This past week, a group of 84 current and former elected prosecutors, former U.S. Attorneys, and former Department of Justice officials sought permission to file an amicus brief urging the Fulton County Superior Court to uphold the independence of locally elected district attorneys and to “safeguard the right of voters” to choose the leaders they prefer, including prosecutors, without the interference of potentially politically motivated local lawmakers.
The new amicus brief was submitted in support of a lawsuit brought by four Georgia prosecutors challenging the constitutionality of GA’s Senate Bill 92 (SB 92), a statute passed earlier this year that created an oversight commission appointed by state legislators, which has the power to investigate and remove local prosecutors from office—prominently including Fani Willis the district attorney for Fulton County, GA, who announced the indictment of former President Donald Trump last month.
Those who signed the new proposed amicus brief argue that SB 92 not only “illegally infringes on prosecutorial discretion,” it also undermines “local control and self-governance.”
The state statute, the signatories say, “raises serious questions about fairness and politicization of the justice system,” all of which does damage to “community trust in the criminal legal system and undermine public safety.”
When SB 92 was originally passed by the Georgia state legislature, the idea was to create an eight-member oversight commission to keep tabs on the state’s district attorneys. The newly created body would also have the power remove district attorneys and solicitor generals for a variety of reasons.
The stated purpose of the new commission was to remove DAs who failed to prosecute certain crimes.
Yet, even at the time of its passage, many believed that that one of the law’s unstated reasons for being in the eyes of certain state legislators was for its potential as a tool that could be used remove Fulton County DA Willis, if she managed to indict the former president, a possibility that has now, of course, come to pass.
When, on Monday, August 14, DA Willis unveiled the indictment Trump and 18 of his alleged allies, (which we now know was only roughly half of the 39 people recommended to her by a special grand jury tasked with investigating efforts to overturn Georgia’s 2020 presidential election) at least two state senators told reporters that they indeed planned to use the commission to investigate Willis.
In the past few days, GA lawmakers were more definitive about the matter when they announced that they would take up the issue next January, in their first session of 2024.
“The impact of SB 92 is no longer hypothetical,” wrote Miriam Krinsky, in an email to WitnessLA. “Some politicians are seeking to use it to protect their political interests and power, and it is fundamentally at odds with our democracy to allow these intrusions on local control and prosecutorial independence to stand,”
Krinsky, for those unfamiliar, is a respected former prosecutor who is the founder and executive director of Fair and Just Prosecution.
“We hope that the court will protect the well-established apolitical role of prosecutorial discretion and ensure that the people of Georgia maintain the right to choose leaders who best reflect their community’s vision of justice.”
Like Krinsky, several other signatories to the brief stressed that the oversight commission risks making voters believe they will have no say in how their democratically elected official carries out his or his job.
“As an elected prosecutor, I am accountable to my community to follow through on their vision of justice and public safety,” said Wyandotte County (Kansas City, Kansas) District Attorney Mark Dupree, who is among the signatories to the brief.
“And every four years, they get to decide whether I have done enough to earn their support. But SB 92,” he said, “threatens to upend that system of democracy in Georgia by allowing outside forces to oust prosecutors over nothing more than political differences. If people believe their vote can be overturned at any time, trust in our democracy and institutions will suffer, which makes us all less safe,”
Former U.S. Solicitor General Charles Fried (who is also a former Associate Justice of the Supreme Judicial Court of Massachusetts), was also emphatic.
“For decades, our judicial system has respected and safeguarded prosecutorial discretion,” Fried wrote, “and there is no reason for the courts not to maintain that commitment to separation of powers and the independence of the prosecutor. To disregard such a cornerstone of the American criminal legal system could have devastating effects on democracy and public safety.”
In other words, if left unchecked, the damage potentially may not be limited to Georgia.
District Attorney for Stone Mountain, GA, Sherry Boston, who is one of the four Georgia prosecutors who brought the lawsuit that the amicus brief supports, had this to say about the issue.
“Not only is SB 92 unconstitutional, this new commission is also unnecessary and wasteful,” she said.
“Georgia already provides other ways to address misconduct by prosecutors—including Bar discipline, impeachment, and ultimately, the ballot box.”
(DA Sherry Boston is one of three Black female District Attorneys in the state of Georgia, and among the one-percent of Black females currently serving as District Attorney nationwide. Prior to her role as District Attorney, Ms. Boston served as DeKalb County’s Solicitor-General.)
Other signatories to the new brief include Georgia District Attorneys Shalena Cook Jones (Chatham County), Deborah Gonzalez (Western Judicial Circuit) and Dalia Racine (Douglas County); former DeKalb County, Ga. District Attorney J. Tom Morgan; former U.S. Solicitor General Seth Waxman; current Attorneys General Kathleen Jennings (Delaware) and Brian Schwalb (District of Columbia); and former Attorneys General Douglas Chin (Hawaii), Scott Harshbarger (Massachusetts) and Patricia A. Madrid (New Mexico).
Among the California signatories are Diana Becton, District Attorney, Contra Costa County; Gil Garcetti, Former District Attorney, Los Angeles County; George Gascón, District Attorney, Los Angeles County; Ira Reiner, Former District Attorney, Los Angeles County, California Former City Attorney, Los Angeles; Jeff Rosen, District Attorney, Santa Clara County; Tori Verber Salazar, Former District Attorney, San Joaquin County; Chesa Boudin, Former District Attorney, City and County of San Francisco; and Pamela Price, District Attorney, Alameda County.
More on the issue as we know it.