The commutation of Roger StoneRoger Jason StoneDemocrats blast Trump for commuting Roger Stone: ‘The most corrupt president in history’ Trump commutes Roger Stone’s sentence Appeals court denies Stone’s motion to delay prison sentence MORE once again sent Washington into vapors of shock and disgust. Legal analyst Jeffrey Toobin declared it to be “the most corrupt and cronyistic act in all of recent history.” Despite my disagreement with the commutation, such a statement is almost charmingly quaint. The sordid history of White House pardons makes this commutation look positively chaste in comparison. Many presidents have found the absolute power of pardons to be an irresistible temptation when it involves family, friends, and political allies.
I have maintained that Stone deserved a new trial but not a pardon. As Attorney General William Barr has maintained, this was a “righteous prosecution” and Stone was correctly convicted and correctly sentenced to 40 months in prison. To his credit, President TrumpDonald John TrumpDemocrats blast Trump for commuting Roger Stone: ‘The most corrupt president in history’ Trump confirms 2018 US cyberattack on Russian troll farm Trump tweets his support for Goya Foods amid boycott MORE did not give his friend a pardon but rather a commutation. Stone remains a convicted felon.
However, Trump should have left this decision to his attorney general. In addition to Stone being a friend and political ally, Trump was implicated in the allegations against Stone. While there was no evidence linking Trump to the leaking of hacked emails, he has an obvious conflict of interest in the case.
The White House issued a statement that Stone is “a victim of the Russia hoax.” The fact is that Stone is a victim of himself. Years of what he called his “performance art” finally caught up with him when he found prosecutors who were not amused by his antics. Stone defines himself as an “agent provocateur.” He went too far when he called witnesses to influence their testimony and gave false responses to investigators.
However, the criticism of this action immediately seemed to be decoupled from any foundation in history or the Constitution. Toobin declared, “This is simply not done by American presidents. They do not pardon or commute sentences of people who are close to them or about to go to prison. It just does not happen until this president.”
In reality, the commutation of Stone barely stands out in the gallery of White House pardons, which are the most consistently and openly abused power in the Constitution. This authority under Article Two is stated in absolute terms, and some presidents have used it with absolute abandon.
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. Andrew Jackson stopped the execution of George Wilson in favor of a jail sentence, despite the long record Wilson had as a train robber, after powerful friends intervened with Jackson. Wilson surprised everyone by opting to be hanged anyway.
Wilson, however, 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. With the bootlegging business hanging in the balance, Warren Harding, who along with his attorney general, Harry Daugherty, was repeatedly accused of selling pardons, decided to pardon Lupo on the condition that he remain “law abiding.”
Franklin Roosevelt also pardoned political allies, including Conrad Mann, a close associate of Kansas City political boss Thomas Pendergast. Pendergast made a fortune off illegal alcohol, gambling, and graft, and helped put Harry Truman into office. Truman also misused this power, including pardoning the thoroughly corrupt George Caldwell, a Democratic state official who skimmed massive amounts of money off government projects, such as a building fund for Louisiana State University.
Richard Nixon was both giver and receiver of controversial pardons. He pardoned Jimmy Hoffa after the Teamsters Union leader pledged to support his reelection bid. Nixon himself was later pardoned by Gerald Ford, an act many of us view as a mistake. Ronald Reagan refused to pardon the Iran Contra affair figures, but his vice president, George H.W. Bush, did so after becoming president. Despite his alleged involvement in that scandal, Bush pardoned 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 Whitewater business partner Susan McDougal. He pardoned the fugitive financier Marc Rich, who evaded justice by fleeing abroad. Entirely unrepentant, Rich was a major Democratic donor, and Clinton wiped away his convictions for fraud, tax evasion, racketeering, and illegal dealings with Iran.
Unlike many of these cases, there were legitimate questions raised about Stone’s case. The biggest problem is that the foreperson of Stone’s trial jury was a Democratic activist and an outspoken critic of Trump and his associates, who even wrote publicly about Stone’s case; despite multiple opportunities to do so, she never disclosed her prior statements and actions which would have demonstrated her bias. Trial Judge Amy Berman Jackson shrugged off all of that, however, and refused to grant Stone a new trial — denying him the most basic protection afforded in our system.
Moreover, I think both the court and Barr were wrong to push for Stone’s imprisonment at this time, because he meets all of the criteria for an inmate at high risk for exposure to the coronavirus. None of that, however, justifies Trump becoming directly involved in a commutation, when many of these issues could be addressed in a legal appeal.
There is plenty to criticize in Trump’s decision without pretending this was a pristine power besmirched by a rogue president. Trump should have left the decision to a successor (as Reagan did) or, at a minimum, to Barr. Nevertheless, compared to other presidents, his commutation of Stone is not even a distant contender for “the most corrupt and cronyistic act” of presidential clemency.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.