Can Georgia Governor Brian Kemp Pardon Donald Trump?

As Donald Trump faces a criminal investigation by the Fulton County District Attorney in Georgia, some have speculated whether Republican Governor Brian Kemp could preemptively pardon Trump for any potential state charges [1].

This raises questions around Georgia’s gubernatorial pardon powers and if they could legally apply to charges pending against someone like Trump. While Georgia governors have broad constitutional authority to grant pardons, political and practical barriers make issuing a preemptive pardon to Trump highly unlikely absent an indictment and conviction.

Georgia Governor’s Constitutional Pardon Power

The Georgia State Constitution grants the governor robust pardon powers, stating the governor “shall have the power to grant reprieves, commutations, and pardons” [2]. Pardons can cover state-level crimes and be issued at any time after an offense takes place.

However, issuing prospective pardons before charges are even filed remains rare and legally questionable. The president’s pardon power under the U.S. Constitution is more explicit in allowing pardons “for offenses against the United States” [3]. This clarifies they apply to past acts committed, not future speculative offenses.

Trump’s Georgia Legal Situation

The Fulton County DA is investigating Trump’s efforts to overturn Georgia’s 2020 election results. Potential state charges could include [4]:

  • Criminal solicitation to commit election fraud
  • Intentional interference with performance of election duties
  • Conspiracy
  • Violations of the RICO Act

No charges have been filed yet, but the probe remains active.

Political Barriers to Pardoning Trump Pre-Indictment

A prospective pardon of Trump by Governor Kemp would face steep political hurdles currently:

  • Kemp faces a competitive re-election race in 2022, likely deterring controversial acts like pardoning Trump pre-indictment [5].
  • Kemp rebuffed Trump’s demands to overturn Georgia’s election results, straining their relationship [6].
  • Many cite Kemp certifying Biden’s win as helping cost Republicans the U.S. Senate runoffs in 2021 [7].
  • Pre-indictment pardons for politically-connected figures threaten perceptions of improper favoritism [8].

With an already acrimonious history, Kemp pardoning Trump before charges would be politically risky.

Lack of Precedent for Pre-Indictment Pardons in Georgia

Pre-indictment pardons by Georgia governors are highly unusual:

  • The only recent example was a blanket pre-indictment pardon of around 1,100 people in 1995 by Governor Zell Miller [9]. But this mass pardon was related to a specific obsolete weapons charge, not targeting a specific individual.
  • Otherwise, Georgia pardons typically come only after a conviction and public application process [10].

Absent an indictment, no grounds exist yet for Kemp to justify pardoning Trump as routine procedure.

Questionable Legality of Preemptive Pardons

Pardoning someone not yet charged also raises uncertainties around legality:

  • Pardons before indictment could obstruct justice, interfering with fact-finding investigations [11].
  • They undermine due process rights of the accused who cannot formally accept or decline the pardon pre-charge [12].
  • Courts may be reluctant to honor a pre-indictment pardon deemed an abuse of power [13].

These factors make the legality of preemptive pardons questionable.

Practical Difficulties of Pardoning Before Charges

Trying to pardon pre-indictment also poses practical difficulties:

  • Hard to pardon unspecified and unknown offenses not yet charged [14].
  • Risks perception of abuse of power or cronyism through appearance of corrupt purpose [15].
  • No guarantee a pardon would prevent Trump’s prosecution by federal or other state authorities [16].

Issuing forgiveness before definitive wrongdoing also muddles the act of pardon as justice.


In theory, Georgia’s governor could pardon Donald Trump anytime under the broad constitutional pardon power. But firmly established precedents and norms around issuing pardons only post-conviction make preemptively pardoning Trump before any indictment highly questionable and unlikely.

While creative constitutional arguments may defend the legality of pardoning prior to charges in extreme hypothetical cases, the foundation for doing so appears unfirm when scrutinized. Any Georgia governor granting such atypical forgiveness absent evident public interest would risk perceptions of inappropriately shielding a political ally rather than serving justice.

While Donald Trump may end up seeking clemency from the legal consequences of the Georgia probe, established practice means such consideration only germinates after formal charges produce a record supporting possible mercy.


















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