A number of people asked me to comment on the proposed Georgia legislation creating oversight of prosecutors. More specifically people asked me questions like this:
I did some poking around to find out where this was coming from, and I found stuff like this:
So I did some digging.
First, the facts. There are two bills under consideration in Georgia. The first, Bill 229, lowers the threshold required to initiate a recall of a prosecutor to just 2% of voters. This doesn’t mean that 2% of the voters can recall a prosecutor. It means that 2% of the voters can initiate a recall procedure.
The second, Bill 231 creates an oversight commission “which shall have the power to discipline, remove, and cause involuntary retirement of appointed or elected district attorneys or solicitors-general.”
These are terrible pieces of legislation.
The standards for when a complaint can be filed against a prosecutor are vague. The legislation allows the public and the legislature to hold power over the prosecutor in the form of a threat to discipline or remove the prosecutor. Obviously the extent to which an individual prosector will be deterred or influenced by the threat of being disciplined by the legislative branch or general public depends on the prosecutor. Some may say “I will get in trouble if I bring this case so I’d better not.” Others will say, “I am doing what I think is right. Bring on the haters!”
The legislation is also probably unconstitutional in that it allows the legislative branch to interfere with the power allocated to the executive branch.
(Basic civics: The legislature makes the laws. The executive branch enforces the laws. The judicial branch adjudicates controversies and disputes. Because the Georgia legislature is enacting a law that gives the legislature the power to interfere in the function of enforcing the laws, the proposed legislation is likely unconstitutional.)
In Georgia, prosecutors are elected, which means that Democratic strongholds like Fulton County will elect DAs like Fani Willis. The deep-red parts of Georgia will elect a different kind of prosecutor.
Now, let’s look at the hot takes that this legislation is “100% so they can remove Fani Willis, who is on the verge of indicting Trump.”
The proposed legislation outlines a process for removing a prosecutor. As a general rule, you can assume any process like the one outlined in the proposed legislation will take at least several months (probably longer). The Republicans proposing the bill, after all, do not want to make it super easy to remove prosecutors they like. They want to be able to remove prosecutors they don’t like. This is from page 11 of the most recent version of bill 231:
The commission commences by October 1, 2023 and no complaint shall be filed before April 1, 2024.
Let’s take a worst-case scenario and see where it leads. Suppose the legislation passes. In late January, Willis promised that charging decisions were “imminent.” Let’s assume that in lawyerspeak, that means sometime in April. So, in our worst-case hypothetical, Trump is indicted in another month.
By the time Fani Willis can actually be removed, the pretrial motions will have been filed and if the trial hasn’t started, there will be a trial date. So let’s say Fani Willis is then removed.
The next election is scheduled for 2024. Meanwhile, Governor Kemp has the authority to appoint a replacement to serve until the next election. Kemp can exercise his authority to appoint a new DA or he can let someone in Willis’s office take over the prosecution until a new DA can be elected. If he lets someone in Willis’s office take over, the prosecution against Trump continues without a ripple.
Because this is a worst-case scenario, let’s imagine governor Kemp appointing an interim DA who will say, “We are canceling the trial and letting Trump and his friends walk.”
Remember that this is Georgia, which voted for Biden in 2022. Georgia is the home of crazies like Marjorie Taylor Greene, who hails from a deep red rural district, but the governor and what we might call mainstream Republicans do not love Trump. Trump has been causing them to lose elections.
If, after criminal proceedings are underway, Kemp appoints a hardcore MAGA type who shuts it all down, he would ignite a political firestorm in order to protect Trump, who he doesn’t like. Moreover, he would be doing this during a presidential election year. In one fell swoop, Kemp would (1) completely disgust a large number of Georgia Republicans and (2) fire up the Democrats to come out in massive numbers in the 2024 election. The most likely result would be to give the Democrats another good election cycle in Georgia, which would help the Democrats nationwide.
I don’t think Kemp would do that because (1) he isn’t stupid (2) he isn’t a hardcore MAGA type, and (3) he doesn’t even like Trump. But even if he does, unless a jury has already been sworn in, the newly elected DA in 2024 in Fulton County would just pick back up where Fani Willis left off. (I am not an expert in Georgia law, but in general, double jeopardy does not attach until a jury has been sworn in, so it is likely a new DA can simply refile the charges.)
