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February 27, 2020
Is Prez Trump legally unable to grant clemency to Roger Stone?
The question in the title of this post is prompted by this new Politico Magazine piece by Corey Brettschneider headlined "Why President Trump Can’t Pardon Roger Stone." Here are excerpts:
Speculation that President Donald Trump might pardon Roger Stone has reached a fever pitch after Stone’s sentencing by a federal judge and the president’s repeated hints that he thinks the verdict unfair. But fortunately, the Constitution’s framers imagined this nightmare scenario — a suspected criminal president pardoning a co-conspirator — and they put in the Constitution language to legally prohibit the pardon power in exactly this kind of case.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 explicitly forbade a president from exercising the pardon power in “cases of impeachment.” The clause prevents the worst abuse of the pardon power: a president’s protecting cronies who have been convicted of crimes related to the president’s own wrongdoing....
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....
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.
I am generally chary about any efforts to place novel limits on clemency powers, but this commentary is making an interesting textualist and originalist-based claim here. In the end, I think political interest, not legal concerns, will shape how Prez Trump uses his clemency power here (and elsewhere). But if Prez Trump does give some form of clemency to Stone, we now can see the terms of inevitable legal challenges to that effort.
Prior related posts:
- For Roger Stone, federal prosecutors advocate for within-guideline sentence of 7.3 to 9 years in prison ... which Prez Trump calls a "miscarriage of justice!"
- DOJ now says "sentence of incarceration far less than 87 to 108 months [for Roger Stone] would be reasonable under the circumstances"
- Would it be improper for a President to write a character letter for a defendant facing federal sentencing?
- Just some (of lots and lots of) commentary about Roger Stone(d) federal sentencing process
- Over 1000 former DOJ employees calling for Attorney General William Barr to resign
- Roger Stone case generating some useful reflections on federal sentencing challenges and problems and lessons
- Roger Stone gets 40-month federal prison sentence ... but will he ever actually serve it?
February 27, 2020 at 01:30 PM | Permalink
Comments
I think this is about the most tendentious and contrived reading of the Pardon Clause that I've seen to date. I don't think any appellate court would take it seriously.
The Pardon Clause defines the class of cases over which the President may grant clemency. It is confined to federal crimes -- "Offenses against the United States." Precisely in response to concerns that the President might misuse the pardon power to protect himself and his cronies, the Framers added the proviso "except in cases of impeachment."
The most natural reading of that phrase is that it means the President cannot forestall the impeachment process -- of himself or any other federal official subject to impeachment and removal from office -- by purporting to "pardon" the conduct underlying the impeachment. In other words, the pardon power doesn't apply to "high crimes and misdemeanors" charged by the House in an impeachment proceeding, even if the conduct in question might otherwise be a federal offense (the two categories are not synonymous). The Framers used the word "cases," rather than "conviction," in the impeachment exception because they wanted to make clear that the President could not stop the impeachment process before it reached its conclusion. Otherwise, the President would never have to take the risk of conviction by the Senate and the Impeachment Clause would be a dead letter.
It follows that the President could not prevent the Congress from impeaching and removing an official from office for serious misconduct, but could grant him a pardon for any criminal charge based on the same course of conduct. Suppose, for example, that Nixon had refused to resign and instead had been impeached by the House. In the first place, Nixon would not have been able to stop the impeachment proceeding by purporting to "pardon" himself of the House's charges. But if the federal government then proceeded to prosecute Nixon for criminal offenses arising from the same set of facts after he was removed from office (which was seriously discussed), President Ford could have granted him a pardon. The pardon would have effected the criminal charge, but it would have had no effect on the impeachment and removal from office.
