Many legal experts are skeptical whether Trump could immediately receive a pardon if convicted on any of the counts in the Fulton County indictment alleging that he engaged in racketeering to overturn the 2020 election. The Daily Caller cited Ronald Carlson, a professor at the University of Georgia School of Law, who remarked that “President Trump could only apply for a pardon if he were to be convicted only after he served five years in a Georgia penitentiary.”
The authority that grants pardons in Georgia is the Georgia State Board of Pardons and Paroles which decrees that a defendant to be eligible for a pardon “must have completed all sentence(s) at least five (5) years prior to applying” and that the same defendant “cannot have any pending charges” against them. This measure also rules out a preemptive pardon by the Board. The Board itself is comprised of 5 members appointed by the governor and consented to by the state Senate.
The Georgia Constitution, unlike the decree from the Board, does not have this 5-year provision in its text. Further, the state constitution does permit the Board to “parole any person who is age 62 or older.” Trump is older than 62 years of age. Not everyone agrees with the assessment that there is no one who can pardon Trump unless he first serves 5 years of his sentence.
Mark Levin, a legal pundit, argued that “President Trump can, in fact, pardon himself from the GA charges if he is elected president” and cited the Supremacy Clause of the Constitution, which states that federal authority is greater than state authority, and the general silence in the Constitution over “whether a president can be indicted”.
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
There is also another matter to consider. The charges laid out against Trump by the Fulton County District Attorney include areas that are clearly out of her jurisdiction as it lists as evidence of overt conspiracy activities Trump and others did in other states to change those state’s official results. Only the federal government can have such authority to charge persons in this manner. Furthermore, there is the fact that Trump and many of those charged by the prosecution here were acting as federal officials and as such if a crime was committed it would fall under the color of federal law.
If so, then what Trump is being accused of, (which is a refusal to accept the 2020 election and “knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Trump”) is subject to federal jurisdiction and may be subject to the president’s pardon.