On July 10, President Trump commuted the sentence of his long-time crony Roger Stone. This action had all the markings of a corrupt trade where Trump got Stone’s silence in exchange for leniency. It generated a firestorm of denunciations. Critics rightly raised questions about whether the President had abused his power; the commutation signaled a further erosion of the Department of Justice’s professionalism and independence.
The President offered clemency to Stone despite the objections of many in the White House and despite Attorney General Barr’s defense of the fairness of his sentence. As in many other things, Trump saw the Stone prosecution through a prism of his own narcissism; he believed that Stone’s prosecution was really a backdoor attack on him. And he feared that it foreshadowed the no-doubt considerable legal difficulties that await him when he leaves office.
The President’s choice of commutation rather than a pardon allows Stone to continue to claim that he is innocent. It also preserves his right against compulsory self-incrimination. It keeps alive one avenue for Stone to remain silent and, as he put it, not “roll over” on the President.
Trump has issued relatively few pardons or commutations when compared with his predecessors, but most of those that he has granted have gone to personal or political associates.
One study found that in 31 of the 36 times the President so far has granted clemency, what he did advanced one of his clear political goals, was done for someone with a personal connection to Trump, was brought to his attention by television or a television commentator, or was based on Trump’s admiration for a celebrity.
In his grants of clemency, the President has used his exclusive power to help those who, like Stone, committed crimes that show disdain for the legal process.
Other examples include the 2017 pardon of Arizona Sheriff Joe Arpaio, who was charged with criminal contempt for defying a court order to stop discriminating against immigrants, and the 2018 pardon of Scooter Libby, who had been convicted of perjury and obstruction of justice. And in February of this year, Trump commuted the sentence of former Illinois Governor Rod Blagojevich who had been convicted of soliciting bribes.
Of course, Trump is not the first chief executive to issue questionable pardons or commutations. They have a long lineage.
In 1868 President Andrew Johnson fully pardoned every Confederate soldier. In 1989, President Ronald Reagan pardoned New York Yankee owner George Steinbrenner, who had made illegal campaign contributions to Richard Nixon. Bill Clinton granted clemency to his half-brother who had been convicted of drug offenses in 1984 and to Marc Rich, one of his most prominent campaign contributors, just as he was leaving office. And George H.W. Bush pardoned six people who had been involved in the Iran-Contra scandal during the Reagan administration.
But none of them approach the self-serving brazenness of Trump’s action in the Stone commutation. Even Richard Nixon did not dare to use clemency to buy the silence of Watergate criminals including some of his closest aides.
The Stone commutation is additional evidence, if more evidence is needed, of the President’s blatant disregard of the norms and values which provide the underpinnings of liberal democracy and constitutional governance.
Trump’s action also raises serious questions about the nature and limits of executive clemency and its place in America’s constitutional system. Yet what has been little noticed is how much Trump has relied on the most conventional and politically respectable justifications for clemency, describing it as merely a mechanism for rectifying miscarriages of justice.
Unlike the bold articulation of the power to grant pardons and reprieves as an aspect of sovereign prerogative, which sees that power as linked to mercy regardless of merit, Trump has followed the tendency of modern chief executives in portraying clemency as error correction, legitimate only when used to correct wrongs not corrected by the legal system itself.
In the White House statement issued on the occasion of the Stone commutation, this cramped conception of clemency was fully on display. That statement suggested that the President was commuting the “unjust sentence of Roger Stone.” It went on to explain that not only was Stone “charged by overzealous prosecutors pursuing a case that never should have existed, and arrested in an operation that never should have been approved, but there were also serious questions about the jury in the case.”
Defenders of this view of clemency as error correction offer what some scholars call a “retributive theory of clemency.” Such a theory strips away all of the concepts left over from the seventeenth century when clemency was thought of as an act of grace or a kind of divine forgiveness. It refurbishes that power to comport with constitutional democracy in the modern state.
As Kathleen Dean Moore puts it, “in the American democracy, the pardon is not a gift from the sovereign and cannot be exempt, on that ground, from the need for justification.” In her view the simplest and best justification for it is its contribution to justice. Others suggest that “mercy based on compassion is just as problematic as mercy motivated by bias or caprice.”
But clemency without grace or mercy loses much of its reason for being.
Lest I be misunderstood, I do not think that President Trump’s commutation of Stone has anything to do with what either justice or democracy really requires.
Rather, his underdeveloped view, and corrupt use, of clemency is another telling example of Trump’s brand of timid, often incompetent, authoritarianism and of what others have rightly called his “executive underreach.” Just as he has failed to lead the United States through a national emergency and to empathize with the suffering of millions of Americans, so too he seems incapable of grasping the meaning of mercy or of understanding its place in a decent society.
