Why Trump’s Georgia charges would be the hardest to pardon

Former President Trump is facing his fourth criminal indictment this year after he and 18 others were charged in Georgia, and should he eventually be convicted, the case could logistically be the most difficult one to get expunged.

Trump on Monday was charged with 13 counts, including an alleged violation of the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act, a charge usually reserved for organized crime organizations. He has also been charged with solicitation of violation of an oath by a public officer, filing false documents, making false statements and writings and several conspiracy counts. 

The former president and current front-runner for the 2024 GOP presidential nomination has repeatedly denounced all the charges he has faced — in Georgia, New York and in federal courts — as politically motivated to hurt him in the election. Many in the Republican Party have echoed his claims. 

A few of Trump’s rivals for the GOP nomination have even floated issuing a pardon for him if elected, with conservative entrepreneur Vivek Ramaswamy most directly pledging to “promptly” pardon Trump. There is also the untested legal theory that Trump could possibly pardon himself if he returns to the Oval Office.

But the charges Trump is now facing in Georgia could potentially be his most legally perilous, as the state has a much more difficult process for a pardon to be issued than in the other jurisdictions where he is facing charges. 

Article II of the U.S. Constitution grants the president the sole power of issuing pardons for offenses “against the United States,” but that power is only for federal charges, not state ones. A president could unilaterally pardon Trump for the federal charges stemming from both the classified documents case in Florida and from the Washington, D.C.-based probe into efforts to overturn the 2020 election and the Jan. 6, 2021, Capitol riot, but they would have no authority over the New York and Georgia cases.

The governor of New York can issue pardons for state crimes, which could clear Trump in the case over 2016 hush-money payments made to porn actress Stormy Daniels that led to charges of falsifying business records. Experts say those charges are the least likely of the four cases to result in prison time for the former president.

But the governor in Georgia has no such pardon power. 

Instead, the Georgia State Board of Pardons and Paroles is responsible for overseeing all requests for clemency. The governor is responsible for appointing the board’s five members with state Senate approval, but they otherwise have no influence over the board’s decision-making. Members serve seven-year terms that are staggered. 

And Trump wouldn’t even be eligible to apply for a Georgia pardon until at least five years after completing any sentence, including parole and probation.

An individual also cannot be considered for a pardon if they have any pending charges, so he could not receive a preemptive one. 

Trump could serve extensive time if convicted of the Georgia charges. The count of soliciting a public officer to violate their oath could carry a sentence of up to three years, while the count of filing false documents could carry up to 10 years.

The Georgia state government could take action to try to provide power to the governor to grant pardons, but a constitutional amendment would likely be needed, since the board’s authority is declared in the state constitution. 

Mike Davis, the president of the Article III Project, a conservative advocacy group that works to get judges confirmed to the judiciary, said on Fox News on Monday that the Georgia Legislature should move to amend the rules to give Gov. Brian Kemp (R) and future governors the pardon power. 

Kemp refused to go along with Trump’s false claims of voter fraud costing him the election in 2020 and has occasionally been critical of the former president in the years since then.

He tweeted Tuesday to refute Trump’s unfounded claim that the 2020 election was stolen in the state, emphasizing that no one has been able to prove any evidence of widespread fraud under oath.

“Our elections in Georgia are secure, accessible, and fair and will continue to be as long as I am governor. The future of our country is at stake in 2024 and that must be our focus,” he said.