Trying to put the d. A. And her defense team on defense. The accusation is that fani willis had an improper relationship with one of her prosecutors and stood to benefit financially from employing him. The subsequent testimony has been salacious at times, heated at others, especially when willis herself took the stand a couple of weeks ago to call the whole investigation bs. And while the alleged conduct is dominating the headlines, it doesnt change the underlying allegations in the original case, which is that more than a dozen people including the former president , have been accused of coordinating to try and illegally overturn the results of the 2020 elections in georgia. Joining us now, host of the Katie Phang Show right here on msnbc, katie phang. We are watching the courtroom. Judge mcafee is sitting down. Katie, give us the initial state of play. Reporter so today are going to be the arguments, you can call them the closing arguments if you want, katie, because this has become a trial within a trial for a case that doesnt even have a trial date. This evidentiary hearing spanning a number of weeks, reopening evidence earlier this week in order to have the former divorce attorney for nathan wade, a man by the name of Terrence Bradley to have to take the stand to answer more questions by the defense. The state notably not having any for mr. Bradley. Terrence bradley was promised to be the, quote, star witness for the defense to talk about the timing of the nathan wade, fani willis personal relationship. However, bradley refused to deliver for the defense, so now scott mcafee taking the bench today to listen to these arguments from both sides, each the state and the defense having the opportunity to convince judge mcafee that the law in this case has been met. Remember, this is the burden on the defense, katys, the defense has to prove that under the georgia law theres a Conflict Of Interest. Now this case has gone towards was perjury committed by nathan wade and fani willis, and so unfortunately at this point, i think the judge is going to have to address whether or not that has been committed and whether that is enough to be able to take off fani willis from this prosecution. All right, so we, again, are watching the lawyers who are there for each of the defense for each of the Defense Teams are there, theyre introducing themselves. Theres seven defendants there in total, multiple lawyers for many of those defendants. This could be quite a few hours of arguments. Lisa rubin is also with us, Andrew Weissmann is also with us there at the table with me. Lets talk quickly about georgia law here and what needs to be proven. An article written by our friend joyce vance and a couple of others talks about how georgia law, Georgia Law On Conflict Of Interest does not apply here. I agree with that, and theres sort of a legal component to this, and theres a factual component, and the unfortunate part is whether i agree, you agree and joyce agrees. By the way, disagreeing with joyce is always a dangerous thing. This is one where the judge has said he wants to hear it so guess what, he gets to control. He said that the thing that is concerning to him and why hes having the hearing is the money. Its not just having an affair. He doesnt thats not what hes focusing on. He said im interested in knowing essentially whether these two people went dutch. Thats how sort of minute this is in terms of where were heading. As you said, it has nothing to do with the underlying case. But he said thats something hes concerned about it. So i think thats what were going to hear argument on. Its kind of hard sometimes to keep track of what the allegation is here. I have to every time i sit down to do this story, i have to remind myself what is she accused of doing that would make it so that she would not be able to prosecute this case . And its having an improper relationship and its benefitting from that relationship. In terms of whether they went dutch, there is evidence that the defense not defense team, the prosecution team, which is acting as the defense, d. A. Williss team wants to present from a guy who works at napa who says he saw fani willis pay a bill with 400 cash, presumably he remembers because almost nobody uses cash these days. So theyre trying to present that evidence in this case. Remind me, even if they did all of the things that theyre accused of doing, why would that affect the original prosecution of these originally 19 codefendants for trying to overturn an election. Thats a good question. Even if you accept the premise she has financially benefitted from her appointment of her boyfriend nathan wade as a special prosecutor, you have to go one step further for georgia law to see a disqualifying Conflict Of Interest. You have to show that the defendants themselves were disadvantaged somehow by the appointment of nathan wade while he was also fani williss boyfriend and paying for trips. And im not sure, katy, even if all of the allegations here are true that you can cross that threshold and find that she should be disqualified. All right, so the judge is now talking about Cell Phone Records, which the defense team wants to present saying that wade and willis were linked more closely and before that she hired him as a special prosecutor. Lets listen in. Would permit me so the court would understand where im coming from, and i believe also mr. Cromwell also has a proper for a witness that he has talked with and does have an oral weve got this is the first ive heard of it. Are these things that have been discussed or shared with the state at all . No, your honor. I literally my communication with this particular witness occurred this morning at about 10 10 along with mr. Chris know who was on