Eisen/Wertheimer In Slate: Can Georgia Republicans Really Fire A Prosecutor For Indicting Trump?
“Having tried and failed to interfere in Georgia’s 2020 presidential election, Donald Trump’s allies are now attempting to interfere with the ongoing grand jury investigation into that earlier misconduct,” Ambassador Norman Eisen (ret.) and Democracy 21 President Fred Wertheimer write in an op-ed published today on Slate.
The Republican-led Georgia House approved a bill this week that would create a commission with the power to investigate, discipline, and even remove locally elected district attorneys for conducting investigations that are deemed “politically motivated.” The Georgia Senate passed a nearly identical bill last week.
This highly politicized legislation, Eisen and Wertheimer note, could have serious consequences for Fulton County District Attorney Fani Willis’s efforts to achieve accountability for the attempts to overturn the 2020 election by Trump and others acting on his behalf.
“Not surprisingly,” Eisen and Wertheimer write, “the likes of Lt. Gov. Burt Jones, a leader of the Trump false elector effort in the 2020 election being investigated by Willis, enthusiastically supports the bill. Gov. Brian Kemp should refuse to sign it — but if the bill becomes law the courts will still have ample reason to throw it out.”
Because oversight of legal practice, including discipline, is an “inherent power” of the judiciary, they write, the Georgia legislature cannot encroach on this judicial power by creating specially designated laws to interfere with the actions of disfavored district attorneys.
Eisen and Wertheimer discuss the details of the Georgia legislation, including its vague language and seemingly intentional failure to articulate clear standards for disciplining or removing a prosecutor that creates significant room for mischief and troubling due process concerns.
“Apart from the impacts in the Trump case, the Georgia legislature’s attempt to create a commission that can second-guess and remove local prosecutors on political grounds would be a groundbreaking encroachment on fundamental principles of separation of powers that have long sustained and protected democracy in this country,” Eisen and Wertheimer write.
The authors continue:
“The new Georgia bills also encroach on well-accepted bedrocks of federal and state constitutional law providing prosecutors wide discretion to investigate and prosecute. As both the U.S. Supreme Court and Georgia courts have recognized, ‘Whether to prosecute and what charge to bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.’ This discretion is vital for prosecutors to be able to pursue investigations and cases where the facts lead them—without fear of political retribution.”
Governor Kemp “has signaled an inclination to support legislation in this area,” Eisen and Wertheimer write. “Despite his history of voter suppression, he stood up to Trump and allies’ pressure to overturn the 2020 election. He should similarly stand up to any effort that could impede Willis’s investigation of that interference. Particularly given the legal flaws in the legislation as it is developing he should refuse to sign it.”
Read the op-ed on Slate or below.
Slate | 3/10/2023
Can Georgia Republicans Really Fire A Prosecutor For Indicting Trump?
By Norman L. Eisen and Fred Wertheimer
Having tried and failed to interfere in Georgia’s 2020 presidential election, Donald Trump’s allies are now attempting to interfere with the ongoing grand jury investigation into that earlier misconduct. The Republican majority of the Georgia House approved a bill this week that would create a commission with the power to investigate, discipline, and even remove locally elected district attorneys for conducting investigations that are deemed “politically motivated.” The Georgia Senate passed a nearly identical bill last week.
If enacted into law, the Georgia legislation would empower the commission to interfere with active investigations like that Fulton County District Attorney Fani Willis is conducting into Trump. Not surprisingly, the likes of Lt. Gov. Burt Jones, a leader of the Trump false elector effort in the 2020 election being investigated by Willis, enthusiastically supports the bill. Gov. Brian Kemp should refuse to sign it—but if the bill becomes law the courts will still have ample reason to throw it out.
The Georgia House bill provides that prosecutors can be removed from office by the “Prosecuting Attorneys Qualifications Commission” for “willful misconduct” or “conduct prejudicial to the administration of justice which brings the office into disrepute.” (Whatever that means.) This vague language—that could encompass any controversial high-profile case—is just one problem with the bill. The commission can receive complaints from anyone (including complainants outside of a judicial circuit) creating a possible revolving door of complaints. The commission could even investigate district attorneys merely for making charging decisions where a complainant alleges “it is likely” the district attorney made a decision because of factors “unrelated to the duties of prosecution.” (Again, whatever that means.) The commission can also sanction a district attorney for a policy that “categorically refuses to prosecute any offense … of which he or she is required by law to prosecute,” that is making ordinary decisions to prioritize some prosecutions over others. The Senate version of the bill requires only a “plausible” allegation of the supposed transgressions.
