//  7/17/20  //  In-Depth Analysis

By Brian Kalt | Professor of Law | MSU College of Law

Did President Trump have the power to commute Roger Stone’s sentence? The traditional understanding of the Constitution’s pardon clause is that Trump did. More directly, Roger Stone is not in prison right now. But in a recent piece in the Atlantic, Corey Brettschneider and Jeffrey Tulis (B&T), contend that the Stone commutation is invalid. Regrettably, their legal argument is weak. I say “regrettably” because the Stone commutation was deeply objectionable. But B&T’s arguments will not convince judges to undo it.

The battleground is Article II, § 2 of the Constitution, which lets presidents grant pardons and other forms of clemency “except in cases of impeachment.” The traditional view of the impeachment exception, which one can find in any treatise that explains it, is that pardons cannot apply to impeachment proceedings. This separates the criminal process from the impeachment process: pardons only reach criminal consequences; they cannot stop or undo House impeachments or Senate convictions. B&T’s innovation is to argue that in addition to this, the phrase “also bans a president from using the pardon and reprieve power to commute the sentences of people directly associated with any impeachment charges against him.” Moreover, they say that this applies even if the Senate acquits the president.

One immediate problem with this argument is that Stone’s crimes were connected to Robert Mueller’s Russia investigation, not the Ukraine controversy for which Trump was impeached. But even if the connections had been more direct and substantial, B&T’s reading of the impeachment exception does not hold water.

B&T’s argument is basically that the phrase “except in cases of impeachment” is ambiguous and the historical evidence is unclear, so we should define the phrase in a way that is “most consonant with the deepest purposes of the Constitution as a whole and most likely to advance the design and values it reflects.” They are right that the Stone commutation surely does run afoul of important constitutional values. The problem B&T face is the first part—their notion that text and history provide insufficient guidance.

The text is clear enough. B&T’s conclusion—in fact the entirety of their textual analysis—is that “linguistically, the Constitution’s text is capable of supporting either reading.” But courts do not set the bar that low; the traditional version clearly bests B&T’s version. Simply put, “cases of impeachment” is an obvious way to say “congressional impeachment proceedings.” It is not an obvious way to say, “prosecutions in criminal court related to something for which the president has been impeached.”

This conclusion is strengthened by intra-textual evidence: how the Constitution uses the same words in other places. Article I, § 3 limits the allowable judgments in “cases of impeachment” to removal from office and disqualification from future office. Article III, § 2 says that all criminal trials shall be by jury, “except in cases of impeachment.” It is a standard interpretive canon that when the same technical terms appear in different places in the document, they should mean the same thing. In Articles I and III, “cases of impeachment” means congressional impeachment proceedings and only congressional impeachment proceedings. There, B&T’s broader reading of “cases of impeachment” would mean that because of Trump’s impeachment, Roger Stone’s criminal penalties could not have included prison. Had Trump been impeached a few weeks earlier, it also would have meant that Stone would have lost his right to a jury trial. I doubt that B&T think “cases of impeachment” means these things in Articles I and III—but they ignore how much this tells us about what the phrase means in Article II. A court would not ignore this evidence.

The historical evidence is more complex, but it is clear enough to bolster the traditional view of the text.

B&T devote a fair amount of space to the Constitutional Convention. They say the Framers there “were deeply concerned about presidents abusing power to protect co-conspirators.” That is true. But their lead example is Edmund Randolph’s concern that a traitor-president might pardon his traitor-minions (Randolph was making a motion to ban pardons for treason). B&T cite Randolph and then say that “[t]he votes of Randolph’s fellow delegates on the wording of the pardon clause at the convention reflect the overarching concern to curb this power.”

This narrative is precisely backward. B&T obscure the timing of Randolph’s comments, but it is crucial: Randolph raised his concerns on September 15, three weeks after the Convention wrote the impeachment exception. The pardon clause’s wording does not reflect Randolph’s concerns; Randolph’s concerns reflect the pardon clause’s wording. Randolph’s motion failed—the Convention kept the pardon power broad, consciously accepting the risk that presidents might pardon their treasonous co-conspirators. At no point did anyone suggest the impeachment exception did anything to address Randolph’s concern.

B&T also refer to the day when the impeachment exception was drafted. Their version: “As it stood, the president had ‘the power to grant reprieves & pardon.’ Unanimously, the delegates voted to insert ‘except in cases of impeachment’ after the word pardon—the language we are familiar with today. Directly afterward, they rejected the addition of the phrase ‘but his pardon shall not be pleadable in bar’ in a six-to-four vote.” The traditional view is that “not pleadable in bar” tracks the British pardon power. A royal pardon could not stop an impeachment, but the King could undo the effects of an impeachment conviction. The American approach used broader language: “except in cases of impeachment” prevents a pardon both from stopping an impeachment and from undoing an impeachment conviction.

B&T suggest that this drafting history is fatally muddled. The reason: after agreeing unanimously to the broader language, the Convention narrowly defeated adding the British version. B&T ask, if what the Framers had already said was “you can’t do X or Y,” why would they have tried to add “you can’t do X”? This, they suggest, is evidence that “except in cases of impeachment” might mean something other than what the traditional view thinks.

But such an addition would make just as little sense if B&T’s reading were correct and “except in case of impeachment” meant “you can’t do X, Y, or Z.” The problem here is B&T’s assumption that the second vote was meant to add “pleadable in bar,” rather than substitute it. But they misunderstand what happened. Contrary to B&T’s account that the text had no exception yet (“As it stood, the president had ‘the power to grant reprieves & pardon.’”), the clause came to the floor from the Committee of Detail already saying “but his Pardon shall not be pleadable in Bar of an Impeachment.” Taken together, the two votes were simply about whether to keep that language or instead say “except in cases of impeachment.”

