Roger Stone, a former campaign advisor to Donald Trump, was charged by federal prosecutors with seven felonies (one count of obstruction, five counts of false statements, one count of witness tampering). He was convicted by a jury of all counts on November 15th, 2019. He was sentenced by a judge to 40 months in prison on February 20th, 2020. He was ordered to report to federal prison on July 14th. On July 10th, four days before his sentence would begin, his sentence was commuted by President Trump under the pardon power so he would no longer require any incarceration. How is this possible? Can the president really override the criminal justice system?
Article II, Section 2 of the U.S. Constitution states that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” With a pardon, the President may allow a person to be relieved of some or all of the legal consequences from committing a crime. The pardon power also includes the power to grant commutations (e.g. reduction of sentence), reprieves (e.g. delay carrying out of sentence such as death penalty), respites (e.g. delay of ordered sentence), and remissions of fines and forfeitures. A pardon does not have to wait until a criminal conviction is secured. The President may pardon someone for a federal offense before arrest, before trial, before sentencing, during incarceration and even after the sentence is completed. For example, President Ford famously pardoned his predecessor President Nixon, who has resigned in disgrace after the Watergate Scandal, even before he can be indicted. The only requirement is that a crime actually had to be committed (no preemptive pardons allowed).
The pardon power is controversial. At its roots, it was a power originally held by British monarchs who can grant a royal prerogative of mercy to convicted persons to save them from the death penalty. On one hand, it is viewed as another check and balance on the three branches where the President can correct a wrongful conviction arising from the judiciary. On the other hand, the pardon power is also subject to claims of abuse as presidents have pardoned or commuted the convictions and sentences of family members, friends, and business associates. After Roger Stone’s commutation, there was an outcry that President Trump was corrupt and violated the rule of law in protecting his friends. However, it was completely within his authority under the U.S. Constitution no matter how many lawmakers disagreed with it. There is no recourse to nullify or overturn a presidential pardon decision.
In United States v. Wilson, 32 U.S. 150 (1833), the U.S. Supreme Court determined that a person has a right to reject a pardon offered to them. The defendant in this case did so after a conviction for robbery when he refused to accept President Jackson’s offer of mercy. Chief Justice Marshall opined that “[a] pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance, [and] [i]t may then be rejected by the person to whom it is tendered, and if it be rejected, we have discovered no power in a court to force it on him.” Why would someone reject a pardon? In Burdick v. United States, 236 U.S. 79 (1915), the U.S. Supreme Court determined that a pardon “carries an imputation of guilt; acceptance a confession of it.” If someone who has professed their innocence in a matter accepts a pardon, they are effectively giving up their right to continue to claim his or her innocence. For this reason, pardons are sometimes rejected.
How does a person receive a pardon? Normally, a person seeking to have a conviction pardoned after sentence is completed is to complete an application and mail it to the Office of the Pardon Attorney in the U.S. Department of Justice. Under the DOJ’s rules, an application for pardon will not be considered until the applicant completed a five-year waiting period:
- “The waiting period, which is designed to afford the petitioner a reasonable period of time in which to demonstrate an ability to lead a responsible, productive, and law-abiding life, begins on the date of the petitioner’s release from confinement. