Resolute Square

The Rogue Prosecutors

Teri Kanefield has two messages for us this week: Don't freak out, and be careful what you wish for. Take a deep breath and settle in as Teri explains what proposed legislation around removing DAs really means for any potential Trump indictments and prosecutions.
Published:March 14, 2023

*Published with the generous permission of Teri Kanefield. Read all of her writing here.

By Teri Kanefield

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 the 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:

part of a broader push by conservative lawmakers around the country to rein in prosecutors whom they consider too liberal, and who in some cases are refusing to prosecute low-level drug crimes or enforce strict new anti-abortion laws.”

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

The mishandling of Arbery’s killing—as well as other high-profile instances of prosecutorial misconduct—led a group of GA Democrats to sponsor legislation that would establish a state commission for prosecutorial oversight.

The bill introduced by Dems in 2020 is similar to the current legislation. Both allow the commission to “discipline, remove, or cause involuntary retirement” of prosecutors. Both provide for appointments by members of the GOP-controlled executive & legislature.

Despite their initial support, many Democrats soon changed their perspective on the legislation. Why? Well, right-wing media started braying about the supposed dangers of “progressive prosecutors” who refuse to prosecute certain crimes.

Democrats grew concerned that the commission could be weaponized against progressive DAs like Deborah Gonzalez in Athens. In Jan. 2021, Gonzalez decided not to prosecute marijuana offenses. The GOP got mad. The Attorney General even suggested that she violated her oath of office.

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:

So, by early 2021, party sponsorship had flipped. Democrats stopped supporting the bill. The GOP introduced its own version. Variations have been floating around since then. Many provisions added by the GOP clearly target progressive DAs, *not* tough-on-crime DAs like Willis.

Of course, none of this means that the proposed legislation is good. It’s still a very bad bill. No doubt, it will be weaponized for partisan ends, especially against DAs who attempt to reduce the impact of incarceration in their communities through non-prosecution policies

But pundits are spinning a narrative about this bill that is not accurate. It did not suddenly materialize, just as Fani Willis is about to announce indictments. And I don’t recall outrage over an “unprecedented attack on the rule of law” when the bill was introduced in 2020.

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, 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 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.