ATLANTA (AP) — A judge expressed skepticism Friday about calls to freeze a new Georgia law that calls for a commission to discipline and remove prosecutors.
Some Republicans want the new commission to discipline or remove Fulton County District Attorney Fani Willis for winning indictments against former President Donald Trump and 18 others.
That’s partly a way to sidestep demands from some Republicans that lawmakers call into a special session to attack Willis. Republican Gov. Brian Kemp has rejected both a special session and the notion that Willis did anything to warrant sanctions from the new commission, although he supported the bill and said when he signed it that it would curb “far-right left-wing prosecutors.” Making communities less safe.”
The case heard Friday predates the charges Willis won in August. Four district attorneys criticized the law as an unconstitutional restriction on their discretion over which criminal cases they can pursue and what they can say about their cases. Willis is not a plaintiff in the lawsuit, although she spoke out against the law.
Josh Rosenthal of the Public Rights Project, a group that represents district attorneys, said prosecutors are already changing their behavior because they are afraid of investigations. He argued that Fulton County Superior Court Judge Paige Reese Whitaker should ban the State Attorney Qualifications Commission from operating.
“As long as the possibility of an investigation exists, the plaintiffs are forced to limit their actions,” Rosenthal told the judge.
A lawyer for the state argued that Georgia lawmakers had pointed out that the state constitution expressly provides that legislatures can pass laws to discipline or fire district attorneys and that legislatures can also determine a prosecutor’s duties.
“Here they are acting well within their constitutional authority to proceed,” attorney Josh Belinfante said, saying Whitaker should reject district attorneys’ contention that the law constitutes improper intrusion by the Legislature.
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Georgia’s law is one of several attempts by Republicans nationwide to impose checks on prosecutors they don’t like. Republicans are railing against progressive prosecutors after some brought fewer drug possession cases and called for shorter prison sentences, arguing that Democrats are coddling criminals.
Missouri Republicans have ousted a prosecutor in St. Louis, while Florida Gov. Ron DeSantis has ousted elected Democratic prosecutors in the Tampa and Orlando areas, alleging that both abused prosecutorial discretion.
Georgia law also raises questions about prosecutorial discretion. The foundation of the American justice system is that a prosecutor decides what criminal charges to file and what the punishment will be. Georgia law states that a prosecutor cannot refuse to prosecute entire categories of crimes, but instead must decide on charges on a case-by-case basis. This applies to both district attorneys and elected attorneys general who prosecute lower-level crimes in some Georgia counties.
In Georgia, some prosecutors have announced they will no longer prosecute minor marijuana possession cases. Under questioning by Reese on Friday, Belinfante agreed that such a policy could trigger an investigation. He said prosecutors might be able to defend themselves if they argued that they prioritized more important crimes or supported other state or local goals.
“I’m not saying they would be successful,” Belinfante said. “I’m not saying these defenses will be unsuccessful.”
The plaintiffs say this is an example of how the law creates a bias in favor of law enforcement. But Whitaker appeared to adopt the state’s arguments that the new law actually creates greater discretion than an older section of state law that requires a district attorney to “prosecute all criminal conduct.”
Georgia law set an Oct. 1 deadline for the commission to accept complaints, but two members of the commission said in affidavits last week that the commission could not begin its work until the state Supreme Court ruled approved the proposed rules. It is unlikely that this will happen by this date.
Its members also said the commission voted Sept. 15 not to investigate actions that take place before the rules are adopted. It appeared that from July 1, prosecutors could be punished for actions or removed from office.
Partly because of the delay, the judge questioned whether prosecutors should be concerned about sanctions at this time. “Tell me that’s a legitimate fear,” Whitaker told Rosenthal of the Public Rights Project.
Belinfante argued that there was no immediate harm, saying the judge could not assume the commission would act unconstitutionally and that sanctions against a district attorney were only hypothetical.
“Nothing is happening that would justify the broad injunction that plaintiffs are now seeking,” Belinfante said.
Reese said she wanted to govern within 10 days.