the call with me. What the witness would say, who the witness is, a brief summary of what this particular witness would testify to in the event the court allows for evidence to be reopened and on the record i would state that on behalf of my client, mr. Shaeffer, we do want the record to be reopened so that the court could hear if they want to bring in someone from california, let them bring them in, and we believe that the court might want to hear the proffer and the evidence we are prepared to proffer today. To that point, mr. Cromwells additional evidence in my mind in the interest of fair notice to the other side, i wouldnt i wouldnt want that to be part of the argument today because the state has no idea what youre about to say, and i think the purpose of a proffer in large part in this role and in this context is having the at least having the ability to make those initial counterarguments. Now, i dont think that would prevent you from acting todays hearing, if you want to file it, make it part of the record, i think that both parties have already elected that they are willing to use that mechanism, but just for today kind of showing up now without having shown this to the other side at all, even this morning, i dont think that would be fair. I did not intend to use the proffer in the illegal argument. Sure. I just wanted the court to be aware that we do have an oral proffer, we can file it, and we can supplement the record and file it for the courts consideration literally hot off the press. Sure. As we print it out and okay. All right. Well, mr. Cromwell, is there anything you wanted to add to that . No, your honor. Mr. Abaa dee, you want to add to that . I dont know what it is, i dont know how to add to it, no. All right. Just anything on a procedural perspective . I mean, from a procedural perspective, i would submit to the court as youve said multiple times, evidence is closed. This is beyond the scope of your honors ruling on tuesday. Tuesday. So i guess wed object at this point. Just to explain whats going on here, initially they were talking about Cell Phone Records, and then they went to this proffer of another witness. The defense wanted to introduce a surprise witness that they said had bearing on this case, and they used the prosecution wanting to bring in the person from napa who i mentioned a moment ago saying that they saw fani willis pay with 400. Theres a reason if they bring them in, well bring this person in and well be able to reopen the evidentiary part of this hearing. Lisa rubin and Andrew Weissmann are still with me. So judge mcafee said youre opening another can of worms here. You can file motions. You can put it all into evidence, and then both sides can reply. Essentially you didnt give notice to the other side, so you cant just spring this on them, so if you want to at the end of this hearing make some application, theyre going to make some application, youre going to make some application. I sort of read that as you want to put it in the record, thats fine, but im making a ruling today. Yeah, he wants to get this over with. And hes closed the evidence already. Thats why these are closing arguments. So these belated efforts by both sides to lob in additional evidence are probably not well taken by judge mcafee who i believe is tired of this at this point and would like to make a ruling and either get on with it or allow the prosecuting counsel in georgia to appoint a different prosecutor. Lets say she does get disqualified. Lets say judge mcafee says, listen, this doesnt look great. I think she shouldnt be in charge of this case any longer, thats her entire team. Her entire office. It seems that it could potentially move to Fulton County not Fulton County, to dekalb or cobb county, something pretty close, hold on, im listening. I think were about to hear from ms. Merchant, who is one of the lead lawyers hear for the defense. This is not ms. Merchant, clearly. John merchant, another merchant. This is her husband. Her husband, hello. Also representing Michael Roman who initially brought this allegation. Lets start lets go back in, lets listen. Just by way of road map to give you some idea about the allocation of time and what im going to be covering, ive been charged with talking to your honor about the conflict issue and the appearance of the conflict and what we believe the evidence to show on that issue. Mr. Sadow, mr. Gillum will be talking more about the forensic context, ms. Williss Church Speech, and the book that she gave several interviews for. I wont be discussing any of those issues, so if youd like to ask me, certainly i can try to address them. Thats going to be the focus of their presentation, and then towards the end, other folks may have issues specific Type Arguments either in followup to mine or the Forensic Misconduct. Those are the two lanes were going to be covering. Im going to do the conflict piece of it for you. On that issue, your honor, this is a matter of First Impression in georgia. I cant find a single case thats been published by the Court Of Appeals or the Supreme Court that is based on these facts. There are, of course, a number of different Appellate Court cases that deal with conflict related issues and more importantly appearance of conflictrelated issues and some of those are base instead state law. Some are based upon the sixth amendment right to due process thats implicit in all of what were doing here today. I want to remind the court that were here today on this motion to disqualify d. A. Willis and her office because of her judgment, frankly. She is supposed to be disinterested under the sixth amendment, and shes anything but that. The fact that these proceedings have taken this long through the convoluted way