Can Trump Evade Extradition to Georgia?

The Fulton County District Attorney, Fani Willis, has convened a special grand jury to investigate former President Trump’s attempts to overturn the 2020 election results in the state of Georgia.¹ Simultaneously, the Manhattan District Attorney, Alvin Bragg, is leading a criminal investigation into the finances of the Trump Organization.² As these investigations progress, it appears likelier and likelier that the United States will soon face an historic event: the indictment of a former president. Of course, President Trump no longer lives in New York and has never lived in Georgia. He has taken up residence in a state more hospitable to him: Florida. In the event of a state indictment being issued, President Trump could attempt to evade its reach by fleeing to Mar-a-Lago, his oceanside mansion, and beseeching Governor Ron DeSantis to protect him under a loophole in the Extradition Clause of the Constitution.

Trump is no stranger to pushing the boundaries of political norms, and a move like this is not entirely out of the question. It is important to note, though, that a federal indictment would constitute an entirely different case; in the event of the Department of Justice filing charges, none of the loopholes discussed in this article would apply.

Even in a state-indictment scenario, the path to protection in Florida is narrow and constitutionally questionable. The Extradition Clause of the Constitution stipulates that “A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.”³ The Supreme Court in Puerto Rico v. Branstad (1987) has interpreted the clause as a duty upon state governors that is enforceable by federal courts by writs of mandamus.⁴ Thus, it seems that Governor DeSantis would be powerless to shield President Trump from a legitimate extradition request from another state.

But a loophole might make it possible for Florida, through a convoluted employment of state criminal custody, to indefinitely deny the extradition of President Trump. Were President Trump to be arrested, tried, convicted, and incarcerated for a crime in Florida, Governor DeSantis could potentially deny his extradition based on the fact that he is serving a sentence in the custody of the state. Of course, assuming President Trump’s goal is to remain free, imprisonment in Florida would not really solve his problem. There is a solution, but at this point, the country may enter uncharted legal waters. With President Trump having been convicted of a crime in Florida, Governor DeSantis could use his broad powers of clemency to commute Trump’s sentence to confinement within the state. Florida could then argue that even a commuted sentence constitutes a form of incarceration under which an extradition request can be denied.

At the outset, there is concern as to whether the governor can commute a sentence to state confinement. The Florida powers of clemency use broad language. The governor can issue a commutation which “may adjust an applicant’s penalty to one less severe but does not restore any civil rights, and it does not restore the authority to own, possess, or use firearms.”⁵ The Florida State Constitution explicitly bestows this power on the governor, subject to the approval of two cabinet members.⁶ It is a reasonable assumption that a sentence akin to parole, with the restriction that the individual must not leave the state, would qualify as a “penalty less severe” than imprisonment. However, such clemency would almost certainly open President Trump to challenges that he would no longer count as being in custody, which is the standard under which Governor DeSantis could reject an extradition request. There is little case law in this area, likely because this particular loophole has never been attempted. Even so, the Supreme Court in Jones v. Cunningham (1963) has held that state parole is considered as being “in custody” for the purposes of adjudicating federal writs of habeas corpus.⁷ Florida could make a similar argument if challenged. This component of the maneuver is probably the weakest; courts would have to accept that non-physical custody constitutes incarceration, even if President Trump has freedom of movement within the state, which is a bit of a legal stretch.

If, however, all assumptions hold and President Trump is able to freely roam Florida while still considered in custody, his bid to avoid extradition has a legitimate chance of success. There are two major interstate compacts that govern interstate extradition, both of which Florida is a party to: the Interstate Agreement on Detainers⁸ and the Uniform Criminal Extradition Act.⁹ The former does require extradition of prisoners in certain circumstances, but the procedures only take effect upon the initiation of a defendant, which does not apply in this case.¹⁰ The latter allows for the extradition of an individual held under criminal proceedings in a state, but it does not require it.¹¹ Thus, neither of these compacts would be a limiting factor in this scenario; therefore, the ultimate question is whether the Extradition Clause of the Constitution compels such extradition. This question has not been resolved conclusively by the courts, but there is substantial precedent to indicate that the Constitution does not compel extradition of individuals held in the custody of a state until such custody lapses. The Supreme Court, in Taylor v. Taintor (1872), held that “where a demand is properly made by the governor of one state upon the governor of another, the duty to surrender is not absolute and unqualified. It depends upon the circumstances of the case. If the laws of the latter state have been put in force against the fugitive and he is imprisoned there, the demands of those laws may first be satisfied.”¹² In the wake of Puerto Rico v. Branstad (1987),¹³ which reinterpreted the federal government’s role in enforcing extradition requests, the New Jersey Supreme Court found that “rendition remains discretionary if the fugitive demanded is incarcerated in the asylum state for a violation of that state's laws” in State v. Robbins (1991).¹⁴ Taintor clearly indicates, and Robbins upholds post-Branstad, that, were President Trump to be held in a Florida prison, he would be immune from a Georgia or New York extradition request until his sentence was completed, provided that the Governor of Florida agreed to deny the request. As previously stated, however, the biggest challenge to this approach would be convincing the courts that a scheme of state confinement is legally equivalent to actual incarceration.

