The Presidential Pardon Power is not Absolute
President Trump’s recent commutation of the prison sentence of his long time associate Roger Stone has drawn criticism or outrage from almost all sides. Most are resigned to the fact that nothing can be done to undo this manifest injustice. I respectfully disagree.
The Supreme Court has held that the commutation power is included in the Pardon Power (Biddle v. Perovich, 274 US 480 (1927)). If a president can fully pardon an offender who has been convicted and sentenced in a federal court, he can instead choose to take a lesser action to accomplish his desired result.
In this case, the public statements of the principals and the record as a whole support the conclusion that the president acted to induce his friend not to change his mind and start cooperating with federal law enforcement officials. This is plainly a corrupt purpose to protect the president, not a benign effort to spare a senior citizen the discomforts and risks of incarceration in a federal prison.
In my view, the district court judge who presided over Stone’s trial should request briefs and summon the parties for an emergency hearing on the legality of the commutation. In the meantime, she should issue an order staying the commutation. This is similar to the initiative the judge in the Flynn case took, when the Justice Department sought to dismiss the charges against a Trump associate defendant who was already convicted pursuant to his voluntary plea of guilty.
As powerfully addressed in an opinion piece, written before the presidential commutation in Stone’s case, on politico.com by Corey Brettschneider, a professor of political science at Brown University and visiting professor of law at Fordham Law, the Constitution’s framers anticipated a situation in which a suspected criminal president would pardon one of his co-conspirators.
To quote Professor Brettschneider:
“Both the plain meaning of the Constitution’s text and the historical evidence show that once a president has been impeached, he or she loses the power to pardon anyone for criminal offenses connected to the articles of impeachment — and that even after the Senate’s failure to convict the president, he or she does not regain this power.
Under Article II, Section II of the Constitution, the president is given the “power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.” Pardons are supposed to be used as acts of mercy. The framers thought of the pardon power as a “benign prerogative”—prerogative because it was mostly unchecked by courts or Congress, but benign because presidents would use it for the public good.
But the framers knew not to place blind trust in the president to wield the power justly. That’s why they forbade a president from exercising the pardon power in “cases of impeachment.”
This phrase is often interpreted to mean that a president cannot use his pardon power to stop an impeachment case of someone else from proceeding in Congress. But the phrase should also be interpreted as preventing the worst abuse of the pardon power: an impeached president’s pardoning of cronies who have been convicted of crimes related to the president’s own wrongdoing.
This danger of a president using the pardon power to excuse his or her own crimes was discussed by George Mason at the 1788 Virginia ratifying convention, where delegates debated whether to adopt the document that had been drafted in Philadelphia. Mason thought the danger of the pardon was so great that it was among the reasons he argued the Constitution should not be ratified, and why he refused to sign the document. “The President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?”
Defenders of the Constitution knew they needed a robust response to the danger of a president’s abusing the pardon to protect co-conspirators. James Madison, a primary author of the Constitution, argued in reply to Mason that such pardons were barred by the Constitution as already written. He pointed to the protection already in the Constitution: No president could pardon co-conspirators. “If the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter himself; the House of Representatives can impeach him,” Madison responded to Mason. “[T]hey can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the vice-president.”
Here Madison provides evidence that the intent of the framers was to limit the pardon power from being extended to a president who wanted to use it to pardon co-conspirators. His remarks are a guide to how we should interpret the limit explicitly written into the Constitution when it comes to cases of impeachment: It strips a president of the power to use a pardon to “shelter” anyone “connected in any suspicious manner” with the president’s alleged high crimes and misdemeanors.
The limit on pardons for co-conspirators wouldn’t affect many of the president’s pardons. Pardoning convicted criminals like former Illinois Governor Rod Blagojevich might be ill-advised, but it is still permitted. By contrast, pardoning longtime adviser Roger Stone would not be permitted, as his crimes relate directly to the impeachment case.
Stone was convicted on seven criminal counts centered around allegations that he had lied to Congress during his September 2017 testimony to the House Intelligence Committee as part of the Mueller investigation. The investigation of Stone relates to the charges that the president abused power by soliciting foreign intervention into our election and that he obstructed justice in trying to hide that “high crime and misdemeanor.”
