As former President Donald Trump traveled to Atlanta to surrender and be processed in the 41-count criminal case against him and 18 other defendants, Georgia state Sen. Clint Dixon, a Republican, suggested on Facebook a new way Republicans could help Trump avoid jail: Remove Fulton County District Attorney Fani Willis from office.
Trump has tried other extraordinary tactics to stall Willis’ case, including an unorthodox request to throw out the grand jury’s report. But eliminating a duly-elected prosecutor is a new front, one that became more possible in May when Republican Georgia Gov. Brian Kemp signed S.B. 92 into law. While signing the bill, Kemp said the new law would crack down on “rogue or incompetent prosecutors” who “refuse to uphold the law.”
Even though Gov. Brian Kemp made statements Thursday discouraging Georgia officials from retaliating against Willis, those statements are too little, too late.
The Georgia Legislature has limited power to remove prosecutors directly, but S.B. 92 allows anyone, including members of the Assembly, to submit a complaint to a newly formed oversight body called the Prosecuting Attorneys Qualifications Commission.
This commission has the authority to suspend or remove any elected district attorney in the state for a wide array of decisions, statements and conduct, including the stunningly vague charge of “conduct prejudicial to the administration of justice which brings the office into disrepute.” Perhaps the murkiness is the point.
Even though Kemp made statements Thursday that discouraged Georgia officials from retaliating against Willis, those statements are too little, too late. He already opened Pandora’s box by creating a partisan commission with broad and vaguely defined authority, a commission on which he controls only 25% of the appointments.
Composed exclusively of members named by Republicans, the commission officially gets up and running on Oct. 1, but it has already become the partisan tool we feared. The specter of Willis’ removal merely for the “disreputable” conduct of seeking charges against the former president is alarming. It takes a certain level of chutzpah for leaders like Sens. Dixon and State Senate Majority Leader Steve Gooch to lean on a law ostensibly designed to punish prosecutors for being too lenient — especially in making charging decisions against people of color — and suggest that it be used instead to punish a prosecutor for being too harsh.
Last month, our team at Public Rights Project brought a lawsuit in Fulton County on behalf of a bipartisan coalition of four Georgia prosecutors who have challenged the constitutionality of S.B. 92. At its heart, the law threatens the ability of prosecutors to do their jobs by exercising discretion and judgment, something prosecutors and their staff do hundreds of times every day. On Aug. 24, we asked the court to issue a preliminary injunction and stop the commission from investigating or disciplining any Georgia prosecutor.
Having each served as advisers to elected state attorneys general, we understand how fundamental discretion is to the work of prosecutors. With finite resources and a world with endless problems to address, prosecutors must make calls about what to make a priority and where to allocate resources. Making these hard decisions is not an abdication of responsibility. It is a requirement of the job and an essential component of effective leadership.
The law is also anti-democratic. Prosecutors are elected by voters who choose their vision for public safety. When local communities do not like the district attorney’s choices, they can let them know through protests, direct constituent engagement and the ballot box. But S.B. 92 empowers the commission to override the will of the people, which is precisely what Trump and his cronies tried to do after the 2020 election.
Georgia is not alone in its efforts to strip prosecutors of their discretion or even their powers.
S.B. 92 threatens public safety by stopping prosecutors from exercising discretion. It will stall court dockets and make it harder to focus on serious crime. A prosecutor acting out of concern that the commission will disagree with a particular charging decision or plea deal will result in a more punitive and a less just system for everyone.
Georgia is not alone in its efforts to strip prosecutors of their discretion, or even their powers. In a report released earlier this year by the Local Solutions Support Center, we found an accelerating trend among states to “pre-empt” prosecutorial discretion through enhanced oversight or the transfer of power to centralized state agencies. During this year’s legislative session, at least three states, including Georgia, passed new laws that add to this worrisome pattern. Tennessee’s Legislature passed a law to prevent district attorneys from seeking post-conviction relief in death penalty cases. A court recently ruled that the law was unconstitutional, given the fundamental role local prosecutors play throughout the cycle of criminal cases. Florida Gov. Ron DeSantis has also joined the fray by dismissing two local prosecutors with whom he disagreed. Most recently, he suspended Orlando-based prosecutor Monique Worrell in what appears to be a desperate attempt to divert attention from his flailing presidential bid. The health of our democracy relies on a series of checks and balances as well as the rule of law. S.B. 92 offends both. Independent prosecutors, accountable directly to the people who elect them and whom they serve, help ensure that we are a nation of laws, not people. Trump launching an anti-democratic quest in Georgia and members of his party continuing it together makes for a cautionary tale. Whether you agree with Willis’ decision to bring these charges, you should care about her ability to do her job. Dixon’s threat is not an empty one, and we’ve all learned that that there are people who support Trump who will stop at nothing to grab power and avoid accountability. The only protection is to halt S.B. 92 in its tracks and stop the commission before it, too, bends to Trump’s will.
Jill Habig
Jill Habig is the founder and CEO of Public Rights Project and a former adviser to former California Attorney General Kamala Harris.
Jonathan Miller
Jonathan Miller is the chief program officer for Public Rights Project and a former adviser to former Massachusetts Attorney General Maura Healey. 
