Trump would have to serve 5 years in prison before he can be pardoned in Georgia criminal case, expert says

Trump would have to serve 5 years in prison before he can be pardoned in Georgia criminal case, expert says
Former President Donald Trump at a rally in Georgia.Megan Varner/Getty Images
  • Georgia is a rare state that gives pardon power to an independent board instead of the governor.
  • The board also doesn't have the power to grant preemptive pardons, which is bad news for Trump.

Trump can't pardon himself out of this one.

If the former president is convicted in Fulton County District Attorney Fani Willis's new criminal case against him, he'll have to serve five years before he can be pardoned.

Willis's case, brought in Georgia, accuses Trump and 18 of his associates of forming an illegal enterprise to keep him in power, breaking numerous laws along the way. Trump was personally charged on 13 different counts. The top charge for racketeering, or RICO, carries a sentence of up to 20 years in prison.

Unlike in his two federal criminal cases, Trump can't expect a Republican president to pardon him before or after he goes to trial. Nor can he rely on a Republican governor in Georgia to pardon him and get rid of the criminal charges.

Georgia is one of five states that doesn't grant pardon power to the governor. Instead, the state's constitution gives pardon power to the state's five-member Board of Paroles and Pardons.


"If there were to be a sympathetic Republican elected president, Trump, on a federal conviction or the federal charges, could be given a pardon immediately," Ronald Carlson, a professor at the University of Georgia School of Law, told Insider. "That is not possible in Georgia."

The board's members are appointed by Georgia's governor for seven-year terms and confirmed by the state senate. They're also given statutory independence in the state constitution. While the Georgia constitution allows legislators in some cases to impose stricter sentences than the board might want, there's no other mechanism to impose pardons.

"It's set up in a statute here that's pretty insulated from political pressure," Carlson said. "And that's the way it should be."

All of the current board members have been appointed by Republicans — Georgia hasn't elected a Democrat to the governorship since the 1990s. Trump and the 18 other defendants in the indictment are likely to try to delay a trial, but there's no legal way someone can swoop in and protect them from the charges.

Even if every board member was sympathetic to Trump, they don't have the power to grant preemptive pardons, legal experts say. According to a Brookings Institution analysis, there isn't any case history in Georgia that supports pardons before a conviction.


"No case squarely holds that the Board of Paroles and Pardons can grant preemptive pardons, because the language in the Georgia Constitution is unequivocal: The Board may only grant pardons 'after conviction,'" the Brookings report authors wrote.

The Georgia pardon application guidelines say the board will only consider applications from people who have completed a "full sentence obligation," paid all fines, and "has been free of supervision (custodial or non-custodial) and/or criminal involvement for at least five consecutive years thereafter as well as five consecutive years immediately prior to applying."

In Carlson's interpretation, this means Trump needs to serve at least five years before he has a chance with the board.

"Here's the kicker: President Trump could only apply for a pardon if he were to be convicted only after he served five years in a Georgia penitentiary," he said.