Former President Donald Trump cannot easily obtain a pardon in Georgia if he is convicted on one or more of the 13 counts unveiled against him in Fulton County on Monday, because the state’s governor does not have the power to grant pardons, as elsewhere.
Gov. Brian Kemp (R), an outspoken critic of Trump, might be unlikely to pardon Trump anyway. But he does not have the power in any case. That power resides in a State Board of Pardons and Paroles, which has five members. They are appointed by the governor and confirmed by the Georgia State Senate to serve seven-year terms. And they may not consider applications for parole until a convict has already served at least five years of his or her sentence, with no other criminal charges pending.
ABC noted: “[The indictment is] effectively pardon-proof, in the sense that with a federal case, if he wins the election, he can kind of make it go away,” [legal analyst Dan] Abrams said on “Good Morning America” on Tuesday. “This case, he can’t do that.”
Slate.com notes that Trump could try to persuade Georgia’s Republican legislature to change the state’s procedure, then hope for a pro-Trump governor to be elected (or one who is concerned about the abuse of prosecutorial powers for political purposes). But even then, Slate notes, the change would require a constitutional amendment, which in turn would require a two-thirds vote in both houses of the state legislature, followed by ratification by a majority of Georgia voters in the next election — a heavy lift.
Trump has two other alternatives. One is to win the U.S. presidency and then to pardon himself, not just from federal crimes but state crimes. Though conventional wisdom is that the president cannot issue state pardons, conservative radio host Mark Levin has argued that since the Department of Justice has taken the view that a sitting president cannot be indicted, partly because it would interfere with his duties, the same policy could be applied to state charges, under the Constitution’s Supremacy Clause.
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
That approach has never been tried before — but then again, a former president and leading presidential candidate has never been indicted before, on the state or federal level.
Finally, Trump could also do what his former chief of staff and fellow defendant, Mark Meadows, has already done: demand the case be removed to federal court, because it involves presidential powers. Then Trump could try to have the case dismissed, or could pardon himself if he is convicted and wins the presidency in 2024.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the new biography, Rhoda: ‘Comrade Kadalie, You Are Out of Order’. He is also the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.