Regardless, legal feasibility aside, it is important to acknowledge that the political likelihood of this maneuver being attempted is minimal. President Trump would have to submit himself to both the public spectacle of the Florida criminal justice system and the very real risks it carries, and Governor DeSantis would open himself to national scrutiny and the certainty of a bevy of costly lawsuits. It would be difficult to convince the voters of Florida that such a boondoggle is fiscally worthwhile or the GOP leadership that it is politically worthwhile, especially in the face of challenging economic conditions and potentially narrow electoral margins in the state.

In all likelihood, President Trump would be better off attempting to simply beat the case in court instead of confining himself to Florida through tortured legal logic. Even so, it is interesting to consider all the potential tools at his disposal, given that he often chooses unorthodox, norm-busting approaches to his legal conundrums. Though exploiting this loophole in the interstate extradition system has dubious chances of ultimate success, at the very minimum it would delay extradition as Florida fought in federal court. If he is overly concerned with the partisan biases of either New York or Georgia’s criminal justice systems and is committed to taking significant risks to avoid being subject to their jurisdictions, Governor DeSantis and Florida custody might be Trump’s next option.

References

1. “Trump Rages at Fulton County Prosecutor as Georgia Election Probe Continues | The Independent,” accessed October 26, 2022, https://www.independent.co.uk/news/world/americas/us-politics/trump-fulton-county-grand-jury-probe-b2170794.html. ↩

2. Kristina Sgueglia, “Trump Org. Investigation Continues, NY District Attorney Says | CNN Politics,” CNN, September 8, 2022, https://www.cnn.com/2022/09/08/politics/trump-org-investigation-continues-ny-district-attorney-says/index.html. ↩

3. “U.S. Constitution | Constitution Annotated | Congress.Gov | Library of Congress,” accessed October 26, 2022, https://constitution.congress.gov/constitution/. ↩

4. “Puerto Rico v. Branstad, 483 U.S. 219 (1987),” Justia Law, accessed October 26, 2022, https://supreme.justia.com/cases/federal/us/483/219/. ↩

5. “Clemency,” accessed October 26, 2022, https://www.flgov.com/clemency/. ↩

6. “The Florida Constitution - The Florida Senate,” accessed October 26, 2022, https://www.flsenate.gov/Laws/Constitution#A4S08. ↩

7. “Jones v. Cunningham :: 371 U.S. 236 (1963) :: Justia US Supreme Court Center,” accessed October 26, 2022, https://supreme.justia.com/cases/federal/us/371/236/. ↩

8. “Statutes & Constitution :View Statutes : Online Sunshine,” accessed October 26, 2022, http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0900-0999/0941/Sections/0941.45.html. ↩

9. “Chapter 941 - 2011 Florida Statutes - The Florida Senate,” accessed October 26, 2022, https://www.flsenate.gov/Laws/Statutes/2011/Chapter941/All. ↩

10. “INTERSTATE AGREEMENT ON DETAINERS,” accessed October 26, 2022, https://uscode.house.gov/view.xhtml?path=/prelim@title18/title18a/node5&edition=prelim. ↩

11. “Chapter 941 - 2011 Florida Statutes - The Florida Senate,” accessed October 26, 2022, https://www.flsenate.gov/Laws/Statutes/2011/Chapter941/All. ↩

12. “Taylor v. Taintor, 83 U.S. 366 (1872),” Justia Law, accessed October 26, 2022, https://supreme.justia.com/cases/federal/us/83/366/. ↩

13. 483 U.S. 219 (1987) ↩

14. “State v. Robbins, 124 N.J. 282 | Casetext Search + Citator,” accessed October 26, 2022, https://casetext.com/case/state-v-robbins-124. ↩