.140 Right.

00:46:55.260 When I was a young lawyer in New York.

00:46:57.660 Yeah, but she's the New York AG. 1.00

00:47:02.640 But like when Bob Morgenthau, who was in an electoral system, which New York is on the

00:47:07.740 state side, when he was the D.A., if he ran for office saying, if you elect me, I will

00:47:14.340 use the powers of my office to go after this guy, our political enemy, that would have been

00:47:20.040 disqualifying.

00:47:20.980 Nobody would have run for office that way.

00:47:23.140 But Tish James did that in New York and she won in a landslide. 1.00

00:47:27.580 And I would love to be able to say to you that with this record, this woman's career

00:47:33.320 is over.

00:47:34.120 But for all I know, you know, everything's so tribal now that as long as she's against

00:47:40.060 Trump and she hates Trump and she's taken one for the team on for Trump and she's doing

00:47:44.440 everything she can to get Trump for her side, that may count for more than what the judge

00:47:49.660 said about her.

00:47:50.540 I don't know.

00:47:50.980 That may be true with voters.

00:47:53.520 I can see that happening in a county that won 73 percent for Biden.

00:47:56.700 But the state bar is the state bar.

00:47:59.340 You know, Andy, I don't I feel like I hope that's right.

00:48:01.940 This kind of finding by a judge, this is absolutely devastating.

00:48:06.260 And let's not forget, there's a Georgia state Senate investigation into her, Andy, where they

00:48:10.680 have subpoena power.

00:48:11.780 And if they start subpoenaing the text messages between Fannie Willis and Nathan Wade prior

00:48:18.960 to 2022 when he was hired, she's done because we all know what's going to be in those.

00:48:25.280 I really hope that's right.

00:48:26.740 But I've seen so much lately that people get away with that.

00:48:30.460 There's no way on God's green earth they ought to get away with it.

00:48:33.500 But I hope I hope you're right.

00:48:36.660 I hope I have less faith in it than you do.

00:48:39.660 But I hope you're right.

00:48:42.060 Andy McCarthy, always a pleasure.

00:48:44.120 Thank you so much for joining us.

00:48:46.220 Thanks so much, Megan.

00:48:47.040 Oh, we are still digesting this entire opinion and awaiting reaction from Fannie Willis.

00:48:54.480 We are now about four hours post the decision dropping and no word out of the DA's office

00:49:00.440 on what Fannie Willis's decision will be.

00:49:02.940 Is there any chance she will step aside and pull her office off this case as, believe it

00:49:08.420 or not, even Andrew Weissman, Trump hating former prosecutor Andrew Weissman, is saying she

00:49:14.500 should do.

00:49:14.920 This is an MSNBC star now who's saying, you know what, she should go for the good of this

00:49:19.620 prosecution.

00:49:20.260 So if she doesn't, he clearly thinks there's a silver lining for Trump.

00:49:25.460 This case is very complex and it's still unfolding.

00:49:28.160 We also have reaction from Trump's attorney, which we'll get to you.

00:49:32.240 And up next, we will bring you our cast of all stars who have seen us through this case

00:49:36.380 from the start.

00:49:37.180 Phil Holloway, Mike Davis and Dave Ehrenberg.

00:49:40.300 Don't miss a moment.

00:49:41.080 And if you haven't yet subscribed to our YouTube channel where you can get all the breaking news,

00:49:44.720 please do so.

00:49:45.420 YouTube.com slash Megan Kelly and download the pod wherever you get yours for free.

00:49:49.680 We'll be right back.

00:49:50.220 So here we are, guys, a couple of months after I was told by the New York Times, the Daily

00:49:58.900 that nobody really saw anything to this motion when it was first filed.

00:50:03.980 Like it just we all just thought it was a joke.

00:50:06.600 Not true.

00:50:07.600 New York Times.

00:50:08.480 Some of us saw a major potential problem here.

00:50:11.240 And today that's been proven correct.

00:50:14.220 In fact, we've got that sound.

00:50:15.480 But if you'd like to hear it, listen.

00:50:16.520 If I'm remembering correctly, the feeling that a lot of people had when this motion was

00:50:20.360 filed was that it was kind of a Hail Mary, right?

00:50:24.760 And there was not much evidence that it was necessarily even true.

00:50:28.140 Yeah.

00:50:28.480 Well, I mean, it was a Hail Mary in the sense that Michael Roman's lawyer didn't include

00:50:34.140 any evidence to back up her claim.

00:50:36.740 This very salacious claim.

00:50:39.260 So there was a moment there when nobody knew really what to make of it.

00:50:42.800 It was a very uncomfortable moment.

00:50:44.200 Hmm, really?

00:50:47.420 Actually, no, because we were talking about this right from the get go.

00:50:51.340 Dave and Mike, you were on our show and we talked about these explosive allegations and

00:50:55.100 where they could lead.

00:50:55.760 And ultimately, today, we see that at least half of the prosecution team could be leaving

00:51:01.020 this case.

00:51:01.560 I mean, we'll be leaving this case.

00:51:02.700 Nathan Wade's going or Fannie Willis and her entire office is going.

00:51:06.140 So it is a huge deal.

00:51:07.680 And it was obvious to any nonpartisan hack from the beginning that this is seriously

00:51:14.040 problematic, if true.

00:51:15.400 And it wound up being 100 percent true.

00:51:17.340 I mean, that's the thing.

00:51:18.640 Phil, I'll start with you on it, because the the allegations against Fannie and Nathan were

00:51:24.020 either admitted to by this pair or denied in part.

00:51:27.940 And this judge, while saying maybe they weren't proven, like that the affair began before

00:51:32.320 2022, I smell a rat. 0.79

00:51:35.160 There's the odor of mendacity.

00:51:36.960 Somebody else should really investigate.

00:51:38.540 I mean, everything the defense suggested, I think, was accepted by this judge.

00:51:42.720 The only question was, what are the consequences going to be?

00:51:45.320 What do you make of the ruling, though?

00:51:46.220 Well, to me, Megan, it's kind of a mixed bag.

00:51:50.560 The order itself was, in fact, scathing in its description of the overall, you know, sort

00:51:57.160 of bad judgment used, to put it lightly, by the district attorney and others in this case.

00:52:04.100 I don't think, though, that this is really a big win, per se, for the defense, because

00:52:10.860 cutting Nathan Wade out of the case, and look, that's what's going to happen.

00:52:14.060 That's really not going to be that big of a deal.

00:52:17.720 It's not going to slow them down.

00:52:19.260 They won't miss a beat.

00:52:20.340 Nathan Wade, despite what they may have said, is not carrying the water for this prosecution

00:52:25.320 team.

00:52:25.980 It's on across and some of the others that are really doing, I think, the heavy lifting

00:52:30.440 here.

00:52:31.240 Wade was sort of involved in the periphery, but as far as doing the heavy lifting in court,

00:52:37.680 it wasn't him.

00:52:38.640 So she's got to decide, is she going to go and take her whole office with her? 0.97

00:52:42.860 She can't leave Wade, by the way, because if she goes, you know, he's got to go, because

00:52:47.760 his authority comes from her.

00:52:50.260 So she's not going to get out of the case.

00:52:51.940 She's not going anywhere.

00:52:53.700 I think tossing Wade out is throwing a bone to the defense.

00:52:58.340 It ignores what I believe was perjury.

00:53:02.660 It avoids what I believe was the fraud perpetrated on the court.

00:53:07.960 He basically said Robin Yurdy didn't move the needle.

00:53:11.800 Well, that can't possibly be true.

