Judge gives Trump RICO case co-defendant another opportunity to sue Fani Willis in her official capacity for allegedly violating Georgia open records laws

Fulton County District Attorney Fani Willis arrives during a hearing on the Georgia election interference case on Friday, March 1, 2024, in Atlanta. (AP Photo/Alex Slitz, Pool)

A Tuesday morning hearing related to the Georgia election interference and racketeering ( RICO ) case against Donald Trump and others ended with a judge giving the defendants another chance to further frustrate the Fulton County District Attorney’s Office.

In a lawsuit filed earlier this year, attorney Ashleigh Merchant accused the office of violating the Georgia Open Records Act by failing to provide documents related to the employment of Nathan Wade.

Wade is the former special assistant district attorney who was infamously forced to resign from the high-profile RICO prosecution due to his onetime romantic relationship with DA Fani Willis . Precipitating that resignation was a demand from the judge overseeing the case: either Wade or Willis had to go.

In response to the lawsuit — which is essentially a sideline skirmish in the now much broader effort to have the indictment dismissed and/or Willis removed at the appellate court level — the DA’s office says the wrong party was sued. And, they argue, in any event the relevant, requested records have already been supplied or don’t exist.

The heart of the dispute is that the lawsuit, filed on behalf of former Trump 2020 staffer Michael Roman, originally named the Fulton County District Attorney’s Office as the organizational defendant that allegedly violated the open records law. Later, the plaintiffs sought to add Fulton County itself as a named defendant as well.

In their motion to dismiss, the DA’s office said the plaintiffs sued the wrong entity. In a separate motion to dismiss, the county writ large said they could not be added to the lawsuit because they are not the custodian of records for the DA’s office.

In sum, Fulton County put up a combined front that would ultimately leave the plaintiffs high and dry when seeking to enforce the Peach State’s open records law against the elected district attorney.

While seemingly circular, Fulton County Superior Court Judge Rachel noted the technical distinction undergirding that line of thought.

“The Fulton County District Attorney’s Office is not a formal entity,” the court observed. “It’s not a municipal body. It’s not an incorporated entity. It’s just a name that we’ve given — I mean. If you were to sue a lot of the entities that are subject to the Open Records Act for some other violation, it would be: you’d be suing the sheriff, or the DA, or the governor.”

John Merchant, arguing on behalf of his and his wife’s eponymous law firm, appeared receptive to how the court phrased the issue.

“We certainly can amend the complaint to add the district attorney individually and in her official capacity,” he said. “If that solves the issue, then we’re happy to do that. If this really is just a nomenclature issue and we just have the wrong party name, we can save everybody a lot of time.”

More Law&Crime coverage: ‘DA Willis disqualified herself’: Trump opening brief says appeals court must remove ‘unethical’ Fulton County prosecutor from RICO case and dismiss indictment entirely

Merchant went on to say that Willis was not originally named in the complaint because the plaintiff did not have any reason to believe that the DA herself would respond to open records requests or even have any input in responding to such requests.

Later, however, Sandy Monroe, representing the DA’s office, decided to push the government’s threadbare advantage a bit further.

She said the DA’s office never viewed the lawsuit as proper, but, rather as “the abuse of litigation” intended to “pursue the harassment” of the DA’s office and “to further fish through business records.”

On another occasion, the government attorney appeared to suggest the open records law might not apply to a sitting district attorney at all — but stressed that such offices have a “civic duty” to “make sure that there is a public transparency as to how they are operating.”

In the end, Krause more or less split the difference.

The court declined to deny or grant the government’s motions to dismiss. Instead, she gave the plaintiffs 20 days to add another party to be named as the appropriate defendant in the case. Following that, Fulton County, the DA’s office, and/or the DA herself would have another 20 days to file a follow-up motion. Then, the plaintiffs would have another 20 days to respond.

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