Roger Stone Commutation Violates the Constitution

While the country reels from a dangerously escalating pandemic and a nationwide barrage of racist law enforcement abuses, Donald Trump continues his obsession with seeking to undo the results of Special Counsel Robert Mueller's investigation into the unlawful Russian interference in the 2016 election. He has already directed his fixer, Attorney General William Barr, to drop the case against his former campaign advisor and former National Security Advisor, Michael Flynn, -- despite the fact that Flynn twice pleaded guilty to lying to FBI investigators about his communications with the Russian ambassador. And he directed Barr to force his Justice Department subordinates to reduce their sentencing recommendation for longtime Trump aide Roger Stone, who was convicted of seven felony counts, including obstructing a congressional investigation and witness intimidation all, in the words of the presiding judge, part of "covering up for the president." Now, just days before Stone was to begin serving a forty-month prison sentence, Trump has purported to exercise the constitutional pardon power to commute, that is, reduce, Stone's sentence to . . . zero -- no prison, no fine, no probation. In doing so, Trump has abused the pardon power in violation of the Constitution.

This is not faithful execution of the laws. This is obstruction of the law; it is obstruction of justice; and obstruction of lawful investigations, all for a corrupt and self-interested purpose.

There is an oft-repeated misconception that the presidential pardon power is "absolute." This perception is fundamentally at odds with our constitutional history, traditions, and the text of the Constitution. The United States is not an "absolute" monarchy; it is a constitutional democracy. One of the central purposes of the Constitution was to ensure that the federal government -- including the President -- would have only constitutionally prescribed powers, and that each of those powers would be subject to additional constitutional constraints. The Constitution thus bestows certain powers on Congress and certain powers on the President, but, as the Supreme Court has recognized, all of those powers, including the pardon power, are subject to the textual constraints in the Constitution itself.

This is why, to take one example, if President Trump were to issue a full pardon to all white police officers who have injured or killed any Black person, these pardons would not be valid. They would be blatantly unconstitutional in violation of equal protection of the laws and other provisions of the bill of rights.

To take a different example, suppose the President were to engage in a direct financial bribe, agreeing to issue a full pardon to Bernie Madoff in exchange for a $5 million payment to Ivanka Trump and Jared Kushner. Most people would acknowledge that this pardon cannot be constitutionally valid.

It's not just common sense that the President cannot use the pardon power to carry out criminal activity; this principle flows directly from specific requirements set forth in the Constitution. In the very clause establishing the presidency, the Framers included language making clear that the presidency is in effect a public trust and its powers must be exercised for the benefit of the public, not the personal benefit of the President. Specifically, Article II of the Constitution provides that the President must "Take care that the Laws be faithfully exercised" and that the President must take an oath to "faithfully execute the office of the president."

Granting a pardon for a completely unlawful and illicit purpose is antithetical to this obligation to ensure that the laws are faithfully executed. In the case of Roger Stone there is ample public evidence -- including public statements of both Stone and Trump -- that his commutation was part of an illicit bribe: Stone agreed to protect the president by refusing to tell the truth, and even lying, to investigators. And Trump agreed in exchange to protect Stone from the legal consequences.

But even if we don't characterize this as a bribe, at a minimum, the public evidence demonstrates that Trump's purpose in commuting Stone's sentence is to reward him for covering up for Trump. This is not faithful execution of the laws. This is obstruction of the law; it is obstruction of justice; and obstruction of lawful investigations, all for a corrupt and self-interested purpose. And it's up to the United States District Court presiding over Stone's case to scrutinize this commutation and, if the Court finds that evidence persuasive, declare the commutation constitutionally invalid, and order Stone to prison.