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Georgia’s Supreme Court recently cast some doubt on the legality of a controversial commission that's widely seen as a tool that could be used to punish Fulton County District Attorney Fani Willis for indicting former President Donald Trump.
Georgia Republicans pushed Senate Bill 92 through the Legislature in May, authorizing a new Prosecuting Attorneys Qualifications Commission that's ostensibly designed to remove “rogue or incompetent prosecutors who refuse to uphold the law,” according to Republican Gov. Brian Kemp.
Some Republicans in the state — like state Sen. Colton Moore — have openly pushed for the commission to target Willis as she prosecutes Trump and his co-defendants for attempting to overturn the state’s 2020 presidential election results. Kemp has so far resisted efforts to remove Willis, and commissioners have voted not to investigate any district attorneys for actions taken before its rules are approved.
Senate Bill 92 mandates that the Georgia Supreme Court sign off on rules that would guide the commission in its work, and on Friday the court issued an order that questioned whether it was even authorized to do that.
“Before taking action on the standards and rules, the Court must first assure itself that it has power to do so,” the order says. It continues:
The Court questions whether adoption of standards and rules governing the exercise of non-judicial power by state officers is within that judicial power, particularly when those state officers exercise no judicial power and there is no express grant of constitutional authority for the Court to regulate those state officers’ exercise of state power.
The order gives the commission two weeks (from Nov. 3) to submit a letter that explains why the court is empowered to act in this matter.
Over at the Atlanta Journal-Constitution, Greg Bluestein reported “some key Republicans are privately skeptical” that the court will agree to sign off on rules for the commission in the end, which could delay — if not completely destroy — GOP hopes to use the commission to meddle in Willis' (or any other liberal DA’s) affairs ahead of next year’s elections.
But Bluestein also notes the court order is merely concerned with its own authority to approve rules for the new commission — which is distinct from a suit brought by a bipartisan group of Georgia DA's who are challenging the commission’s legality. (Those lawyers faced a setback when a judge ruled that the commission's work could proceed during their suit.)
In short, the order means Georgia Republicans haven’t been disarmed of the weapon some see as a tool to target Willis and other DA's who defy their right-wing wishes. But whether that weapon will work when and how they want it to looks much less certain than it did when Republicans first revealed it.