OPINION: This article may contain commentary which reflects the author's opinion.
Georgia’s state Supreme Court declined to approve the rules for a new commission to discipline and remove state prosecutors, effectively putting the commission on hold.
Some Georgia Republicans want the new commission to discipline or remove Fulton County District Attorney Fani Willis for successfully prosecuting former President Donald Trump and 18 others.
In an unsigned order, the justices expressed “grave doubts” about their ability to regulate district attorneys’ duties beyond the practice of law. They claimed that because lawmakers had not explicitly ordered the justices to act, they were refusing to rule either way.
“If district attorneys exercise judicial power, our regulation of the exercise of that power may well be within our inherent power as the head of the Judicial Branch,” justices wrote. “But if district attorneys exercise only executive power, our regulation of the exercise of that power would likely be beyond the scope of our judicial power.”
Houston Gaines, a Republican state representative from Athens who played a key role in the bill’s passage through the House earlier this year, expressed his opinion that lawmakers could forgo the court’s approval of the rules as early as January, allowing the commission to begin operations.
“This commission has been years in the making, and now it has its appointees, rules, and regulations ready to go,” Gaines wrote in a text. “As soon as the legislature can address this final issue with the court, rogue prosecutors will be held accountable.”
This legislation in Georgia is just one of many efforts by Republicans around the country to rein in prosecutorial bias. Some progressive prosecutors have sought reduced prison terms and reduced the number of drug possession cases they bring, prompting Republicans to criticize them, claiming that the Democrats are enabling offenders, the Associated Press noted.
In addition to the demand that the rules receive state Supreme Court approval, four district attorneys are suing to have the commission dismantled because it violates their constitutional rights.
In September, a judge in Georgia rejected the four district attorneys’ motion to halt the law’s implementation, implying that she would eventually dismiss their case.
The plaintiffs contend that the fear of investigation is causing prosecutors to alter their conduct.
Because the Georgia Constitution “expressly authorizes the General Assembly to impose duties on district attorneys” and to create disciplinary and removal processes, Judge Paige Reese Whitaker of Fulton County Superior Court found that the suit is unlikely to succeed.
Critics of the law claim it unfairly favors prosecution, while proponents, such as Republican Georgia Attorney General Chris Carr, contend that district attorneys betray their constitutional duty to prosecute.
Prosecutors’ discretion in choosing which criminal charges to press and the severity of their sentences is a cornerstone of the American justice system, and this law calls into question that discretion. A prosecutor in Georgia is required to decide on charges individually rather than rejecting entire categories of crimes, according to the state’s statute. It applies to both the district attorneys and the elected solicitors general of Georgia, who are responsible for prosecuting lesser offenses in certain counties.
Officials from the commission have stated that operations cannot begin until regulations are finalized. In September, they decided not to look into anything that happened before the rules were approved. The impact of this ruling on petitions seeking disciplinary action from the commission against Willis, who was successful in indicting Trump and others in August, remains uncertain.
The newly appointed head of the commission, Randy McGinley, who is the district attorney for Newton and Walton counties, chose not to comment on Wednesday. McGinley stated his intention to arrange a meeting of the commission for next week to address the matter.
