Amicus Brief with 84 Attorneys, Government Officials Urges Georgia Court to Strike Down Constitutionality of Prosecutor Commission Spawned by Trump Indictment

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Pool photo by Andrew Kelly

By Cynthia Hoang-Duong  

ATLANTA, GA – Opposition against a measure to allow a commission to remove local prosecutors from office grew this week, as amicus briefs written by former and current prosecutors, U.S. Attorneys, and Department of Justice officials urged the Fulton County Superior Court to rule the bill unconstitutional.

SB 92 established a state-appointed oversight commission with the authority to investigate and remove local prosecutors from office, and appears, according to opponents, to have been written to remove Georgia prosecutors who indicted Donald Trump.

The group of criminal justice leaders, in support of a lawsuit filed by four Georgia prosecutors, argued SB 92 threatens the established independent discretion of local district attorneys and voters’ right to elect prosecutors that uphold their values.

As former U.S. Solicitor General Charles Fried wrote, “For decades, our judicial system has respected and safeguarded prosecutorial discretion, 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.”

The brief, with signatories from more than 80 attorneys and government officials, contends   the bill infringes on “independent prosecutorial authority, undermining local control self-governance and government transparency.”

The brief raises concerns about the bill’s impact on the integrity of the criminal legal system and public safety because of issues regarding fairness and politicization of the system.

Wyandotte County District Attorney Mark Dupree explained in the brief, “As an elected prosecutor, I am accountable to my community to follow through on their vision of justice and public safety, and every four years, they get to decide whether I have done enough to earn their support.”

But, he added, “SB 92 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.”

Evidence of SB 92’s politicization of the district attorney’s office, said opponents, is evident in the recent statements from Georgia’s Republican Senator Colton Moore who called for an emergency session to investigate Fulton County District Attorney Fani Willis after her indictment of former President Trump.

“The impact of SB 92 is no longer hypothetical—already, 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,” worried Miriam Krinsky, Executive Director of Fair and Just Prosecution.

While admitting it is the responsibility of elected prosecutors to hold individuals accountable, regardless of their position or authority, the signatories to the brief stress the bill “necessarily chills investigations into the powerful, and could entangle what are intended to be independent decisions by prosecutors in the world of politics.”

Krinsky added, “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.”

Reiterating their core argument, the brief maintains that the oversight body erodes prosecutorial discretion, violating the rights of voters to choose elected officials that reflect their interests and values, noting the commission “can remove an official, no matter how many people voted for that person, how well the prosecutor’s decisions reflect their values, and how safe the community is.”

The brief concludes, “The effects of this breach of democracy would be extreme: When a community thinks they will have no say in how their democratically elected official carries out their job, and whether that individual stays in office, public trust in the system suffers, and necessarily, so does public safety.”

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