What is happening is a power grab
The proposed legislation is not a ploy to remove Fani Willis before she can indict Trump. The proposed legislation is a legislative branch power grab.
Rep. Houston Gaines, a Republican in Georgia who is behind the proposed legislation, said, “If a prosecutor is not doing his or her job, we need a system in state law to remove that individual from office. It is past time we take on rogue prosecutors in Georgia who are putting lives in danger every single day.”
What is meant by “doing his or her job” is often ideological. “Rogue” is in the eye of the beholder.
Richard Fausset and Danny Hakim, writing for the New York Times, see the proposed Georgia legislation as:
We know what is meant by “too liberal.” Since the civil war and the advent of our modern criminal justice system, many have understood “law and order” to mean “put Black men in jail.” Liberals are trying to change that. It is not a coincidence that two of the elected officials going after Trump are Black women (Fani Willis and Letitia James). When liberals try to change the focus of law enforcement from putting lots of Black men in jail to targeting corporate crime, it can look to MAGA types like they are going “rogue” and “putting lives in danger.”
The question in any form of government is: Who makes prosecutorial decisions?
- In an autocracy, the autocrat decides. That’s why Trump appointed AGs who he thought would do his bidding. It’s also why Biden, who is not autocratic, has said he will not try to control the DOJ or interfere with the investigations.
- In an era of mob rule, the mob decides.
- As our government is set up, the prosecutor decides.
In fact, prosecutorial independence and discretion are cornerstones of our democratic system. Not every crime can be investigated or charged. Prosecutors make decisions about which crimes to investigate. They have a lot of power. When I was a practicing criminal defense lawyer, I rarely liked the decisions made by prosecutors. It always felt like they were unreasonably targeting my clients and ignoring larger, more important crimes.
People would like to control prosecutors. Legislators would love to be able to tell prosecutors what to do. The public would also like to tell prosecutors what to do.
The desire to control prosecutors is not just a right-wing thing. There are a lot of lefties and left-leaners on social and mainstream media who are completely frustrated that they can’t tell Merrick Garland what to do. I have had countless people tell me that Rep. Adam Schiff’s criticism of Garland was conclusive evidence that Garland is doing a bad job and should be removed. Adam Schiff has every right to criticize Merrick Garland, but Schiff does not (and should not) have the authority to control Garland or tell Garland what to do, nor does it follow that a prosecutor (Garland) should be fired because a legislator (Schiff) says that the prosecutor is not doing his job. If in fact, Biden fired Garland because Adam Schiff advised it, wouldn’t that be analogous to the process that the Georgia Republicans want: A legislator bringing a complaint against a prosecutor that results in the prosecutor’s dismissal?
If voters don’t like the job a prosecutor is doing, they can vote the prosecutor out of office, or vote out of office the person who appointed that prosecutor. We got rid of William Barr by voting Trump out.
This is what Georgia Public Radio says about the proposed legislation:
In fact, Democrats introduced a very similar piece of legislation in 2020, HB 1214, that would have created an oversight commission for prosecutors after the murder of Black jogger Ahmaud Arbery and revelations that two DAs declined to pursue charges before video of the incident sparked national outcry.
Anna Bowen, a third-year student at Harvard Law who writes for Lawfare and who knows a lot about Georgia law, writes that
What else changed? Again, this is from Georgia Public Radio: In Georgia’s last district attorney election cycle in 2020, nearly one in five incumbents lost their primary or general race and a historic number of nonwhite Democratic women took office as their circuit’s top prosecutor.
Okay, back to Anna Bowen:
A common logical error is to confuse chronology with causation. B follows A. Therefore people conclude that A caused B. But chronology does not always mean causation. Many newspapers stressed the chronology, which gave rise to the idea that the legislation was designed to remove Willis just as she was about to indict Trump. Like this:
Willis framed the new legislation as part of a broader effort to retaliate against her and other prosecutors representing Democratic strongholds. “I think it’s targeting me and maybe people with similar ideologies,” she said in a recent interview.
