While there are several unanswered questions surrounding Fulton County District Attorney Fani Willis’ indictment in Georgia of former President Donald Trump, one, in particular, is on the top of many American’s minds: If he is elected for a second term, can Trump pardon himself should he be convicted?
It would seem unlikely, given that, according to the Department of Justice, a President does not have the authority to grant clemency of any kind — and a pardon is the ultimate form of clemency — for a state conviction.
“The President’s clemency power is conferred by Article II, Section 2, Clause 1 of the Constitution of the United States, which provides: ‘The President… shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment,'” the DOJ explains. “… An offense that violates a state law is not an offense against the United States.”
The Justice Department suggests that those wishing to receive a pardon for a state crime should contact that state’s governor.
To make matters worse for Trump should he be found guilty of trying to overthrow the 2020 election, in 1943, Georgia amended its Constitution and created a five-person State Board of Pardons and Paroles. While the state’s governor has the authority to appoint those board members, the board can only issue a pardon five years after a convict has completed serving their sentence.
Georgia is one of only a handful of states with such a restriction on the governor’s pardoning powers, the Washington Examiner reports.
With a potential president’s fate on the line, Georgia’s system of granting clemency is under fire.
‘America is under attack’: Georgia state senator demands emergency session on Fani Willis’s actions https://t.co/d2pu2GiD2H via @BIZPACReview
— BPR based (@DumpstrFireNews) August 17, 2023
Mike Davis, president of the legal nonprofit Article III Project, suggested it prevents those who have been wronged from any remedy.
“The whole point of a governor’s pardon is to correct an injustice, and what Democrat Fulton County DA Fani Willis is doing to 19 defendants is a grave injustice, is lawless,” Davis, a loyal Trump supporter, told The Examiner. “What happens if there is a grave injustice? The person has to sit in jail for five years before he can correct that grave injustice?”
Conservative icon Mark Levin cited the Supremacy Clause in the Constitution and argued that should he be elected, Trump could indeed pardon himself for a state crime.
“The Constitution’s silent about whether a president can be indicted,” Levin wrote on X. “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.”
An indictment of a president “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,” he stated.
“FURTHERMORE, if indicted and even convicted,” he continued, “the idea that a president cannot pardon himself from state charges is absurd, again, not only because of the Supremacy Clause but the same considerations that apply to a federal conviction would obviously apply to a state conviction.”
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
Levin was promptly slapped with a “community note” that refuted his claims.
But, according to Andrew Fleischman, a Georgia-based defense attorney, the five-year rule for pardon eligibility is not without “serious concerns.”
“There are some serious concerns that I have heard, maybe even expressed, that that’s not constitutional under Georgia law,” he told The Examiner. “There might be a separation of powers problem here that nobody has explored yet.”
Should Trump be convicted, the constitutionality of Georgia’s pardon board’s process could wind up in the state’s conservative Supreme Court.
In the meantime, local journalist Greg Blustein is certain Georgia Governor Brian Kemp does not have the power to pardon Trump.
“Pro-Trump activists are already pressuring @GovKemp to do what he can’t do: Pardon Donald Trump and stop the potential prosecution of Lt. Gov. Burt Jones,” he wrote on X. “State law doesn’t give him the power to take either of those steps, no matter the far-right clamor saying otherwise.”
Pro-Trump activists are already pressuring @GovKemp to do what he can’t do: Pardon Donald Trump and stop the potential prosecution of Lt. Gov. Burt Jones. State law doesn’t give him the power to take either of those steps, no matter the far-right clamor saying otherwise. #gapol pic.twitter.com/sUdRAUXjeJ
— Greg Bluestein (@bluestein) August 16, 2023
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Melissa Fine is the former executive editor of Casino Player, Strictly Slots, and Poker
Digest magazines. She is a UCLA graduate, news junkie, and dedicated Stargate SG-
1 fan. Melissa currently lives with her dog and two cats in a tiny town in the Sierra
Nevada foothills.
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