The Attention Turns to Donald Trump’s Georgia Prosecutor

We’re back here at The Collision, and there’s … so much to get to. In this week’s edition, we’ll focus on Thursday’s hearing in Fulton County, Georgia, concerning whether District Attorney Fani Willis will be disqualified from her racketeering case against Donald Trump and associates, before turning to some of the continued fallout from last week’s explosive report from special counsel Robert Hur into Joe Biden’s retention of classified documents.

The Docket

• The first criminal trial for Donald Trump looks set to kick off on March 25. Judge Juan Merchan in Manhattan will begin jury selection on that date in the case brought by District Attorney Alvin Bragg regarding hush money payments to adult film actress Stormy Daniels. Bragg’s indictment of Trump on charges of falsification of business records was the first of the eventual four criminal indictments the former president received last year. 
• The special counsel investigating Hunter Biden has charged 43-year-old Alexander Smirnov, an FBI informant, on felony counts of false statements and obstruction, the Justice Department announced Thursday. The unsealed indictment alleges Smirnov “provided false derogatory information to the FBI” about Joe and Hunter Biden after the elder Biden became a candidate for president. Those alleged false statements include Smirnov’s claims that officials at the Ukrainian energy company Burisma told him the company had bribed both Joe and Hunter Biden to influence U.S. policy toward Ukraine when Biden was vice president. The indictment claims these statements from Smirnov were “fabrications” and that Smirnov’s “routine and unextraordinary business contacts” with company executives didn’t even take place until 2017, after Biden had left office. 
• Smirnov’s statements have been the basis for a significant part of the argument for House Republicans’ impeachment inquiry into Biden. Last year, GOP Sen. Chuck Grassley of Iowa and House Oversight Committee Chairman James Comer of Kentucky jointly released documentation of the FBI’s interview with the source, now known to be Smirnov. The House impeachment inquiry has continued to move forward slowly but steadily, with Tony Bobulinski, a former business partner of Hunter Biden’s, testifying before House Oversight investigators this week on his claims that Biden was involved in his son’s foreign business deals.
• Donald Trump’s legal team, as expected, asked the Supreme Court on Monday to delay Trump’s election interference trial in Washington, D.C., until after the Supreme Court  has decided if it will hear his case on whether former presidents have absolute immunity from all criminal prosecutions for their official acts while in office. Special counsel Jack Smith, predictably, responded by urging the court to let the trial proceed. It will take five justices to keep Trump’s trial on hold.
• This means there are four general paths for the Supreme Court to take: keep the criminal trial on hold but consider the immunity question on an expedited basis (probably April at this point); keep the trial on hold and consider the immunity question in the normal course (probably this fall); let the trial proceed and decide on immunity if Trump is convicted (it would be moot if he’s acquitted); or let the trial proceed and decline to hear the immunity case at all. We could know the answer in just a matter of days. 

The Fani Willis Show

Even via livestream, you could feel the electricity in the Fulton County, Georgia, courtroom during Thursday’s daylong hearing. Among the dramatic moments: a former friend providing damning testimony against District Attorney Fani Willis; salacious details about when Willis and a member of her team, Nathan Wade, began having sex and ended it; and Willis herself, sitting on the witness stand, indignantly accusing a defense attorney multiple times of lying. Oh, and we learned that Willis prefers Grey Goose vodka over wine.

But we should back up.

The issue, as The Collision has previously reported, involves whether Willis, the Democratic district attorney prosecuting the massive racketeering case against Donald Trump and several of his associates in Georgia, should be disqualified because of a romantic relationship she had with Wade. If Willis and Wade became a couple after she hired him as a contracted special prosecutor in November 2021, the relationship, while ill-advised, is unlikely to upend the case. But if there is compelling evidence that the two were romantically linked earlier than that, then Willis taking on Wade—a lawyer with no experience trying a felony racketeering case—looks more like a way to pay off her boyfriend at the taxpayers’ expense.

After the lawyer for one of Trump’s co-defendants, GOP operative Michael Roman, filed a motion to disqualify Willis and dismiss the charges, Willis and Wade filed their own response—admitting “personal relationship” but swearing that their personal relationship did not begin until months after she hired him, and asserting that there is no conflict of interest or basis for disqualification.

On Thursday, Judge Scott McAfee of the Fulton Superior Court heard from a room full of lawyers—for both the state and for several co-defendants who joined the Roman motion—as they questioned witnesses who had been subpoenaed by Ashleigh Merchant, Roman’s attorney. A key moment came early in the day when Robin Bryant-Yeartie, a former friend and employee of Willis’, testified she had “no doubt” that Willis and Wade were in a romantic relationship in late 2019, saying she witnessed them “hugging” and “kissing.” That’s in direct contradiction to the sworn statements from Willis and Wade, both in their filing and in Thursday’s hearing, that the romantic relationship began in early 2022.

