July 17, 2020
Only days before President Richard Nixon resigned, Mary Lawton, Acting Assistant Attorney General, wrote a memo addressing whether the president could pardon himself.
Lawton wrote, “Pursuant to Article II, Section 2 of the Constitution, the ‘Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment,’ is vested in the president. This raises the question whether the president can pardon himself. Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.”
President Donald Trump commuted the sentence of Roger Stone on July 10. Stone was convicted of seven felonies for obstructing a congressional inquiry, lying to investigators under oath and trying to block the testimony of a witness. Stone’s commutation is not a self-pardon but it is as close as a president can get.
For over a century, the Department of Justice has utilized a Pardon Attorney to vet requests for justice and mercy. The Pardon Attorney makes a recommendation to the president for each request. According to the legal blog Lawfare, “The idea is to place a rigorous process between the president and requests for pardons in order to guard against the reality and perception of politicized pardons.”
According to Lawfare, 31 of the 36 Trump pardons - including Stone’s - were not based on the Pardon Attorney’s recommendations.
As Lawton wrote in her memo, Article II, Section 2, gives the Commander-in-Chief power to “grant Reprieves and Pardons for Offenses against the United States.” The clemency authority bestowed on the president permits him to grant a reprieve - as in stopping the carrying out of an execution; a pardon - erase a conviction like it never happened; or a commutation - end, or as in Stone’s case - stop the imposition of term of incarceration.
Alexander Hamilton, articulated the rationale for presidential pardons in the Federalist Papers when he wrote in No. 74 that “without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”
The power to pardon was proposed as part of a system of checks and balances proposed by the founding fathers. Clemency was a check by the executive branch of government on the judicial branch.
The power to pardon was never intended to shield a co-conspirator or reward an individual for not cooperating with an investigation that could implicate the president. Shortly before his sentence was commuted, Stone said that Trump “knows I was under enormous pressure to turn on him,” and added, “It would have eased my situation considerably. But I didn’t.”
Stone’s statement implies that he had damaging evidence against the president. Stone had information that could have been used against the president during his impeachment trial and he did not reveal it, and the president rewarded him with a commutation of this sentence. Stone was going to jail and the president stopped it.
Cory Brettschneider, a professor at Brown University and Jeffrey K. Tulis, a professor at the University of Texas recently wrote in The Atlantic, the power to grant “pardons and reprieves” is constrained by a limit: “except in cases of impeachment.”
Brettschneider wrote back in February for Politico, ”(T)he 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.”
Since Trump’s impeachment acquittal by the Senate he has fired several inspectors general, retaliated against officials who testified truthfully to Congress, and now commuted the sentence of a man who acknowledged protecting the president during the impeachment inquiry. These actions are all abuses of presidential power, and warrant impeachment and removal from office.
Sure, we have been down that road and the country is in the midst of a presidential election. But, this is no time to shrug our collective shoulders. This president, now more than ever, needs to be held accountable.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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