The Traditional Interpretation of the Pardon Power Is Wrong
Properly understood, the commutation of Roger Stone’s sentence is unconstitutional.
About the authors: Corey Brettschneider is a professor of political science at Brown University and a visiting law professor at Fordham Law School. He is the author of The Oath and the Office: A Guide to the Constitution for Future Presidents. Jeffrey K. Tulis is a professor of government at the University of Texas at Austin. He is the author of The Rhetorical Presidency.
When Roger Stone was sentenced to 40 months in federal prison for obstruction, making false statements, and witness tampering, Judge Amy Berman Jackson concluded, “He was not prosecuted, as some have complained, for standing up for the president. He was prosecuted for covering up for the president.” Stone was scheduled to be incarcerated on July 14, 2020. On July 10, Donald Trump commuted his sentence. Is this particular use of the president’s power constitutional and lawful? Many in the legal establishment maintain that it is, but we disagree.
The power to grant “pardons and reprieves” includes the power to commute, or reduce, sentences after convictions. But this power is constrained by a limit: “except in cases of impeachment.” Traditionally, this exception has been read to mean only that a president cannot use the pardon and reprieve power to prevent or undo an impeachment by the House or an impeachment conviction by the Senate. By this interpretation, only impeachment charges themselves are precluded from presidential pardons. (According to the Constitution, the vice president and “all civil Officers of the United States” are subject to impeachment, which means, for example, that a president cannot pardon a federal judge’s impeachment.)
But there is a strong argument, rooted in the Constitution’s text, history, values, and structure, that in addition to banning the prevention or undoing of an impeachment, this 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. This argument is not a partisan one. Whatever rule is applied today would necessarily apply to future presidents, Democrats as well as Republicans.
The impeachment charges against President Trump focused mainly on his alleged withholding of foreign aid from Ukraine to pressure the Ukrainian president into digging up dirt on Hunter Biden that could support Trump’s reelection campaign, and on his refusal to cooperate with the congressional investigation of this matter. But the articles of impeachment also explicitly invoke his “previous invitations of foreign interference in United States elections” and “previous efforts to undermine United States Government investigations into foreign interference in United States elections.” According to our interpretation of the pardon clause, that would mean he can’t use the pardon and reprieve power to commute the sentences of those charged with crimes related to Russian interference in the 2016 campaign—including Stone, who was convicted of lying to Congress and obstructing its investigation into Russian election interference. This obstruction impeded the ability of Congress to gather information that could have been vital to the impeachment inquiry, benefiting Trump.
Our interpretation stems, in part, from the fact that the Constitution’s Framers were deeply concerned about presidents abusing power to protect co-conspirators. As just one example, regarding treason, the Virginia delegate Edmund Randolph voiced a concern at the Constitutional Convention that “the prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments.”
The votes of Randolph’s fellow delegates on the wording of the pardon clause at the convention reflect the overarching concern to curb this power, though their specific intentions are unclear. On August 25, 1787, delegates voted on this matter. 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.
These votes reflect more than merely semantic differences. The language “his pardon shall not be pleadable in bar” was pulled directly from the British; it banned the king from pardoning officials who were being impeached, but did not prevent him from pardoning officials after their impeachment. The traditional interpretation of the meaning of “except in cases of impeachment” is that it simply removed this loophole, preventing presidential pardons both during and after impeachment and conviction. However, the Framers’ rejection of the British phrase after having inserted “except in cases of impeachment” strongly suggests that the American delegates saw the new phrase as having a meaning distinct from the traditional interpretation. If “except in cases of impeachment” already covered both of those limits on presidential pardons, why would the Framers then need to vote on whether to include the British language—language that would have merely imposed the first limit they’d already unanimously approved? Given the unclear record of what the Framers meant to do that day, any interpretation of its meaning based only on the evidence we have about the day the phrase was adopted is speculative at best.
So what exactly does “except in cases of impeachment” mean?
James Madison, regarded by many as the father of the Constitution, seemed to agree that the pardon power as adopted was limited—and not merely in the very narrow way that traditionalists believe. At the Virginia Ratifying Convention, the delegate George Mason argued against ratification partly on the grounds that “the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself.” Here was another example of the ever-present worry of a criminal president abusing power by exonerating his accomplices. But notes taken at the convention show that Madison had a response ready; he believed that the pardon power as written already prevented this abuse: “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.” Although this quote is sometimes read merely to reference the remedy of impeachment and removal, it is clear that the stripping of a president’s power to pardon those “connected in any suspicious manner” to him does not depend on a Senate conviction, after which any restrictions on presidential power would be redundant because he would be removed from office.