00:53:13.460 She's got personal knowledge.

00:53:15.720 She saw the affair taking place in 2019. 0.78

00:53:19.280 He just seemed to ignore that.

00:53:21.000 He ignored Terrence Bradley's text messages where Terrence Bradley confirmed that the affair

00:53:26.280 started before they testified it did in 2022.

00:53:29.640 And strikingly to me, he doesn't want to even hear from Cindy Yeager, who is the chief assistant

00:53:37.200 DA in Cobb County, who has personal knowledge that Fonnie Willis was influencing and tampering

00:53:43.320 with witnesses back as early as September of 2023.

00:53:48.020 So, you know, if I'm the judge, I'm going to want to get to the bottom of this.

00:53:52.020 He, on the other hand, wants to just ignore it all, split the baby in half, and move forward.

00:53:58.960 He took the easy way out.

00:54:00.200 But look, Megan, I want to share something with you.

00:54:02.400 I don't think it's going to be over.

00:54:04.380 I think these defendants are going to continue to pursue things.

00:54:09.080 And there is a Georgia law, and I'm going to read the necessary parts to you.

00:54:14.660 It's Georgia Code 151827.

00:54:16.840 It says that when any person makes an affidavit before a judge of the Superior Court, which

00:54:22.980 alleges that the district attorney or a member of the staff of the district attorney has committed

00:54:30.220 an indictable offense, and the court finds there's probable cause to believe of such, the judge,

00:54:37.240 it says, has a duty, an affirmative duty, to notify the attorney general and refer it to

00:54:45.060 the attorney general.

00:54:45.840 So I wonder if we're going to see an appeal.

00:54:49.660 I think the parties absolutely can appeal this.

00:54:53.240 They're going to, I think, ask for what's called an affidavit or a certificate of immediate

00:54:57.980 review, which is a discretionary thing.

00:55:00.580 But it would allow them to do a pretrial appeal.

00:55:03.480 I expect the judge would grant it.

00:55:05.320 I think Willis, by the way, is also going to be appealing the ruling that tossed six of

00:55:11.340 the counts out the other day against Trump and some others.

00:55:14.340 So there's going to be some things, I think, going up on appeal anyway.

00:55:18.300 And I really think it's a pretty good bet we're going to see some people asking the judge

00:55:25.180 to refer this case to the attorney general for prosecuting what I think are the indictable

00:55:31.300 offenses.

00:55:31.760 You've got perjury, you've got influencing the witness, you've got violation of oath of

00:55:36.160 office.

00:55:36.920 In my opinion, there's probable cause to believe those people have committed all those, and

00:55:42.360 those are all indictable offenses.

00:55:44.720 So yeah, this is not over.

00:55:45.820 Violation of oath of office is the, those are the six counts that got dismissed against

00:55:51.180 Trump and his co-defendants just the other day by this judge.

00:55:54.020 Now it could be brought against her.

00:55:56.160 She's also accusing them of lying. 0.99

00:55:57.600 Now that charge could be brought against her.

00:55:59.540 And you're telling me that there's a Georgia statute that says it can happen if only there

00:56:03.640 is an affidavit that the DA or her staff has committed an indictable offense and the judge

00:56:10.140 sees probable cause that it's true, then he has an affirmative duty to refer it to the

00:56:15.580 attorney general.

00:56:16.840 So that'll be the question.

00:56:18.080 Does the judge, I'm sure they'll produce the affidavit.

00:56:20.120 Does the judge see probable cause that Fannie Willis or a member of her staff has committed

00:56:25.860 an indictable offense, either she or Nathan Waite, who would be, I can, I think for these

00:56:31.200 purposes, considered part of her staff, even though he's an independent contractor, he's

00:56:34.940 there because of her.

00:56:36.160 All right, let me, let me zoom back out and get overall reactions to the, to the decision.

00:56:41.180 Mike Davis, start with you.

00:56:42.980 Well, I'm not surprised if this judge, you know, after, after these overwhelming facts

00:56:49.220 and if he actually followed the law, he clearly should have disqualified Fulton County

00:56:54.180 DA Fannie Willis in her office.

00:56:56.480 But I think he came to the politics.

00:56:58.360 He faces a Democrat challenger in November, and I think he tried to split the baby here.

00:57:04.160 And, you know, that's when he dismissed those six charges before this ruling, when he did

00:57:13.280 a couple of radio interviews before this ruling, and just seeing his demeanor and that evidentiary

00:57:19.080 hearing, I have always feared that he would not follow the facts in the law here and follow

00:57:23.460 the politics.

00:57:24.100 And I think that's exactly what he's done.

00:57:26.560 Dave, what do you make of it?

00:57:28.360 Megan, you remember when Mike Davis got the Supreme Court decision right on absolute

00:57:33.020 immunity and I was wrong?

00:57:34.740 Well, in this one, I want to take a bit of a victory lap because I called it at least

00:57:39.340 part of the way.

00:57:40.140 Wait, do we have that?

00:57:40.920 Do we cut that, you guys?

00:57:42.300 I thought we may have cut a soundbite.

00:57:44.320 Oh, here.

00:57:45.000 Oh, actually, here.

00:57:45.620 You know, we did all of you just because we like to keep the record.

00:57:48.420 Stand by.

00:57:48.880 This is how these is.

00:57:49.780 This is how the predictions went.

00:57:50.780 What's the percentage odds, Phil, that it happens, that she and Nathan Wade and her office get

00:57:58.040 booted?

00:57:58.660 I'm probably at around 80 to 85 percent, I would say.

00:58:02.760 I think the odds are pretty good.

00:58:04.760 I do think the judge is going to do it.

00:58:06.660 If this judge does his job and follows the law, it should be 100 percent.

00:58:10.600 I think Nathan Wade, 80 percent he gets bounced, 85 percent, 90 percent he gets bounced.

00:58:19.020 But as far as Fonnie Willis, I think 50-50.

00:58:21.800 And you may be wondering, how does one get bounced but not the other?

00:58:24.580 I think the judge could split that hair and actually say that for the appearances of impropriety,

00:58:31.820 for all these reasons, he should not be part of the case.

00:58:34.000 Fonnie Willis, you need to remove him from the case.

00:58:35.700 But because I have not established that there has been an actual conflict involving you,

00:58:40.000 I'm going to allow you to remain on the case.

00:58:42.480 But Nathan Wade has to go.

00:58:45.180 Dave Ehrenberg nailed it.

00:58:47.620 Wow.

00:58:48.400 I mean, in detail, nailed it.

00:58:50.100 Yes, champion.

00:58:50.880 You're right.

00:58:51.300 You did.

00:58:51.920 Well done.

00:58:53.440 Thank you.

00:58:54.260 That makes up for my wrong predictions everywhere else.

00:58:58.660 So thank you, Megan.

00:59:01.440 This is my issue, is that I thought this would be the outcome.

00:59:05.060 But I didn't know how the judge would get there, because it is a bit of a confusing ruling when

00:59:10.040 he says, the judge says, well, I don't believe Nathan Wade.

00:59:12.900 I don't really even believe Robin Yurdy.

00:59:15.240 I don't believe Terrence Bradley.

00:59:16.760 I'm not going to say anything about Fonnie Willis.

00:59:19.620 How can you say that Nathan Wade is not credible, but Fonnie Willis doesn't get tarred with that?

00:59:26.020 Remember, she adopted the affidavit.

00:59:27.880 That's to Phil's point.

00:59:28.900 So I think that the judge was able to get to the conclusion that he wanted to, that

00:59:34.000 I wanted him to get to.

