Forget Bernie Kerik, Scooter Libby, Michael Milken—even Sheriff Joe Arpaio. This was the presidential reprieve President Donald Trump’s critics feared most.
Trump’s move tonight to commute the sentence of his longtime associate Roger Stone, nearly five months after a federal judge sentenced him to more than three years in prison, was surely the least surprising of his many high-profile acts of executive clemency. The president, after all, had been complaining about Stone’s prosecution from the start; had telegraphed by tweet his displeasure with the Department of Justice’s sentencing recommendation; and had tried to browbeat Judge Amy Berman Jackson into granting Stone a new trial.
But the seeming inevitability of Trump’s decision made it no less brazen. Stone was more than a political ally of the president, like Arpaio. He was not just a friend of a friend, like Kerik, Libby, and Milken—whose pardons were encouraged privately by Trump’s buddies or via public endorsements from the president’s fans on Fox News. Stone was a longtime confidant of Trump, but he was more than that. To the president’s critics, he was an accomplice to Trump’s crimes, convicted of lying to Congress and threatening a witness in the investigation into Russian interference in the 2016 election, which directly involved Trump and his campaign. As Jackson noted in explaining her sentence, Stone “was not prosecuted for standing up for the president; he was prosecuted for covering up for the president.”
The official reprieve came on a Friday evening. “Roger Stone is a victim of the Russia Hoax that the Left and its allies in the media perpetuated for years in an attempt to undermine the Trump presidency,” read a White House statement explaining Trump’s decision. “Mr. Stone would be put at serious medical risk in prison. He has appealed his conviction and is seeking a new trial. He maintains his innocence and has stated that he expects to be fully exonerated by the justice system.”
The president’s clemency power allows him to commute any federal sentence as well as to grant pardons. Because Trump is not fully pardoning Stone, he can proceed with an appeal of his conviction that could allow him to clear his name, at least in the eyes of the law. “Mr. Stone, like every American, deserves a fair trial and every opportunity to vindicate himself before the courts,” the White House said. “The president does not wish to interfere with his efforts to do so.”
Jackson, a veteran judge and an appointee of President Barack Obama, knew in February that the punishment she was handing down could very well be quickly and irrevocably lifted by a president who was watching her decision closely. All four prosecutors on Stone’s case had withdrawn from their roles after Attorney General William Barr intervened to force the Justice Department to revise its original sentencing recommendation of seven to nine years. Yet when a new team of prosecutors showed up in court for Stone’s sentencing, they defended their predecessors’ original, harsher request. Jackson pressed the prosecutors to account for the department’s dueling recommendations, but they refused to discuss “internal deliberations.”
[Read: A brief history of Roger Stone]
Jackson said her decision was not influenced by political pressure. In a lengthy speech before handing down Stone’s sentence, she called out Trump’s comments as “entirely inappropriate.” And she defended the investigation and prosecution of Stone in language that echoed the laments of Trump opponents, who say the president and his allies have waged an assault on the very idea of truth. “The truth still exists. The truth still matters,” she said. “The dismay and disgust at the defendant’s belligerence should transcend party.”
Yet, ultimately, the judge sided with Barr, determining that the prosecutors’ recommendation of a longer sentence was more “than necessary” and giving Stone a prison term less than half as long as the original request. This should not have been a surprise; in March 2019, Jackson gave a similarly mid-range sentence to Paul Manafort, Trump’s former campaign chairman, after his conviction for fraud and other crimes. But if Jackson’s sentence offered Trump a way out of using his clemency power, he ignored it.
The president did not act when Stone was sentenced but waited until just days before he was to report to prison. Citing the coronavirus pandemic, the 67-year-old Stone had asked Judge Jackson whether he could delay the start of his sentence—already pushed back from April until June—to September 1. Jackson granted him only a two-week reprieve, but Trump took care of the rest.
Although not surprised, Democrats nonetheless reacted angrily to the news. “With Trump there are now two systems of justice in America: One for Trump’s criminal friends and one for everyone else,” tweeted Representative Adam Schiff of California, the chairman of the House Intelligence Committee. Democrats have no plans to try to again impeach a president they hope to defeat in November, but Representative Hakeem Jeffries of New York, the chairman of the party’s House caucus, bluntly warned Trump that he could be indicted as soon as he leaves office.
A defining trait of Trump as president is his disdain for constraints of any kind. He has raged at courts that have ruled against him, and he has chafed at—and occasionally gone around—Congress when it ignores his wishes. Trump appears to love his clemency power precisely because it is the most pure and unadulterated authority granted to the president by the Constitution. It is final and unappealable. Congress can’t stop it; a future president can’t undo it; the Supreme Court cannot review it.
In the summer of 2018, I asked Democratic Representative Jerry Nadler of New York, who was then vacillating on the question of whether Trump should be impeached, to name something that the president could do that he thought would surely merit his removal from office. Nadler was not yet the chairman of the House Judiciary Committee, Special Counsel Robert Mueller had not yet delivered his voluminous report on election interference, and Trump had not yet had his fateful phone call with the president of Ukraine. Yet the first example Nadler gave was a pardon.
He told me a story about the 1788 convention where Virginia decided to ratify the Constitution. The delegates were discussing the pardon power when one of them suggested that it was too broad and should be narrowed. “What if the president engaged in a criminal conspiracy and pardoned his co-conspirators?” the delegate asked, according to Nadler. “And James Madison answered, ‘Well, that could never happen, because a president who did that would be instantly impeached.’”
The Framers, Nadler concluded, “viewed the impeachment power as a limitation on the pardon power.”
Tonight, Trump stepped in to save a man convicted of lying to Congress in order to protect the president. And what galls and frustrates his critics is the realization that the one check Congress has on that particular power is the move it has already unsuccessfully deployed.