The proposed law in Georgia is a terrible piece of legislation because it erodes one of the pillars of democracy: The independence of prosecutors.
It is also part of the right-wing pushback against left-wing progress. Keeping a democracy working is a never-ending struggle against forces that will not go away. Each time liberals make progress, reactionaries will try to undo that progress.
People Worry About the Wrong Stuff
Earlier I gave the worst-case scenario concerning people’s fears that Willis would be removed from office before she could indict Trump. The actual worst-case scenarios are (1) that Trump is indicted, acquitted, and the Republicans win in 2024 and pass more power-grabbing laws. Or (2) Trump is indicted, convicted, and the Republicans win in 20204 and pass more power-grabbing laws. It’s up to us to make sure that the Democrats win in 2024. (I often feel that people worry about the wrong stuff.)
I often say that democracy will survive if enough people want it to and are willing to do the work. People hear this and think I am saying “democracy will survive,” but that’s because they miss the importance of the word “if” in that sentence.
After reading some of this on Mastodon, @PandaChronicle@ohai.social said:
Thank you for keeping me from setting my hair on fire.
Very little has ever been accomplished by a person with hair on fire. The better response to the Georgia legislation is more civic engagement. What do I mean? See this post.)
People worry about the wrong stuff because the rage inducers will not induce much rage if they say, “We have a serious problem. Liberals have made a lot of progress over the past few decades and now the reactionaries are trying to strip it all back. So we have to all remain engaged and do what we can because that’s how democracy will be saved.”
Update: The New York Investigation into Donald Trump’s Financial Crimes
Speaking of prosecutors, The New York Times ran this headline on Thursday:
According to the article, (which I can offer free through my subscription if you click here), Trump has been invited to testify before a New York grand jury which is “a strong indication that an indictment could follow.”
Several people asked me if the New York Times was overreading this. Before answering, I wanted to make sure that my response was 100% accurate, so I double-checked with my former colleague and very experienced criminal defense lawyer, Mark Reichel, who told me it tells us is that the investigation is wrapping up.
Offering Trump the opportunity to talk to the grand jury is a strong indication that this is the prosecutor’s last move before deciding whether or not to indict.
From the article:
In New York, potential defendants have the right to answer questions in the grand jury before they are indicted, but they rarely testify, and Mr. Trump is likely to decline the offer. His lawyers could also meet privately with the prosecutors in hopes of fending off criminal charges.
If you are the subject or target of an investigation–in other words, if you are a potential defendant–generally, after the grand jury has heard all of the evidence, you will be offered a chance to address the grand jury. So what we know from this is that Trump is a potential defendant and the grand jury proceedings are wrapping up and we can expect charging decisions.
That said, I would be surprised at this point if DA Bragg does not bring charges.
Q: When can we expect charging decisions?
A: We can expect them imminently. (That wasn’t funny. Okay, maybe it was.)
By the way, any decent defense lawyer would tell the potential defendant not to talk to the grand jury. For a potential defendant to talk to a grand jury would be the height of stupidity. Even though Trump never listens to good advice, I suspect he will turn down the offer–but we’re talking about Trump so you never know what he’ll do.
A reader on Mastodon asked me this:
Couldn’t the government force him to appear before the grand jury?
If Trump is the target or subject of the investigation (and he obviously is) the government would not force him to appear. If he is the subject or target, he would have a Fifth Amendment right to remain silent. Among the protections that the Constitution offers potential defendants is that the prosecution has to build the case without help from the defendant.
Yesterday, we got this New York Times headline:
Cohen is the last of the six witnesses identified as having information about the illegal Stormy Daniels payment. Presumably, Trump (if he opted to talk to the grand jury) would do so after Cohen testified. After that, we can expect Bragg to make a charging decision.
The DOJ Case: Update
In February we learned that Trump’s lawyer, Evan Corcoran, testified before a federal grand jury and asserted attorney-client privilege to avoid answering questions. Prosecutors responded by invoking the crime-fraud exception.
