In commuting Stone’s sentence, Trump goes where Nixon was not willing

But in casting aside their counsel on Friday, Trump indulged his own sense of grievance over precedent to reward an ally who kept silent. Once again, he challenged convention by intervening in the justice system undermining investigators looking into him and his associates, just days after the Supreme Court ruled that he went too far in claiming “absolute immunity” in two other inquiries.

Cover-up

Democrats condemned the commutation of Stone’s 40-month prison term and vowed to investigate. Speaker Nancy Pelosi, calling the move an act of “staggering corruption,” said she would pursue legislation to prevent the president from using his power to protect those convicted of a cover-up on his own behalf, although that would face serious constitutional hurdles and never be signed into law by Trump.

Still, Trump’s action was too much even for some Republican critics of the president, who called it an abuse of power intended to subvert justice. “Unprecedented, historic corruption: an American president commutes the sentence of a person convicted by a jury of lying to shield that very president,” Sen. Mitt Romney of Utah wrote on Twitter.

Sen. Patrick Toomey of Pennsylvania objected too, noting that Stone was “duly convicted” of obstructing a Republican-led congressional inquiry. “While I understand the frustration with the badly flawed Russia-collusion investigation, in my view, commuting Roger Stone’s sentence is a mistake,” he said. Any objections to his prosecution, he added, “should be resolved through the appeals process.”

‘Treated horribly’

Trump defended his decision after a day at his golf club Saturday. “Roger Stone was treated horribly,” he told reporters. “Roger Stone was treated very unfairly.” He would not say if he would pardon other campaign advisers, but said the investigators should be prosecuted. “Those are the people that should be in trouble.”

Trump had long publicly floated the possibility of clemency for allies targeted by prosecutors, including Stone, his former national security adviser Michael Flynn and former campaign chairman Paul Manafort. That by itself was interpreted by critics as witness tampering, in effect promising intervention to allies if they refused to cooperate with investigators against him.

Deferred to advisers

While Trump has granted clemency to political allies and others with ties to his White House, he had until now deferred to advisers urging him not to use it for Stone or others caught up in investigations of the president’s campaign ties to Russia.

Barr, who has assailed the Russia investigation and moved to drop the case against Flynn even though he pleaded guilty to lying to the FBI, nonetheless objected privately to a commutation for Stone, officials said. In an interview with ABC News this past week, Barr said clemency was “the president’s prerogative” but called Stone’s prosecution “righteous” and the final sentence “fair.” Trump, who lately has styled himself as a “law and order” president, cut the Justice Department out of his decision, officials said.

While Republican leaders kept quiet, some of the president’s staunch supporters cheered him on, saying Trump was properly countering the excesses of overzealous prosecutors.

“In my view it would be justified if President @realDonaldTrump decided to commute Roger Stone’s prison sentence,” Sen. Lindsey Graham of South Carolina, chairman of the Senate Judiciary Committee, wrote on Twitter. “Mr. Stone is in his 70s and this was a nonviolent, first-time offense.” (Stone is actually 67.)

Under the Constitution, the president’s pardon power is expansive, explicitly limited only in that it applies to federal crimes, not to state prosecutions or impeachments. As far back as the 19th century, the Supreme Court ruled that “Congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders” and as recently as 1974 said the president had “unfettered executive discretion” in granting clemency.

While House Democrats vowed to investigate Trump’s decision, some lawyers said Congress had no authority to. “I understand the implications for the justice system, but just as a matter of constitutional law, I don’t see how they get into this,” said Stanley Brand, a former House counsel under a Democratic speaker.

The history of presidential clemency is replete with disputes over the propriety of relief from the nation’s highest office.

Just days before the 1992 election, Lawrence E. Walsh, the independent counsel investigating the Iran-Contra affair, filed a new indictment against former Defense Secretary Caspar Weinberger revealing notes contradicting President George H.W. Bush’s account of his involvement. Bush considered that a dirty trick by Walsh to influence the election and indeed he was defeated days later.

Bush responded the next month to what he considered an illegitimate prosecution by pardoning Weinberger and five others, prompting Walsh to complain that “the Iran-Contra cover-up, which has continued for more than six years, has now been completed.”

President Bill Clinton issued a raft of more than 175 pardons or commutations on his last day in office in 2001, including for his own half brother Roger Clinton and several former administration officials. Also pardoned was Susan McDougal, a former business partner from Arkansas who spent 21 months behind bars for refusing to cooperate with the independent counsel Ken Starr’s investigation of the Whitewater land venture.

Unlike the case with Stone, Clinton acted only after McDougal had already served her sentence and been released. With the Whitewater investigation wrapped up, Clinton faced no legal risk at that point.

Commutation

Jack Goldsmith, a Harvard Law School professor and Justice Department official under President George W. Bush, said those cases could be seen as parallels to Stone’s commutation but pointed to the larger pattern under Trump. In 31 of his 36 pardons or commutations, he noted, Trump advanced his political goals or benefited someone with a personal connection, whose case had been brought to his attention by television or was someone he admired for their celebrity.

“This has happened before in a way,” Goldsmith said. “But there has been nothing like Trump from a systematic perspective.”

John Q. Barrett, a former Iran-Contra prosecutor, said Trump’s action was more objectionable than Bush’s. “This is much, much more brazen and almost transactionally criminal,” he said in an email. “Deferred payment for toughing it out/silence.”

One president who dared not use his pardon power in such a way was Nixon, although he considered it. Nixon’s associates paid hush money and dangled the prospect of clemency to the Watergate burglars to buy their silence but that was off the table once the Watergate story broke open.

Likewise, Nixon secretly promised to pardon three lieutenants, H.R. Haldeman, John Ehrlichman and John Mitchell, the day after Senate hearings opened in 1973.

He never followed through. Haldeman, Ehrlichman and Mitchell were indicted in 1974 and accused of making “offers of leniency, executive clemency, and other benefits” to obstruct justice. All three went to prison.

Nixon resigned that August without using his pardon pen. But he received one himself a month later from President Gerald Ford, who wanted to spare the country the spectacle of a former president on trial, only to trigger a backlash that helped cost him the 1976 election.