If Trump Wins White House, He Won't Be Able to Pardon Himself in Georgia - And Neither Can the Governor
If former president and current 2024 GOP front-runner Donald Trump retakes the White House, don’t expect him — or any other Republican, for that matter — to wave away any convictions he might incur in the state of Georgia.
On Monday, Trump and 18 others were indicted by Fulton County District Attorney Fani Willis over the White House’s challenge of the 2020 presidential result in Georgia, which President Joe Biden barely carried.
The former president faces 13 criminal charges, including one count of violating the state’s Racketeer Influenced and Corrupt Organizations statute, stemming from what prosecutors claim were false statements made during the electoral challenge.
Another day, another charge, Trump supporters might be inclined to think.
However, ABC News legal contributor Dan Abrams warned that the Georgia charges might be “more dangerous” than the federal charges he’s already facing, given that presidents can’t offer pardons on state charges.
“It’s effectively pardon-proof, right? In the sense that with a federal case, if he wins the election, he can kind of make it go away,” Abrams said on “Good Morning America” Tuesday. “This case, he can’t do that with.”
Nor, in fact, can a pro-Trump governor in Georgia pardon him, either.
Not that there’s one in place at the moment, mind you; while Gov. Brian Kemp is a Republican, he also broke ranks with Trump over the president’s challenge of the 2020 results and easily survived a primary challenge in 2022 from Trump-backed David Perdue.
However, even if Kemp had a change of heart and decided the charges were politically motivated piffle, there still wouldn’t be anything he could do.
According to Georgia law, pardons are only offered as an “order of official forgiveness” after an individual has served his or her sentence.
“You must have completed all sentence(s) at least five (5) years prior to applying,” according to the State Board of Pardons and Paroles.
The pardon “does not expunge, remove or erase the crime from your record,” the board says. “It may serve as a means for a petitioner to advance in employment or education.”
OK, then — so what about changing the pardon laws in the state? That would seem to be a reasonable course of action, given the politically charged nature of the indictment as well as the all-too-perfect timing, right during the 2024 election season.
Alas, that too isn’t easy, given that it’s not just a matter of passing a law through the legislature and getting Kemp to sign it.
The pardon provision is baked into Georgia’s Constitution, which is significantly more difficult to change.
“Amending the state constitution to change clemency powers would require a 2/3 vote of both the State House and Senate and ratification by a majority of voters in the state’s next general election,” Kaleb McMichen, a spokesman for Georgia House Speaker Jon Burns, told Slate.
“As you may be aware, neither political party holds a supermajority of either the State House or Senate making the odds of a controversial amendment meeting the threshold required by the Constitution highly improbable,” McMichen said.
He added there were “no discussions of any such legislative action” to change the pardon provision at present.
That doesn’t necessarily make Trump entirely helpless, however.
One possibility, floated by radio host and Fox News personality Mark Levin, is that Trump could invoke the Constitution’s Supremacy Clause to pardon himself and other defendants were he elected president.
Article VI “establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions,” according to Cornell Law School’s Legal Information Institute.
“The DOJ has taken the position under both parties that you cannot indict a sitting president because it would cripple the executive branch and make his ability to defend himself effectively impossible,” Levin wrote Tuesday on X, formerly Twitter.
“Given the DOJ’s position, and the Supremacy Clause in the Constitution, I would argue strongly that the idea that a president cannot be indicted at the federal level because it would cripple the executive branch, but can be indicted by local DAs, would have exactly the same effect as a federal indictment, except there are thousands of local and state prosecutors making the crippling of a president even more likely.”
President Trump can, in fact, pardon himself from the GA charges if he is elected president.
1. The Constitution’s silent about whether a president can be indicted.
2. The DOJ has taken the position under both parties that you cannot indict a sitting president because it would…— Mark R. Levin (@marklevinshow) August 15, 2023
The other option is to make like Mark Meadows — Trump’s former chief of staff, now his co-defendant — and ask for the case to be moved to federal court.
In a motion filed Tuesday, Meadows’ counsel argued that since the alleged offenses happened while he was chief of staff in Washington, D.C., the case doesn’t belong in a state court in Georgia.
“The conduct giving rise to the charges in the indictment all occurred during his tenure and as part of his service as Chief of Staff,” the motion read.
“In these circumstances, federal law provides for prompt removal of a ‘criminal prosecution … commenced in a State court … against or directed to’ a federal official, ‘in an official or individual capacity, for or relating to any act under color of [his] office,'” it said.
“Defendant Meadows has defenses to the charges in this Georgia indictment that arise under federal law, including a federal immunity defense under the Supremacy Clause of the Federal Constitution,” the motion said.
Mike Davis — founder and president of the Article III Project, a conservative judicial group — argued Trump could follow the same avenue:
President Trump should also remove the case to federal case.
And move to dismiss.
Presidential immunity.https://t.co/2qeTjnCf3y
— 🇺🇸 Mike Davis 🇺🇸 (@mrddmia) August 15, 2023
That said, while it’s easy enough to dismiss the latest round of charges as yet another attempt to weaponize law enforcement against the political opposition, the Georgia case presents new and dangerous challenges for Trump and those around him.
Unlike the federal charges brought by the special counsel, the Georgia counts aren’t easily reversed by the will of the American voters — and that’s the point.
Now that this rubicon has been crossed, expect even more banana republic-like shenanigans to follow in Fani Willis’ wake.
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