Support The Bulwark and subscribe today.
  Join Now

Trump’s Commutation Corruption

Whose fault is it?
July 13, 2020
Trump’s Commutation Corruption
(Illustration by Hannah Yoest / Photo by Ian MacNicol/Getty Images)

President Trump’s commutation of Roger Stone’s criminal sentence is a reminder of the risks and dangers associated with the Constitution’s assignment of the sole power “to grant reprieves and pardons for offenses against the United States” to the president. In a constitutional framework committed to the separation of powers and to checks and balances, that power stands out as an anomaly.

Stone, who was scheduled to start a 40-month prison sentence on July 14, is one of the president’s long-time cronies. He was a key player in Russia’s interference in the 2016 election. Among other things, he coordinated the WikiLeaks release of documents (provided by the Russians) that were damaging to Hillary Clinton.

Stone was found guilty of lying to the House Intelligence Committee about his contact with WikiLeaks and of threatening to harm one of his associates if the associate cooperated with the Russia investigation.

President Trump offered clemency to Stone despite Attorney General Bill Barr’s recent defense of the fairness of Stone’s sentence.

What makes the Stone commutation so important, however, isn’t the unjustness of it, but rather the circumstances of the conviction. It is noteworthy because Stone was being sent to jail for refusing to cooperate with investigations of the president himself. Which creates then an ongoing problem: Trump has sent a message to anyone else who has potentially damaging evidence against him: Keep quiet and he’ll take care of you.

Mitt Romney called this act “unprecedented, historic corruption.” And he is correct.

Stone made the forthcoming quid pro quo explicit shortly before the clemency was announced when he told an interviewer that the president “knows I was under enormous pressure to turn on him. It would have eased my situation considerably. But I didn’t. They wanted me to play Judas. I refused.”

Last month Stone told another interviewer that his biggest fear of going to prison (other than concerns about his health) was “that I may not be free to do everything within my power to re-elect this president.”

That Trump took the unusual step of calling Stone personally to inform him of the commutation only further signals the corruption on display.

President Trump has long talked about how much he loves the clemency power. It comes closest to fulfilling his monarchical pretension that as president he can do whatever he wants. As he has often noted, “all agree the U.S. president has the complete power to pardon.”

But while Trump is not quite a student of America’s history, his characterization of the clemency power as absolute is correct.

The original plans that provided the framework of debate at the Constitutional Convention included no provisions for pardons, but the Framers eventually came around to the views of thinkers such as John Locke and William Blackstone, who had written in defense of such a power.

Locke said that in a good government the rulers “should have a power . . . to mitigate the severity of the law and pardon some offenders,” a power to “act according to discretion, for the public good, and without the prescription of the law.”

Blackstone, while worrying about whether such discretion would work well in a democracy, defended it as “necessary to soften the rigour of the general law.”

Alexander Hamilton supported giving the president what he recognized as a monarchical privilege because he thought it would be useful to heal the wounds caused by criminal prosecutions and by “insurrection and rebellion.” Without clemency, he wrote, “justice would wear a countenance too sanguinary and cruel.” Like Locke and Blackstone, Hamilton said “the benign prerogative of pardoning…should be as little as possible fettered.”

Throughout American history, courts have lent their support to Hamilton’s vision. In 1833, United States v. Wilson became the first challenge to the president’s clemency power to reach the Supreme Court. Siding with President Andrew Jackson, Chief Justice John Marshall described that power as a kind of “grace, proceeding from the power entrusted with the execution of the laws.”

Twenty years later, in Ex Parte Wells, the Court echoed Marshall’s view. “Without such a power of clemency,” it said, the Constitution would be “most imperfect and deficient in its political morality and in that attribute of Deity whose judgments are always tempered with mercy.”

In the 1866 case Ex Parte Garland, the Court went even further. It held that the president’s clemency power was “unlimited” and that the “benign prerogative of mercy reposed in him cannot be fettered by legislative restrictions.”

And these sentiments have been repeated many times since.

State and federal courts have recognized that “the very nature of clemency is that it is grounded in the will of the dispenser. He need give no reasons for granting or denying it.” They have also affirmed that “an executive may grant a pardon for good reasons, or bad, or for any reason at all, and his act is final and irrevocable.” In 1998, Chief Justice William Rehnquist explained that the exercise of the president’s clemency power could not be constrained by “any sort of procedural requirements.”

The Founders, and the judges who have interpreted their words, understood the gamble they were taking in giving so much power to the president. They did so because they had confidence that, as former Supreme Court Justice William Howard Taft once put it, presidents would “not abuse it.”

They relied on the people to choose presidents whose commitments to fairness and to constitutional democracy would be strong enough to guide their judicious use of the clemency power.

Following Hamilton, they hoped that giving such awesome power to one person also would inspire “scrupulousness and caution” in its use.

But the Founders did not foresee a president such as Donald Trump—a man who is willing to shred the Constitution and throw scrupulousness and caution to the wind in the service of his own corrupt ends.

For all of the damage Trump has done, it is not the constitutional design that needs repair.

Repairing it is up to the citizens who vote.

Austin Sarat

Austin Sarat is associate provost and associate dean of the faculty and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is the author of The Death Penalty on the Ballot: American Democracy and the Fate of Capital Punishment.