Attorney-Client privilege is a rule that protects client confidentiality. For material to be privileged, it must be an actual client communicating with a lawyer about legal advice. The idea is that people should be allowed to talk freely with their lawyers.
Communications, however, are not privileged if the client is in the process of committing a crime or is planning to commit a crime. Basically, you can tell your lawyer you committed murder, but you can’t get advice about how to hide the body.
Because of the attorney-client privilege, getting testimony from a lawyer about a client always requires a few extra steps. A lawyer might want to be cautious and evoke the privilege and wait for a court order so he or she can tell the client, “Look, buddy, I had no choice. The judge has held that the privilege doesn’t apply and I have to talk.”
To get a court ruling to overcome the privilege, the DOJ has to demonstrate to a judge that a crime occurred. The evidentiary standard, however, is lower than in a criminal trial. At a trial, the crime has to be proven beyond a reasonable doubt. To get a ruling forcing the lawyer to testify, the standard is a mere preponderance of the evidence: The prosecutor needs only demonstrates that it is more likely than not that a crime was in progress and that the lawyer somehow helped.
The hearing on whether Corcoran can hide behind attorney-client privilege was held on Thursday. Prosecutors reportedly argued that Trump used legal advice from Corcoran to obstruct the classified-marked documents investigation. Apparently, there wasn’t a ruling this week. When will there be a ruling? 🤷♀️
The DOJ case is therefore held up waiting for this ruling unless the DOJ wants to move forward without Corcoran’s testimony, which would probably not be the smartest move, so the DOJ is unlikely to do that.
All dogs should have their people trained. Each day at dinner time, JJ gets his dental treat. He knows when it’s time. “Paw up, tongue out” is the command for “TREAT NOW”
(People who post pictures of their pets are generally annoying–unless they have the cutest dog on the planet. Then it is acceptable.)
Thank you! I bought the whole “it’s to remove Fani Willis” hook, line, and sinker. So glad to have some logic on the subject.
Thanks so much. So very helpful in sorting the guestimates from all sides.
Thank you for the calm analysis, particularly referring the practicalities relating to a possible Trump indictment.
Furthermore, thank you for recognizing my right to publish pictures of my dog Archie, who happens to be the cutest dog on the planet. Reprints available.
I live in Georgia and follow politics among other issues. Your analysis of the GA bills to potentially remove prosecutors because the Republicans (or Democrats) don’t agree with how and what they prosecute is a welcomed piece of advice. The Fani Willis case against Trump and a slew of Georgia Republicans is followed carefully by a a small group AJC journalists. My recent book The Trump Files is my journal/blog analysis of his affect on American society and democratic institutions.
“Referring” should have been “referencing”
Thank you for putting this in perspective!
Thank you for also keeping my hair unburnt. Wondering if it all hits at once, is Trump obliged to fight them all at once, or can he use the various suits to beg continuous?
Good question. I can’t answer about the continuances. Rules will vary from court to court.
Thanks for taking the time to do this each week. You are a breath of sanity in a crazy world.
Teri, thank you for providing details and clarifications concerning the topics you address.
You state with respect to the proposed Georgia legislation: “The standards for when a complaint can be filed against a prosecutor are vague.”
Is it fair to claim that regressive GOP legislators are becoming masters at writing vague laws? And that the vagueness of the laws is often designed for maximal intimidation of officials and citizens?
Recent red-state anti-abortion legislation, legislation to ensure “integrity of the election system” and that which supposedly ensures maximal parental authority over what is taught in public schools seem very vaguely stated—in order to confuse affected parties and curb behaviors which MAGA culture warriors deem offensive. Is this likely by design?
Thanks for this Teri. When I saw this claim about legislation to shut down Willis, I was immediately angry, but then I thought, this is deeply flawed. It would “break” justice, allowing powerful criminals to just cancel their own prosecution. Your comments that it likely violates separation of powers and would be unconstitutional were good to hear.
I’m just here for the dog photos.
Another good read. Thank you.
https://www.youtube.com/watch?v=Q3njWjIimd4
Hast seen ⬆️ ?