Before 1787, most state constitutions contained similar impeachment exceptions to their executive pardon powers. Every one of them used “except” language rather than “shall not be pleadable” language. It is not surprising that the Framers chose similar language, even if the way they did it (at least as described in Madison’s sparse notes) was less than orderly. None of this is so confusing that we must throw up our hands and say that the text and history can no longer settle this phrase’s meaning.

B&T’s most interesting historical evidence is a comment by James Madison at the Virginia Ratifying Convention. His comment addressed a concern that, as written, the Constitution would allow presidents to pardon their own criminal minions. B&T quote part of Madison’s response: “If the president be connected in any suspicious manner with any persons, and there be grounds to believe he will shelter himself; the house of representatives can impeach him . . . They can suspend him when suspected, and the power [of pardoning] will devolve on the vice-president . . . This is a great security.” This, B&T say, further muddles the history and indicates that Madison “believed that an impeached president would lose the power to pardon.”

But Madison’s suspension notion is a weird outlier. No other Framer or ratifier suggested the House could transfer the pardon power in this way. Madison never suggested it elsewhere. (Relatedly, a motion made near the end of the Constitutional Convention would have completely suspended impeached people from their offices until they were acquitted. Madison spoke against the motion and it was defeated.)

Madison’s construction would be unavailing in the Stone case anyway. Even if the House had thought it could suspend President Trump’s pardon power and transfer it to Vice President Pence in the way Madison described, the House took no such action. Neither has any other House impeaching any other president. Madison said the House “can” suspend the president’s pardon power, not (as B&T render it) that an impeached president “would” lose his pardon power.

More directly to the point of B&T’s argument, Madison did not tie this supposed suspension power to the text of the impeachment exception. Indeed, Madison described suspension separately from impeachment. In the unabridged quotation, he said: “[T]he house of representatives can impeach him: They can remove him if found guilty: They can suspend him when suspected.” This does not sound like Madison thought suspension was an automatic effect of impeachment (as it would be if it were derived from the impeachment exception). Even more significantly, in a part of the quotation B&T omit, Madison said that just like the president a suspicious vice president may “be suspended till he be impeached and removed.” Again, Madison’s notion of suspension was that it would be a separate action—perhaps even preceding impeachment—not an automatic effect of it.

Finally, Trump was acquitted. B&T say, “Madison is silent about whether the pardon power is reinstated after a Senate acquittal.” But the same part of Madison’s quotation just mentioned (“suspended till he be impeached and removed”) implies that, conversely, an acquittal would end any suspension.

To be sure, B&T are not exactly endorsing Madison’s view. Once again, they are mainly pointing to it as more evidence that the historical record is too muddled to settle the traditional exclusive view of the impeachment exception. In the end, though, Madison’s view is too much of an anomaly to tell us much of anything.

B&T also dismiss other historical sources (Alexander Hamilton, Justice Joseph Story, the Supreme Court) whose descriptions of the impeachment exception are consistent with the traditional view. B&T say that these sources are of no consequence, because they do not rule out alternative interpretations. But that’s just it—they never discuss other interpretations at all, suggesting that they simply are not part of the picture. Consider Alexander Hamilton’s Federalist No. 69. The pertinent section was about the limits the Constitution placed on the president’s pardon power. Specifically, Hamilton argued that the Constitution offered relatively good protection against presidents pardoning their treasonous minions. A limit on pardons like B&T’s surely would have been worth mentioning had Hamilton had any inkling that it might have existed.

Here too, B&T’s main point is not that these historical sources directly support their own reading. And B&T agree that these sources support the notion that the impeachment exception at least includes impeachment proceedings. Their position is that these sources are not enough to establish that “cases of impeachment” refers exclusively to impeachment proceedings. It is true that these sources only say “it means X” and never explicitly say “it means X and not Y.” But there is still clarity here. It is, in fact, quite meaningful that these sources never talk about anything other than impeachment proceedings, and that none of them suggest the impeachment exception could apply to criminal cases.

One final use of evidence by B&T bears mention. As part of their discussion of general constitutional principles, they note a memo from the Department of Justice’s Office of Legal Counsel that briefly mentions self-pardons. But B&T do not account for another, more directly relevant OLC memo written that same year. That memo discusses the history of the impeachment exception in a lengthy appendix. It mentions Madison’s comments at the Virginia Ratifying Convention (which it depicts as “seemingly erroneous[]”). More significantly, it says that what it calls the “wholesale removal of the President’s pardon power in cases of impeachment” still allows the president to “pardon a person convicted under a post-impeachment indictment.” In short, the memo not only affirms the traditional view, it takes a chunk out of B&T’s interpretation. OLC memos are not gospel, to be sure, but surely they are worth considering and addressing.

B&T are too quick to skip over standard textual analysis and too reluctant to trust the weight of the historical evidence. That said, B&T are right that the Roger Stone commutation violates venerable and important principles of American government. That matters. But the constitutional remedies for this are twofold: the impeachment process and elections. While those processes may or may not work in this particular case, these are matters of execution and not design. The Constitution gives presidents the power to do all sorts of bad things. That is not a cause for praise or celebration. But neither is it a basis to read the Constitution to say things that it does not.

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