Fani Willis’ Case Against Trump Is Almost Inexcusable — Raising the Possibility of a State Suit Against a Sitting President

When President-elect Trump takes the oath of office on January 20, the Constitution mandates that he “shall have the power to grant Reprieves and Pardons for crimes against the United States.”

This was taken to cover federal crimes, such as those introduced by Fulton County district attorney Fani Willis, but not state crimes. It charged Trump and 18 others with racketeering and other crimes against the Peach State in connection with efforts to overturn the outcome of the 2020 presidential election.

The cases against Ms. Willis and Manhattan District Attorney Alvin Bragg, along with Trump’s victory in November, opened up hitherto uncharted constitutional territory: Can a president be tried for state crimes while in office? The answer to that question could determine the fate of Ms. Willis’s and Mr. Bragg’s cases and the extent of the presidency’s protection.

Pardons for state crimes generally fall under the purview of the governor, the state’s highest executive authority. Georgia is led, to say the least, by Governor Kemp, a prominent Republican who has a fraught relationship with the 45th president, who is currently the 47th president-elect.

Mr. Kemp opposed President Trump’s efforts to overturn President Biden’s victory in Georgia in 2020, and the president-elect supported his opponent two years later. He also called Mr. Kemp a “disloyal man” and a “very average governor.” … Little Brian, little Brian Kemp, bad guy.” This year, when Mr. Kemp backed Trump and Georgia tilted Republican, both are a thing of the past.

Even as Mr. Kemp moved to pardon Trump in Ms. Willis’ case, Georgia law ties his hands. The state is one of six states where pardons are granted by an independent panel. Georgia State Board of Pardons and Paroles. Unlike the presidential pardon power, where no conviction is required, Georgia requires not only a “guilty” verdict or plea but also a five-year waiting period before a pardon is granted.

If criminals want to bypass this half-decade waiting period, they must present “concrete evidence” showing that “the punishment is excessive, illegal, unconstitutional or invalid” and that “such action would be in the interest of society and the public.” doomed Members of the Pardon and Parole Board are appointed by the governor but serve seven-year terms to protect them from political pressure.

Georgie tightened the amnesty process after a report in Time Magazine in 1941: “Georgia: The Pardoner’s Story” — this described how the then-governor’s “smart, amiable, gold-toothed” chauffeur was accused of “driving to the prison camps in Fulton County with pardons already signed” and was asked to see prisoners he didn’t know and who didn’t recognize him.

There may be another way, other than a pardon, for Mr. Kemp to derail Ms. Willis’s quest for an incumbent. In March, the governor signed a law giving a state commission the authority to discipline and fire prosecutors. Before putting pen to paper, he declared that the legislation would “help us ensure that rogue and incompetent prosecutors are held accountable if they refuse to follow the law.”

This is Mr. Kemp’s second attempt to establish such a body — an earlier version of the law required approval by Georgia’s supreme court, which challenged it on the grounds that it raised “serious doubts” about its constitutionality.

Ms. Willis, who last month sought Trump’s re-election, condemned the legislation, which could lead to increased scrutiny of her office. He argues: “This bill was never considered necessary until a historic event occurred in 2020, and let’s talk about it and tell the truth… We went from five district attorneys who were minorities to 14 district attorneys who were minorities in 2020.”

Since Special Counsel Jack Smith, who spearheaded two federal cases against Trump, has already resigned himself to the insurmountability of prosecuting a sitting president, the effort to convict Trump for election interference now falls solely on Ms. Willis. Both the Mar-a-Lago and Jan. 6 cases were dismissed, albeit without prejudice, meaning they could be reopened in Trump’s post-presidency.

The Department of Justice’s Office of Legal Counsel considers there to be a “categorical” prohibition on suing a sitting president. Ms. Willis is not subject to such a restriction, in large part because a sitting president’s vulnerability to state investigation has never been exposed until now. The Supreme Court’s decision on this issue Trump / United States The presumptive immunity of all official presidential decisions appears to be the case for both state and federal prosecutors.

At Trump’s other state criminal trial in Manhattan, Mr. Bragg asked Judge Juan Merchan to explore “various non-removal options” to freeze 34 secret money convictions that were “pending” during Trump’s presidency. Trump wants the rulings thrown out because of his election victory and his upcoming second term being sworn in as president.

A similar debate could soon erupt in Georgia, where Ms. Willis’s case has been pending for months and where first Judge Scott McAfee and now the Georgia Court of Appeals are hearing arguments about whether Ms. Willis should be disqualified for implicating her co-defendants. for “playing the race card” and pursuing a secret romantic relationship with her handpicked special prosecutor, Nathan Wade.

The appeals court mysteriously canceled a hearing set for December 5 to hear oral arguments on whether what Judge McAfee called Ms. Willis’ “smell of lies” and “a distinct appearance of impropriety” was enough to remove her from the case . Appellate lawyers may have been assessing the impact of Trump’s election victory, or they may have determined that the already completed brief was sufficient to determine the question.