Norman L. Eisen and Fred Wertheimer write:

Under the Georgia Constitution, district attorneys are elected to four-year terms from the electorate in local judicial circuits, and they have immunity from private suits for actions arising from their performance of their duties. Powers of review and oversight of attorneys for allegations of misconduct is, in Georgia, like throughout the country, exclusively reserved for judges. This separation of powers works the same way in many other state constitutional frameworks. For example, when a state Legislature created a similar oversight commission for local DAs in New York, a court held that the commission was unconstitutional because it interfered with New York courts’ role for attorney discipline.

The legislation in Georgia, if passed and signed by the governor, should similarly be struck down by the Georgia courts, which have long recognized a power to oversee attorney discipline as part of the “courts’ inherent power … flowing from the constitutional doctrine of separation of powers.” The Supreme Court of Georgia has explained that the courts hold an exclusive power to oversee this and other aspects of the administration of justice—and the Legislature does not. In other words, because oversight of legal practice (including discipline) is an “inherent power” of the judiciary, the Georgia Legislature cannot encroach on this judicial power by creating specially designated laws to interfere with the actions of disfavored district attorneys.

The Georgia bills go even further than the overturned New York law in interfering with district attorney responsibilities. The New York commission did not have the power to remove DAs or to interfere with ongoing prosecutions and investigations, unlike the one proposed in Georgia. Indeed, the New York statute included a provision stating that the commission may not “interfere with an agency’s active investigation or prosecution.” As then-Gov. Andrew Cuomo noted at the time of the law’s passage, otherwise, the commission risked abuse by “anyone intent on disrupting a criminal case.” The legislation in Georgia, on the other hand, has no similar limiting language, only further highlighting the dangers of these new bills. [Continue reading…]