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The Roger Stone Commutation Was Bad. Congress Shouldn’t Make Things Worse.

Democrats in Congress must still their impulse to legislate restrictions on clemency. Not only would such a law be unconstitutional, but it may deter future presidents from using clemency the way that the framers intended.

Roger Stone, former adviser and confidante to President Trump, leaving the Federal District Court for the District of Columbia after being sentenced in February.Chip Somodevilla/Getty Images

This piece is a commentary, part of The Appeal’s collection of opinion and analysis.

President Donald Trump’s July 10 commutation of Roger Stone’s prison sentence infuriated me. Like many Americans, I was appalled at the bald favoritism, the lack of integrity, and the stunning hypocrisy of declaring oneself a “law-and-order” president while letting a favorite felon escape punishment. I was thrilled to see Mitt Romney tweet that the move was “unprecedented, historic corruption.” Not since Bill Clinton granted a pardon to fugitive Marc Rich was I so upset by a clemency grant. Making it especially galling to me was the juxtaposition of the jubilant Stone with the depressing backlog of over 13,000 clemency petitions that sit somewhere in the broken clemency process awaiting action. Some of them are my pro bono clients; I know that they present better cases than nearly anyone who has received clemency from Trump.

But Democrats in Congress must still their impulse to legislate restrictions on clemency. Not only would such a law be unconstitutional, but it may deter future presidents from using clemency the way that the framers intended. 

Article II of the Constitution sets out that the President “shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” It is one of the few unchecked powers granted by the Constitution, and has maintained that status over the centuries. All four limits on the power are contained in that short phrase itself: It only applies to federal crimes, it only affects criminal cases, it cannot be used to escape impeachment, and the crime must already have occurred. Other than that, the pardon power is unlimited. Any statutory restrictions on clemency would probably be successfully challenged in court. 

Perhaps more importantly, the limits proposed are just a flat-out bad idea. Speaker of the House Nancy Pelosi, for example, has proposed a bill that would allow Congress to demand “all materials of an investigation that were obtained by a United States Attorney, another Federal prosecutor, or an investigative authority of the Federal Government, relating to the offense for which the individual is so pardoned.” That doesn’t seem so onerous—after all, Congress already has the ability to conduct an investigation into a clemency grant. In fact, they did conduct such an investigation after Marc Rich was pardoned. 

The problem with a law which would encourage such demands for documents is that it might chill the willingness of future presidents to use clemency in a way that would heal rather than divide. Consider, for example, the imperfect but worthwhile Obama clemency initiative, which resulted in nearly 1,700 commutations, almost all going to those who were convicted of non-violent drug crimes. One can imagine opponents in Congress using the Pelosi law to make such a project almost impossible, especially given the thin resources usually accorded to such efforts.

It would be a terrible loss if we were to forego such shows of mercy because we are angry that a 68-year-old Roger Stone or an 85-year-old Joe Arpaio avoided prison. Retributionism—the raw instinct that tells us we want to hurt someone who has done wrong—rarely leads us to a good place, and flies in the face of the spiritual beliefs of most Americans. Two old men staying home is not the worst thing in the world, especially compared to the decades of racial injustice and bad policy that filled our prisons, problems that clemency can help address.

What Congress should do is to encourage and fund a better way to evaluate clemency petitions, to clear out that outrageous backlog. I was a witness before the House Judiciary’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties at a hearing on clemency reform this past March. Witnesses from both sides at that hearing urged such a path, and against curtailing clemency. 

Our clemency system has been broken for four decades. Before that, pardons and commutations were issued at regular intervals and in numbers we would find remarkable today. For example, even much-maligned Herbert Hoover granted over 1,000 clemencies in his one term in office (in comparison, Trump has granted 35, and Obama granted just 23 in his first term). The supposed “tradition” of holding off on clemency grants until the end of a second term is a myth—that unfortunate practice that began with George H.W. Bush and Bill Clinton

What holds back even the ambitions of a president like Barack Obama? A grotesque clemency analysis system that involves seven sequential levels of review, most of which is mired in the Department of Justice, which is perhaps the very worst agency for the job, since they recommended the overlong sentences at issue in the first place. Fixing that (for example, through the establishment of an independent clemency commission) would allow both better results and presidential discretion.

The wisdom of broad, unfettered clemency goes back to Philadelphia in 1787.  The framers of the Constitution included the pardon clause even after debate that goes to the heart of the matter in our current context. Should Congress have control over clemency? At the constitutional convention, Roger Sherman expressly proposed that pardons go through the Senate, and that idea that was voted down almost unanimously. Then Edmund Randolph proposed a bar to clemency in treason cases, worrying that “The president may himself be guilty. The Traytors [sic] may be his own instruments.” A special committee was formed to examine the problem, but Randolph’s motion failed. So, the framers considered a role in pardoning for Congress, and rejected it. They also considered a limit on a president’s ability to grant clemency to a president’s “instruments” (a perfect term for Roger Stone), but rejected that, too. That should matter.

In the end, the framer’s reasoning is sound. Clemency is meant to be the soul of the Constitution, an expression of mercy, as is expressed through the conscience of the president. Our remedy is political, not legal: if unhappy with the way clemency is used, we need to elect a president with a different kind of conscience.

And that shifts the burden back to us. In 2016, no one asked Donald Trump how he would use clemency (nor did it come up in 2012, or 2008, of 2004, etc.). We cannot repeat that mistake. It needs to be a topic at the presidential debates, and in our own dialogues about this election. Clemency is the ancient power of kings, a key that fits every federal prison door. That’s worth talking about.

Mark Osler is a professor and the Robert and Marion Short Distinguished Chair in Law at the University of St. Thomas School of Law. Osler’s work advocates for sentencing and clemency policies rooted in principles of human dignity.