Aug. 17 (UPI) -- As the election interference case against Donald Trump in Fulton County, Ga., moves closer to trial, a new state oversight commission has raised concerns about political retaliation against prosecuting attorney Fani Willis.
One political expert even says there's a real possibility that the new commission could ensure that with Willis' investigation against the former president, "the whole case goes away."
The prosecuting attorneys qualifications commission was created by Georgia Senate Bill 92 in March and signed into law by Gov. Brian Kemp in May. It creates an eight-person commission with the power to discipline, remove or force into retirement any district attorney or solicitors general in the state.
The commission will be made up of attorneys selected by Kemp, Lt. Gov. Burt Jones and Georgia's majority-Republican House and Senate.
Sen. Randy Robertson, R-District 29, sponsored the bill in the Senate. He was asked by Democrats whether he considered or would consider allowing the minority party to be involved in choosing commission members. To both, he said, "No."
"We have it in a community near our state university where somebody who is an elected district attorney says they can choose, not based on evidence but based on how they feel and what their political leanings are, as to who they will prosecute and who they will not," Robertson said from the Senate well on March 2.
"I welcome oversight into the criminal justice system. We see riots and we see everything all over this country with people running around, saying that the justice system isn't fair and that people are able to do whatever they want to do."
Grounds for removal
The commission has the power to remove a district attorney for several reasons and some of those reasons are vaguely defined or potentially unlawful, according to Sen. Harold Jones II.
"This bill without a doubt is unnecessary government overreach," Jones, a Democrat, said in the Senate session.
Jones was particularly critical of the grounds for removal outlined in the bill. The first of which allows the commission to remove a district attorney for "mental or physical incapacity that interferes with the performance of duties that is likely to be permanent."
"You mean disability?" he said in shock. "We're talking about disability, which is protected under federal law and Georgia state law. You cannot do that."
The next reason for removal is "willful misconduct in office" which is not clearly defined. The same is true about "willful and persistent failure to carry out statutory duties." Conviction of a crime "involving moral turpitude," prejudicial conduct and permitting an assistant district attorney or solicitor general to commit any of the previously mentioned acts can also be grounds for removal.
Commission facing legal trouble
Four attorneys in Georgia have filed a lawsuit in Fulton County, challenging the constitutionality of Senate Bill 92. Sherry Boston, Jonathan Adams, Jared Williams and Flynn Broady filed the lawsuit in the superior court early this month, calling the bill "anti-democratic and unconstitutional."
"SB 92 will silence what the community wants. We are accountable to the voters," Broady said in a statement. "Our job is to enhance public safety and make our communities safer. If we don't do our jobs, we answer to the community, face impeachment per [Official Code of Georgia Annotated] 15-18-24 or get voted out."
Jones also noted the duplicative nature of the bill on the Senate floor, arguing that district attorneys already face oversight. The state bar association and the state legislature have the power to discipline, revoke licensing or impeach. Robertson contended that the routes available are "onerous" and that it can be intimidating for citizens to file a complaint.
"Yes, we have laws on the books that we can push toward somebody," he said. "But I can tell you from experience when the people of Chattahoochee -- when they tried the bar and they tried other avenues they found a chasm of hopelessness."
"Then somebody said to do a recall election," he continued. "Yea, spend that money. Raise that money."
Robertson referenced the case of former Chattahoochee District Attorney Mark Jones as evidence of the need for additional oversight. In 2021, Jones pleaded guilty to four counts of misconduct for allegedly attempting to convince a police officer to lie to a grand jury to secure an indictment on murder charges. He also was accused of attempting to bribe an assistant district attorney to silence a victim.
Jones received a 5-year sentence, including a year in prison. He was released in November.
Commission has 'sweeping powers'
Caren Morrison is a law professor at Georgia State University. On Friday she will be featured on an expert panel called "Balancing prosecutor accountability with protection of prosecutorial discretion" during a law conference at her school. The committee and Senate Bill 92 will be the primary topic at the conference.
"This is terrible because it gives sweeping powers to this politically appointed commission to review and discipline or remove -- based on what they consider to be a dereliction of duties," Morrison said.
The duties of a prosecutor are very broad, added Morrison, and it is impossible for them to prosecute every indictable case that reaches their desk. Though failing to do so could bring them in conflict with the new commission.
"No prosecutor's office has the resources. They have to pick and choose and they have to have enforcement priorities," she said.
These enforcement priorities are often laid out when prosecutors campaign for election. Voters then, ideally, elect a prosecutor based on those enforcement priorities. If a prosecutor says they will not prosecute petty drug offenses and will focus their efforts on violent crime, this could open them up to scrutiny from the commission.
"You can see how any policy of a district attorney that the commission disagrees with gives them absolute cover to remove them for political purposes," Morrison said.
With one lawsuit already filed, Senate Bill 92 will cost taxpayers before the commission begins taking complaints on July 1, 2024. From there, Sen. Elena Parent estimates that the commission alone will cost an excess of $1 million to operate.
At least three commission members have already been announced by Lt. Gov. Jones. District Attorney Stacey Jackson will be the chair of the hearing panel and Deputy Chief Assistant District Attorney Jason Saliba and District Attorney Randy McGinley will be members of the commission's investigative panel.
"This is a tool that can be so easily misused. Maybe we will have a fantastic, fair-minded commission," Morrison said. "I think it's going to be extremely chilling to prosecutors, depending on how aggressive this commission is. My concern is that the political and ideological commitments of the commission will replace those of the individual prosecutors who have been elected by the districts they represent."
As for the implications the commission could have on Willis and the case against Trump, Morrison said, as written, the commission could get involved.
"If they can manage to kick her out of her job then potentially the whole case goes away," she said. "I'm also concerned about it in terms of the prosecutors who have made public statements that they wouldn't want to prosecute abortion providers or women who have had abortions."
On Wednesday, Willis proposed starting the trial on March 4, on the eve of Super Tuesday.
Morrison's panel will be livestreamed by GSU at 11:40 a.m. on Friday.