The best evidence that Stone is tied to those charges is his own self-described role as a protector of the president. “I will never roll on [Trump],” Stone declared in one of many statements. That makes him exactly the type of person Madison had envisioned while limiting the president’s pardon power.
It is true that the Stone investigation concerned Russian involvement in the election and that the House charges focused on the more recent Ukraine accusation. But the articles of impeachment focused on the accusation of “abuse of power,” and it is that general high crime at play in Ukraine and elsewhere that links the impeachment and Stone.
Inevitably, some will argue that an impeached president should regain the power to grant clemency to his alleged co-conspirators in cases of acquittal by the Senate. That ignores not only the framers’ clear intent, but also the plain text of the Constitution.
The framers deliberately used the phrase “cases of impeachment,” not “conviction.” One reason why is simple: A president convicted by the Senate would be removed from office, and thus unable to pardon anyone. As such, there would be no reason for the Constitution to curb a convicted president’s pardon power. No exception to the pardon power needs to be granted, because no such power exists.
Moreover, the framers provided no explicit avenue for him to regain the power they took away after a House impeachment vote. Time limits are common in the Constitution—think of the president’s four-year term—and the absence of one connected to the pardon power suggests that the power is not in fact lost for a limited duration. In the absence of an explicit reinstatement of pardon power in the text, the strong presumption has to be that it is still lost.
Nothing in the framers’ comments or the text itself speaks of the Senate vote to not convict as restoring the pardon power. The Senate trial is not subject to the rules of criminal law; presidents are not accused criminals who get all of their rights back upon a not guilty verdict. Moreover, the decision to impeach is left to the House “alone,” according to the Constitution’s text. Generally, the Senate and House have distinct powers in matters like taxation and ratifying treaties. The powers of each body in impeachment are also distinct. The percentage of votes required for impeachment in the House and conviction in the Senate are distinct. So are the penalties. Only the House can decide whether to impeach the president, and only the Senate can decide upon removal and disqualification from office.
The argument for a constitutional limit on the power to pardon co-conspirators is strengthened by the widely acknowledged implicit limit on “self-pardons.” The Department of Justice’s Office of Legal Counsel, prompted by the possibility that President Richard Nixon would try to grant clemency to himself for his role in Watergate, argued that a president could not pardon himself. According to that office, no person should be a “judge in his own case”; therefore, no president could self-pardon. Although not technically a self-pardon, pardons for co-conspirators are similarly aimed at self-protection, so should also be barred.
The dangers of Trump’s pardoning someone “connected” to his own alleged high crimes in a “suspicious manner” have not abated after the Senate vote. They have, if anything, been amplified because he appears to have interpreted the failure of the Senate to convict him as evidence that he is unchecked in his power.
Both constitutional law and common sense suggest that he loses the pardon power forever in cases related to the impeachment. But the Constitution requires people to enforce it. If the president attempts to pardon Stone, his own lawyers and those in the Department of Justice should inform him that such a pardon would exceed his powers as president, just as Nixon’s Office of Legal Counsel told Nixon he could not self-pardon.
Congress should act, too. If it reopens impeachment inquiries into the obstruction of justice outlined in Part Two of the Mueller report, that would only strengthen the case for a limited pardon power in regard to Stone, because the subject of his conviction would be an ongoing “case of impeachment.” More aggressively, it could open a new impeachment inquiry into Trump’s relationship with possible co-conspirators like Stone, which would also have the effect of limiting his possible pardon.
If Trump’s lawyers and advisers fail to stop him, and the president moves ahead with a pardon for Stone, it is incumbent upon any judge asked to enforce that pardon to deny it on constitutional grounds. The Supreme Court has never ruled on the meaning of the impeachment exception to the pardon power because such a pardon of a co-conspirator by a president who has been impeached is unprecedented. But the need to stop it is dire. Otherwise, the original purpose of the pardon power—to show mercy to others—will be turned on its head. Instead, the pardon power will be converted into a self-serving tool of an aspiring despot, precisely the danger Mason warned against.”
Back to me: In my opinion, the court that presided over Stone’s criminal case is the appropriate forum for ruling on the legality of the president’s action. It has a duty to prevent the corrupt interference in the execution of its judgment. We live under the rule of law. Who will be next? Flynn, Manafort, others? Let’s not wait until our president, freshly emboldened, decides the political winds and his own future protection from criminal prosecutions warrant further interventions.
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