Donald Trump’s best legal defense is to win the presidency in 2024.
That’s true for multiple reasons — whether it’s the prospect of a legally debatable self-pardon or the simpler fact that he’d control the government that’s prosecuting him. (That is, assuming he’s even eligible for office after having supported the Jan. 6 insurrection, a notion questioned recently by prominent conservative legal scholars.)
But Trump’s Georgia indictment reminds us that presidents don’t have that awesome power over state cases.
And unlike in other states, such as New York, clemency isn’t up to the governor in Georgia, either — not directly, anyway. Rather, under the state constitution, there’s a board of pardons and paroles, with five members appointed by the governor and confirmed by the state Senate to staggered, seven-year terms. The current board was appointed by a mix of Republican Gov. Brian Kemp and his predecessors.
Even if the board were inclined to grant Trump a pardon, however, it wouldn’t seem to do him much good any time soon. That’s because the pardon application says:
[People convicted of crimes] will be considered only if the applicant has completed his/her full sentence obligation, including serving any probated sentence and paying any fine, and has been free of supervision (custodial or non-custodial) and/or criminal involvement for at least five consecutive years thereafter as well as five consecutive years immediately prior to applying.
The form also says applicants “cannot have any pending charges.”
So even if Trump (or another Republican) were elected president, Georgia’s pardon process doesn’t appear to provide the instant relief Trump would seek on the federal level. All a state pardon is, the board’s site says, “is an order of official forgiveness” that doesn’t erase crimes from the record. (“It may serve as a means for a petitioner to advance in employment or education,” the board explains.) The board can also commute (or shorten) sentences to time served. Of course, Trump isn’t looking for forgiveness, employment or education — he’s looking for a way out of charges immediately, as anyone would. To be sure, he’d still try to challenge the Georgia case if he retakes the White House, most likely arguing, among other things, that the presidency immunizes him from state charges. But whatever the result of any novel challenges he’d raise, the fact remains that a President Trump wouldn’t be able to do the legal equivalent of snapping his fingers and killing the Georgia case like he would with the federal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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