Below is my column in the Hill newspaper on the commutation of the sentence of Roger Stone and the objections from various commentators and politicians that it was an unprecedented abuse of this constitutional power. The political outcry was predictable but it was also accompanied by an ahistorical treatment in Congress and the press. Many leaders lined up to cast the first Stone comment on how it was an unprecedented act despite their own relative silence during past abuses of presidential clemency. Speaker Nancy Pelosi declared that the commutation was “an act of staggering corruption” for someone who “could directly implicate him in criminal misconduct.” House Intelligence Committee Chairman Adam Schiff declared that the commutation left him “nauseous.” Of course, Pelosi, Schiff, and other Democrats seemed to have greater stability and intestinal fortitude after Bill Clinton’s pardoning of his own brother (Roger Clinton), a fugitive Democratic donor (Marc Rich), or his longtime friend (Susan McDougal) who was convicted in an investigation that implicated both Bill and Hillary Clinton. Likewise, Mitt Romney seemed to echo Toobin’s view (below) in declaring this an “unprecedented, historic corruption” when “an American president commutes the sentence of a person convicted by a jury of lying to shield that very president.” However, Romney long heralded his respect and support of President George H.W. Bush despite Bush’s executive clemency actions for six former senior government officials implicated in the Iran-Contra scandal, including former Secretary of Defense Caspar Weinberger. Bush himself was implicated in that scandal and some alleged was protected by their silence. Nevertheless, this Society of Historical Revisionism appears to be expanding with members expressing utter shock at the notion of a president abusing the pardon power. There were no calls for investigations or new legislation from these politicians at the time. So, to paraphrase John 8:7, let he or she “without sin among you,” cast the first Stone criticism.
Here is the column:
Washington was sent into vapors of shock and disgust with news of the commutation of Roger Stone. Legal analyst Jeffrey Toobin declared it to be “the most corrupt and cronyistic act in all of recent history.” Despite my disagreement with the commutation, that claim is almost quaint. The sordid history of pardons makes it look positively chaste in comparison. Many presidents have found the power of pardons to be an irresistible temptation when it involves family, friends, and political allies.
I have maintained that Stone deserved another trial but not a pardon. As Attorney General William Barr has said, this was a “righteous prosecution” and Stone was correctly convicted and correctly sentenced to 40 months in prison. President Trump did not give his confidant a pardon but rather a commutation, so Stone is still a convicted felon. However, Trump should have left this decision to his attorney general. In addition to Stone being a friend and political ally, Trump was implicated in those allegations against Stone. While there was never any evidence linking Trump to the leaking of hacked emails, he has an obvious conflict of interest in the case.
The White House issued a statement that Stone is “a victim of the Russia hoax.” The fact is that Stone is a victim of himself. Years of what he called his “performance art” finally caught up with him when he realized federal prosecutors who were not amused by his antics. Stone defines himself as an “agent provocateur.” He crossed the line when he called witnesses to influence their testimony and gave false answers to investigators.
But criticism of this commutation immediately seemed to be decoupled from any foundation in history or in the Constitution. Indeed, Toobin also declared, “This is simply not done by American presidents. They do not pardon or commute sentences of people who are close to them or about to go to prison. It just does not happen until this president.” In reality, the commutation of Stone barely stands out in the old gallery of White House pardons, which are the most consistently and openly abused power in the Constitution. This authority under Article Two is stated in absolute terms, and some presidents have wielded it with absolute abandon.
Thomas Jefferson pardoned Erick Bollman for violations of the Alien and Sedition Act in the hope that he would testify against rival Aaron Burr for treason. After the intervention of powerful friends, Andrew Jackson stopped the execution of George Wilson in favor of a prison sentence despite Wilson’s guilt in a serious violent crimes (for which his co-defendant was executed). Wilson surprised everyone by opting to be hanged anyway. However, Wilson could not hold a candle to Ignazio Lupo, one of the most lethal mob hitmen who was needed back in New York during a mafia war. Warren Harding, who along with his attorney general, Harry Daugherty, was repeatedly accused of selling pardons. With the bootlegging business hanging in the balance, they decided to pardon “Lupo the Wolf” on the condition that he be a “law abiding” free citizen.
Franklin Roosevelt also pardoned political allies, including Conrad Mann, who was a close associate of Kansas City political boss Tom Pendergast. Pendergast made a fortune off illegal alcohol, gambling, and graft, and helped send Harry Truman into office. Truman also misused this power, including pardoning the extremely corrupt George Caldwell, who was a state official who skimmed massive amounts of money off government projects (including the building fund for Louisiana State University).
Richard Nixon was both giver and receiver of controversial pardons. He pardoned Jimmy Hoffa after the Teamsters Union leader had pledged to support his reelection bid. Nixon himself was later pardoned by Gerald Ford, an act many of us view as a mistake. To his credit, Ronald Reagan declined to pardon the Iran Contra affair figures, but his vice president, George Bush, did so after becoming president. Despite his own alleged involvement in that scandal, Bush still pardoned those other Iran Contra figures, such as Defense Secretary Caspar Weinberger.
Bill Clinton committed some of the worst abuses of this power, including pardons for his brother Roger Clinton and his friend and business partner Susan McDougal. He also pardoned the fugitive financier Marc Rich, who evaded justice by fleeing abroad. Entirely unrepentant, Rich was a major Democratic donor, and Clinton had wiped away his convictions for fraud, tax evasion, racketeering, and illegal dealings with Iran.
Unlike many of these cases, there were legitimate questions raised about the Stone case. The biggest issue was that the foreperson of the trial jury proved to be a Democratic activist and an outspoken critic of Trump and his associates. It was later discovered that she even wrote publicly about the Stone case. Despite multiple opportunities to do so, she never disclosed her prior statements and actions that would have shown disqualifying bias. Judge Amy Berman Jackson shrugged off all that, however, and refused to grant Stone a new trial, denying him the most basic protection in our system.
Moreover, I think both the court and the Justice Department were wrong to push for Stone going to prison at this time, because he meets all of the criteria for an inmate at high risk for exposure to the coronavirus. None of that, however, justifies Trump becoming involved in a commutation, when many of the issues could have been addressed in a legal appeal.
There is lots to criticize in this move without pretending it was a pristine power besmirched by a rogue president. Indeed, Trump should have left the decision to a successor or, at a minimum, to the attorney general. But compared to the other presidents, this commutation is not even a distant contender for “the most corrupt and cronyistic act” of clemency.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.