Republican presidential candidate and former U.S. President Donald Trump is directed to his vehicle after speaking at the Steer N' Stein bar at the Iowa State Fair in Des Moines, Iowa, on August 12, 2023. Donald Trump's recent indictment in Georgia is arguably the strongest case against the former president. BRANDON BELL/GETTY IMAGES
Donald Trump’s recent indictment in Georgia is arguably the strongest case against the former president.
Given the gravity of the accusations and particularities in Georgia’s pardon law, avoiding a prison sentence in the Peach State poses a greater challenge for Trump than any of his previous indictments.
Trump currently has four indictments: two on the federal level (in both Florida and Washington, D.C.), one in New York, and the most recent one in Georgia, for which he’s being taken to court due to alleged efforts to overturn the results of the 2020 election.
Trump has several tools at hand to avoid prison in case he’s found guilty, but the Georgia case might prove unavoidable. Here’s why:
Federal Cases: Could Trump Pardon Himself As President?
If Trump is found guilty of his federal cases, he can still access a presidential pardon, which could be granted by any president willing to let him off the hook.
Should Trump win the 2024 election, he could try to pardon himself out of those indictments, though it’s worth noting that the 14th Amendment explicitly states that anyone who has taken an oath “to support the Constitution of the United States” is disqualified from holding office if they “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
It’s also not clear whether a president can wield self-pardoning power: no previous case has ever set that precedent.
The only close precedent to self-pardons comes from Richard Nixon. The 37th president contemplated the idea of pardoning himself for the Watergate Scandal, but he didn’t go through with it after the Justice Department said it would be unconstitutional.
Nixon ended up receiving pardon from his Vice President Gerald Ford after the latter took office.
“Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself,” wrote the Justice Department at the time.
Yet, Trump fancies himself as being above the law. In 2016, he notoriously expressed his legal immunity at a rally when he stated, “I could stand in the middle of Fifth Avenue and shoot someone and not lose any voters.”
The idea of a pardon stems from the English law idea of mercy or grace, according to an NPR interview with Harvard law professor Cass Sunstein. Therefore, it would make no sense to show mercy or grace to oneself.
Furthermore, according to Michigan State University law professor Brian Kalt, attempting to pardon oneself “would violate the principle that no one can be the judge in their own case.”
As per legal scholar Kenneth Gormley, preventing presidents from pardoning themselves blocks them from making serious offenses while in office.
Trump could still seek pardon from another president. Florida Governor Ron DeSantis, Trump’s opponent for the GOP nomination, said he will consider issuing federal pardons for the people accused of crimes related to the Jan. 6 uprising in the U.S. Capitol. That would include Trump.
Yet even in that case, Trump would still be liable for his state-based indictments, as presidents cannot pardon state charges.
Is Trump At Risk In New York?
Trump could have tough luck seeking pardon in New York where he’s being tried for falsifying business documents in relation to an attempt to buy the silence of former adult-film star Stormy Daniels. That case carries less risk of prison time, according to Politico.
In case of conviction, Trump could seek pardon from New York Governor Kathy Hochul, whose opinions of Trump would most likely lead her to deny that request.
Hochul’s campaign issued a statement saying that “the stakes for our democracy could not be higher,” after Trump announced his 2024 presidential bid.
Beyond 2027, when Hochul’s term ends, Trump might have tough luck once again. Of the last seven governors, going back as far as 1975, only one has been a Republican: George Pataki.
Why Is Georgia The Hardest Case For Donald Trump
Even when considering all of the above, Georgia’s indictment remains the toughest challenge for Trump.
Fulton County D.A. Fani Willis says Trump interfered with the 2020 electoral process and is not subject to a presidential pardon, nor a pardon by the Georgia governor. In the Peach State, pardons are granted by the Georgia State Board of Pardons and Paroles, reports Politico.
The board typically considers pardon applications five years after a person has completed their sentence, and never as a preventive measure. In the few exceptions that have been made, demonstrating regret or remorse for one’s crimes is a must for any convict seeking pardon, and Trump continues to argue his innocence.
Trump’s accusations in Georgia are of a more serious nature than others: several of his 13 felony accounts carry mandatory prison sentences in the state.
The crimes of conspiring to solicit a public official to violate the oath of office as well as first-degree forgery, of which Trump is charged, have a minimum one-year prison sentence.
Produced in association with Benzinga
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