The Traditional Interpretation of the Pardon Power Is Wrong

Properly understood, the commutation of Roger Stone’s sentence is unconstitutional.

When Roger Stone was sentenced to 40 months in federal prison for obstruction, making false statements, and witness tampering, Judge Amy Berman Jackson concluded, “He was not prosecuted, as some have complained, for standing up for the president. He was prosecuted for covering up for the president.” Stone was scheduled to be incarcerated on July 14, 2020. On July 10, Donald Trump commuted his sentence. Is this particular use of the president’s power constitutional and lawful? Many in the legal establishment maintain that it is, but we disagree.

The power to grant “pardons and reprieves” includes the power to commute, or reduce, sentences after convictions. But this power is constrained by a limit: “except in cases of impeachment.” Traditionally, this exception has been read to mean only that a president cannot use the pardon and reprieve power to prevent or undo an impeachment by the House or an impeachment conviction by the Senate. By this interpretation, only impeachment charges themselves are precluded from presidential pardons. (According to the Constitution, the vice president and “all civil Officers of the United States” are subject to impeachment, which means, for example, that a president cannot pardon a federal judge’s impeachment.)

But there is a strong argument, rooted in the Constitution’s text, history, values, and structure, that in addition to banning the prevention or undoing of an impeachment, this phrase also bans a president from using the pardon and reprieve power to commute the sentences of people directly associated with any impeachment charges against him. This argument is not a partisan one. Whatever rule is applied today would necessarily apply to future presidents, Democrats as well as Republicans.

The impeachment charges against President Trump focused mainly on his alleged withholding of foreign aid from Ukraine to pressure the Ukrainian president into digging up dirt on Hunter Biden that could support Trump’s reelection campaign, and on his refusal to cooperate with the congressional investigation of this matter. But the articles of impeachment also explicitly invoke his “previous invitations of foreign interference in United States elections” and “previous efforts to undermine United States Government investigations into foreign interference in United States elections.” According to our interpretation of the pardon clause, that would mean he can’t use the pardon and reprieve power to commute the sentences of those charged with crimes related to Russian interference in the 2016 campaign—including Stone, who was convicted of lying to Congress and obstructing its investigation into Russian election interference. This obstruction impeded the ability of Congress to gather information that could have been vital to the impeachment inquiry, benefiting Trump.

more at:

https://www.theatlantic.com/ideas/archive/2020/07/traditional-interpretation-pardon-power-wrong/614083/?utm_source=twitter&utm_medium=social&utm_campaign=share