When President Donald Trump commuted Roger Stone’s sentence of 40 months in prison for lying to Congress and tampering with a witness, he crossed into new territory dangerous to the republic.
Trump terminated Stone’s sentence through the exercise of the pardon power provided to the president by our Constitution. Although Trump has previously exercised this power contrary to its purposes, rewarding a campaign official for illegal acts benefiting the president in his campaign for the presidency is the final straw.
Our only choice is to amend the Constitution and restrict the use of this power to its original purposes.
The pardon power of the president is in Article II, Section 2 of the Constitution and is absolute except for pardoning impeached government officials. Federalist Paper No. 74, authored by Alexander Hamilton, tells us there were two reasons for it: exercising mercy for those convicted or sentenced unjustly, and to heal our country in times of national distress.
An example of the latter was President Jimmy Carter pardoning and granting clemency for those who resisted the draft in the Vietnam era and violated the Selective Service laws. Another was President Gerald Ford’s pardon of Richard Nixon so that the Watergate era could be concluded and the country could move forward without the spectacle of a former president on trial for campaign crimes.
Presidents have also exercised this power for individuals when an injustice was perceived, and even President Trump did so when he commuted the life sentence of a 63-year-old woman who had participated in a drug conspiracy after she had already served over 21 years of her sentence. President Barack Obama pardoned or commuted the sentences of hundreds of nonviolent offenders.
But Stone’s commutation is another thing. As Special Counsel Robert S. Mueller III recently reminded us, Stone was convicted for lying to Congress about his cooperation with Russian officials and others so that Trump would win his election. Even President Nixon would not exercise the pardon power to protect John Mitchell, Robert Haldeman and John Ehrlichman, all of whom went to prison for their roles in Watergate.
Trump is not the first president to exercise the pardon power improperly. President Bill Clinton pardoned or granted clemency to 16 members of the Puerto Rican terrorist organization FALN that exploded 120 bombs in the United States, as well as fugitive Marc Rich, a crooked financier whose wife was a big contributor to the Clinton campaign, Susan McDougal from the Whitewater scandal and even his brother Roger for a prior drug conviction.
Trump previously pardoned the notorious Arizona sheriff Joe Arpaio and “Scooter” Libby, Vice President Dick Cheney’s former chief of staff, who had lied about the leak of the identity of a CIA operative whose husband had publicly criticized President George H. Bush for his misstatements about the justification for the second Iraq war.
The Stone commutation is something different and worse than these prior excesses. It protects a criminal convicted by a jury of illegal acts that helped the sitting president win the election. Just like the Constitution provides that a president cannot use the pardon power to protect impeached federal officials from criminal prosecutions for those acts that resulted in their impeachment, a president should not be able to use that power to cover up — and even encourage — illegal campaign activity that directly benefited him or her in getting that office.
It is very difficult to amend the Constitution. The last amendment was in 1992 to prohibit members of the House and Senate from increasing their own salaries. But we have no choice. Although Congress is now considering legislation to constrain the pardon power, most legal scholars have opined that it would be ineffective; only a Constitutional amendment would work. The Stone commutation pushes the exercise of the pardon to a new, dangerous place where campaign fraud would be rewarded with immunity if your candidate wins.
The founders did not intend for such abuse, and we should now enshrine that specific limitation in our Constitution.
Christopher F. Droney is a former Judge for the United States Court of Appeals for the Second Circuit, and a former U.S. District Judge. He also served as the United States Attorney for Connecticut. He is now a partner in the law firm Day Pitney LLP.