00:59:35.360 But the reasoning is really tortured.

00:59:38.740 And because of that, I think there is grounds for appeal.

00:59:41.900 I still appreciate that this is a very difficult case.

00:59:45.680 And I think the end result is something that I agree with.

00:59:48.820 But I admit that this could be right for some sort of appeal, or at least what Phil said about

00:59:53.840 going to the attorney general, because this is not over.

00:59:55.820 Well, fascinating.

00:59:57.600 Very, very good analysis there, Dave.

00:59:59.500 And now we have five lawyers saying they think this actually has a decent chance of getting

01:00:04.340 overturned on appeal in Trump's favor, because the judge does not look like he applied the

01:00:08.960 right legal standard.

01:00:09.740 I mean, it was really just kind of tortured to get to.

01:00:11.580 No actual conflict.

01:00:12.880 But on the appearance of impropriety, yes, but it can be cured.

01:00:16.820 But only one of the bank robbers has to go, to use Jonathan Turley's analysis.

01:00:20.420 Just one of you caught in the vault is off the case.

01:00:22.600 The other, as long as you don't continue stealing, it's fine.

01:00:25.380 No consequences for the past dealing.

01:00:28.240 A couple of points on what you said, Phil.

01:00:31.280 Anna Cross is with Kate Middleton, as far as we know.

01:00:35.120 We have not seen Anna Cross, okay?

01:00:38.420 She's the other special ADA he brought in.

01:00:41.880 And since Terrence Bradley got up there and spewed his lies, she's disappeared.

01:00:46.260 We don't know where she is.

01:00:47.240 So we'll see whether she's still a special prosecutor on this case, which leaves the other

01:00:51.160 guy, Floyd, who really is a RICO specialist and also maintains his private practice.

01:00:55.600 So I don't know that he wants to go into the lead position on this case.

01:00:58.300 I think they're stuck with Fannie, which, you know, is not all bad news for Trump.

01:01:02.160 Robin Yurty, I want to talk about her, you guys.

01:01:05.700 So he gets to Robin Yurty and he says, I'm going to pull it up, he says something that

01:01:13.620 we all discussed on this show the day it happened, that he didn't really believe her, that he

01:01:21.840 said there wasn't enough there.

01:01:23.440 I'm trying to find it here in all my notes, that she testified, yes, that the affair began

01:01:28.520 before they admitted it.

01:01:30.580 Here it is.

01:01:32.020 While the testimony of Robin Yurty raised doubts about the state's assertions, it ultimately

01:01:37.720 lacked context and detail.

01:01:41.100 Okay, actually, this one's for Mike.

01:01:43.200 Mike, even you and I, who believed strongly that Yurty was telling the truth, wanted more

01:01:49.320 detail from Robin Yurty, because it was one thing to have her say, they had an affair, 0.77

01:01:54.760 Fannie told me, and I saw it, period, move on.

01:01:57.280 And it would have been another entirely for her to say, this is exactly what Fannie said

01:02:01.640 to me.

01:02:01.940 This is exactly what I saw.

01:02:03.380 I saw them in bed together when I came to visit my condo.

01:02:06.560 And I don't know why to this moment that wasn't provided, but it was what the judge ultimately

01:02:12.980 used to dismiss the critical witness in the case.

01:02:16.060 Yeah, I mean, like I said, I think if the judge followed the facts and followed the law,

01:02:22.720 this would have been a very easy case.

01:02:24.660 But I think this judge has a big political problem this November with a Democrat challenger

01:02:30.580 for this judgeship in an overwhelmingly Democrat district.

01:02:34.520 So I think he did legal gymnastics in this order to protect Fannie Willis in this case.

01:02:40.440 He did legal and and some factual gymnastics, Phil, because to dismiss Robin Yurty like 0.79

01:02:46.080 that, like, well, it lacked context.

01:02:47.640 Well, OK, but it's under oath testimony that is unchallenged other than the fact that she

01:02:52.580 got bounced out of the office.

01:02:54.340 And Terrence Bradley, he completely dismissed his texts to Ashley Merchant saying, I didn't

01:02:59.840 see anywhere a foundation that he had personal knowledge on any of it.

01:03:03.420 And he dismissed the cell phone evidence.

01:03:05.940 I don't know why that wasn't really explained why him going for overnights at Fannie's house

01:03:12.360 before they claimed their relationship began was not persuasive to this judge.

01:03:18.320 Oh, I can explain it.

01:03:20.200 The explanation is that the judge is keenly aware that Willis has a very powerful political

01:03:28.580 apparatus that she can weaponize against him at the drop of a hat.

01:03:33.880 And if he goes as far as tossing her and saying that she's lied in court, then that political

01:03:40.680 apparatus immediately starts supporting the very far left opponent of Scott McAfee and boosts

01:03:48.120 him and probably gets him to replace McAfee after the election in May.

01:03:53.620 So that's, I think, the actual explanation.

01:03:56.760 But purely legally, I don't know how you can dismiss the testimony of Yurty by simply saying,

01:04:03.280 well, you know, it lacked context.

01:04:05.640 Well, what more context do you want?

01:04:07.400 I mean, she was under oath.

01:04:09.060 She said she saw them hugging and kissing and she was at her apartment for crying out

01:04:14.180 loud.

01:04:15.320 I mean, I guess we could have asked or the lawyers could have asked more questions that

01:04:18.800 were maybe to satisfy somebody's prurient interest about whether or not they were actually in

01:04:25.420 bed together having sex and things like that.

01:04:27.560 But it's just not necessary to go that far to make the point.

01:04:31.480 And like you said, it was unchallenged.

01:04:33.780 I can understand why he didn't put a whole lot of weight to what Terrence Bradley said in court.

01:04:39.900 But Terrence Bradley's text messages, I thought, were very compelling.

01:04:43.280 The thing about the cell phone records, Megan, I agree with you.

01:04:46.840 He ignored that, but he never actually allowed them to have an evidentiary hearing to present

01:04:52.500 all that stuff.

01:04:53.700 So I think that it was a mistake to rule against these defendants without hearing all of their

01:05:00.520 proposed testimony.

01:05:01.840 I think it's a mistake for him to make this ruling without hearing from Prosecutor Cindy

01:05:07.560 Yeager, who has personal knowledge that funny witness was going so far as tampering with

01:05:12.500 witnesses.

01:05:13.420 This is the kind of misconduct that clearly, clearly requires.

01:05:17.980 It's not even optional at this point.

01:05:20.040 If you've got the DA interfering with and tampering with a witness, not only is it a crime, but

01:05:25.220 it's the kind of thing you've got to get her off the case immediately because it's just

01:05:28.960 fundamentally unfair to all of the defendants to have their prosecutor engaging in this kind

01:05:34.920 of extreme, in my opinion, misconduct that's designed to get a conviction.

01:05:41.360 Misconduct and dishonesty.

01:05:43.460 And Nathan Wade's dishonesty.

01:05:45.220 The fact that the judge would even leave it as an option for him to stay on this case

01:05:48.580 is an outrage.

01:05:50.060 Nathan Wade, without question, lied repeatedly under oath, without question.

01:05:54.640 And the most we get from the judge about that is a passing reference to, quote, Wade's patently

01:05:59.760 unpersuasive explanation for the inaccurate interrogatories he submitted in his pending divorce.

01:06:08.600 What you mean is he lied under oath.

01:06:22.840 He perjured himself in his divorce proceeding.

01:06:26.360 And you admit it makes it more likely that he may have lied to you.

