Robbins: The president’s right to pardon
Oops! He did it again.
This time, this most controversial of presidents has extended his most controversial pardon. Well, not a pardon, technically, but a commutation. You say to-MA-to; I say to-MAH-to.
Unlike the Ella Fitzgerald lyrics, however, I’m not sure left and right can “call the whole thing off.” Oh my, no; this one has certainly gotten undies in a bunch.
For those astute among you — or maybe the simply bored — this is not the first time I have written about the presidential pardon, this particular president or how, as Rudyard Kipling teed up, how the twain have met.
Before the Trump administration, I had written about the presidential power to pardon twice in 22 years. Since the Trumpeter in Chief has manned the tiller of state, this is my sixth time. If you can say nothing else about him, The Donald does keep all of us on our toes.
A get-out-of-jail-free card
The latest brouhaha — in case your head has been buried in some sub-Saharan ostrich hole — is the president’s commutation of Roger Stone’s reservation at the federal pen at Jesup, Georgia, a hotbed of, well … being hot and humid. Stone, who styles himself the Dirty Trickster in Chief and who has a tat of Tricky Dick between his rhomboids to prove it, was convicted of … count ’em … seven felonies.
Among Stone’s dirty deeds were witness tampering, lying to Congress, and obstructing the House investigation into whether the 2016 Trump campaign coordinated with the Russians to tip the election. Stone was the sixth Trump aid or adviser to be convicted as an outfall of the Mueller investigation.
What Stone had in his back pocket, though, was a get-out-of-jail-free card, published courtesy of what appears to be the Cronyism Press.
Like Trump or not, that’s not what the president’s pardon power is supposed to be.
For balance, when then-outgoing President Bill Clinton (who issued 147 pardons as he was hieing from the White House, most notoriously, his pardon of financier Marc Rich), I chimed in. Quoting myself, what I said then was, “Whoa, hold on there pardner. It’s all about the Constitution, stupid!”
In 2007, I criticized George W. for batting about the possibility of pardoning Scooter Libby, V.P. Dick Cheney’s one-time chief of staff and national security adviser who, like Stone, was convicted of multiple felonies, in his case, relating to the Valerie Plame affair. At the time, I wrote, borrowing an M.C. Hammerism, although it was by then a little dated, “Mr. President, don’t touch that!” Ultimately W. passed on Libby. Libby though ultimately was pardoned by … yup, The Donald … in April 2018.
No, you can’t make this stuff up.
Anyway, this brings us to our thesis. From whence does the presidential pardon power derive and how was it intended by the framers to be wielded?
A history of pardons
First, one little sidestep.
A pardon means — both in the real world and at law — to forgive. A pardon exempts the individual upon whom it is bestowed for the punishment for the crime committed. A pardon restores the rights and privileges forfeited on account of the offense. n common parlance, “no harm, no foul.”
A pardon is distinguished from a “commutation.” A commutation does not forgive or obliterate guilt. While a pardon forgives the crime, a commutation merely remits part of the punishment to be served or paid for the crime.
Rather than “no harm, no foul,” a commutation is “harm” but then the diminishment of the price to be paid for it. With a pardon, the crime goes away and the punishment is avoided. With a commutation, the crime occurred and a price is paid, but a lesser price than was originally imposed.
Back now to the Founding Fathers.
Article II, Section 2 of the Constitution provides that “The President shall … have the Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of Impeachment.”
The origin of the power lied with the framers of the Constitution who envisioned the power as having a narrow purpose, largely in times of war or rebellion. A pardon might be offered, for example, as an inducement for rebels to lay down their arms. Arguing in the Federalist Papers (No. 74), Alexander Hamilton noted that “in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”
In the main, the presidential power to pardon has been used as the framers intended: Washington pardoned the leaders of the Whiskey Rebellion; Andrew Johnson pardoned Confederate soldiers when he inherited the aftermath of the Civil War from the slain Abraham Lincoln; Ford pardoned Nixon for the intrigue of the Watergate affair, Jimmy Carter pardoned those who evaded service in the Vietnam War.
In recent years, however, the power has been exercised more broadly, giving a reprieve to an assortment of knaves, scoundrels and the merely dispossessed for a variety of wrongs that seemingly have little to do with the general welfare of the nation.
Now, with Roger Stone, the bar has been raised or lowered depending on your point of view. Now, it appears mere loyalty to the president is the sole price of admission. Oh, and by the way, as interpreted by the courts, the President’s power to pardon is absolute. Pardons cannot be blocked or equivocated by Congress or the courts.
Ruminate on that a moment and ask yourself, in your own estimation, “What is this country of ours coming to?”
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, email@example.com. Mr. Robbins’ new novel, "How to Raise a Shark (an apocryphal tail tale)," is available at Amazon.com.
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