I’m glad the editors at the National Review finally got around to condemning President Trump’s commutation of Roger Stone’s sentence and I agree that it was indefensible. However, I have to quarrel with their assertion that the act was “fully within the president’s powers and in keeping with the long-established pattern of presidents’ pardoning or commuting the sentences of associates caught up in special-counsel probes.”
To be sure, it’s possible to find precedents if you’re looking to make a two-wrongs-make-a-right argument. President Clinton famously pardoned his brother. He also pardoned Susan McDougal of Whitewater fame. Neither of these examples are on a par with Trump giving Stone a get out of jail card. In this case of Roger Clinton, the charges were drug-related and over a decade old, and he had served his full sentence. With respect to McDougal, it’s conceivable, although not proven, that she covered up criminal, unethical or embarrassing acts by then-Governor Bill Clinton, but she likewise had already served her full sentences on charges of fraud, conspiracy and civil contempt. The National Review prefers the example of Poppy Bush’s infamous Christmas Eve 1992 pardons of Iran-Contra figures, including former Defense Secretary Casper Weinberger. This is a better comparison because Weinberger almost certainly protected Bush from Lawrence Walsh’s special investigation as well as the inquiry conducted by Congress. But Bush had already been defeated in the November election and was headed out the door.
In one sense, since the presidential pardon is absolute, there can be no limitations on it and even the most self-serving and obvious example of obstruction of justice can be considered “fully within the president’s powers.” This is basically the de facto situation in most cases, especially because the Department of Justice has a policy against prosecuting a sitting president. The only remedy while they remain in office is impeachment, and that possibility certainly had limited appeal in Poppy’s case. Bill Clinton could have pursued impeachment of Bush if only to assure that he became ineligible to hold any further office, but that kind of contentious battle would have destroyed any honeymoon he had in DC, which was limited in any case. Some commentators, including myself, have argued that the costs of not pursuing impeachment were extremely high, and now we’re seeing why, but the immediate problem was solved when Bush left office. As for charging a president once they’re a private citizen, it’s not easy to overcome the constitutional right of a president to pardon and commute however they please.
This is problematic in theory and now in practice. If Donald Trump stood accused of murdering someone on Fifth Avenue and Roger Stone was an eyewitness, we would not say it was okay for Stone to stonewall the investigation and then receive a commutation as a reward. In that scenario, we’d expect the Justice Department to drop their qualms about indicting a sitting president. At a minimum, we’d certainly expect Trump to face charges of obstruction of justice once he left office. There has to be some legal limitation on the pardon power.
Personally, I think Nancy Pelosi would be doing the Republicans a favor if she impeached Trump a second time over the Stone commutation. I don’t mean that she’d be making it easier for Trump to win reelection. I mean that it’s too late for the Republicans to nominate someone other than Trump as their 2020 presidential nominee because he’s already won all the necessary delegates. The only option they have left to avoid going into the fall election with Trump as their standard bearer is to convict him in an impeachment trial and render him ineligible. Were Pelosi to give them that option, it would be a gigantic gift. It would also be the right thing to do since Trump is manifestly incapable of managing the COVID-19 outbreak and it’s already led to tens of thousands of excess deaths and untold economic damage.
It doesn’t make a lot of sense for Pelosi to do this from a self-interested political perspective. Why disrupt a trajectory that looks increasingly like a Democratic landslide up and down the ballot? But it would still be the correct move because Trump’s crime sets a terrible precedent, and because so many people’s lives are on the line.
The Republicans would probably take a pass, but that would help clarify where they stand, and that’s also a benefit for the voters, and the American people.