A polite and deliberate Wade took the stand from late morning to early afternoon, where he testified that, while he developed a friendship on professional grounds with Willis after they first met in late 2019, they did not become romantically involved until 2022 and that their romance ended sometime in summer 2023. Wade also provided interesting testimony about the nature of how multiple vacations he took with Willis were paid for, including a birthday trip to Belize and another to Napa Valley in California since he was hired for the Trump case. This has been a sticking point for the defense, which has suggested that these vacations demonstrate how both Willis and Wade have benefited financially from the prosecution of Trump and his codefendants thanks to the additional funds appropriated to the DA’s office to hire special prosecutors like Wade.

While he may have purchased hotel rooms and airfare with his credit cards, Wade claimed, Willis often paid him back—in cash. (At this revelation one of the codefendants, former Georgia GOP Chairman David Shafer, audibly laughed, causing McAfee to warn Shafer that he would make him leave the courtroom if such an outburst happened again.) Defense attorneys pressed the point that there was no record of these cash payments and no way to verify them.

But the drama reached a high point once Willis herself took the stand. The district attorney sparred with Merchant, accusing her of lying in her filings and being unfair. Willis frequently ignored her own attorneys’ objections to questions so she could push back against Merchant and other defense attorneys. She defended her cash payments to Wade and insisted that she keeps large amounts of cash with her as a point of female independence. She accused Bryant-Yeartie of lying about when her relationship with Wade began. And she mused that although Wade likely believes their relationship ended in “June or July” of 2023—the last time the two had sex—Willis considers the end of their relationship to be a “hard conversation” in August of that year. Above all, she maintained that she is not guilty of any misconduct or wrongdoing.

Willis, who normally spends her time in courtrooms like this one interrogating witnesses, seemed at various times angry, bemused, and annoyed during her testimony Thursday. Little of her performance will have any bearing on the decision McAfee will have to make about whether to disqualify Willis and Wade from the case, but her command of the room—and her performance—seemed more pitched for the court of public opinion.

“You’ve been intrusive into people’s personal lives,” Willis said at one point to Merchant. “You’re confused. You think I’m on trial. These people are on trial for trying to steal an election in 2020. I’m not on trial, no matter how hard you try to put me on trial.”

But if McAfee does decide to disqualify Willis, that will mean reassigning the case to a different prosecutor—which could delay the trial by months or, more likely, years. For Trump, whose goal for all of his criminal cases had been delay, delay, delay, no outcome in Georgia could be better. Despite Willis’ defiance, the evidence contradicting her Thursday testimony gave reason to think Trump may get what he’s been looking for.

Verbatim

“I don’t really like wine, to be honest with you. I like Grey Goose”

—Fani Willis, on the stand in Fulton County, February 15, 2024.

Before we get to the next item, a quick disclosure: As Advisory Opinions and Dispatch Podcast listeners know, Sarah worked closely with Rob Hur at the Department of Justice during Robert Mueller’s special counsel investigation, and they remain friends. On Thursday, Axios reported on a conversation between them that took place earlier this week, in which Hur asked Sarah whether she’d consider helping him if and when Congress calls on him to testify about his report on President Joe Biden’s retention of classified material. Hur didn’t offer her a job, and Sarah didn’t accept one—but, as always, we wanted to be as transparent as possible with our readers, and we will continue to do so.

Cliff’s Notes on the Robert Hur Report

As we reported last week, Robert Hur, the Justice Department special counsel, declined to bring charges against Joe Biden for the willful retention of national security information. Unlike normal federal prosecutors, special counsels are—by law—required to provide the attorney general with a full report detailing their findings and their decision to charge or not charge the subjects of their investigation. In this case, Attorney General Merrick Garland turned that report over to Congress and released it to the public. And here we are, still discussing the fallout from that decision a week later.

Backing up, let’s address some misconceptions about what Hur was—and wasn’t—required to do in his report, especially since some of the details about Biden’s memory and age have become a big political issue in the last week.

To prove that Biden committed a crime, Hur would have needed to prove that Biden kept classified or other highly sensitive materials outside of a secure facility in the four years between his vice presidency and his presidency—and that he did so willfully, meaning he knew the documents were there and that they shouldn’t have been. Or, perhaps, that Biden willfully disseminated that information, telling someone information he knew was classified and that he knew he shouldn’t tell that person.

A federal prosecutor must clear three hurdles before bringing an indictment: First, he or she must believe the person is guilty beyond a reasonable doubt. Second, he or she must have evidence to prove that the person is guilty beyond a reasonable doubt. Third, he or she must believe that a jury would convict the person. That last one—which is the least well-known requirement—is vital to understanding this report.

Now let’s move to the evidence. In late 2022 and early 2023, FBI agents found documents at Biden’s home in Delaware that were related to the war in Afghanistan and marked with the highest classification levels. They also found handwritten notebooks containing classified information that Biden had taken with him from the White House. During the investigation, Hur found a 2017 recording of Biden telling the ghostwriter of his memoir, Promise Me, Dad, (during that crucial four-year period) that Biden had “just found all the classified stuff downstairs,” along with recordings of Biden giving the ghostwriter information that Biden himself described as “probably classified.” 

