Georgia’s state Supreme Court on Wednesday refused to approve rules for a new commission to discipline and remove state prosecutors, meaning the commission can’t begin operating.
Some Republicans in Georgia want the new commission to discipline or remove Fulton County District Attorney Fani Willis for winning indictments of former President Donald Trump and 18 others.
In an unsigned order, justices said they have “grave doubts” about their ability to regulate the duties of district attorneys beyond the practice of law. They said that because lawmakers hadn’t expressly ordered justices to act, they were refusing to rule one way or the other.
“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.”
State Rep. Houston Gaines, an Athens Republican who helped guide the law through the state House earlier this year, said he believed lawmakers could as soon as January remove the requirement for the court to approve the rules, letting the commission begin operating.
“This commission has been years in the making — and now it has its appointees and rules and regulations ready to go,” Gaines wrote in a text. “As soon as the legislature can address this final issue from the court, rogue prosecutors will be held accountable.”
Georgia’s law is one of multiple attempts nationwide by Republicans to control prosecutors they don’t like. Republicans have inveighed against progressive prosecutors after some have brought fewer drug possession cases and sought shorter prison sentences, arguing Democrats are coddling criminals.
Beyond the hurdle of state Supreme Court approval of rules, four district attorneys are suing to overturn the commission, arguing that it unconstitutionally infringes on their power. A Georgia judge in September denied a request to freeze the law, suggesting she will ultimately rule against the lawsuit.
The plaintiffs argue prosecutors are already changing their behavior because they’re worried about getting investigated.
Fulton County Superior Court Judge Paige Reese Whitaker found the suit is unlikely to succeed, noting the Georgia Constitution “expressly authorizes the General Assembly to impose duties on district attorneys” and to create disciplinary and removal processes.
Opponents say the law creates a bias in favor of prosecuting people, but supporters including Georgia Attorney General Chris Carr, a Republican, argue that if district attorneys don’t prosecute, they are violating their oaths of office.
The law raises key questions about prosecutorial discretion, a bedrock of the American judicial system that allows prosecutors to decide what criminal charges to seek and how heavy of a sentence to pursue. The Georgia law states a prosecutor can’t refuse to prosecute whole categories of crimes, but must instead decide charges case by case. It applies both to district attorneys and elected solicitors general, who prosecute lower-level crimes in some Georgia counties.
Commissioners have said they can’t start operations until rules take effect. They voted in September not to investigate any acts that take place before rules are approved. It’s unclear how that decision might affect petitions asking the commission to discipline Willis, who won indictments of Trump and others in August.
Randy McGinley, the district attorney for Newton and Walton counties who has been named to lead the commission, declined comment Wednesday. McGinley said he would seek to have the commission meet next week to discuss the issue.