Like the vague anti- trans law in Tennessee where now you might only be able to watch “Some Like It Hot” sequestered in your bedroom with door locked and shades drawned
Thank you very much Teri for your continuing efforts to help us understand.
As usual, an excellent analysis of the situation in Georgia. You always help keep things in proper perspective. Thank you so much for your efforts in educating us during these erratic times.
Orwellian language is a hallmark of authoritarian regimes. “Some people are more equal than others.” Watch for it always. It’s a form of disinformation. An “election integrity expert” is often a person who has spent years pushing false narratives about how easy it is to steal elections.
Misleading language is common when introducing legislation. Legislators think about what they want to call a law. Before law school, when I taught English at the college and university levels, I often brought in the booklet voters get in California before an election and I taught my students how to see through the rhetoric and evaluate information.
If a criminal law is too vague, it can be declared unconstitutionally vague. Yes, that’s a thing. See this post on the Vagueness Doctrine: https://www.law.cornell.edu/wex/vagueness_doctrine
Thank you
Were the Georgia legislation to pass would there be a suit challenging the constitutionality? If there were a suit, presumably, it would go all the way to the Supreme Court; what is your opinion on how they might rule?
Best case (or worst case if you’re Trump) is to have multiple indictments – Georgia, NY and the Feds. What happens then? Do they proceed concurrently or serially or what? Is there a downside, say due to delays?
I am pretty sure that the lawsuit would not be filed until there was some action. In other words, that would be part of an appeal, so it would be a long way off.
If Fani Willis was removed, she would appeal the constitutionality of the statute.
As far as civil law suits, that’s not my expertise but I think the same sort of rules apply: Courts don’t step in until there is a dispute, and there won’t be a dispute until the law is applied.
that’s a good question. I understand he’s trying to play courts against each other to delay everything. That, of course, won’t work. Different courts and jurisdictions have different rules for when a defendant can get a continuance, so I really can’t give a better answer without knowing what courts we are talking about, and we won’t know that until there are indictments.
Basically, a prosecutor will be considered ‘rogue’ if they don’t prosecute non-whites to beyond the fullest extent of the law. For example, in situations like the ‘cop city’ arrests. If a prosecutor doesn’t bring the most onerous charges possible for non-white or ‘liberal’ defendants, then they will be brought up before the review board.
That’s certainly the MAGA definition of “rogue” but they will have to phrase it differently.
Thank you for clarifying my thoughts re plot to remove Fani Willis.
The comment here about black women prosecutors makes me think of something; maybe this is something to watch out for in coming years.
For decades (I was born in the 60s), the “white power structure” said that black people didn’t have what it takes to do well in school (there is a whole industry on the right claiming black people are genetically inferior to others; some of the proponents became quite famous as authors, in fact). But black people were smart enough to take advantage of the opportunity offered and get good educations, go to law school, medical school etc.
Now we are seeing the fruits of their efforts and hard work. They are taking roles in government and insisting that people play by the actual rules. So now we will see the right switching tactics and trying various ways to keep blacks and other minorities out of power. Interesting irony. (Of course this fits my general view that we ARE progressing, but that progress always produces some backlash.)
(Yes, I accept your point that Democrats did much the same thing. It’s an excellent point. I need to think more about this…)
Yes, precisely. As women and people of color move into positions of power, everything starts to change, which is why we are experiencing such a violent pushback.
I will admit that I had a bit of a rant, which I deleted, about how much time I spent privately arguing with well-known TV lawyers who kept insisting that Garland needed oversight or public pressure because they didn’t like what he was doing. They’ve changed their tune now that they can see he is doing what they want. (There. I got that off my chest.)
> [say], Kemp appoints a hardcore MAGA type who shuts it all down, he would ignite a political firestorm in order to protect Trump, who he doesn’t like…. In one fell swoop, Kemp would (1) completely disgust a large number of Georgia Republicans and (2) fire up the Democrats to come out in massive numbers in the 2024 election. The most likely result would be to give the Democrats another good election cycle in Georgia, which would help the Democrats nationwide.
Yep. You said it all so well.
