Georgia’s pardon system is attracting attention in the aftermath of Fulton County District Attorney Fani Willis indicting former President Donald Trump on racketeering charges for his alleged attempts to overturn the 2020 election.
Should he be convicted, Trump, the 2024 GOP front-runner, would not be able to pardon himself of state charges, but Georgia’s process has conditions that push the possibility of a pre-prison pardon even further out of reach.
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In Georgia, the Constitution gives the governor the authority to appoint five people to a State Board of Pardons and Paroles. They serve seven-year terms and generally, according to a Restoration of Rights analysis, grant a relatively high frequency of pardons compared to other states.
Georgia is among only a handful of states whose governor does not have broad pardon powers. Instead, the Constitution gives the governor the authority to appoint five people to a State Board of Pardons and Paroles. They serve seven-year terms and generally, according to a Restoration of Rights analysis, grant a relatively high frequency of pardons compared to other states.
Applicants can, however, only apply for pardons five years after their sentence is complete and only as long as they “have lived a law-abiding life” during those five years, according to the board.
In New York, where Trump has been indicted on other local charges, the governor, in this case, Gov. Kathy Hochul (D-NY), has the sole authority to issue pardons at her discretion.
In the wake of Trump’s indictment in Georgia, as well as that of 18 others facing felony charges in the case, Georgia’s pardon system has garnered criticism from some who say the 1940s-era setup could use modifying.
Mike Davis, the president of the legal nonprofit Article III Project and ardent Trump supporter, said, “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.”
He asked, “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?”
A local reporter pointed out that activists who support Trump have been pressuring Georgia’s governor to outright pardon him, “which he can’t do.”
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
Television show host Mark Levin made a legal argument that Trump could find a way to bypass the Georgia parole board and pardon himself for state charges if he is reelected president.
“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,” Levin posted.
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
Andrew Fleischman, a Georgia-based defense attorney and partner at his own firm, Sessions & Fleischman, said he is aware of concerns in the legal world about the pardon system, specifically with the conditions for applicants’ eligibility, such as the five-year rule.
“There are some serious concerns that I have heard, maybe even expressed, that that’s not constitutional under Georgia law,” he said.
“There might be a separation of powers problem here that nobody has explored yet,” he added, noting that if Trump were convicted and therefore had standing to challenge the pardon board’s process as unconstitutional, the case could be of interest to Georgia’s conservative Supreme Court.
To amend Georgia’s pardon provisions, the GOP-controlled legislature would have to approve the changes by a two-thirds vote in both the House and Senate, an unlikely scenario given the split compositions of each chamber.
Gov. Brian Kemp (R-GA), who is popular in his state, has shown no signs of pushing for such changes either.
Kemp, a nemesis of Trump’s since the 2020 election, has taken a position of focusing on the 2024 elections and has continued to directly reject Trump’s claims that widespread voter fraud occurred in 2020.
“The 2020 election in Georgia was not stolen,” Kemp said in a statement on social media in response to a comment from Trump about the matter. “The future of our country is at stake in 2024 and that must be our focus.”
Asked if he thought Kemp could push for changes to the pardon process in his state, Davis said, “It sounds like Gov. Kemp is fine with Republic-ending Democrat lawfare against their political enemies. … This is why Gov. Kemp is the Democrats’ favorite Republican governor.”
One state senator took another approach, pressuring Kemp in a long-shot letter on Thursday to call a special legislative session to investigate Willis, incidentally citing the pardon section of the Constitution in his request.
In response to criticisms of the governor, Kemp adviser Cody Hall said in a statement provided to the Washington Examiner that they were reminiscent of the aftermath of the 2020 election.
“Where have I heard special session, changing decades-old law, and overturning constitutional precedent before? Oh, right, prior to Republicans losing two Senate runoffs in January of 2021,” Hall said. “What are people hoping to learn in the second kick of the election-losing mule?”
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The board is a product of 1943 that some say may have been instituted in response to governors corruptly selling pardons at the time.
It would take a constitutional change to undo the board, a currently unlikely scenario that could resurface in the lead-up to the state’s next gubernatorial race, especially if any of the 19 are convicted.