01:06:31.000 And then he goes on to this is the most we hear about the cell phone tower evidence showing Nathan

01:06:36.520 Wade and the teenage text messages levels we haven't seen since we were all, you know,

01:06:42.000 immersed in acne and testosterone.

01:06:44.140 He dismisses all of that.

01:06:47.080 And the overnight stays with the following line.

01:06:49.500 Even after considering the proffered cell phone testimony from Donald Trump, that's what I'm

01:06:54.020 referring to, along with the entirety of other evidence, neither side was able to conclusively

01:06:59.160 establish by a preponderance of the evidence when the relationship evolved into a romantic

01:07:04.520 one.

01:07:05.300 Dave Ehrenberg.

01:07:06.640 That's just that's just not true.

01:07:08.240 No, no, no reasonable person could say that there was not a preponderance of the evidence

01:07:13.820 given your tea, given the cell phone evidence.

01:07:17.000 And yes, I think Terrence Bradley, too, that this thing didn't begin prior to when they alleged.

01:07:22.280 Megan, I do think the judge could have just said about your tea that I don't find her credible

01:07:26.160 because she has a reason to lie.

01:07:28.040 But that's not what he said.

01:07:28.880 He said that what he said, the facts and circumstances, the context.

01:07:32.400 I he said the she raised doubts about their assertions, but her testimony ultimately lacked

01:07:39.680 context and detail.

01:07:41.620 And I'm sorry to interrupt you, Dave.

01:07:43.100 Hold that thought because I'm just going to play you her soundbite because she she did 1.00

01:07:45.920 provide some detail.

01:07:46.920 Listen.

01:07:48.400 From everything that you saw, heard, witnessed, it's your understanding that they were in a

01:07:54.840 romantic relationship beginning in 2019.

01:07:58.360 Yes.

01:07:58.920 You have no doubt that their romantic relationship was in effect from 2019 until the last time

01:08:04.120 you spoke with her.

01:08:06.100 No doubt.

01:08:06.820 And did you observe them do things that are common among people having a romantic relationship?

01:08:15.860 Yes.

01:08:16.620 Such as?

01:08:17.420 Can you give us an example?

01:08:21.880 Hugging, kissing, disaffection.

01:08:25.120 All of all before November 1st of 2021.

01:08:29.000 Correct?

01:08:30.140 Yes.

01:08:32.000 Hmm.

01:08:32.700 Hmm, Dave.

01:08:34.340 Yes.

01:08:34.820 I think what the judge did here is to say the standard is actual conflict.

01:08:39.240 And if you show lying, I am not going to accuse you for that.

01:08:43.260 That's going to be something the bar has to deal with. 0.95

01:08:45.620 And the authorities, we're just going to stick to actual conflict, even though he didn't really

01:08:50.120 say that, because after all, he got rid of Nathan Wade because of lying.

01:08:54.420 So that's why it's a convoluted decision.

01:08:57.080 And maybe that's a question for Phil, but when it comes to the appeal, although I'm not

01:09:00.520 convinced it's going to get overturned on appeal, I wonder, does the defense even have

01:09:05.820 a right to an immediate appeal under Georgia law?

01:09:08.380 Or do they have to wait until the case is over?

01:09:10.540 Because that's where it is in other states where you can't take what's called an interlocutory

01:09:14.680 appeal.

01:09:15.300 If you're a defendant, you've got to wait until after the case has been decided.

01:09:18.040 Go ahead, Phil.

01:09:19.760 Yeah, if you want to answer that.

01:09:20.860 Yeah, sure.

01:09:21.440 In Georgia, some things are directly appealable.

01:09:25.380 I think this one is not.

01:09:26.940 I think they have to file an application for, it's called a Certificate of Immediate Review.

01:09:32.820 And then if the judge grants that, it is discretionary.

01:09:35.960 The Court of Appeals also has to decide in a discretionary fashion if they're going to

01:09:41.380 take it.

01:09:41.800 However, the statement that was read at the beginning of this segment from a

01:09:47.960 attorney, Ashley Merchant, saying she's going to have to wait and see what's Willis going

01:09:51.840 to do about that other ruling.

01:09:53.480 If Willis appeals that other ruling, she doesn't have to ask for permission.

01:09:59.180 That's a directly appealable order.

01:10:01.120 The judge already gave it.

01:10:02.020 The judge yesterday dismissing those, or the other day, those six counts of the indictment

01:10:06.460 against Trump et al, gave it in the opinion saying, if you want to take this up immediately,

01:10:10.660 you can.

01:10:11.200 He did not include that line in this ruling.

01:10:13.520 That's right.

01:10:14.100 But if she, so Ashley's waiting to see if Willis does take it up on appeal, and I think

01:10:19.360 she probably will, then I think the judge really should say, okay, let's just send all

01:10:24.240 of it up then.

01:10:24.940 If part of it's going, it makes sense for them to rule on all of this.

01:10:28.440 I know for a fact that the lawyers are going to be filing the applications for the Certificate

01:10:33.560 of Immediate Review in the coming days.

01:10:36.120 What the judge does with it, I don't know.

01:10:37.840 But I do think it's likely that he will allow it to be done.

01:10:41.300 It's a very important case.

01:10:42.880 But you're correct.

01:10:44.020 It's not something that we have an automatic right to do pre-trial.

01:10:47.480 And if the judge denies it, then you've got to wait until a conviction happens, if that

01:10:52.700 does happen.

01:10:53.560 And then that becomes part of everything else that you appeal following a conviction.

01:10:58.760 Go ahead, Dave.

01:11:00.400 Yeah.

01:11:00.600 I think that Fannie Willis probably is less likely to appeal the dismissal of those six

01:11:05.420 counts, in part because of what Phil said, that it opens the door for the defense to appeal

01:11:09.460 this.

01:11:10.360 Also, I don't think Fannie Willis wants to delay this any further.

01:11:13.400 This is not going to trial before the election.

01:11:15.900 If she goes on appeal to appeal the dismissal of those six counts, this will delay everything

01:11:21.140 so long.

01:11:21.920 I think she just moves on.

01:11:23.400 And that's what she should do.

01:11:24.360 And one more thing.

01:11:25.640 The part I do agree with the court on is when it comes to the actual conflict of interest.

01:11:30.040 If she had a relationship with the judge, a witness, the defense, then it's clear there's

01:11:34.240 an actual conflict of interest.

01:11:35.640 But I've never been convinced that having a relationship with a person who works with

01:11:39.720 you is an actual conflict.

01:11:41.420 Where I had an issue is the potential for lying.

01:11:44.540 And the judge seemed to say, well, that's not going to be a consideration here to get rid

01:11:48.020 of the prosecutor.

01:11:49.160 It's going to be about whether there's an actual conflict of interest.

01:11:52.820 Well, he said he did find that he didn't see any evidence that Fannie Willis was trying

01:11:57.360 to delay the trial of Trump at all.

01:12:00.040 In order to run up Nathan Wade's bill, like he said, if anything, she's been putting pedal

01:12:04.400 to the metal and it's been team Trump that's been trying to delay.

01:12:07.900 So if she has some interest in extending Nathan Wade's contract and reaping more benefits from

01:12:13.280 his salary, I haven't seen evidence of that because she wants this case resolved sooner 1.00

01:12:18.800 rather than later.

01:12:19.380 But Mike, we haven't even talked about one of the most extraordinary pieces of the decision,

01:12:22.500 which is this judge is trying to get us to believe that he bought the cash lie, that

01:12:32.960 he accepted her nonsense about reimbursing him half of all the expenses in cash.

