The sweeping 41-count indictment brought this week by Fulton County, Georgia, District Attorney Fani Willis is the second effort to hold former President Donald Trump to account for the assault upon American democracy that culminated in the attack on the Capitol on Jan. 6, 2021.
Taking advantage of Georgia’s especially broad racketeering statute, or RICO, Willis is pursuing a very different prosecutorial approach than Department of Justice Special Counsel Jack Smith: Don’t target Trump alone, but sweep in the whole grab bag of conspirators large and small.
But the scope and number of defendants in each indictment is only the beginning of the two cases’ important differences: On many other constitutional points, the two indictments are far apart. And ultimately, the consequences might be very different indeed.
Trump can still run for office
Neither indictment, to be sure, will lead directly to Trump’s exclusion from office. The Constitution lists certain qualifications for all presidents, and the absence of a criminal conviction isn’t one of them. It is a paradox of our political culture that states have long tumbled over themselves to exclude felons from the franchise, even though those same felons could fill the highest office in the land, consistent with our basic law.
That doesn’t mean the Georgia indictment will have the same practical force as a federal conviction in Smith’s case targeting Trump’s election interference. Simply put, the Georgia case is more pardon-proof.
Article II of our Constitution grants a president power to pardon any federal offense. That includes every offense Smith has charged. What if a future President Trump pardoned himself? By carving out an explicit exception for impeachment, the drafters of Article II suggested that there is no other limit to the pardon power. Indeed, there is no basis in either the text or historical practice for rejecting out of hand the possibility that Trump could issue himself a pardon. And the Supreme Court’s case law strongly hints that Congress can’t limit the pardon power either.
As a practical matter, moreover, it would be tricky to find a way to challenge a self-pardon in court. So even if someone concludes that the logic of the Constitution’s design can’t be squared with an auto-pardon, they would be hard-pressed to do much about it. For all intents and purposes, a self-pardon might survive simply because there would be no clear way to undo it.
In contrast, the president has no power to pardon a state conviction. Nor, indeed, does the governor of Georgia — not that it’s clear that Brian Kemp would fall over himself to do so. Pardons in Georgia are instead handled by a five-member board that is limited to stepping in no less than five years after a sentence has run its course. Even a suspended sentence in Georgia is likely to come with certain probation obligations — and so would not be immediately amenable to a pardon.
A long, bumpy road
Whether a state conviction is ever reached, however, is another question. The Georgia indictment is so wide in scope, with so many defendants, that it is possible to imagine it dragging on for years. Were he elected president, Trump might seek a stay of proceedings on the grounds that the case might interfere with his performance of presidential duties. Golfing jokes aside, this is not a terrible argument, and it’s easy to see the present Supreme Court hitting the pause button on the state case for four years.
At the same time, the Georgia case’s overlap with Smith’s election-tampering indictment will bring on its own legal headaches. Those cases are likely to have many of the same witnesses. But a prosecutor cannot force a witness to testify, consistent with the Fifth Amendment’s protection against self-incrimination, unless she gives the witness a certain kind of immunity.
The Supreme Court has said that the Fifth Amendment demands what’s known as “derivative use” testimony. This means that if, say, Rudy Giuliani is required to testify in the Georgia case, then no prosecutor can make use of either that testimony or its fruit in a subsequent case against Giuliani. Especially if Smith decides to expand his indictment, this could prove a problem.
So even if the Georgia case might in the end prove more consequential, it’s also likely to produce its fair share of bumps along the way.
Aziz Huq is the Frank and Bernice J. Greenberg Professor of Law at the University of Chicago Law School. His most recent book is “The Collapse of Constitutional Remedies.”
This op-ed is published as part of “The Democracy Solutions Project,” a partnership among the Chicago Sun-Times, WBEZ and the University of Chicago’s Center for Effective Government to examine critical issues of democracy in the run-up to the 2024 election.
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