Georgia’s indictment of Trump is a confirmation of states’ rights, a favorite cause of Republicans since Reagan

Fulton County Sheriff officers block off a street in front of the Fulton County Courthouse on 2023 Aug 14 in Atlanta, Georgia.
Joe Raedle/Getty Images

By Foundation Professor of Law and Political Science, Arizona State University
For the past 50 years, Republican policymakers and judges have sought to bolster federalism in the United States. Since Ronald Reagan’s first inaugural address in 1981, Republicans have been calling for policymakers to rein in the federal government in favor of devolving more power to the states.

Contrary to what it sounds like, “federalism” does not mean a strong central government. Instead, it refers to a system of government in which the people may be regulated by both the federal and state governments.

Reagan succinctly expressed it in his 1981 inaugural speech: “It is my intention to curb the size and influence of the Federal establishment and to demand recognition of the distinction between the powers granted to the Federal Government and those reserved to the States or to the people.”

Criminal cases involving Donald Trump

There are several criminal investigations into various actions by former President Donald Trump. Here’s a list of them, the jurisdictions involved and their legal status as of the latest update of this graphic. The case descriptions are links to The Conversation U.S.’s coverage of that topic.

Business records falsification New York Indicted 2023 Mar 30; pleaded not guilty; awaiting trial scheduled for 2024 Mar 25.
Hoarding classified documents Federal–Southern District of Florida Indicted 2023 Jun 09; additional charges filed 2023 Jul 27; pleaded not guilty to initial and additional charges; awaiting trial scheduled for 2024 May 20.
Attempting to overturn 2020 election Federal–District of Washington D.C. Indicted 2023 Aug 01; pleaded not guilty; awaiting a trial that has not yet been scheduled.
Election 2020 interference Georgia Indicted 2023 Aug 14; no plea entered yet.

All U.S. citizens are actually citizens of two separate governments: They are citizens of the United States as well as citizens of the state in which they live. And they are subject to two systems of law as a result.

The Framers valued federalism – and the division of power between different levels of government – as a bulwark against tyranny and a protector of liberty.

But this division of power has doubled the trouble for the leading Republican in the country: former president and likely GOP presidential nominee Donald Trump, who now stands indicted on 13 criminal counts by a Fulton County, Georgia, grand jury for “knowingly and willfully” joining “a conspiracy to unlawfully change the outcome of the election.” Eighteen others were also indicted on a variety of charges related to the attempt to overturn the election.

A dark haired woman in a dark dress, looking pensive.
Fulton County District Attorney Fani Willis in a 2023 Apr 19, portrait in Atlanta. AP Photo/Brynn Anderson, File

Prosecutions by ‘separate sovereign governments’

With federalism come two sources of law – state and federal – which creates a complex web of regulations that can lead to criminal charges at both the state and federal levels, even for the same behavior.

While this may sound like a violation of the constitutional ban on double jeopardy, that constitutional protection only applies to repeated prosecutions by the same sovereign government. The state and federal governments are separate sovereign governments.

The federal government may criminalize behavior within the constraints imposed by the U.S. Constitution that limit federal power. Most federal crimes involve some form of interstate travel or transactions, for example. But the states’ criminal codes may often regulate the same behavior or additional behaviors with different standards and different penalties.

For example, when Timothy McVeigh blew up the federal building in Oklahoma City in 1995, he was subject to prosecution by both state and federal officials for violations of the laws of both governments.

McVeigh committed federal crimes, such as use of a weapon of mass destruction on federal property and the murder of federal law enforcement officers. The state of Oklahoma [could also have prosecuted him] for violating Oklahoma murder statutes, among other state criminal violations, although once McVeigh was convicted and sentenced to death in a federal trial, Oklahoma prosecutors did not ultimately seek to bring a case against him.

Donald Trump is now experiencing the full weight of a system of government in which criminal law is produced and enforced by law enforcement agencies and prosecutors across 50 states and by one powerful central government.

A woman in a sleeveless orange dress, holding papers and walking in a wood-paneled room.
Fulton County Court Clerk Che Alexander arrives with indictments for Superior Court Judge Robert McBurney on 2023 Aug 14 in Atlanta, Georgia. Megan Varner/Getty Images

The ‘very essence’ of federalism

Trump’s activities in Georgia and New York may be prosecuted independently by state prosecutors – district attorneys and state attorneys general – under those states’ criminal codes.

At the same time, many of the facts implicated in the Georgia and New York cases could contribute to, or be relevant to, federal criminal prosecutions as well.

Prosecutions at both levels represent the very essence of federalism in action.

Usually in such circumstances, state and federal prosecutors must negotiate with one another about who will bring their prosecutions first, and how the state and federal trials will be managed and accommodated by each government.

But no matter what, neither set of officials has the power to deny the other the chance to prosecute a defendant who has violated the laws of their respective jurisdictions.

There is abundant irony in the fact that federalism – championed by Republicans and conservative judges for decades – now has come to haunt the leading Republican for the U.S. presidency.

And even more ironic is that even if he becomes president again, Donald Trump will not have the authority to pardon himself – if that is even constitutional – or anyone else for the violation of state crimes.

Presidential pardon authority extends to federal crimes alone.

Author Disclosure Statement

Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond her academic appointment.


Arizona State University provides funding as a member of The Conversation US.

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