From the moment President Donald Trump’s longtime friend and protege Roger Stone was sentenced to 40 months in federal prison last week on charges ranging from obstruction to witness tampering, speculation began regarding when Trump would be issuing a pardon to Stone.
But according to a noted law professor, the U.S. Constitution actually prohibits a pardon because the Founding Fathers anticipated such a scenario when they wrote the document that governs all of us as Americans.
Corey Brettschneider, a professor of political science at Brown University and visiting professor of law at Fordham Law School, notes in an op-ed for Politico that Trump’s impeachment changes the equation regarding who he can pardon:
“Many scholars agree that once a president has been impeached, he or she loses the power to pardon anyone for criminal offenses connected to the articles of impeachment. Less noticed is that even after the Senate’s failure to convict the president, he or she does not regain this power.”
Brettschneider then explains his rationale and what the Constitution spells out regarding pardons by a head of state who has been impeached:
“Under Article II, Section II of the Constitution, the president is given the ‘power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.’ Pardons are supposed to be used as acts of mercy. The framers thought of the pardon power as a ‘benign prerogative’—prerogative because it was mostly unchecked by courts or Congress, but benign because presidents would use it for the public good.
“But the framers knew not to place blind trust in the president to wield the power justly. That’s why they explicitly forbade a president from exercising the pardon power in ‘cases of impeachment.’ The clause prevents the worst abuse of the pardon power: a president’s protecting cronies who have been convicted of crimes related to the president’s own wrongdoing.”
So what should happen if indeed Trump tries to pardon Stone? That’s where the courts must step in, according to Brettschneider:
“If Trump’s lawyers and advisers fail to stop him, and the president moves ahead with a pardon for Stone, it is incumbent upon any judge asked to enforce that pardon to deny it on constitutional grounds.”
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