That’s all pretty bad for Biden. So bad, in fact, that you may be wondering why a prosecutor wouldn’t bring charges under these circumstances. Indeed, this is the whole point of the 388-page report. Despite damning evidence that Biden broke the law, Hur is telling his boss—the attorney general—that he does not believe the Department of Justice should charge the president with a crime after he leaves the White House. (Because, remember, they can’t charge him while he’s serving as president.)

Hur outlines four reasons for not recommending Biden be indicted. First, the Afghanistan documents are now almost 15 years old and pertain to a conflict that is over, meaning their potential exposure no longer poses much of a threat to America’s national security. Second, Biden was allowed to have the Afghanistan documents in his home for eight years as vice president and now as president. It could be hard to prove that he knew he had the documents during that four-year gap (even with the ghostwriter recordings as evidence). Third, as has now become a famous line from the report, Hur believed that “Mr. Biden will likely present himself to the jury, as he did during his interview with our office, as a sympathetic, well-meaning, elderly man with a poor memory.” Lastly, Hur noted that “jurors may find reasonable doubt because of the cumulative effect of some or all of these shortcomings.”

Now we get to the meat of the political controversy surrounding Hur’s report: Did he need to include Biden’s memory as a reason at all? Did he need to include specific examples of memory lapses in his report? Was it a political hit job, or at least gratuitous? 

Remember that it’s not enough for Hur to believe that Biden broke the law and that he has the evidence to prove it. He also must believe a jury will convict Biden. On this point, Hur is clear that he does not believe he can overcome that hurdle. The report is littered with instances of Hur writing “a reasonable juror could believe” or “jurors would likely find reasonable doubt.” (The words “juror” or “jurors” appear 40 times in the report.)

But it’s clear Hur had other, independent reasons for not recommending charges against Biden. In that sense, he didn’t need to include the analysis of Biden’s memory, as many of Biden’s defenders have argued. Yet it was clearly part of Hur’s own reasoning, and being transparent in a report that, given its political implications, was likely to be released to the public appears in line with the federal prosecutor’s duty to be candid.

Here are the specifics Hur included, on page 207 of the report:

Mr. Biden’s memory also appeared to have significant limitations—both at the time he spoke to Zwonitzer in 2017, as evidenced by their recorded conversations, and today, as evidenced by his recorded interview with our office. Mr. Biden’s recorded conversations with Zwonitzer from 2017 are often painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries.

In his interview with our office, Mr. Biden’s memory was worse. He did not remember when he was vice president, forgetting on the first day of the interview when his term ended (“if it was 2013—when did I stop being Vice President?”), and forgetting on the second day of the interview when his term began (“in 2009, am I still Vice President?”). He did not remember, even within several years, when his son Beau died. And his memory appeared hazy when describing the Afghanistan debate that was once so important to him. Among other things, he mistakenly said he “had a real difference” of opinion with General Karl Eikenberry, when, in fact, Eikenberry was an ally whom Mr. Eiden cited approvingly in his Thanksgiving memo to President Obama.

In a case where the government must prove that Mr. Biden knew he had possession of the classified Afghanistan documents after the vice presidency and chose to keep those documents, knowing he was violating the law, we expect that at trial, his attorneys would emphasize these limitations in his recall.

It’s worth noting that the most common answer anyone represented by a lawyer gives to an investigator is, “I do not recall.” It’s obvious throughout the report that Hur was trying to distinguish Biden’s memory issues from those more typical “I do not recall” responses. 

But Hur clearly had multiple examples of Biden’s memory lapses. Did he need to include Biden’s dead son? Perhaps not, especially given how it’s become a public point of contention between the special counsel and the president. On the other hand, we have now seen a letter in which the most senior career attorney at the Department of Justice told the White House that he believes the inclusion of these paragraphs about Biden’s memory are “consistent with legal requirements and Department policy” and that the language is “neither gratuitous or unduly prejudicial.” 

Additional reporting calls into question Biden’s memory during his press conference about his memory. After the release of the report, Biden said, “Frankly, when I was asked the question, I thought to myself, it wasn’t any of their damn business.” But according to Ken Dilanian at NBC News, who spoke with two people familiar with the interview transcript, “it was the president, not Hur or his team, who first introduced Beau Biden’s death.”

A full transcript of the interview with Biden could clarify some of this, but don’t hold your breath waiting for its release any time soon. First, the various agencies that make up the intelligence community will need to review it and redact any classified or sensitive information. Then, the White House will have a chance to review it for executive privilege. These processes can take weeks or months. In the meantime, Congress will no doubt be champing at the bit to get it, and the White House may decide it’s in the president’s interest to get the transcript out sooner rather than have it drop closer to the election. Meanwhile, House Republicans reportedly plan to have Hur appear before the Judiciary Committee on March 12, which could provide some clarity.

And with that, we’ll let you make up your own mind.