Eeeeenteresting, even if it might just relate to a technical question of application. When Donald Trump issued his clemency action for Roger Stone, he chose to commute the sentence rather than issue a full pardon. Does that commutation also apply to Stone’s probation and the conditions set for it? Judge Amy Berman Jackson, the presiding jurist in the trial, has ordered the Department of Justice to explain the commutation language — raising at least the theoretical possibility of judicial review on an executive clemency action:
!!! Judge Amy Berman Jackson wants to see Roger Stone’s commutation paperwork, after questions have arisen about whether President Trump’s clemency covers only Stone’s prison time or also his probation. US Probation Office has raised questions about the commutation @kpolantz
— Shimon Prokupecz (@ShimonPro) July 13, 2020
A federal judge on Monday ordered the government to explain the “scope” of President Trump’s commutation of longtime GOP operative Roger Stone, including whether the move only involved the sentence of incarceration, or also the period of supervised release.
U.S. District Judge Amy Berman Jackson ordered the government to provide the court by Tuesday, July 14, “a copy of the Executive Order commuting the defendant’s sentence and to address the question of the scope of the commutation, in particular, whether it involves the sentence of incarceration alone or also the period of supervised release.” …
The filing, signed by Jackson, comes after the White House announced Friday that the president signed an Executive Grant of Clemency commuting what they called the “unjust sentence” of Stone, just days before the longtime political operative was slated to report to prison to serve more than three years for charges stemming from former Special Counsel Robert Mueller’s investigation.
This isn’t going to be another case of La Résistance as in Judge Emmet Sullivan’s fight with the DoJ. The authority to dismiss a case rests with judges, although they should almost always comply with a motion to dismiss from prosecutors. Berman Jackson would have no basis in law to nullify a presidential clemency action, as that exists extrajudicially, for better or worse. It’s very likely that Berman Jackson just wants to clarify whether Stone still has to serve his probation or not — but it remains to be seen whether she will take that opportunity to read into the record some of her thoughts on Trump’s commutation.
Of course, some want a more direct intervention from Berman Jackson. In the Atlantic, Cory Brettschneider argues that it’s illegal for a president to issue a clemency action for people associated with any potential issues of impeachment:
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.
What about past presidents? Jonathan Turley shoots down this argument before it even takes flight. Not only does history suggest just the opposite, this isn’t even the best example of what Brettschneider argues is illegal:
Thomas Jefferson pardoned Erick Bollman for violations of the Alien and Sedition Act in the hope that he would testify against rival Aaron Burr for treason. After the intervention of powerful friends, Andrew Jackson stopped the execution of George Wilson in favor of a prison sentence despite Wilson’s guilt in a serious violent crimes (for which his co-defendant was executed). Wilson surprised everyone by opting to be hanged anyway. However, Wilson could not hold a candle to Ignazio Lupo, one of the most lethal mob hitmen who was needed back in New York during a mafia war. Warren Harding, who along with his attorney general, Harry Daugherty, was repeatedly accused of selling pardons. With the bootlegging business hanging in the balance, they decided to pardon “Lupo the Wolf” on the condition that he be a “law abiding” free citizen. …
Richard Nixon was both giver and receiver of controversial pardons. He pardoned Jimmy Hoffa after the Teamsters Union leader had pledged to support his reelection bid. Nixon himself was later pardoned by Gerald Ford, an act many of us view as a mistake. To his credit, Ronald Reagan declined to pardon the Iran Contra affair figures, but his vice president, George Bush, did so after becoming president. Despite his own alleged involvement in that scandal, Bush still pardoned those other Iran Contra figures, such as Defense Secretary Caspar Weinberger.
Bill Clinton committed some of the worst abuses of this power, including pardons for his brother Roger Clinton and his friend and business partner Susan McDougal. He also pardoned the fugitive financier Marc Rich, who evaded justice by fleeing abroad. Entirely unrepentant, Rich was a major Democratic donor, and Clinton had wiped away his convictions for fraud, tax evasion, racketeering, and illegal dealings with Iran.
Needless to say, it’s not exactly a compliment to have a clemency action compared to this list of notorious executive interventions. The Stone commutation was both premature and unwise, especially because of these connotations. Stone got convicted for lying to Congress, not the hated Mueller probe, as well as witness tampering. As William Barr himself noted, the prosecution was “righteous,” and the sentence relatively lenient. Stone could have taken the Fifth rather than give false testimony; he chose to try to brazen his way out of it instead and got caught. Why Trump chose to associate himself with this decision is beyond me, even in a commutation.
Even so, there is no real doubt that this commutation falls entirely within Trump’s authority. Berman Jackson can’t stop it, nor even delay it, but she can make everyone a little uncomfortable for a few days.