Georgia DAs Sue to Block ‘Rogue’ Prosecutor Law That Democrats Fear Can Be Used Against Fani Willis

‘Holding rogue prosecutors accountable for refusing to uphold the law is ... critical to ensuring our communities remain safe and secure,’ Gov. Brian Kemp said.
Georgia DAs Sue to Block ‘Rogue’ Prosecutor Law That Democrats Fear Can Be Used Against Fani Willis
Fulton County District Attorney Fani Willis and Fulton County District Attorney Special Prosecutor Nathan Wade (R) at a press conference in the Fulton County Government Center after a grand jury voted to indict former President Donald Trump and 18 others, in Atlanta on Aug. 14, 2023. (Christian Monterrosa/AFP via Getty Images)
Tom Ozimek

A group of Georgia prosecutors has filed a lawsuit challenging a law that established an oversight commission that they argue unfairly curtails their power and undermines the will of voters but that Georgia Gov. Brian Kemp says merely disciplines “rogue prosecutors” for refusing to uphold the law and prosecute certain crimes.

The coalition of four district attorneys filed the lawsuit in the Fulton County Superior Court on April 16, challenging the constitutionality of the Prosecuting Attorneys Qualifications Commission (PAQC), which was established when Mr. Kemp signed SB 332 into law on March 13 while arguing that the community suffers when “out-of-touch” public prosecutors put politics ahead of public safety.
The plaintiffs claim that the new commission violates Georgia law, the Georgia Constitution, and the U.S. Constitution in three ways. First, it allegedly interferes with prosecutorial discretion and so infringes on the separation of powers principle. Second, it allegedly punishes DAs for articulating their prosecutorial philosophies to communities and so violates free speech rights. Third, by allegedly failing to consult with Georgia’s Prosecuting Attorney’s Council, the commission violates certain Georgia statutes.

Some Democrats have also expressed fear that the commission could be used to derail Fulton County District Attorney Fani Willis’s prosecution of former President Donald Trump.

Ms. Willis has faced calls for removal from the Trump case amid controversy over her romantic relationship with an individual who was hired to prosecute the former president. Some legal experts have even said Ms. Willis should be subjected to a criminal investigation amid allegations that she committed perjury and tampered with witnesses.
The law that established the disciplinary panel mirrors efforts in other states to hold “rogue” prosecutors accountable for refusing to prosecute certain crimes, but Democrats opposed to its passage said it could be used to target prosecutors involved in the case against President Trump, including Ms. Willis.

Republicans who led the effort to pass the law and establish the panel have denied that it targets Ms. Willis or any specific individual.

Ms. Willis’s office did not respond to a request for comment.

Holding ‘Rogue’ Prosecutors Accountable?

Mr. Kemp initially signed legislation related to the new disciplinary commission in May 2023, but the panel was unable to start operating after the state Supreme Court in November 2023 declined to approve rules for its governance. At the time, the justices said in their ruling that they had “grave doubts” about whether adopting the standards and rules was within their constitutional powers.
So the Georgia General Assembly passed HB 881 in January 2024, which revived the oversight panel while removing the requirement for Supreme Court approval. The bill was then referred to the state Senate, where it became SB 332.

Mr. Kemp signed the measure into law on March 13, saying at a signing ceremony that the community experiences harm and property is put at risk when public prosecutors refuse to prosecute certain types of crimes, putting politics ahead of public safety.

“This legislation will help us ensure rogue or incompetent prosecutors are held accountable if they refuse to uphold the law,” Mr. Kemp said at the time.

“As we know all too well, crime has been on the rise across the country, and is especially prevalent in cities where prosecutors are giving criminals a free pass or failing to put them behind bars due to lack of professional conduct.”

However, the plaintiffs in the lawsuit argue that it threatens the ability of local prosecutors to use discretion regarding which legal tools—beyond incarceration—they want to use to promote public safety in their communities.

“To be effective, DAs must find ways to leverage their limited resources to focus on the most serious of crimes and use programs like pretrial diversion to resolve other cases more efficiently,” the group of DAs said in a statement.