The subject of the President's potential misuse of the pardon power to help his corrupt friends was discussed at several of the state ratifying conventions when the Constitution was being debated. The uniform answer, and the one that was ultimately adopted, is that the remedy for abuse of the pardon power is impeachment and removal from office, which (per the impeachment exception to the Pardon Clause) the President is powerless to stop with the pardon power. There is no other remedy. Nothing in the text of the Constitution remotely suggests that there are residual constraints on the powers of the President if he is impeached but not removed from office. The consequence of impeachment is a trial in the Senate. If the President is acquitted, he remains the President with all the authority that entails.
With respect to Roger Stone, the impeachment exception is irrelevant. Stone is not a federal official subject to removal from office because he does not hold such an office. He is not the subject of an impeachment proceeding. Rather, he has been convicted in a U.S. District Court of "Offenses against the United States" in a garden-variety federal prosecution. If President Trump, in the exercise of his exclusive discretion, decides to pardon Stone, that would be a lawful exercise of the pardon power. In any subsequent legal proceeding where it was an issue, Stone would have a constitutional right to rely on the pardon. There is absolutely no authority that would suggest a federal court could ignore that.
If Trump pardons Stone and Congress is sufficiently offended, it's constitutional remedy is to institute impeachment proceedings against Trump, which he would be powerless to stop with the pardon power. Good luck with that.
I also take issue with Brettschneider's breezy claim that the pardon power is only supposed to be used as an act of mercy. Again, nothing in the text of the Constitution, or the long and storied history of use of the pardon power, suggests that this is or should be a constraint on the President's authority. The power is vested in his exclusive discretion. It is almost certainly non-delegable, as OLC has long held. He can exercise the power for any reason that he deems appropriate, subject only to the Congress's corresponding right to exercise the power of impeachment and removal from office. For example, when President Jefferson took office, he pardoned all those who been imprisoned for violating the Alien and Sedition Acts. While I'm sure the grantees were grateful, Jefferson did not do this as an act of mercy. He did it because he thought the law was profoundly unconstitutional and that it was his duty as President to vindicate his view of the Constitution. Much the same could be said for Lincoln's Civil War pardons, or Wilson's pardons of Volstead Act convictions, or Ford and Carter's pardons of draft evaders. Brettschneider may not like that the power is so broad, but that's more of a commentary on his dislike of Trump than a serious constitutional argument.
Finally, there is a fatal practical flaw in the entire argument. If Trump does pardon Stone, exactly who would have standing to raise these "novel" legal issues? Why? What cognizable injury have they suffered? Legal challenges to Ford's pardon of Nixon and his Vietnam clemency program were squarely rejected on standing grounds. To be sure, these are only district court cases but there's no reason to think they were wrongly decided. The only way the meaning and effect of Stone's pardon is likely to be raised is by Stone himself, in the event that his conviction is relevant to some future legal proceeding.
Otherwise, the matter resides where the Framers left it -- in the political process.
Posted by: Sam | Feb 28, 2020 10:47:31 AM
This does seem to be a stretch. And the only way that anybody would have standing would be if the Bureau of Prison refused to release Stone in which case Stone would be able to assert his pardon in a habeas petition. (I just have trouble imagining the scenario in which the BOP would refuse to release Stone. It would take a midnight pardon on Trump's way out of office followed by the next administration refusing to recognize the pardon. I can envision the midnight pardon easily. I have trouble seeing any of the contenders for the Democratic nomination buying this theory and directing the BOP to keep Stone in custody.)
Posted by: tmm | Feb 28, 2020 12:08:49 PM
This does seem to be a stretch. And the only way that anybody would have standing would be if the Bureau of Prison refused to release Stone in which case Stone would be able to assert his pardon in a habeas petition. (I just have trouble imagining the scenario in which the BOP would refuse to release Stone. It would take a midnight pardon on Trump's way out of office followed by the next administration refusing to recognize the pardon. I can envision the midnight pardon easily. I have trouble seeing any of the contenders for the Democratic nomination buying this theory and directing the BOP to keep Stone in custody.)
Posted by: tmm | Feb 28, 2020 12:08:49 PM
