Former President Donald Trump has already been indicted three times this year, the first time in U.S. history a former President has faced criminal charges. But one more indictment could lie ahead, and it’s the one some think may present the most challenging case for Trump.
Fulton County District Attorney Fani Willis appears ready to indict Trump any day now over his alleged efforts to overturn the results of the 2020 presidential election in Georgia. It’s a case Wilis has been investigating for more than two years, since the revelation of a recorded January 2021 phone call in which Trump urged Georgia Secretary of State Brad Raffensperger to “find” the votes that would win him the state. Trump has already petitioned to halt her investigation multiple times, with a hearing on a third attempt scheduled for Thursday.
Trump currently faces two federal indictments and one in the state of New York. Jack Smith, special counsel for the Department of Justice, has indicted Trump for subverting the 2020 election results ahead of the January 6 attack on the Capitol and for allegedly keeping sensitive documents at Mar-a-Lago. In New York, he has been charged with falsifying business records to hide hush money payments and cover up an affair.
For months, Trump's team has been bracing for an indictment out of Fulton County, Georgia, which could stand out even among Trump’s growing legal woes.
Here’s what makes the Georgia case so unique.
Trump couldn’t pardon himself in Georgia
The Constitution grants a president the ability to pardon anyone for federal crimes and those prosecuted by the Attorney for the District of Columbia on behalf of the United States. It does not allow a president authority to issue pardons for state convictions.
While there is some debate about whether a president can actually pardon himself, it remains a possibility for Trump if he were to ultimately win back the White House next November. Certainly, another president could pardon Trump if he was convicted in the January 6 or classified documents cases.
While Trump could not pardon himself if he were convicted in the hush money case, he could seek a pardon from New York’s governor, who is currently Democrat Kathy Hochul. Even that option wouldn’t be available to him in Georgia, where Trump could not pardon himself and could not ask Republican Governor Brian Kemp to do it. In Georgia, the authority to grant pardons belongs to an independent state board.
Stalling the Georgia case could be more challenging
Trump has a decades-long history of successfully delaying legal procedures and investigations, sometimes for years. His legal team has already signaled he will try to do that for at least some of his current legal challenges.
When it comes to the federal charges, Trump may find ways to delay proceedings long enough that he wouldn’t even need to pardon himself. If the proceedings were delayed until after the 2024 election and Trump returned to the presidency, he could simply instruct his Justice Department to stop pursuing the prosecutions.
“He also could just appoint, oh, I don't know, for example, Jeffrey Clark, as the new attorney general, and Jeffrey Clark could make his own decision to shut down those cases,” says former federal prosecutor Renato Mariotti, referring to a former senior Justice Department official who allegedly played a role in Trump’s efforts to overturn Joe Biden’s 2020 election victory. “Ultimately, the executive power to prosecute is within the executive branch and is derived from the power of the president out of the Constitution.”
Trump could also try to stall both the Georgia and New York cases, but his legal grounds for doing so are much less clear. Even if he did manage to delay both proceedings and returned to the Oval Office, they could continue to be thorns in his side.
And the Georgia case is likely to be a far weightier proceeding than the one out of Manhattan involving hush-money payments to try and cover up an affair.
The New York case is “a prosecution for older conduct,” says Mariotti. “I think, on its face, it’s less serious conduct than trying to assert power and prevent the peaceful transition of power in the United States. … It is the lowest class of felony under New York law.”
A trial in Georgia is more likely to be televised
Any upcoming trials for Trump are sure to be heavily covered by news outlets. But none of the trials for his three current criminal cases are likely to be televised.
Under the Federal Rule of Criminal Procedure, federal courts do not generally allow video cameras during criminal cases. Many state courts do, but New York’s laws around filming trials are among the most restrictive in the nation, allowing recording only in very limited circumstances. Legal experts expect that those three trials are unlikely to be televised.
Georgia, on the other hand, offers strong protections for open courts. Members of the media who submit requests to record proceedings are generally allowed to do so. If a judge intends to deny a request, they must promptly hold a hearing on the matter, according to Georgia’s Uniform Superior Court Rule 22.
That means that if Trump is tried in Georgia for attempting to overturn the 2020 election there, the American public will likely be able to watch the proceedings, including witnesses delivering testimony against him.
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