01:12:40.740 I mean, my God. 0.63

01:12:43.000 That's the part that is just so unbelievably laughable.

01:12:46.840 That's the actual conflict of interest.

01:12:49.520 If you are a prosecutor and you have a financial stake in that criminal prosecution that is

01:12:55.920 absolutely illegal, that is an absolute conflict of interest, you don't have to prove prejudice

01:13:01.100 to the defendant.

01:13:02.540 You just get booted from the case and many other things.

01:13:05.640 And so what Fannie Willis is alleging or what Fannie Willis is saying is, is that, no, I didn't

01:13:11.920 take illegal kickbacks from my unqualified secret boyfriend when I paid him $250 an hour

01:13:19.140 to bring a RICO case against Trump and 18 others, something way above his pay grade.

01:13:25.480 I didn't take an illegal kickback.

01:13:27.840 I didn't these lavish trips that he took me on.

01:13:30.320 I paid him back in cash and the judge actually believed her Black Panther father's story that

01:13:37.020 her Black Panther father told her to keep six months of cash laying around the house like 0.51

01:13:42.240 a prostitute or a drug dealer because you may, you may need it someday, but she never explained

01:13:47.120 how she reimbursed that cash so she could have her six month stash in her house as she's

01:13:53.280 spending thousands of dollars reimbursing her boyfriend, Nathan Wade, for these trips. 0.99

01:13:58.200 It's just complete, the legal term is bullshit. 1.00

01:14:00.840 It's just complete bullshit. 1.00

01:14:02.420 And the judge bought this. 1.00

01:14:04.160 Yeah.

01:14:04.560 The fell, he said, simply put, the defendants have not presented sufficient evidence indicating

01:14:08.840 that the expenses were not roughly divided evenly.

01:14:13.340 That's a quote from Nathan Wade's affidavit or that the DA was or currently remains quote

01:14:18.820 greatly and pecuniarily interested in this prosecution.

01:14:22.900 And he went back to say, he based that conclusion on the following.

01:14:26.720 The cash reimbursement practice she testified to may be unusual and the lack of any documentary

01:14:32.040 corroboration understandably concerning.

01:14:35.340 Yet the testimony withstood direct contradiction.

01:14:38.620 What does that mean?

01:14:39.440 Was corroborated by other evidence.

01:14:41.840 For example, her payment of airfare for two on the 2022 Miami trip and was not so incredible

01:14:47.600 as to be inherently unbelievable.

01:14:50.540 So notice like the complete pass he gives them on the nonsense around the cash, but on the

01:14:57.760 Robin Urti testimonial, the Terrence Bradley texts, the cell phone tower data, you can't

01:15:03.120 see conclusively past preponderance of the evidence.

01:15:06.200 And there you see the judge really putting his thumb on the scale to make sure Fannie Willis

01:15:10.420 stays on this case and doesn't get disqualified.

01:15:13.140 It's obvious.

01:15:15.740 I guess he went to the same word salad school that Kamala Harris went to, because that's just

01:15:21.940 gobbledygook.

01:15:22.800 I have no idea what that even means.

01:15:26.000 He wanted to come to a certain conclusion here.

01:15:31.200 He wanted to make sure that he was scathing enough that some people who might see it sort

01:15:38.520 of the way we seem to see it are kind of satisfied, but he didn't want to go so far as to force Fannie

01:15:46.200 Willis to turn her political apparatus against him in this election. 1.00

01:15:51.380 It just defies rationality to believe the cash reimbursement business and to even consider

01:15:59.660 Nathan Wade's affidavit, which is not evidence in the case.

01:16:03.680 It's not subject to cross-examination.

01:16:05.600 He already said he didn't really believe Nathan Wade's testimony from the actual witness

01:16:11.880 stand.

01:16:12.760 So how can he buy into this whole thing that it was roughly equally shared and reimbursed?

01:16:21.140 That just makes absolutely no legal or rational sense to me.

01:16:25.080 This whole ruling stinks.

01:16:27.400 This is a terrible ruling.

01:16:29.080 This is the kind of thing that further, in my opinion, adds to the unfortunate embarrassment

01:16:35.080 of the legal community in Atlanta where I practice, and I hate to see it.

01:16:41.860 If he's going to deny the motion, do it in a way that makes sense.

01:16:46.540 Don't say these kind of things like, you know, well, the cash may be unusual, but it's okay.

01:16:53.140 I'm going to go with it.

01:16:54.020 And, oh, by the way, Robin Yurdy, even though she said that they had an affair in 2019,

01:16:58.640 that lacks context, and we're going to ignore that. 0.99

01:17:01.920 Don't explain your ruling in ways that are just irrational and stupid. 0.99

01:17:06.060 Go ahead and give us something that makes sense. 0.99

01:17:07.100 It's really, it's James Comey-esque.

01:17:09.240 You know, it reminded me of James Comey.

01:17:10.900 Yeah, absolutely.

01:17:11.260 Like, she did it.

01:17:11.940 She did all of it. 0.99

01:17:12.780 She's terrible.

01:17:13.540 Trust me.

01:17:14.000 She did all the nefarious things you think she did with the emails. 1.00

01:17:17.060 But I'm not going to indict.

01:17:18.360 But no, right?

01:17:19.920 And you're left with, well, wait a minute.

01:17:21.800 90% of what you said leads to criminal conclusions, and yet you decided to jump off the, you know,

01:17:27.600 a different way at the end.

01:17:28.980 And also, when I read it this morning, I couldn't help but think of John Roberts and Obamacare.

01:17:33.060 You know, when we all thought, when he found that there was no interstate commerce that

01:17:37.400 would have justified the interference of Congress in this, the injection of Congress in regulating

01:17:41.040 health care, they said, you know what?

01:17:43.140 You're right.

01:17:43.520 There is no interstate commerce that would have allowed this.

01:17:46.440 And everybody said, oh, my God, he's overturning it.

01:17:48.600 He's pulling the individual mandate that the high court is.

01:17:51.400 And John Roberts said, but it could be justified under the tax clause.

01:17:54.820 He pulled a John Roberts.

01:17:57.440 And not only is there overwhelming evidence that she perjured herself in court, did this

01:18:03.120 judge even address the fact that her office, with 10 attorneys on this pleading, submitted 0.53

01:18:11.600 that false, knowingly false affidavit from Nathan Wade's divorce proceedings?

01:18:16.560 They submitted that affidavit in response to co-defendant Mike Roman's motion to dismiss

01:18:21.820 in front of Judge McAfee.

01:18:24.340 Was that even addressed in here, that 10 attorneys submitted, that two attorneys, Nathan Wade and

01:18:31.200 Fannie Willis, had eight other attorneys in the Fulton County DA's office submit a false

01:18:36.680 affidavit?

01:18:37.240 I mean, it's just shocking to me that this judge went out of his way to protect Fannie

01:18:42.960 Willis here, other than the fact that he's running for reelection.

01:18:47.760 So, Mike, I know you're going to jump.

01:18:49.480 But before I let you go, what do you make of this?

01:18:52.440 Because Phil and I have a little disagreement on whether this is a good ruling for Trump,

01:18:57.820 whether this wound up being sort of a relatively good day for Team Trump in the Atlantic case

01:19:01.940 or not, I agree he didn't get what he wanted.

01:19:04.620 Phil's right about that.

01:19:05.560 And he should have, you know, the defense team, Team Trump.

01:19:08.540 But I still see this and I use the term huge.

01:19:11.580 I see it as a huge win for Team Trump because three months ago it was full steam ahead against

01:19:17.060 Trump and all the co-defendants.

