There’s a reason why Donald Trump’s attorneys keep trying to delay any legal action until after the 2024 election, and it has nothing to do with protecting Trump’s rally schedule. Should Trump, God help us all, find his way back into the White House, he’s counting on his ability to make federal charges disappear with a snap of his tiny fingers. Should any other Republican get the chance to hold up their hand and take the oath, Trump can always count on them to throw him a lifeline. Heck, there’s even a fair chance that President Joe Biden, last great believer in bipartisanship and the intrinsic goodness of his political enemies, might give Trump a pardon. Especially if any of Biden’s former Senate colleagues approach him with sad puppy-dog eyes.
But no one in the White House can waive state charges. The presidential pardon purview doesn’t quite stop at the waters of the Potomac, but it is limited to crimes charged in federal court.
Still, that leaves 26 states out there with Republican governors who might be all too happy to pre-squash any indictment the moment it appears. But even if Georgia Gov. Brian Kemp were so inclined, he doesn’t have that option. Georgia is one of very few states where the governor has no pardon power at all. Trump may have picked the very worst place to FAFO.
In 1936, Georgia elected a governor called E. D. “Ed” Rivers. Rivers expanded state services and even offered his state a “Little New Deal.” He supported programs like rural electrification and nearly doubled state spending on education.
Before you start cheering, note that Rivers was also extraordinarily corrupt, even in a state known at the time for corruption. He had a habit of settling disputes with political opponents by sending in the Georgia National Guard. Oh yeah, and he was the “Grand Titan” of the Ku Klux Klan.
But most importantly for this story, one of the ways the violent racist governor was padding his pockets was by selling pardons. Rivers assembled an entire pardon-selling “racket” (too bad there were no racketeering laws at the time) peddling pardons all over the state. He even had a system where he would pre-sign blank pardons, then send a driver around to prisons to see who had the money to get their name filled in. No crime too serious, no bribe too large, just sign here.
The result of this was that Georgia stripped the governor of pardon power.
There are 37 states that leave pardons entirely up to the governor. In another five states, the governor can issue pardons, but only to those people whose names are brought to him by a state pardon board. Seven other states have pardons that are issued by independent commissions, not the governor. Florida is, as you might expect, something of a mess, with both the governor and cabinet members weighing in on pardons.
Technically, Georgia is one of those states that put pardon power entirely in the hands of a pardon board, with no authority to the governor, but Georgia’s board of pardons also has some fairly severe limitations. As with most states, it can’t waive charges that haven’t gone to trial or interrupt trials in progress. So even if that board is packed with MAGA, Trump can’t count on it to bail him out of the case in Fulton County.
But it’s worse than that, because the Georgia board doesn’t hand out pardons in the sense that Trump scattered them among his criminal pals like Michael Flynn, Paul Manafort, Steve Bannon, and Dinesh D’Souza. Nobody in Georgia receives a get out of jail free card.
What the Georgia board provides is a way for people to clear their records … but it can only be delivered five years after any sentence has been fully served. And even then, it comes only if during those five years, the former prisoner has “lived a law-abiding life."
The only possibility of avoiding jail time if Trump is convicted in Georgia comes buried deep in Georgia Code Title 17, which restores some authority to judges when dealing with mandatory sentences. Whether any aspect of this statute applies to RICO cases like the one Trump and company are facing is something that will take some court decisions all on its own.
Of course, Republicans are already horrified by the idea that Trump could face a sentence that can’t be pardoned, and they are on the case.
Mike Davis: “Under the Georgia law, there’s a statute that limits the Republican governor’s ability to pardon. And I think that the legislature in Georgia needs to amend that statute and give Gov. Kemp the ability to pardon.”
I can think of a ... few … reasons why Gov. Brian Kemp might not make it priority number one to pardon Trump.
However, there’s an even better reason this is unlikely to happen: That state board of pardons was created through a constitutional amendment, meaning it would take a two-thirds vote of both chambers of the Georgia legislature, as well as a statewide vote, to roll that authority back to the governor. Republicans might try an end-run around that by changing the authority of the board, but that would be subject to legal questions unlikely to be settled before Trump has been tucked beneath the rough alongside the 13th tee.
Trump made the bad decision to expressly attempt to overturn votes in a county with a district attorney willing to stand up to the heat of his supporters, to commit crimes that subject Trump to a RICO act that imposes required jail time, and to do it all in a state where no one can bail him out.
This is the “and find out” section of the story. It’s shaping up to be a good one.