Donald Trump’s allies are searching frantically for legal methods to shut down the investigation in Georgia, another sign of MAGAworld’s growing angst over Trump’s mounting legal troubles — especially in Fulton County.
Last year, the former president told members of his inner circle that, by retaking the White House, he could close federal investigations into his alleged criminal past — and legal experts generally agree that as president he’d have the authority to do so.
But after Fulton County District Attorney Fani Willis charged Trump on Monday with leading an ongoing “criminal enterprise,” the former president is now facing two local indictments. And that has left his broad network of MAGAfied lawyers, political allies, and longtime conservative activists searching for legal theories that Trump could wield to either shut down these investigations or nullify potential convictions, three people familiar with the matter tell Rolling Stone.
Trump’s team has mulled asking the U.S. Supreme Court to intervene to throw out the Georgia case, arguing Willis lacks the authority to charge the former president. Only Congress can prosecute a president for actions taken while in office, so the logic goes (even though Willis’ indictment includes actions Trump took after he stepped down). They’ve considered a similar appeal to the state’s Supreme Court.
Legal experts say the argument is bunk. “This is something I have to say all the time: ‘Your feelings and the law are two different things,’ ” says Ken White, a former federal prosecutor. “The way that they think this law should be — or the way they feel that it is in a wishcasting way — has nothing to do with what the law is.”
But the wishcasting is nonetheless in full effect. Some of these legal strategies were privately described to Trump this summer, two of the sources add. At times, he has appeared rather receptive to the ideas when briefed by political allies or lawyers close to him, and he has sometimes asked for them to look further into these theories, the sources say. (Trump’s campaign did not immediately respond to a request for comment.)
Among the plans discussed with Trump this summer was the idea of appealing to the U.S. Supreme Court to intervene in a state-level investigation and shut it down.
In their research for this exceedingly novel idea, several lawyers and conservative activists aligned with Trump recently incorporated some ideas reflected in a memo published on Monday by the National Constitutional Law Union, a right-wing nonprofit. The group was founded by John Pierce, a conservative attorney who has represented more January 6 defendants than any attorney, and boasts MAGA figures such as New York Young Republican Club president Gavin Wax and Laura Loomer on its staff.
The memo argues that only Congress has the authority to prosecute Trump for crimes committed in office and that, absent a conviction in the Senate, the district attorneys and the special counsel’s office have no jurisdiction to prosecute the former president.
“We think that a writ of prohibition should be brought to the U.S. Supreme Court and the U.S. should shut all this down,” Pierce says, summarizing the memo’s recommendation.
It’s unclear what prompted Trumpworld’s interest in the memo, but an NCLU staffer tells Rolling Stone they privately flagged the document for a number of senior Trump aides and campaign staff in recent days.
Nevertheless, the legal theory doesn’t hold water, says Brian Kalt, a Michigan State University law school professor who has written extensively on presidential pardons and prosecution.
“That argument goes way too far,” Kalt says. If there is immunity for presidents, it would only apply to sitting presidents, he adds. “There’s no basis for arguing that presidential actions are forever immune. Once the president is out of office, any immunity they have goes away.”
“I’m very cautious about ever predicting what the Supreme Court will do, but I can’t imagine that they would ever buy that argument,” Kalt says. “Sitting president? Maybe. Former president? No.”
If they can’t shut down the investigation, Trump’s defenders are pushing for pardon — including through a plan for Georgia Republicans redo their state’s entire pardon process to benefit Trump.
For the former president, the situation seems especially dire in Georgia, where state law provides the state board of pardons and parole has the sole responsibility to grant pardons. But MAGA activists want GOP state lawmakers to change the law and have Republican Gov. Brian Kemp — a frequent target of Trump’s ire — pardon the former president.
Conservative defenders of the former president are looking to Kemp to help Trump beat the case. In recent years, Kemp had a falling out with Trump over the governor’s unwillingness to fully back the then-president’s efforts to steal the 2020 election.
“I think it’s incumbent upon Kemp to use every tool available under the law there,” Tom Fitton, president of the conservative Judicial Watch and a top Trump ally, tells Rolling Stone. “It’s not inappropriate for the state political leadership, elected leadership to be figuring out ways to protect Trump and other innocents from having their civil rights abused. He should be thinking outside the box — not outside the lawful box — to deal with this crisis.”
Trump allies, like Mike Davis, president of the conservative Article III Project, have also called for the Georgia state legislature to grant more power to the governor to issue pardons. “Under the Georgia law, there’s a statute that limits the Republican governor’s ability to pardon. I think that the legislature in Georgia needs to amend that statute and give Gov. Kemp the ability to pardon in this situation,“ he told Fox News in an appearance late Monday night.
Meanwhile, Trump’s Georgia attorneys have been signaling they will attempt to get the state’s supreme court to intervene and throw the case out since before the grand jury even issued an indictment. Superior Court Judge Robert McBurney, who presided over the grand jury investigation, dismissed a similar motion from Trump’s lawyers in early August.
Kalt, the law professor, was similarly skeptical of that legal avenue. “They have the option to appeal,” Kalt says, noting that that’s far different from having the court intervene to shut down a case.
Trump’s attorneys subsequently wrote in a court filing that “there are now other channels to seek judicial review of the underlying arguments,” referring to the state’s appellate court. In July, Georgia’s supreme court declined a similar request from the Trump legal team to intervene and block the grand jury investigation and it’s unclear whether the court will be more inclined to grant further such requests.
In a Truth Social post on Tuesday, Trump promised to deliver “A Large, Complex, Detailed but Irrefutable REPORT on the Presidential Election Fraud which took place in Georgia” at a press conference next week which he claimed would prove that “all charges should be dropped against me & others.”
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