All this shutting down the tRUmp prosecution blather has been nonsense since the get-go.
As you say, it’s a power grab “for next time.”
> if you are a potential defendant–generally, after the grand jury has heard all of the evidence, you will be offered a chance to address the grand jury.
Question: has there _ever_ been a case where someone accepted the invitation and dissuaded the grand jury (er, prosecutor) from prosecuting?
Joyce Wade said never in a prominent case. Nobody would know whether it ever happened.
But there are grand juries that decide not to prosecute.
This is an excellent summation and analysis of this situation in Georgia. Thank you for writing it. I’d like to add that in House Bill 231, it is written on Page 11, Lines 256 and 257 that the commission (to oversee prosecuting attorneys, I assume) shall commence by October 1, 2023 and no complaint (against a rogue prosecuting attorney, I assume) shall be filed before April 1, 2024. This would give DA Willis a few more months than outlined in your column to complete the prosecution of the former “president.”
Thank you! In fact, I went and got a screenshot and added it.
🙂
I was interested that you wrote that this bill is unconstitutional because of legislature over stepping the executive branch. What struck me was the idea that an elected official could be removed without due process, by which I mean some kind of trial such as impeachment. Can an elected official be “fired” in such a way or is there a systematic or constitutional protection for people voted into their office.
Thank you so much for sharing your expertise.
California has a recall system whereby a governor can be recalled. In act, it has happened, but it happened through an election.
It seems to me that legislature firing a prosecutor is problematic, but the legislature can pass laws governing prosecutors, but courts interpret laws and decide when a law is unconstitutional, so there is input from another branch (judicial).
For most employment, you can be fired at will: No process necessary unless the firing is on illegal grounds, such as race.
The legislature, acting alone without input from another branch, should not be ablet o
Yep. I _have_ heard of those. Actually, not even rare. Just a bit unusual.
> Nobody would know whether it ever happened.
I bet the target would. The target would need to talk and have it heard tho.
It seems fairly clear that if we were talking about the federal government, this move would violate the separation of powers doctrine as outlined in ArtI.S1.3.1 of the US Constitution. But does the doctrine apply directly to states via some mechanism or is it just that Georgia has enshrined the same principle in its own constitution? If so, would the state judiciary be the last word on the legislation’s constitutionality or could Georgia’s Executive appeal to the federal government?
Actually Joyce Vance presented just such a case (Virginia Senator Chuck Robb) and suggests there were probably more than a couple. https://joycevance.substack.com/p/welcome-to-new-york?r=1zr8b&utm_campaign=post&utm_medium=web
Of course Jay Kuo thinks it’s highly unlikely that Trump would try this (even though he eggs him on). https://statuskuo.substack.com/p/its-dark-in-trumpland-today-but-is?utm_source=substack&utm_medium=email
I hope this is not too petty a quibble.
“if you are a potential defendant–generally, after the grand jury has heard all of the evidence”
Shouldn’t that read “heard all the evidence against the defendant”?
Do prosecutors present evidence in the defendant’s favor during the grand jury investigation?
They should present everything, yes. Why would they want to withhold exculpatory evidence, get an indictment, and then lose at trial because they can’t withhold exculpatory evidence at trial?
They’re not trying to trick the grand jury into indicting a defendant who will win at trial.
The legal standard for getting an indictment is probable cause, while the standard at trial is beyond a reasonable doubt. The policy, though, is for DOJ lawyers to bring charges only when they think they have evidence beyond a reasonable doubt.
“People Worry About the Wrong Stuff” is a mission statement for what makes your ongoing work so-important. It’s easy enough for any of us to get swept up in the emotions of a moment, whatever the moment and the emotions are. Your point in this piece, about how Democrats and Republicans have both pursued similar legislation, makes a perfect example. (Used to be, people focused on such both-sides elements had an easier job of ferreting out the “both sides” perspective. Now, for the most part, one particular side seems more-predisposed toward shifting the bad-acts balance in their direction. As this essay of yours shows, even as bad as things have become with one of the sides, it’s still not all tipping all of the balance toward the “one side.”) Thanks.
Regards,
(($; -)}™
Gozo