Donald Trump continues to dangle the promise of a pardon for his longtime crony Roger Stone, sentenced on Thursday to 40 months in prison for lying to Congress and threatening a witness. The president is an interested party in the trial. Stone’s offenses, as Judge Amy Berman Jackson noted in handing down the sentence, were in the service of a protecting Trump. “He was prosecuted for covering up for the President,” Jackson said.
Speaking at an event in Las Vegas the same day Stone was sentenced, Trump claimed Stone was the victim of “dirty cops” and an “unfair” process. He excoriated the forewoman of the jury, saying she was an “totally tainted when you take a look. How can you have a person like this? She was an anti-Trump activist.” Trump added that the forewoman of the jury was a “dominant person, so she can get people to do whatever she wants.”
Trump wouldn’t commit to a pardon because he thinks Stone still has a chance of winning on appeal. “I’m not going to do anything in terms of the great powers bestowed upon a president of the United States. I want the process to play out,” Trump said. “I think that is the best thing to do. Because I would love to see Roger exonerated.” He qualified this statement by saying he was going to continue “to watch the case very closely. And at some point I will make a determination. But Roger Stone and everybody has to be treated fairly. And this has not been a fair process. Okay?”
The day before these remarks, Trump tweeted a video clip of a Fox News segment where Tucker Carlson laid out the case for pardoning Stone.
A pardon for Roger Stone would be the capstone of the White House’s extraordinary interference in this legal case. Attorney General William Barr already created a firestorm by overriding the sentencing guidelines of the original prosecutors in the case, who resigned in protest.
Trump’s use of his pardon power can be distinguished from the other scandals of his presidency in that it is a perfectly legal, indeed constitutional, form of corruption. The fact a president can pardon his own criminal associates doesn’t make the action any better than actually impeachable offenses like obstructing justice or using foreign aid to advance his political fortune.
Rather, the very constitutionality of Trump’s actions makes them worse, because they show how the legal powers of the presidency are themselves ripe for abuse. Trump, by being bolder than his predecessors, has shown how easily a president can undermine the rule of law without even breaking any laws.
As Matt Ford of The New Republic notes, “A big lesson of the Trump era is that American liberal democracy as we know it exists despite the Constitution, not because of it.” This is a hard lesson for liberals to accept, because they see the Constitution as a bulwark protecting democracy from authoritarian menaces like Trump. Often, this is how the Constitution functions, as when the courts struck down the first iteration of the anti-Muslim travel ban.
But there are also constitutional rules that are easily used for sinister ends. The pardon power is one such rule.
Trump’s presidency has been marked by such pardons. Unlike recent modern presidents, Trump doesn’t clear his pardons through the Department of Justice. Rather, he grants pardons by caprice, often for political allies or donors. He’s pardoned Joe Arpaio, Scooter Libby, Conrad Black, and Dinesh D’Souza, all right-wingers who claim they were victims of partisan injustices. Black, who has written many columns and a book extolling Trump, is a particularly egregious case of quid pro quo mercy.
On Tuesday, Trump went on another exoneration spree, granting seven pardons and four commutations. Most notably, Trump pardoned former Illinois governor Rod Blagojevich, serving a long sentence for legendary corruption. Trump was possibly sending a signal to Roger Stone, reminding the beleaguered friend of the president’s power. As a Washington Post editorial noted, Trump “made clear the pardons were a function of his whim, based on which celebrity or personal friend caught his ear, who got on Fox News to appeal to him, or who gave money to the Trump cause.”
The arbitrariness of the pardons is the point. They are a raw assertion of presidential prerogative, a way of reminding the world that Trump has monarchical authority in certain realms.
For Trump’s opponents, these pardons should cause a searching reflection not just about the nature of one bad president but about the constitutional system that enables him. Trump is flourishing under the rules of the system. Replacing Trump is important, but rethinking the system is no less imperative. At some point in the post-Trumpian future, there will be a need for constitutional restraint of the presidency itself, including the pardoning power.
Trump has a very expansive view of the pardon power. On June 4, 2018, he tweeted out, “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?” It’s entirely possible that if rejected by voters in November, Trump’s final act as president will be to grant an absolute pardon to himself for everything he did as president. Gerald Ford granted that very pardon to Richard Nixon.
Would such a sweeping self-amnesty hold up? We may yet find out.