01:19:18.160 Now, here we are three months later, you've gotten one of the chief prosecutors booted and

01:19:22.500 you've disgraced the Fulton County district attorney in a way that we did not have coming

01:19:28.320 into this.

01:19:28.720 She was on the cover of magazines.

01:19:30.020 She was getting the Vogue treatment, basically.

01:19:32.420 And now everybody knows she's been called a liar by the judge who's trying the case.

01:19:39.220 Anna Cross may or may not return to this case, the other chief prosecutor that they brought

01:19:44.140 in.

01:19:44.960 The whole district attorney's office has been disgraced.

01:19:47.560 We saw their terrible performance in front of the nation at that hearing.

01:19:51.360 And so I just can't help but think they're a lot better off on what, yes, looked like

01:19:55.520 a bit of a long shot from the beginning than they were a few months ago.

01:19:58.860 Yeah, I mean, I would say this.

01:20:00.780 I have mixed feelings about this.

01:20:02.180 From a legal perspective, I think it's very bad what happens here because there was so

01:20:06.720 much misconduct in this case.

01:20:09.360 And Judge McAfee is putting his political career above the administration of justice in

01:20:15.500 Fulton County.

01:20:16.060 And that's not good for the system.

01:20:18.280 It's also bad that this case should have been dismissed.

01:20:21.320 This prosecutor should have been disqualified at a minimum.

01:20:24.560 And a new prosecutor should have been brought in. 0.98

01:20:27.240 And I doubt a new prosecutor would have refiled these charges because, again, it's not a crime

01:20:32.620 to object to a presidential election.

01:20:34.660 It's allowed by the Electoral Count Act of 1887.

01:20:37.420 That's why Democrats aren't in prison for objecting to Republican wins in 1968, 2004, and

01:20:44.620 2016.

01:20:45.380 But I would say to the Democrats with their lawfare, do you really want this beat up old

01:20:51.840 car racing to the finish line now that Fannie Willis has completely destroyed her reputation, 1.00

01:20:58.580 the reputation of her office, and the credibility of this case?

01:21:02.600 It's just not a good look for Fannie Willis and these Democrats. 0.99

01:21:06.360 And it's like Dave said, this case is not going to get to trial before the election.

01:21:10.020 So their whole goal of election interference is not going to happen.

01:21:13.680 And they've really, this is going to backfire politically.

01:21:17.560 And they've got their own questions on that same front.

01:21:19.960 I mentioned it earlier, MSNBC's Andrew Weissman, who's a former federal prosecutor, for the

01:21:25.960 good of this case, given the ethics issues, given that ethical issues will now abound as

01:21:32.040 to Willis.

01:21:32.800 She should voluntarily recuse herself from the case and allow another prosecutor to oversee 1.00

01:21:36.480 the Georgia Trump case.

01:21:37.560 Another MSNBCer, Joyce Aline, the judge's ruling means Willis's entire office is not

01:21:42.720 recused from the case, but the better path forward would be to let another prosecutor in 0.96

01:21:47.120 that office take over. 0.79

01:21:49.360 We still don't have a decision from her, though.

01:21:52.100 I'd be shocked if Fannie Willis actually stepped away. 0.79

01:21:55.560 I think she's about to pull the rug out from under Nathan Wade because a man is not a plan. 0.96

01:22:01.520 Mike goes away.

01:22:02.560 We love you, Mike.

01:22:03.460 Phil and Dave remain.

01:22:04.640 And there's much more to go through, so don't go away.

01:22:06.560 We'll be right back.

01:22:07.560 I'm Megan Kelly, host of The Megan Kelly Show on Sirius XM.

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01:23:04.500 Offer details apply.

01:23:05.600 As he told me one time, the only thing a woman can do for him is make him a sandwich.

01:23:13.100 We would have brutal arguments about the fact that I am your equal.

01:23:17.960 I don't need anything from a man.

01:23:19.540 A man is not a plan. 0.97

01:23:21.100 And Nathan Wade is about to learn that the hard way.

01:23:23.240 Welcome back to The Megan Kelly Show.

01:23:24.700 Still with me, Phil Holloway and Dave Ehrenberg.

01:23:27.200 Dave, I could see you were itching to get in on that last point by Mike.

01:23:31.620 What did you want to say?

01:23:32.620 Well, it was on the tweets that you read from Andrew Weissman and Joyce Vance, who I respect,

01:23:39.120 but I've got to say that I totally disagree with her thoughts that Fannie Willis should

01:23:44.100 recuse herself and an underling should take over because if she recuses herself, then the 1.00

01:23:49.600 entire office needs to be recused.

01:23:51.840 You've got to then send it to a different office entirely because this is the situation

01:23:56.440 of the Jussie Smollett case.

01:23:57.540 Remember the DA there, the state's attorney disqualified herself and let an underling make 1.00

01:24:02.620 the decision.

01:24:03.260 That looks terrible.

01:24:04.400 That is a conflict in itself.

01:24:06.240 And the National District Attorneys Association, of which I'm a board member, has said that

01:24:10.420 you cannot just recuse yourself and let a deputy run the case.

01:24:15.060 It's either all or nothing.

01:24:16.720 Where is Anna Cross? 1.00

01:24:18.700 Where?

01:24:19.900 Where is she, Dave?

01:24:21.380 She's over.

01:24:22.460 She's in Kensington Palace.

01:24:23.700 I'm telling you.

01:24:26.540 It's the weirdest thing.

01:24:27.920 Like, what happened to her?

01:24:29.000 You know, witness protection program, Kensington Palace.

01:24:31.480 I have no idea.

01:24:33.220 It's so bizarre.

01:24:34.000 Yeah.

01:24:34.620 It's very sketchy.

01:24:35.800 She disappeared just as the entire prosecution team appears to have decided to lie to the court.

01:24:41.580 Phil.

01:24:42.760 Yeah, we saw the hubris, right, that she marched into that courtroom with and essentially tried 1.00

01:24:48.460 to take over the place and to, in large measure, she succeeded.

01:24:52.560 That same hubris is going to stop her. 0.98

01:24:55.820 She's not going to recuse herself. 0.72

01:24:57.580 She's going to dig her heels in. 1.00

01:24:59.580 She's going to claim this as a victory.

01:25:02.060 Yeah, you're talking about Fannie Willis.

01:25:03.440 Nathan.

01:25:04.220 Yeah, she's going to excuse. 0.56

01:25:05.300 And so that she's not going anywhere because this case is a matter, it's personal for her.

01:25:11.100 She campaigned to get Trump.

01:25:13.060 She's currently in the process of trying to get Trump, and she's going to continue to do so.

01:25:18.640 She is not going anywhere.

01:25:19.320 I mean, it's going to make the future dealings between the attorneys a little awkward.

01:25:23.580 Can you guys imagine, right?

01:25:25.300 Like, Ashley Merchant is going to have to deal with Fannie Willis day in and day out. 1.00

01:25:28.720 Steve Sadow, same.

01:25:30.560 And it's going to be just even more fraught than normal.

01:25:33.140 It's always fraught, but it's going to be extra.

01:25:35.440 Now, we haven't gotten to the second piece of this case, which I actually thought was very interesting.

01:25:39.600 The judge did not appreciate Fannie Willis' in-church commentary.

01:25:45.040 And you guys had both been saying that he wouldn't because, you know, you're former DAs.

01:25:50.380 And, you know, it's not appropriate for a district attorney to speak out in the way that she did at that church. 0.54

01:25:55.780 And this judge absolutely agreed with you and didn't hold back on that.

