Facing an ongoing pandemic and societal unrest over the death of George Floyd that reached the White House, President Trump on June 1 channeled Richard Nixon and declared “I am your president of law and order.” Trump said that he was “dispatching thousands and thousands of heavily armed soldiers” and other personnel to quell unrest. He also criticized as “weak” the response of several governors to the protesters.
On June 4, Trump tweeted about his longtime friend and political adviser, Roger Stone, a Nixon memorabilia aficionado who sports a tattoo of the 37th president on his back. Stone is supposed to report to federal prison by the end of this month to start serving a three-plus-year term for lying, obstructing justice and witness tampering. The president cryptically typed that Stone should “sleep well at night,” an apparent hint at a presidential pardon.
How can the president of “law and order” reconcile his bold new campaign pledge to uphold the law with his apparent desire to spare his friend from federal prison? Some presidents have used moments when the public was distracted to offer clemency to family, friends or political allies.
Presidents of both parties are guilty of abusing clemency in this way. George W. Bush commuted the prison sentence of I. Lewis “Scooter” Libby, Vice President Dick Cheney’s former chief of staff, two days before the July 4 holiday in 2007. Bill Clinton pardoned his half-brother, Roger Clinton, Whitewater figure Susan McDougal, former CIA head John Deutch, former HUD Secretary Henry Cisneros and fugitive financier Marc Rich, among others, on the final morning of his presidency in 2001. Having already lost his reelection bid to Clinton, George H.W. Bush pardoned six Iran-Contra figures on Christmas Eve, 1992.
The lucky few clemency recipients so far under the Trump administration (25 pardons, 10 sentence commutations) have included tainted political figures such as former governor Rod Blagojevich and “Scooter” Libby, along with several offenders with celebrity ties, such as the late boxer Jack Johnson, whose candidacy was supported by Sylvester Stallone, and Alice Marie Johnson, backed by Kim Kardashian.
Trump’s clemency track record has helped fuel media speculation on the odds of official forgiveness for four well-known Trump allies: former NSA adviser Michael Flynn, former campaign manager Paul Manafort, Trump’s personal lawyer, Michael Cohen, and Stone. Neither Manafort nor Cohen is in prison anymore because of the pandemic, although both remain under house arrest. Trump made clear his views on Flynn’s case and Attorney General William Barr has advocated for its dismissal, but Trump may need to pardon Flynn eventually. For now, though, Trump’s focus is on Stone.
A Roger Stone pardon would be an unequivocal abuse of the clemency power. By including a broadly worded clemency clause in Article II, the framers of the Constitution wanted the president to be able to offer mercy to individuals unfairly penalized by the criminal justice system or to quell a rebellion. They did not intend for presidents to offer pardons or commutations to their allies or aides. George Washington explicitly followed these two appropriate rationales when he granted clemency to the Whiskey Rebels, and his successors have, for the most part, done so as well.
To be sure, President Trump could keep his “law and order” bona fides intact and still exercise the clemency power. There are literally thousands of clemency petitions pending with the Pardon Attorney’s office in the Department of Justice that Trump could draw from to — justifiably — offer presidential mercy in the manner that the framers intended.
Stone’s case does not fit those criteria. Sufficient time has not yet passed from his sentence for him to show that he has been rehabilitated or regrets his actions. Indeed, a pardon petition would be rejected by the Department of Justice’s clemency guidelines because of its recency if Stone had applied through the usual channels for presidential clemency. The president is not bound by federal guidelines, though, so he may pardon whomever he would like. A Stone clemency grant would be consistent with Trump’s others, as Stone is both a tainted political figure and, to some, a celebrity.
Trump’s signals so far suggest that a Stone pardon is all but inevitable. The president openly criticized U.S. District Court Judge Amy Berman Jackson, who sentenced Stone in February. He then teased a pardon for Stone that same day. We know that Stone — and, presumably, his prison report date — is on Trump’s mind, as the president also tweeted on June 4 that Stone “was a victim of a corrupt and illegal Witch Hunt.”
President Trump has foreshadowed clemency for others. He memorably told an Arizona rally crowd that “Sheriff Joe [Arpaio] can feel good,” presumably because a pardon was coming. Trump then exercised his clemency power for the first time to pardon Arpaio back on Aug. 25, 2017. Trump has also used Twitter to alert his followers that clemency was coming, as he did with conservative commentator Dinesh D’Souza on May 31, 2018.
Will Trump commute Stone’s sentence or pardon him? If that announcement or tweet happens as expected, the American public should keep in mind Trump’s version of “law and order” and his clemency record, and then judge them — and him — accordingly.
Jeffrey Crouch is an assistant professor of American politics at American University. He is editor of Congress & the Presidency journal, author of “The Presidential Pardon Power,” and coauthor (with Mark J. Rozell and Mitchel A. Sollenberger) of the forthcoming book “The Unitary Executive Theory: A Danger to Constitutional Government.”