Former President Donald Trump was indicted on 13 felony charges in Fulton County, Georgia, late Monday, which included violations of Georgia's Racketeer Influenced and Corrupt Organizations statute that prohibits racketeering and is punishable by up to 20 years in prison.
Trump was charged as part of 41 total counts brought against 19 defendants, comprising a list of key figures who allegedly aided in his efforts to subvert the 2020 election results in the Peach State, according to the indictment from Fulton County District Attorney Fani Willis that was handed up by a grand jury before midnight on Monday.
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Few pardon options in the Peach State
Unlike the federal charges he is facing as part of special counsel Jack Smith's cases brought against him, Trump could not be pardoned by a president or pardon himself in Georgia if he is convicted because they are state charges. Presidents may only be pardoned for federal crimes, such as Smith's case accusing Trump of attempting to subvert the 2020 election or his allegations of mishandled classified records.
The only way a defendant can be pardoned in the state is by an independent board composed of five members appointed by the governor. Additionally, "you must have completed all sentence(s) imposed upon you at least five (5) years prior to applying and have lived a law-abiding life since the completion of your sentence(s). You can have no pending charges against you. Your fines must be paid in full," according to the State Board of Pardons and Paroles.
Trump could seek a federal trial
Trump could attempt to move the case from state to federal court, as he has so far unsuccessfully tried to do in his New York case accusing him of engaging in a "catch and kill" scheme to give hush money to a porn star.
Steve Vladeck, a professor at the University of Texas School of Law, said Tuesday that whether Trump can remove the Georgia case to federal court raises questions about the scope of the "federal officer removal statute," which allows a basis for removal if the defendant is "acting under the color of their office," according to the language of the statute.
Trump may seek to argue that the statute applies to him because the crimes he is accused of happened while he was in office. "But even if Trump succeeds in removing the case, the offenses are still Georgia state crimes, not federal offenses subject to Article II," Vladeck said, meaning the same pardon rules would apply.
"I would imagine that Mr. Trump would seek to move the case to federal court for the trial," Trump impeachment lawyer David Schoen told Newsmax on Monday. Ultimately, moving the case to federal court could be seen by Trump as an attempt to score a more favorable jury or potentially a more preferable federal judge.
What's different about RICO in Georgia?
The criminal charges filed against Trump in state court allege he violated the anti-organized crime law known as RICO, which is more expansive than its federal counterpart.
Lawmakers passed the Racketeer Influenced and Corrupt Organizations Act in 1970 to combat organized crime, such as the mafia.
While the main requirements under the federal RICO law are at least two underlying crimes and participation in a criminal enterprise for a long period of time, Georgia's RICO law doesn't require a criminal enterprise to be long-running and lists nearly 50 underlying crimes that qualify as racketeering, rather than the 35 under its federal counterpart.
Trump and his top allies, including his former lawyer Rudy Giuliani, former White House chief of staff Mark Meadows, and a top former Justice Department official, Jeffrey Clark, were named in the indictment. Others named include lawyers John Eastman, Sidney Powell, Kenneth Chesebro, Jenna Ellis, Ray Smith, and several more.
It's also notable that Giuliani is now facing a RICO charge himself, as he made his career as a prosecutor using RICO to go after organized crime in New York City.
Will Trump see jail time?
The RICO charge carries a sentence between five and 20 years, while an individual conspiracy conviction can result in a minimum sentence of one year in prison with a variable maximum sentence. The judge has the discretion to sentence the person to solely probation, prison time, or a combination of both.
Trump faces 13 felony counts: one RICO violation, three counts of solicitation of violation of oath by a public officer, conspiracy to commit impersonating a public officer, two counts of conspiracy to commit forgery in the first degree, two counts of conspiracy to commit false statements and writings, conspiracy to commit filing false documents, filing false documents, and two counts of false statements and writings.
After Monday marked Trump's fifth indictment across four cases in less than five months, the stakes for his legal troubles reached a fever pitch due in part to the limited ways around navigating a potential conviction in Willis's case.
During a press conference, Willis said if Trump is convicted of the RICO charge, "there is no probation," and there would be a five-year mandatory minimum sentence. He, however, could appeal the verdict and hope for a reversal on appeal.
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Trump could also pursue other long-shot efforts in the Peach State to ward off his charges, including attempting to start impeachment proceedings against Willis in the state's House and Senate, though achieving a two-thirds majority vote would be difficult.
The former president's allies could also take advantage of a new law signed by Gov. Brian Kemp (R-GA) that created a Prosecuting Attorneys Qualifications Commission, which provides a new "power to investigate and discipline or remove elected district attorneys or solicitors-general in specific instances, including if they are consistently not fulfilling their duties as such,” according to a Georgia Senate news release from May 8.