On Wednesday, Georgia’s highest court effectively blocked legislators from using a new law to remove the prosecutor who indicted former President Donald Trump.
The law is one of more than 30 introduced in recent years — at least six have been enacted — to make it easier to remove or restrict elected prosecutors who lawmakers disagree with, particularly targeting those district attorneys implementing criminal justice reforms and prosecuting police misconduct.
The order said that the court would not review proposed rules governing a new commission with the power to discipline and remove elected prosecutors, including Fulton County District Attorney Fani Willis, who indicted Trump. Without such a review, the agency can’t operate.
“While we celebrate this as a victory, we remain steadfast in our commitment to fight any future attempts to undermine the will of Georgia voters and the independence of the prosecutors who they choose to represent them,” DeKalb County District Attorney Sherry Boston said in a statement on the order.
One member of the Georgia state House who helped push the bill through, Rep. Houston Gaines, told the Associated Press that he and fellow Republicans planned to keep pushing the bill until the commission’s rules were approved and prosecutors could be removed. “As soon as the legislature can address this final issue from the court, rogue prosecutors will be held accountable,” Gaines said.
Bills to restrict the authority of prosecutors have proliferated in recent years since reform prosecutors started winning office in greater numbers. The bills tended not to pass in previous years, but in the era of Trump, the George Floyd protest movement, and perceptions about increased crime, polarized legislatures have passed the measures more swiftly.
The Georgia law passed with support in both chambers. While many of the laws passed in recent years targeted prosecutors who took steps like implementing bail reform or declining to charge for drug possession, Willis became a target under the Georgia law after she indicted Trump in August.
Immediately after the indictment, Georgia Republicans said they would use the law to remove Willis from office. Republican Gov. Brian Kemp signed the bill into law in May, making Georgia one of at least five states to sign into law a bill to restrict or undermine prosecutors since 2017. Kemp’s office did not respond to a request for comment.
More than a third of states have tried to pass such bills, a total of 30 pieces of legislation over the same period.
Boston, the DeKalb County district attorney, is one of four elected prosecutors in Georgia who sued in August to stop the law from going into effect. The plaintiffs emphasized the law could be used to restrict the authority of prosecutors across the political spectrum, not just reformers.
Conservative Towaliga Judicial Circuit District Attorney Jonathan Adams also supported the complaint because of his concerns over how it could be used to restrict prosecutors who exercise various forms of discretion afforded to the office of the prosecutor, regardless of their ideological position. Adams said he had already rescinded guidelines not to prosecute certain adultery crimes still on the books in Georgia over fear that it might make him vulnerable to removal under the new law.
“I have already received threats that members of the public plan to file superfluous, unsubstantial complaints against me under SB92,” he wrote. “This comes after I have received death threats and had my home address disseminated online.”
While the court has authority to regulate the practice of law by district attorneys, it had “grave doubts” that it had constitutional power to take action on the draft standards and rules of the prosecutorial commission. “Because we are under no legal directive to take action, the most prudent course for us is to decline to take action without conclusively deciding any constitutional question,” the court order read.
The commission can’t start its work without review from the court.
“The Georgia Supreme Court recognized what we have said throughout this litigation: SB 92 is a flawed law,” said Josh Rosenthal, legal director at the Public Rights Project, which led the suit against the law.
“We are grateful that as a result of this decision, district attorneys throughout Georgia are not subject to removal for deciding how to best promote safety and justice,” he said. “The Georgia Supreme Court’s decision leaves the PAQC” — Prosecuting Attorneys Qualifications Commission — “without authority to act on any complaint. Without approved rules, the Commission cannot lawfully investigate or discipline prosecutors across the state. This is an important victory for communities’ ability to choose their vision for safety and justice and a district attorney that will reflect those views.”
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