They also argue that it creates a chilling effect on free speech by opening them up to disciplinary action for openly communicating that they would refuse to prosecute certain types of crimes.

In their lawsuit, the four Georgia DAs seek to bar the new commission from investigating or taking any disciplinary action against district attorneys or solicitors general for prosecutorial decisions, including for policies of not prosecuting certain individuals or types of crimes or for statements that they make related to nonprosecution decisions.

They have asked the court to declare the law that establishes the commission as void or at least to hamstring the panel to the extent that it cannot handle any complaints against local prosecutors or take disciplinary action against them.

“Our commitment to fight this unconstitutional law is as strong as ever,” Georgia DA Sherry Boston said in a statement. “Gov. Kemp and the state lawmakers who supported this measure willfully ignored the concerns raised by the Georgia Supreme Court and did the absolute minimum to force the PAQC into existence.

“As I promised in November, we will continue to push back against this shameless attempt by state Republicans to control how local communities address their public safety needs and work to restore that power to Georgia voters.”

DeKalb County District Attorney Sherry Boston speaks during a press conference in front of the DeKalb County Courthouse in Decatur, Ga., on Oct. 14, 2019. (Alyssa Pointer/Atlanta Journal-Constitution via AP, File)
DeKalb County District Attorney Sherry Boston speaks during a press conference in front of the DeKalb County Courthouse in Decatur, Ga., on Oct. 14, 2019. (Alyssa Pointer/Atlanta Journal-Constitution via AP, File)

Mr. Kemp defended the disciplinary commission in an April 16 statement.

“We have witnessed time and again what happens when criminals are allowed to roam free by those whose duty it is to bring forward justice,” he said. “Holding rogue prosecutors accountable for refusing to uphold the law is not just good policy, it’s critical to ensuring our communities remain safe and secure.”

Republicans across the country have pushed measures to rein in progressive prosecutors that they see as being soft on criminals by declining to prosecute certain types of crimes. Mr. Kemp and others who back the Georgia measure have argued that the establishment of the disciplinary panel is in line with those efforts.

The panel has the authority to investigate and remove local prosecutors, and a DA so removed would not be allowed to serve again for 10 years.

The law that establishes the panel lays out grounds for discipline, removal, or “involuntary retirement” of wayward prosecutors, including for engaging in “willful misconduct” or for being convicted of a “crime involving moral turpitude” or persistently failing to carry out their duties.

Focus on Willis

Democrats opposed to the passage of the law that established the commission claimed that it could be used to target prosecutors involved in the case against President Trump.

“The commission will be able to unilaterally proceed and have the ability to interfere and undermine an ongoing investigation against Donald J. Trump,” state House Minority Whip Sam Park, a Democrat, told the Associated Press when the House version of the measure passed.

“You are taking action to protect former President Trump from an ongoing criminal prosecution.”

Georgia House Speaker Jon Burns, a Republican, told the AP that the measure isn’t directly focused on Ms. Willis or any one individual.

“For us in the House, our focus is not on any one person, not on any one situation,” Mr. Burns told reporters after Mr. Kemp signed the bill into law. “It’s about asking the folks that are elected, just like me, to do their jobs and protect the citizens of this state.”

Ms. Willis has been accused of having an “improper” relationship with Nathan Wade, a special prosecutor in the election interference case against the former president and more than a dozen co-defendants. She also faced conflict-of-interest allegations that she benefited from the relationship financially, and she has been accused of witness tampering and lying on the stand.

In court proceedings that examined her conduct and weighed whether she should be removed from the Trump case, Fulton County Superior Court Judge Scott McAfee ruled there wasn’t enough evidence to back claims that Ms. Willis benefitted financially from Mr. Wade’s appointment. However, the judge did describe their relationship as a “tremendous lapse in judgment.”

Judge McAffe ordered that either Ms. Willis or Mr. Wade needed to stop working on the case, and Mr. Wade later resigned.

President Trump and several codefendants have appealed Judge McAfee’s decision to not disqualify Ms. Willis from the case.
Tom Ozimek is a senior reporter for The Epoch Times. He has a broad background in journalism, deposit insurance, marketing and communications, and adult education.