Thus, under the new legislation, a “plausible” allegation made by allies of the former president that Willis is making a charging decision in the Trump case influenced by her political beliefs could be sufficient to initiate an all-encompassing investigation and disciplinary proceeding that could derail a prosecution of the former president, or in the most extreme case even remove Willis from her post.
Similarly, a “plausible” allegation by Trump’s allies that the DA has, for example, unstated policies not to prosecute crimes relating to drug possession or abortion could be abused as a means to initiate a sweeping investigation into the DA in an effort to remove her from office and undermine, among other things, her election interference investigation. The bill’s seemingly intentional failure to articulate clear standards for disciplining or removing a prosecutor creates significant room for mischief and troubling due process concerns. Courts must reject this unlawful system if this version of the bill is passed.
Apart from the impacts in the Trump case, the Georgia legislature’s attempt to create a commission that can second-guess and remove local prosecutors on political grounds would be a groundbreaking encroachment on fundamental principles of separation of powers that have long sustained and protected democracy in this country.
Under the Georgia Constitution, district attorneys are elected to four-year terms from the electorate in local judicial circuits, and they have immunity from private suits for actions arising from their performance of their duties. Powers of review and oversight of attorneys for allegations of misconduct is in Georgia, like throughout the country, exclusively reserved for judges. This separation of powers works the same way in many other state constitutional frameworks. For example, when a state legislature created a similar oversight commission for local DAs, in New York, a court held that the commission was unconstitutional, because it interfered with New York courts’ role for attorney discipline.
The legislation in Georgia, if passed and signed by the governor, should similarly be struck down by the Georgia courts, which have long recognized a power to oversee attorney discipline as part of the “courts’ inherent power … flowing from the constitutional doctrine of separation of powers.” The Supreme Court of Georgia has explained that the courts hold an exclusive power to oversee this and other aspects of the administration of justice—and the legislature does not. In other words, because oversight of legal practice (including discipline) is an “inherent power” of the judiciary, the Georgia legislature cannot encroach on this judicial power by creating specially designated laws to interfere with the actions of disfavored district attorneys.
The Georgia bills go even further than the overturned New York law in interfering with district attorney responsibilities. The New York commission did not have the power to remove DAs or to interfere with ongoing prosecutions and investigations, unlike the one proposed in Georgia. Indeed, the New York statute included a provision stating the commission may not “interfere with an agency’s active investigation or prosecution.” As then-Gov. Andrew Cuomo noted at the time of the law’s passage, otherwise, the commission risked abuse by “anyone intent on disrupting a criminal case.” The legislation in Georgia, on the other hand, has no similar limiting language, only further highlighting the dangers of these new bills.
The new Georgia bills also encroach on well-accepted bedrocks of federal and state constitutional law providing prosecutors wide discretion to investigate and prosecute. As both the U.S. Supreme Court and Georgia courts have recognized, “Whether to prosecute and what charge to bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.” This discretion is vital for prosecutors to be able to pursue investigations and cases where the facts lead them—without fear of political retribution.
There are of course constitutional constraints on what a prosecutor can or cannot do—for example, a DA cannot violate a defendant’s due-process rights or discriminate in violation of the Equal Protection Clause—but the Georgia bills are not directed to preserving these constitutional protections. Rather, the Georgia bills seek to do something that is altogether different: the proposed commission would make DAs potentially answerable to complainants and investigators who may disagree with the politics of charging decisions.
Kemp has signaled an inclination to support legislation in this area. Despite his history of voter suppression, he stood up to Trump and allies’ pressure to overturn the 2020 election. He should similarly stand up to any effort that could impede Willis’ investigation of that interference. Particularly given the legal flaws in the legislation as it is developing he should refuse to sign it.
That is not to say prosecutorial reform in general is a bad idea, so long as reforms are targeted at genuine problems and misconduct. Judges, journalists, and scholars alike have documented prosecutorial misconduct and proposed changes to how prosecutors’ offices operate. But that is not what is happening in Georgia. Instead, the state legislature is pushing through highly politicized changes which could have serious consequences for Willis’ efforts to achieve accountability for the attempts to overturn the 2020 election by Trump and others acting on his behalf. This latest effort to prevent justice and accountability should be blocked by the governor or, if it comes to it, the courts.
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