Trump’s fourth indictment, in Georgia, could present the biggest threat to his freedom
Of the four criminal indictments now facing Donald Trump, the state case filed in deep blue Fulton County, Georgia, could present the biggest threat to his freedom.
The charges over his attempts to overturn the state’s 2020 election present a distinct set of challenges for the former president. Not only will he be tried in a county where three out of every four voters supported his opponent, but should a jury convict him, he will lack the tools currently at his disposal in other cases that could spare him from the most dire legal outcomes.
“There may be no greater threat to Trump’s liberty than a Fulton County jury willing to convict him,” said Anthony Michael Kreis, a law professor at Georgia State University.
Unlike the federal indictments brought this summer by special counsel Jack Smith, Fulton County District Attorney Fani Willis has charged Trump with crimes at the state level — where Trump’s long political shadow has less influence.
Willis charged Trump and 18 associates on Monday under Georgia’s racketeering statute, alleging they worked as a criminal enterprise to overturn the state’s election results.
Georgia’s governor will have no authority to pardon Trump if a jury convicts him. Instead, an independent Board of Pardons and Paroles may consider granting relief to individuals convicted in the state — only after they serve a minimum of five years of their prison sentence.
The state prosecution is also shielded from presidential pardon power, or from a friendly Justice Department should a newly-elected president decide to withdraw prosecution.
And Trump’s ability to move or appeal the case into the federal court system will be limited, with the Supreme Court empowered to take up state cases only when constitutional matters are at play.
The stakes are high: The charges facing Trump, under Georgia’s racketeering statute, have a mandatory minimum prison sentence of five to 20 years if convicted, although some or all of that sentence can be served in probation at the discretion of the judge.
Trump has said he is not guilty of the charges in all four indictments.
READ MORE: Trump’s first two indictments could mean prison. His third could change the presidency
“There are limitations that exist in a state or local prosecution that constrain his potential long-game options, in ways that the federal indictments do not preclude,” said Morgan Cloud, a law professor at Emory University. “Mr. Trump doesn’t have the tools available to stop this from moving forward, even up through sentencing.”
UNIQUE THREAT
These are not the only state charges facing the former president. The first criminal indictment that faced Trump earlier this year, in New York, is also shielded from the federal system.
But legal experts across the political spectrum have questioned the strength of that case, which charges Trump with falsifying business records in an attempt to cover up an extramarital affair in the heat of the 2016 presidential election. Even if Manhattan prosecutors were to secure a conviction, Trump would not be expected to serve prison time.
“There are outstanding questions about the strength of the New York case, because many legal observers question the novelty of the legal argument used,” Kreis said. “Between the two state cases, that puts Fulton County in a particularly important position.”
Trump’s attorneys may try to move the Georgia case to federal court, citing a federal law that allows a case to be moved from the state to federal level when it involves a public office holder performing their official duties. But legal experts consider that a longshot effort. If the case were ever to make it to a federal courtroom, it would likely be the Supreme Court, after state appeals were exhausted — and even that would not be guaranteed, experts said.
“Generally speaking, the Supreme Court has jurisdiction to review cases from a state’s highest court that present federal questions,” said Robert Litt, a former federal prosecutor and top attorney at the Office of the Director of National Intelligence. “So if Trump were to say, for example, that his conduct was protected by the First Amendment, he could appeal that through the Georgia state system and then petition for certiorari,” referring to review by a higher court.
But the Supreme Court’s role would be limited, Kreis said, “to review only federal constitutional challenges that would arise from an adverse decision against Trump in the state courts.”
Trump’s aides did not respond to requests for comment on the former president’s legal strategy.
NO LEGAL PRECEDENT
Time, however, could work in Trump’s favor.
With only 15 months remaining before the 2024 presidential election, polls show Trump is the frontrunner to win the Republican nomination, and a victory in the general election would raise unique and unprecedented questions over the fate of the Georgia case.
Were that to happen, “he would have a good argument that he cannot go to trial until after his term expires” based on longstanding guidance from the office of legal counsel at the Justice Department, said Barbara McQuade, who served as the United States attorney for the eastern district of Michigan from 2010 until 2017 when Trump requested a slew of resignations from U.S. attorneys.
“If he were to be convicted and sentenced, and then win the presidency,” McQuade added, “then God help us all.”
Willis took over two years to investigate whether Trump’s efforts to overturn the 2020 election results in Georgia amounted to a criminal conspiracy, and in that period allowed three other cases to be brought against Trump before hers — meaning that she will have to coordinate, and in some cases defer, on scheduling of court dates and trial proceedings alongside three other jurisdictions.
When a defendant is being tried at both the state and federal level, it is common for local prosecutors to defer to their federal counterparts on trial scheduling. Manhattan district attorney Alvin Bragg, who is leading the prosecution of Trump in the business records case, has said he would do so, but Willis has not commented yet on the matter.
Smith has charged Trump at the federal level with attempting to overturn the 2020 presidential election and, in a separate case, also indicted the former president over his alleged retention and concealment of highly classified documents. The special counsel has pursued speedy trials in both cases, requesting they begin in the first half of 2024.
McQuade said the Georgia charges “can be more potent” than the federal indictments, noting the state’s racketeering law carries a five-year mandatory minimum sentence. “None of the federal charges have a mandatory minimum,” she said.
Being incarcerated in a Georgia prison would invariably impede a president’s ability to perform his official duties. “If that’s the argument, it’s irrefutable,” Cloud said.
But even that defense may not be enough for the president to evade a prison sentence, if convicted.
There simply is no case law or precedent to determine what would come next.
“If Mr. Trump were to be elected president again,” Cloud added, “I don’t think anyone can predict how this ultimately would be resolved. It’s hard to imagine.”
This story was originally published August 14, 2023 at 10:16 PM with the headline "Trump’s fourth indictment, in Georgia, could present the biggest threat to his freedom."
