In an effort to destroy Democracy, Georgia Republicans go after prosecutors — and the rule of law
America has a long tradition of independent local prosecutors, elected by the people and authorized to hold those in power accountable. But if Georgia Republicans get their way, district attorneys will instead become lackeys of the legislature.
Columnist
The state’s Republican-controlled House of Representatives has approved legislation that would enable an oversight board to remove district attorneys who “neglect select prosecutions,” as the Georgia Recorder phrased it. The grounds for removal are vague, leaving prosecutors at the mercy of a committee of political appointees. The proposed law would also reduce the number of signatures needed for a ballot measure to recall a district attorney.
This ham-handed attempt to protect Republicans and their allies, including former president Donald Trump, who is on the cusp of indictment in Georgia’s Fulton County, is a direct assault on prosecutors’ authority. It’s also a way of curbing prosecutorial discretion to, for example, prioritize violent crime over low-level drug offenses or not pursue desperate women who seek an abortion in violation of the state’s six-week limit.
Fani Willis, the Fulton County district attorney, has called the legislation racist, noting that most Georgians live in jurisdictions with minority prosecutors.
One prominent state Republican who supports the House effort, Lt. Gov. Burt Jones, is among the pro-Trump phony electors who tried to overturn Joe Biden’s 2020 election victory. If the legislation passes, Jones might end up appointing a commissioner who would be able to yank a prosecutor pursuing a case against him.
Willis could, within a few months, indict Trump and his cronies without repercussions. But if the legislation is passed and goes into effect next year, she might face an effort to replace her while the trial is in full swing.
Legal analysts have raised alarm bells. “The language of the statute does not inspire confidence that it won’t be wielded for political advantage,” the Above the Law website points out. “For instance, it empowers the board to entertain a complaint based on a ‘plausible’ allegation that a prosecutorial decision was based on ‘undue bias or prejudice against the accused’ or ‘factors that are completely unrelated to the duties of prosecution.’” Such a flimsy standard serves to chill investigations of the powerful and goad prosecutors into indicting lawmakers’ political foes. If legislators don’t like a prosecutor’s priorities, then they, not the voters, get to remove her. It is a recipe for politicizing the administration of justice.
Andrew Warren, a former county attorney in Tampa, knows something about the politicization of prosecutors. Florida Gov. Ron DeSantis (R) removed Warren from office after he expressed disagreement with prosecuting abortion patients and denying gender-affirming care, two elements of DeSantis’s agenda. Warren won on the merits in federal court, but received no remedy because the 11th Amendment bars a federal court from granting relief against a state official. In reaction to the Georgia bill, Warren told me, “We all want our elected officials to do their jobs well, but giving one group of elected officials power over another does not promote accountability — it promotes partisan fealty.” He added that “it removes the power of elections from the one group who should always have it in our democracy: the voters.”
Other former prosecutors have also denounced the effort to bully prosecutors. Former Justice Department lawyer Andrew Weissmann compared the Georgia legislation to the effort in Israel to allow the government to overrule the Supreme Court, describing both as “dangerous authoritarian efforts to reduce the checks on the power of the president and undermine the rule of law.”
Authoritarians characteristically act to protect their own power, use their authority to protect friends and punish enemies, and erode independent checks on government. In doing all three at once, the Georgia legislature engages in an assault on democracy.
