While the Fulton County case against former President Donald Trump may be “pardon-proof,” the Supreme Court could potentially step in if he wins the 2024 presidential election.
Trump or any other potential Republican President would not be able to grant pardons because this is a state case and the Constitution of Georgia prevents the state governor from granting pardons in this case. Only a state parole board can issue pardons, and applications cannot be made until five years after a sentence has been served.
Although the case is clemency-proof, the Supreme Court “may well consider an incumbent president immune from a trial” or impose a conviction if he wins the election, according to New York University law professor Ryan Goodman wrote on X, formerly Twitter. The result would be that “18 co-defendants remain pending,” while Trump would be immune for four years if elected, he wrote.
“Another reason for co-defendants to turn their backs,” he added.
Goodman said the Republican-based Supreme Court could codify the Justice Department’s longstanding position that incumbent presidents are immune from prosecution. Although legal scholars have argued that the DOJ’s position is “incorrect,” it is “hard to say how SCOTUS would decide,” he wrote.
Trump could also seek to move the case to federal court, which would give him access to a cheaper jury pool and could increase his chances of winning a federal judge he appoints. Former White House Chief of Staff Mark Meadows, who was charged with racketeering and other alleged crimes along with Trump, became the first defendant Tuesday to attempt to bring his case to federal court in Atlanta.
Meadows’ attorneys cited a law that allows federal officials to transfer a case from a state court to a federal court as long as they are acting “under cover” of their office. Meadows’ legal team argued in a 14-page filing that her client had the right to change venues because the alleged criminal conduct “had all occurred during his tenure and in the course of his duties as chief of staff.”
Ultimately, Trump’s attorneys could put forward a similar defense, pointing out that the ex-president ensured the integrity and fairness of the federal election process as part of his role as President of the United States.
“It depends on what a judge thinks…” Eric Segall, the Kathy & Lawrence Ashe law professor at Georgia State University, told Salon. Trump could claim “he was the President of the United States and the election was fraudulent” or “did his job by ensuring that the election results were confirmed in a fair, lawful, and constitutional manner,” he said he.
While it is clear that Trump was not performing his duties as President, but was a candidate for President of the United States, his attorneys could still claim that the former President acted “under cover” of his office, he added Segall added.
Trump may be able to meet those conditions, says Atlanta defense attorney Andrew Fleischman said The Atlanta Journal-Constitution.
“The former president will claim he was trying to enforce some kind of federal law” when he pressured Georgian officials to reverse his election defeat, Fleischman told the paper. “Then there’s only one question: Can it be dyed?”
As part of the process, Trump’s attorneys would have to file an impeachment petition in federal court, which would likely be appealed to the 11th US Circuit Court of Appeals in Atlanta. That court’s decision could then be appealed to the US Supreme Court.
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Another aspect of the argument pundits are making is whether Trump would even qualify as a “federal officer.”
“It is unlikely Trump will be able to take the case to federal court,” former federal prosecutor Neama Rahmani and president of the Los Angeles-based West Coast Trial Lawyers told Salon. “Criminal deportations are rare and typically only occur when the accused is a federal official acting in his or her official capacity. However, the Supreme Court has ruled that campaigning is not an official act, so this is unlikely to work for Trump.”
Trump tried to move his case from New York state court to federal court after he was accused of falsifying business records to cover up an affair with adult film star Stormy Daniels. But US District Judge Alvin Hellerstein denied his request.
Even if Trump does succeed in taking his case to federal court, he still faces clemency-proof state charges, and Fulton District Attorney Fani Willis would likely remain prosecutor in the case.
“Even if this goes to federal court, DA Willis and her team could be sworn in as US Special Representatives.” [attorneys] so they could continue the prosecution.” explained Tamar Hallerman, reporter for the Atlanta Journal-Constitution. “It would still be a case involving state law, not federal law. Presidential pardons would still not apply. The biggest difference would be the jury pool, which would probably be more conservative… There would also be a federal judge.” Another difference would be that there would be no cameras in the courtroom, she wrote. “The Fulton Supreme Court allows cameras, depending on the judge.”
on the Fulton case