Of course, one Madison quote alone does not resolve the question of original meaning. And we are not suggesting, as one might read Madison to be saying, that presidents must be suspended from all duties after being impeached. However, Madison’s quote shows he believed that an impeached president would lose the power to pardon, at least in the midst of his trial in the Senate. Madison is silent about whether the pardon power is reinstated after a Senate acquittal, but the fact that he emphasizes the danger of “suspected” presidents—not convicted ones—is a strong indication that one of our most important Framers would favor a reading of the pardon power that resembles our account of limits on impeached presidents.
Still, traditionalists insist that Madison is wrong. They maintain that “except in cases of impeachment” means only that a president cannot use the pardon to stop an impeachment or undo its effects. This view relies on inconclusive historical evidence. The interpretation comes largely from an 1833 treatise by the Supreme Court Justice Joseph Story, but Story did not have Madison’s notes from the convention—the authoritative source recounting the Framers’ debates—because they were first published in 1840. He even admitted that his interpretation of “except in cases of impeachment” as linked to the British limit on the pardon power was not conclusively supported by the evidence, saying only that it was “probably” accurate.
Some traditionalists have sought to bolster their position by turning to dicta—reasoning not central to the core matter being decided—in the Supreme Court case Ex Parte Wells (1855). But there the Court largely repeated Story’s view and offered no other good evidence that could undermine our favored interpretation. Traditionalists have also pointed to Alexander Hamilton's position in “Federalist No. 69,” in which he wrote, “A President of the Union … though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction.” Certainly Hamilton may have differed from Madison in his interpretation of the Constitution’s limits on the pardon power, but even this quotation does not offer definitive proof that he felt that “the effects of impeachment and conviction” were limited to an “offender” who is actually the subject of the impeachment proceedings. Finally, traditionalists have pointed out that the Framers voted down a motion to exclude “except in cases of treason” from the pardon power. However, this vote is a separate issue: A blanket ban on pardoning any instance of treason is entirely distinct from restricting the pardon power of a president who has been impeached. None of these oft-cited sources provides a knock-down argument for the traditional view.
Linguistically, the Constitution’s text is capable of supporting either reading. Given this ambiguity and the lack of historical certainty about the Framers’ intent, we should then embrace the meaning 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. For all who read the Constitution as concerned with restraints on executive power—a worry central to the American Revolution and to many of the Framers—the interpretation advanced here is by far the most sensible. After all, the Constitution requires the president to “faithfully execute the law.” Its thrust is to insist that no one, not even the president, is above the law. It granted the president the power to pardon for acts of mercy, not self-preservation.
As even President Richard Nixon’s Office of Legal Counsel recognized, the Constitution does not allow a president to issue a self-pardon. These values point toward our reading of the pardon power, which limits the supposed prerogative of impeached presidents to pardon co-conspirators connected to their impeachment.
Our reading is the one most consistent with the structure of Article II of the Constitution—the article that establishes the presidency. Article II begins with a vesting of executive power that is capacious. The pardon power is the clearest example of discretionary and broad executive power. But because power so necessary in crisis could also be the most dangerous power in the Constitution if misused, the article also emphasizes the limits on the president. It concludes with the duty of the president to “take Care” that the laws be faithfully executed and the caveat that he be subject to impeachment and removal for not doing so. And the oath of office, specified word for word in Article II, emphasizes the duties and limits on the office because it requires the president to pledge to “faithfully execute the office” and “to preserve, protect and defend” the Constitution.
Executive power as great as that vested in a president can be justified as consistent with the republican character of the Constitution only if presidents themselves are accountable to the law. They can be accountable only if they are precluded from thwarting legislative and judicial inquiries into their own potential abuse of power or their failure to take care that the laws and duties of the office be faithfully executed. The Framers granted such powers as the pardon only because they believed that impeachment would be a check on the office if the power was abused. That’s why the pardon and reprieve power itself has to be limited in the rare case in which its abuse subverts the impeachment check.
We realize some will think we are tailoring the evidence to stop this particular president’s abuse of power. But the reading of the pardon power we advocate would limit every future president. And the limits it would impose on President Trump today illustrate how real and not merely theoretical the stakes of this debate are. This president has not been shy about his desire to use his power to shelter loyal soldiers from what he has called a “witch hunt.”
Stone himself also revealed some of the strongest evidence for why this use of the pardon and reprieve power is not constitutionally valid. Shortly before his sentence was commuted, Stone said that Trump “knows I was under enormous pressure to turn on him,” and added, “It would have eased my situation considerably. But I didn’t.” Stone is the co-conspirator the Framers feared. His commutation is not a self-pardon, but it has all the hallmarks of the kind of self-regarding act feared by the Framers and prohibited by the Constitution’s text, values, and structure. Even more concerning, it involves an attempt to subvert a congressional investigation that, unimpeded, may have unearthed even clearer evidence of the president’s impeachable offenses. In the Stone case and others like it, the pardon and reprieve power must be limited because its misuse cuts at the very heart of self-governance in a republic.