01:26:00.500 He didn't use it to disqualify her.

01:26:02.600 But I did think it was interesting that that piece of the motion, which hadn't gotten as much play, upset the judge.

01:26:08.680 Here, as a reminder, is some of what Fannie said in the church right after Ashley Merchant filed the motion to disqualify Fannie.

01:26:18.420 She went off.

01:26:19.700 Take a listen.

01:26:20.960 Why does Commissioner Thorne and so many others question my decision in a special counsel?

01:26:27.180 I appointed three special counsels.

01:26:29.900 Is my right to do?

01:26:31.880 Paid them all the same hourly rate?

01:26:34.700 They only attack one.

01:26:36.020 First thing they say, oh, she's going to play the race card now. 1.00

01:26:41.460 But no, God, isn't it them who's playing the race card when they only question one?

01:26:47.480 Why are they so surprised that a diverse team, that I assembled your child, can accomplish extraordinary things?

01:26:57.160 God, wasn't it them that attacked this lawyer of impeccable credentials?

01:27:00.960 How come God, the same black man I hired, was acceptable when a Republican in another county hired him and paid him twice the rate? 0.93

01:27:12.300 Oh, y'all ain't hear me. 0.73

01:27:13.940 Why is the white male Republican's judgment good enough, but the black female Democrats not? 1.00

01:27:21.840 All right, so here's some of what the judge found there.

01:27:26.240 First, he notes that forensic misconduct is potentially a grounds for disqualification,

01:27:33.300 and comments out of court from a district attorney along these lines can potentially arise to, quote, forensic misconduct that would get you disqualified.

01:27:42.240 Though he noted there wasn't a lot of case law in Georgia on that front.

01:27:46.980 He said he mentioned her, quote, unorthodox decision to make on the record comments and authorize members of her staff to do so to authors intent on publishing a book about the special grand jury.

01:27:57.280 Such decisions may have ancillary prejudicial effects yet to be realized.

01:28:01.720 So, again, more misconduct by her, but the comments do not rise to the level of disqualification.

01:28:07.740 The same cannot so easily be said of the district attorney's prepared speech delivered before the congregation of a local Atlanta church on January 14th, 2024, which we just played for you.

01:28:18.900 He goes on to say, okay, the state argues that speech was not aimed at any of the defendants in this case.

01:28:25.620 Maybe so, but maybe not.

01:28:27.940 Therein lies the danger of public comment by a prosecuting attorney.

01:28:31.480 By including a reference to so many others on the heels of defendant's Romans motion, which instigated the entire controversy, the DA left that question open for the public to consider.

01:28:43.520 The court finds, after considering the statement as a whole, under all the circumstances surrounding its issuance, that the DA's speech did include defendant Roman and his counsel within its ambit, whether intentional or not.

01:28:58.240 He goes on to say, more at issue, instead of attributing the criticism to a criminal accused general aversion to being convicted, the DA ascribed the effort as motivated by playing the race card.

01:29:10.440 She went on to frequently refer to Nathan, referred to Nathan Wade as the black man, while her other unchallenged ADAs or special prosecutors were labeled one white woman and quote, one white man.

01:29:23.940 The effect of this speech was to cast racial aspersions on an indicted defendant's decision to file this pretrial motion.

01:29:31.620 I mean, he's crushing her here.

01:29:33.460 However, the speech did not specifically mention any defendant by name.

01:29:37.960 It also did not address the merits of the indicted offenses, nor did it disclose sensitive or confidential evidence yet to be revealed.

01:29:46.160 So this court cannot find the speech cross the line to the point where the defendants have been denied fundamentally the chance at a fair trial.

01:29:54.680 Then he ends with this.

01:29:55.900 But it was still legally improper.

01:29:58.980 Providing this type of public comment creates dangerous waters for the district attorney to wade further into.

01:30:04.840 The time may well have arrived for an order preventing the state from mentioning the case in any public forum to prevent prejudicial pretrial publicity.

01:30:14.680 But that is not the motion presently before the court.

01:30:18.740 And yet, Phil, it almost certainly will be within days to try to gag this district attorney from further endangering the defendant's right to a fair trial.

01:30:27.860 Well, how the hell does he think that toothpaste is going to get back in the tube if she's gone so far as to disparage Roman the way the judge has found that she did, you know, a gag order on her moving forward somehow solves that?

01:30:45.580 No.

01:30:46.080 The remedy is disqualification.

01:30:49.200 In other words, that's a scathing opinion.

01:30:51.700 It really throws her out under the bus so badly that, you know, she ought to be ashamed and tuck her tail and just leave town.

01:30:59.320 It's so bad.

01:31:00.160 I'd be looking for a new job if the judge described my conduct that way.

01:31:03.900 But, no, he's going to say all these things and say, oh, but you know what?

01:31:09.140 It's still not anything that I'm going to do anything about.

01:31:11.820 I'm just going to issue a little warning, you know, don't do that again, and let's all kind of move along. 0.86

01:31:16.980 It's just ridiculous. 0.78

01:31:17.680 It absolutely is ridiculous because that damage has already been done, and no gag order by this judge can fix it. 0.95

01:31:26.240 The damage is – and it's not just Roman, by the way.

01:31:29.080 It's all of them.

01:31:30.140 And if you think that she's not going to find a way to make additional public statements that disparage these defendants, then I got news for you because she's going to find a way to do it, whether it's directly or indirectly.

01:31:43.920 She's going to use surrogates to get her message out. 1.00

01:31:46.840 There is no doubt in my mind because she has a lot of hard feelings about this case.

01:31:52.360 It's personal to her.

01:31:53.620 It's emotional.

01:31:54.780 She's letting her judgment get clouded by her emotions.

01:31:58.480 We saw that type of behavior in court.

01:32:00.940 It's obvious that she wants to make this public message.

01:32:05.940 She wants to try these defendants, not only in the courtroom but in the court of public opinion because, after all, it is an election year.

01:32:11.940 So, I think that any gag order he does at this point is lipstick on a pig, to be honest with you.

01:32:19.060 I mean, Dave, what we've got here is an opinion referring to this DA as having engaged in a tremendous lapse in judgment, unprofessional manner.

01:32:30.420 Possibly the bar, the General Assembly, the State Ethics Commission and others should be looking into her. 0.90

01:32:38.000 This all leaves the court with the odor of mendacity, which means lying.

01:32:42.800 Mendacity is untruthfulness.

01:32:44.240 He's been left with an odor of mendacity, talking about how he had serious doubts about her truthfulness as well with the court.

01:32:51.320 And then we get to all of this, talking about how inappropriately she behaved, it was legally improper, that she cast racial aspersions on an indicted defendant.

01:33:05.760 This is absolutely devastating.

01:33:08.400 He—I think the judge is literally begging for an ethics investigation into Fannie Willis.

01:33:14.100 Am I wrong?

01:33:15.420 No, I think you're right.

01:33:16.740 I think he's saying that because I'm going to stick to whether there's an actual conflict, my job here is done, but you can continue this in front of the bar, in front of the legislature, in front of other entities, and I'm going to leave it to them.

01:33:28.800 And I always expected her and Nathan Wade to get a tongue lashing by this judge.

01:33:33.060 This went further than I thought, and I thought, like, the judge acted properly here because what she said is improper for a sitting prosecutor to do that.

01:33:41.240 Now, I don't think the initial remedy is to disqualify her from the case for making those statements in the church.

01:33:46.220 But it is to issue a gag order, and then if she violates the gag order, then I think you remedy that with a disqualification. 0.99

01:33:53.700 But I do think the judge acted properly here.

