FULTON COUNTY, Ga. — UPDATE: The judge has ordered Terrence Bradley back to the stand to answer more questions, according to Ashleigh Merchant, an attorney involved in the case who is actively seeking to disqualify Fulton County District Attorney Fani Willis and special prosecutor Nathan Wade.
Merchant anticipates the hearing to occur Tuesday.
Original story:
A witness in the ongoing Fulton County district attorney disqualification controversy met behind closed doors with the judge overseeing the case Monday, two lawyers involved with the matter confirmed to 11Alive.
The witness, Terrence Bradley, is a former law partner and one-time divorce attorney for special prosecutor Nathan Wade.
Defense attorneys have asked Fulton County Judge Scott McAfee to disqualify both Wade and District Attorney Fani Willis, alleging they financially benefitted from a romantic relationship they shared during their ongoing prosecution of former president Donald Trump and co-defendants accused of interfering with the 2020 election in Georgia.
At an explosive hearing two weeks ago, defense lawyers spent hours trying to get Bradley to answer questions about when Willis and Wade's romantic relationship began. But Bradley said he couldn't answer, claiming that any information he may have was protected by attorney-client privilege from his time representing Wade in his divorce proceedings.
Judge McAfee seemed ready to accept that argument until Bradley gave an answer late in the day at a hearing earlier this month that appeared to reopen the issue.
"Mr. Bradley previously testified that the reason he left the firm was totally and completely covered by privilege," Judge McAfee said at the Feb. 16 hearing. "When asked by the state, he went into a factual scenario that, to my mind, I don't see how it relates to privilege at all. And so now I'm left wondering if Mr. Bradley has been properly interpreting privilege this entire time."
McAfee said the only way to resolve that problem was to hold a private, closed-door meeting -- known as an "in camera" proceeding -- with Bradley and his attorney to sort through what information Bradley possesses is protected by privilege and what is not. That meeting happened Monday afternoon.
Former Dekalb County District Attorney Robert James said the issue puts a challenging task before Judge McAfee, forcing him to thread a needle between two competing interests: the disclosure of pertinent information and the protection of a highly-valued tenet of legal representation.
"Privilege is sacrosanct. It is sacred," James said. "If you can't have privileged or secret communications or protected communications with your client, then why would they disclose everything? And if they don't disclose everything, you can't give them good legal advice."
James said that sensitive nature is likely why Judge McAfee sought answers behind closed doors, in an attempt to keep information that really is protected by privilege from being inadvertently released to the public.
Since it occurred outside of public view, it's impossible to know exactly what happened. But James said the judge likely asked Bradley direct questions about what he knows and how he knows it. Information obtained in his capacity as Wade's attorney will be protected, James said. But knowledge gained through other, non-attorney conversations likely will not be.
"What came up in legal communications versus this person being your friend and your law partner?" James said. "If you can extricate that from the legal communication, then that's going to be admissible because it won't be privileged.
It's a complex question with simple consequences: If Judge McAfee determines Bradley asserted privilege improperly, he can order Bradley back onto the witness stand to answer more questions under oath.
"Whatever he determines is not protected by privilege, he will say: 'You have to give that up,'" James said.
The timing of when Willis and Wade's relationship began has become a pivotal point in the case as the defense team tries to convince the judge that Willis gave her romantic partner a contract to serve as the special prosecutor that earned him and his firm hundreds of thousands of dollars, then allegedly using some of that money to purchase vacations for the pair.
The defense claims that gives them an incentive to keep the prosecution going, allowing Wade to keep earning and destroying their ability to handle the case impartially.
Willis and Wade have both denied this, providing sworn testimony that their relationship didn't begin until 2022 (after Wade was appointed special prosecutor) and that Willis paid her share of all the costs associated with vacations the two took.
"I don’t need anything from a man; a man is not a plan. A man is a companion, and so there was tension always in our relationship, which is why I would give him his money back," Willis said at a hearing earlier this month. "I don’t need anybody to foot my bills. The only man who would foot my bills completely is my daddy."
If Judge McAfee decides that Bradley has to answer more questions under oath--and if his testimony contradicts what Willis and Wade have said--the prosecutors could face new challenges.
"If he does say that the relationship started before the time D.A. Willis and Nathan Wade have said, then it's going to be a bombshell, " James said. "I don't know if it decides whether or not there was financial gain or financial benefit; I don't know if it goes to that. But it's certainly ugly. And perhaps even perjury."
But he cautioned that's all hypothetical. McAfee may determine Bradley properly asserted privilege and not have to testify again. Bradley may also have information that supports--not disputes--the prosecutors' version of events.
James also questioned whether any of this will directly impact the efforts to convince the judge that Willis and Wade have an improper conflict that prevents them from prosecuting this case.
"The argument is simply this: she hired him, and she was already dating him . . . she hired him to financially benefit from the money that was essentially passing to him and was going back to her by way of these trips and things of that nature," James stated. "The opposite of that is if they were not dating at the time; if they were not romantically involved, then when she hired him, it had nothing to do with financial gain."
"The problem with all of that is she's already stated she paid the money back," James continued. "There's nothing to contradict that whatsoever."
While a hypothetical allegation of perjury would be damaging to the prosecutors, James said, he's not sure it would directly impact the conflict issue before the court.
"This is all very interesting, but I'm just wondering how it's going to be tied up," the former district attorney said.
We may have some more clues when Judge McAfee rules on whether Bradley has to retake the witness stand. James said he anticipates a decision before Friday when oral arguments on the disqualification issue are scheduled to occur.