Casting The Stone: How Many Ignore History To Condemn The Stone Commutation As Unprecedented

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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.

official_presidential_portrait_of_thomas_jefferson_by_rembrandt_peale_1800Thomas 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.

964px-Harry_S_Truman,_bw_half-length_photo_portrait,_facing_front,_1945Franklin 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).

220px-Richard_NixonRichard 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.

225px-Bill_ClintonBill 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.

440px-Official_Portrait_of_President_Donald_TrumpMoreover, 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.

91 thoughts on “Casting The Stone: How Many Ignore History To Condemn The Stone Commutation As Unprecedented”

  1. Roger Stone is not a danger to society like Lopez Rivera, a terrorist who Obama pardoned. Roger Stone was caught up in the corrupt Mueller investigation intent on unseating a duly elected president. President Trump is not corrupt, he is doing the right thing. He commuted Stone’s sentence, sparing him from a 40-month prison sentence that could have ended with a deadly case of COVID-19. They are releasing Hardened Criminals from Prison’s all across the country because of Covid-19! Why would any human being want to incarcerate a 68 year old man with health issues? It would be different if Criminals weren’t being released, but where is the justice in that???

  2. Why is AG Barr cover up for recent past & current Total Corruption inside up management of DOJ, FBI, CIA, DoS, name the major govt agency?

    Wapo/NYT/CNN/MSLSD/ & the rest of the US Intel propaganda news agencys, where are you on the real stories???? Nowhere, that’s where!!!!

  3. Barr Was Not Keen On Clemency For Stone

    Attorney General William P. Barr laid himself on the line earlier in the year in the Roger Stone case. And then President Trump rendered all of it moot Friday by commuting Stone’s sentence — reportedly against the advice of none other than Barr.

    But why exactly did Barr counsel Trump against the move in the first place? It’s an important question in light of the attorney general’s actions in and commentary on the case.

    Barr made his extraordinary intervention in the Stone case in February, watering down a tough sentencing recommendation that Trump had criticized. The move filled out a picture of an attorney general repeatedly injecting himself in ways that protected Trump and his allies.

    But then Trump commuted Stone’s sentence Friday, meaning the number of years Stone received didn’t even wind up mattering. And The Washington Post and others are reporting that Trump did this despite the counsel of Barr, who earlier in the week labeled Stone’s prosecution “righteous.”

    Why exactly Barr counseled against this isn’t known, but there are two obvious options: He worried about the obviously problematic political appearance of a president commuting the sentence of a man who lied in ways that protected the president himself, and/or he worried about the legal implications of doing it.

    It seems possible from Barr’s comments that it might be the latter.

    Edited From: “How Problematic Is Trump’s Roger Stone Commutation? Just Ask William Barr”

    Today’s Washington Post

    1. Using the Washington Post as a reference for your claims regarding Barr means as little as using the National Enquirer, The Daily Mail, The Sun, etc.
      The Washington Post is proven to print many, many articles and opinions based on uncorroborated fictional tales or the famous “according to anonymous high placed sources”. Referencing the WaPo means there is a writer’s opinion but no substantive proof.

      1. REGARDING ABOVE:

        Commenter ‘John’ is Crazed Idiot. Mr Idiot uses 20 different names per week. For some reason he can’t possibly stand and fight with a single name. He can only hit & run.

      2. Using the Washington Post…..

        You can recognize the anarchists in our midst when they cite from their sacred texts. If anything they do us a favor by marking themselves so that we know who they are. It will come in handy post November election

    2. Barr is not perfect he was wrong here.

      But the editorial is quite interesting.

      Wapo thinks that justice is about appearances.

      Stone was wrongfully convicted. Frankly he should have been pardoned.
      But my understanding is that Stone continues his appeals. Eventually the conviction will be overturned.

      Trump would not have had to commute Stone’s sentence had the courts done their job and given him a new trial – with a new judge, in a venue where the entire jury is not infected by the collusion delusion.

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