Will Roger Stone be pardoned?

Will Roger Stone be pardoned?
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In the wake of the sentencing of Roger StoneRoger Jason StoneJuan Williams: Mueller, one year on House Judiciary Committee postpones hearing with Barr amid coronavirus outbreak Trump 'strongly considering' full pardon for Flynn MORE for his obstruction of the congressional inquiry into Russian efforts to influence the 2016 election, the willingness of President TrumpDonald John TrumpSenators demand more details from Trump on intel watchdog firing Overnight Health Care: Trump steps up attack on WHO | Fauci says deaths could be lower than first projected | House panel warns federal stockpile of medical supplies depleted | Mnuchin, Schumer in talks over relief deal Trump says he'll look into small business loan program restricting casinos MORE to use the pardon to protect his own friends may be tested. As Representative Adam Schiff put it, a pardon of Stone would be a “breathtaking act of corruption.” The question is now whether there is a constitutional means of addressing this issue.

In general, presidential abuse of the pardon power may be checked in two ways, through impeachment or by being voted out. There should be little doubt that the Framers viewed misuse of the pardon power as potentially impeachable. James Madison noted, “If the president be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him.” Of course, if Trump were to pardon Stone, it is an open question if the House could again muster the political will to begin another inquiry so soon after its impeachment of Trump for his conduct regarding Ukraine.

Then there is the possibility of accountability during the next election. The problem is that, thanks to the 22d Amendment, the democratic check on the pardon power does not function today quite as the Framers imagined. Because the 22nd Amendment limits a president to two successive terms, if he is reelected, there is no longer any democratic electoral check on the pardon power. This means a president could issue controversial pardons with impunity simply by waiting until the day after he is sworn into office for a second term. Depending on how he views his campaign prospects, Trump could hold off on pardoning Stone until after the election this fall, at which point he could pay no electoral price for such action.

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Impeachment aside, in other words, there is effectively no real recourse against presidential abuse of the pardon power in a second term. So it is worth considering whether such abuse could be challenged in federal court. While exercise of the pardon power traditionally has been seen as beyond the scope of judicial review, the legitimacy of a legal challenge in particular cases should not be ruled out. As the nonpartisan organization Protect Democracy has argued, judicial review of presidential pardons is appropriate because the judiciary branch has an important responsibility to ensure presidential pardons “respect individual constitutional rights and reflect the constitutional system of checks and balances.”

Such a legal challenge could be limited to pardons during second terms that offend the constitutional system of checks and balances. A pardon of Stone would fit the bill. A jury found Stone lied to the House Intelligence Committee about computer files hacked by the Russians prior to the 2016 election and the subsequent release of the files by WikiLeaks, and that he had threatened a witness to keep him from participating during the House investigation. As Judge Amy Berman Jackson declared at his sentencing hearing, Stone “was prosecuted for covering up for the president.”

If Trump were to pardon Stone during his second term if reelected, he would be acting to reward someone a jury found beyond a reasonable doubt to have obstructed a legitimate congressional investigation in order to protect the president himself. It is one thing for a president to issue a pardon that smacks of favoritism, like when President Clinton pardoned his brother for drug charges. It is another thing when a president pardons a person for helping to cover up his own actions in office. Such quid pro quo essentially subverts the proper functioning, at least with Stone, of both congressional oversight and the criminal justice system.

An analogy can be drawn to the Supreme Court decision in United States versus Richard Nixon in 1974 that considered whether executive privilege prevented the disclosure of information related to an ongoing criminal proceeding. Weighing the importance of the executive privilege against the need for the information to the administration of justice, the justices concluded the integrity of the criminal process required its production. It is therefore critical that executive power must give way when its exercise undermines the functioning of the constitutional system itself.

The Framers were confident that elections would work to keep presidents in line. Yet the people over time saw sufficient problems with presidents who sought successive terms that they eventually imposed a limit of two successive terms. In an appropriate case, a federal court ought to account for that structural change to the Constitution and recognize that elections alone will not work to check the pardon power of the president.

Lawrence Friedman is a professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”