weve made it here today explain that. So as i present my arguments, i want the court to understand that this court represents the guardrails for the sixth amendment in this context, and ms. Willis has already been disqualified once. So i would encourage the court to remember what judge mcburney did in his order disqualifying, the same argument was made in that case as to whether or not there needs to be an actual Conflict Of Interest or whether or not the appearance of a Conflict Of Interest might be sufficient under the facts. I want to make clear to the court that the law in georgia suggests and is very clear that we can demonstrate an appearance of a Conflict Of Interest, and that is sufficient. There is im going to be candid with the court. There is a Supreme Court decision from 1996, and then there are two court of appeal decisions after that that deal, frankly, in some dicta that suggest that an actual conflict is required, but the Supreme Court of georgia since those decisions came down has made quite clear that the appearance of a conflict standard still applies, and the reason thats important is i think under the sixth amendment, which is where were at, in order to preserve the defendants rights under that under that provision, and under corollary provisions of georgia law, youve got to consider the appearance of a conflict. And the reason why the appearance of a conflict is so prescient here is because if this court allows this kind of behavior to go on and allows d. A. S across the state by its order to engage in these kinds of activities, the entire Public Confidence in the system will be shot. And the integrity of the system will be undermined, and so with those sort of Public Policy and constitutional principles, i wanted to turn to the law in georgia on disqualification. And you know, im going to give you the law, and im going to talk about the facts and how they apply to the law at the end. If you want to talk about the facts earlier, jump right in and ill be happy to do that. Im sure your honor is very well prepared and probably knows all the law that im going to say to you. To give the skeleton outline, the original case that deals with Conflict Of Interest from the georgia Supreme Court is williams v. State, 258, and there are basically two messages by which you can disqualify District Attorney. One of them is a Conflict Of Interest, and i will suggest to the court, that doesnt mean an actual conflict. That can mean an appearance of conflict as well. Importantly in the williams case, footnote 4, i think this is important for the courts analysis about the facts, the court said there is no clear Demarcation Line between Conflict Of Interest and Forensic Misconduct and given ground for disqualification of the prosecutor might be classifiable as either. I think thats important because we have facts that fitin both boxes. If the state stands up and says theres no conflict, that doesnt mean it doesnt apply to the are Forensic Misconduct. Typically Forensic Misconduct relates to statements the prosecutor designed to impugn the character of the defendant before trial and to affect the jury pool, which we have hear, which im not going to discuss. But the facts that we have here very much relate to that issue and crossover. Importantly, and i think this is important for the courts consideration of what effect the courts ruling may have, if you deny this motion, theres a good chance if its reversed that we would be granted a new trial. So that means were going to have to do this all over again. In Amusement Sales Versus state, Georgia Appellate 727. Thats a case that cites whitworth, the court said if the assigned prosecutor has acquired a personal interest or stake in the conviction, the trial court abuses this discretion in denying a motion to disqualify him and the defendant is entitled to a new trial. New trial even without a showing of prejudice. So that means if we show the court today i think we have through the proceedings today and before that ms. Willis has developed a very personal interest in this case and your honor denies this motion, were coming back all over again if the Appellate Courts say you were wrong. So what is that personal interest . The personal interest can be theres no definition of that under georgia law, and it could be oa personal financial interest. It could be a personal interest related to bias against a particular defendant, which sort of falls into the Forensic Misconduct box. But we have here a very personal financial interest thats been laid out in terms of money received by ms. Willis as a result of the scheme that she set up. To get to the issue of the personal interest in the context of an appearance, i think thats important. I do want to suggest to the court that there are a number of cases that post date this actual Conflict Of Interest language that suggests in some of the cases from the 90s that you have to Pay Attention to what this looks like to the public, and i agree with all of the law and im sure the states going to stand up here and say, it cant be speculative or a conjectural type of personal interest. We dont have that here. We have something very concrete. As judge mcburney put it, actual and palpable, not speculative and remote. Thats exactly what we have here. Weve demonstrated through the testimony of the witnesses, some of whom impeached themselves, that we have a very personal interest. And the seminole United States court case that deals with prosecutorial impropriety is young v. U. S. Its 481 u. S. 787 case, in that case its the opportunity for conflicts to arise that created at least the appearance of impropriety and thats the case that requires that the prosecutor be disinterested. Since a scheme injecting a perso