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?
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