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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsThe Traditional Interpretation of the Pardon Power Is Wrong
Properly understood, the commutation of Roger Stones 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 presidents 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 judges impeachment.)
But there is a strong argument, rooted in the Constitutions 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 Trumps 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 cant use the pardon and reprieve power to commute the sentences of those charged with crimes related to Russian interference in the 2016 campaignincluding 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
MineralMan
(146,395 posts)the commutation will stand. The language on pardons in the Constitution is subject to interpretation, to be sure. However, it is unlikely that the argument made in the Atlantic will bear any fruit.
lagomorph777
(30,613 posts)Would be interesting to see it tested in SCROTUS - but probably risky in the currently constituted Court.
StarfishSaver
(18,486 posts)This is a stretch, at best.
The language is clear. It means the pardon power doesn't apply to cases of impeachment. Nothing in the Constitution says or even suggests that an impeached but not removed president's power is diminished in any way by virtue of that impeachment.
But even if their argument were valid, the acquittal by the Senate would likely remove that prohibition - just as, in the criminal sphere, an acquittal means a defendant is no longer under a legal cloud or restriction, despite having been charged/indicted for a crime.
Fiendish Thingy
(15,807 posts)Kirchner argues that the Constitution doesnt specifically prohibit a president from reversing his predecessors pardons/commutations.
He acknowledges this would be uncharted territory, but notes there is a first time for everything, and that this has never been tested in court.
Edited to add:
I dont think this would involve double jeopardy, as it would not be retrying a case already acquitted.
StarfishSaver
(18,486 posts)Not only do I think it would be invalid under the Constitution, it would be a terrible precedent to set. Would we want a Trump coming in and undoing all of Obama's and other previous presidents' pardons and commutations?
And this wouldn't just affect federal cases. If the reasoning held up, it could also allow the rescission of state governors' pardons and commutations, as well. It would be a mess.
Bottom line, we can't function in a system in which people - even people we can't stand - are jerked around that way. Pardons and commutations are done deals; their certainty allows people to move on with their lives. We don't live in a system in which a someone is pardoned and then has to worry about getting re-convicted if the wrong person gets elected or their sentence is commuted but they live in fear the rest of their lives wondering if they'll get thrown back in jail.
No. That idea sucks. Pardons and commutations are permanent. If we don't like them, we need to pay better attention to who we put in a position to issue them.
stopdiggin
(11,535 posts)post#5 gets it better.
But this is arm chair theorizing -- and a pretty sophomoric example at that. Not every glittery object that boils to the surface is going to be a gem. Mr. Kirschner would have done himself, and everyone else, a favor by keeping this nonsense to himself.
BComplex
(8,163 posts)They were all involved.