Georgia DAs Challenge Law They Say Undermines Their Discretion

Three district attorneys in Georgia have renewed their challenge of a commission created to discipline and remove state prosecutors, arguing it violates the U.S. and Georgia constitutions, the Associated Press reports. Their lawsuits filed Tuesday in Fulton County Superior Court in Atlanta challenge Georgia’s Prosecuting Attorneys Qualifications Commission, a body Republican lawmakers revived this year after originally creating it in 2023. Democrats fear the commission has one primary goal: derailing Fulton County District Attorney Fani Willis ' prosecution of former President Donald Trump Republican Gov. Brian Kemp signed legislation last year creating the commission, but it couldn’t begin operating, because the state Supreme Court refused to approve rules governing its conduct. The justices said they had “grave doubts” about the ability of the top court to regulate the decisions district attorneys make.

The Georgia law raises fundamental questions about prosecutorial discretion, a bedrock of the American judicial system says a prosecutor decides what charges to bring and how heavy of a sentence to seek. The prosecutors say the law violates Georgia’s constitutional separation of powers by requiring district attorneys to review every single case on its individual merits. Instead, district attorneys argue they should be able to reject prosecution of whole categories of crimes as a matter of policy. Legislators, they argue, don’t have “freewheeling power to intrude on the core function of the district attorney: deciding how to prosecute each case.” They law also violates the federal and state constitutional guarantees of freedom of speech by restricting what matters of public concern district attorneys can talk about when running for office, they say. “There is no valid governmental purpose for restricting prosecutors’ speech regarding their prosecutorial approach, and that restriction undermines core values of self governance by weakening voters’ ability to evaluate and choose among candidates,” the suit states, arguing the law illegally discriminates in favor of viewpoints favoring harsher prosecution.