GateHouse Media
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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