01:33:56.480 I don't think you'd push the nuclear button right away.

01:33:59.820 Who would—if—Phil, if the defense does what you said and files an affidavit saying we have reason to believe the district attorney and or people in her office, including Nathan Wade, lied under oath to this court, committed an indictable offense, as you put it.

01:34:15.000 And Judge McAfee says, I agree that there is probable cause of that and refers this to the attorney general.

01:34:23.780 Then what happens?

01:34:24.960 The AG has to make an independent—and it's a Republican in Georgia—has to make an independent assessment about whether to pursue charges against them?

01:34:31.020 Yeah, that's basically it.

01:34:33.300 Yeah, the attorney general could bring in the Georgia Bureau of Investigation to conduct a criminal investigation.

01:34:39.440 And, you know, criminal investigations sometimes can move quickly, and sometimes they drag out.

01:34:44.300 But the State Bar of Georgia, I mean, I can tell you, I know people who have already filed bar complaints on this.

01:34:49.620 I know they've got some.

01:34:50.860 I imagine they've got a lot of bar complaints about this case.

01:34:55.120 So those things are—they're not public.

01:34:57.880 We don't know what's going on or what the status of them is.

01:35:01.020 And sometimes they take, you know, years to resolve themselves.

01:35:04.420 So that's not going to be any kind of quick remedy that's going to solve any of this.

01:35:08.220 The legislature is not going to be able to get involved, at least in this case, to solve any of these or to resolve any of these problems.

01:35:19.240 All they can do is pass laws that would apply next time around, but it won't get involved in this case.

01:35:23.840 The State Ethics Board, they do campaign finance violations, and they can issue a small fine.

01:35:28.920 They can't really do anything meaningful the way that the attorney general can do should the attorney general's office pursue this matter and investigate any indictable crimes.

01:35:39.700 And for the record, I'll say it again.

01:35:41.340 In my opinion, I think there's a handful.

01:35:44.000 I think there's potential perjury.

01:35:45.500 I think there's potential tampering or influencing witnesses, which is a felony.

01:35:50.820 I think that it's a felony to violate the oath of office.

01:35:54.680 Bonnie Willis knows that.

01:35:55.840 She's charged people with it, as you said, in this case.

01:35:58.580 So there's at least two or three things that I think need to be looked at by the proper criminal investigation agency,

01:36:06.780 and that would be, in my opinion, the attorney general through the Georgia Bureau of Investigation.

01:36:13.280 Dave, you're a prosecutor.

01:36:14.640 Why do we need the judge to get involved in looking at whether Fannie committed perjury?

01:36:21.720 Can't the attorney general of Georgia just do that right now?

01:36:26.120 I mean, he, I think it's a he, has all the information available to him that the three of us do.

01:36:31.760 Why does he need Judge McAfee to find there's probable cause?

01:36:35.440 I don't know how the rules are, the procedures are in Georgia, but usually the attorney general could step in if there is a state attorney or, in this case, a DA who has committed perjury.

01:36:46.800 What I found interesting, Megan, is that I did not notice a, that the judge directly said that Bonnie Willis is not credible.

01:36:55.940 Now, you said there in your comments that-

01:36:57.840 No, he didn't say it in those terms.

01:36:59.120 Right. And I think that's going to help her a lot because the judge didn't explicitly find that.

01:37:04.820 Remember, the judge has a lot of deference as to fact finding.

01:37:07.760 But the attorney general, if there is misconduct by a prosecutor, the attorney general can usually just step in and investigate and do some sanctions.

01:37:14.860 But it would not be disqualifying someone from the case.

01:37:17.620 That would be up to the judge.

01:37:19.080 So the attorney general and the bar can do other things.

01:37:20.260 Well, who could get a district attorney pulled as a district attorney?

01:37:23.400 I mean, the voters put her in there.

01:37:25.420 Is there no governing board that can say you are being removed from your office for gross misconduct?

01:37:31.320 Well, I'll tell you this.

01:37:32.140 One of the benefits of being a state attorney or district attorney, at least here in Florida, is that we're all independently elected constitutional officers.

01:37:38.560 And I'll defer to Phil on how it is in Georgia.

01:37:40.180 But that means that the governor, the attorney general, they're not our bosses.

01:37:44.220 The people are our bosses.

01:37:45.500 And if that's the same way in Georgia, then, no, you can't remove them unless the judge removes that person from the case.

01:37:52.640 Yeah, it's so crazy, Phil.

01:37:54.300 So you're telling me that these further defendants in the state, in the county of Fulton, are going to have to get prosecuted by this woman who herself appears to have broken the law.

01:38:02.920 And as long as the Fulton County voters say, yep, she's our gal, they're stuck with her?

01:38:08.920 Yeah, right now, that's more or less it.

01:38:10.620 The state of Georgia, though, does have currently, it's brand new, by the way, an entity that is designed to oversee prosecutors.

01:38:21.300 We've got one called the Judicial Qualifications Commission for Judges.

01:38:26.740 They've got one now that oversees prosecutors.

01:38:29.720 But it's just now getting started.

01:38:32.120 And I don't know that it has the power to necessarily remove a prosecutor.

01:38:36.720 But in any event, it's just getting underway.

01:38:38.660 And I think it's too soon for this new entity to get involved with respect to this case.

01:38:45.220 So, yes, the bottom line is a constitutionally elected DA gets hired and fired by the voters.

01:38:51.360 And unless the judge boots her off the case or unless she loses her law license or unless the attorney general causes her to get arrested, she's going to be on this case for the duration.

01:39:01.780 I think that state Senate committee that's investigating her and this matter, before whom Ashley Merchant testified, which has subpoena power, should get her texts, hers and Nathan Waite's, the actual text messages,

01:39:14.660 which will put the lie to what they said under oath and leave zero doubt about whether they perjured themselves before this court.

01:39:21.580 What he said, Dave, just pulling up the decision, is that reasonable questions remain about whether Fannie and Nathan Waite testified untruthfully about the timing of their relationship

01:39:34.720 and that those questions further underpin the finding of an appearance of impropriety.

01:39:39.800 So that's about as close as you could get to him saying, I think they lied to me.

01:39:45.540 Reasonable questions about whether they testified untruthfully.

01:39:49.620 And that leads me to feel that there was an appearance of impropriety, not to mention tremendous lapse in judgment, unprofessional manner.

01:39:57.180 Guys, thank you for your analysis on this from the beginning forward.

01:40:00.260 What a day.

01:40:00.760 We appreciate it.

01:40:01.780 We want to tell you that this is not over.

01:40:03.700 We have more coming next week.

01:40:05.240 And we are happy to tell you that though we are technically on vacation next week, we are going to be bombing in and bringing you a special Tuesday episode.

01:40:12.060 It will be an exclusive interview.

01:40:14.620 It will be her first with Ashley Merchant.

01:40:17.900 You're not going to want to miss that.

01:40:19.320 Thanks to all of you for tuning in.

01:40:21.380 Have a great weekend.

01:40:22.260 If you'd like to give us your thoughts, email me, Megan at MeganKelley.com.

01:40:28.140 Thanks for listening to The Megan Kelly Show.

01:40:30.000 No BS, no agenda, and no fear.

01:40:35.240 Thanks for listening.

The Megyn Kelly Show - March 15, 2024

BREAKING： Fani Willis Can Stay, But Nathan Wade Has to Go, with Alan Dershowitz, Dave Aronberg, Mike Davis, Phil Holloway, and Andy McCarthy ｜ Ep. 747

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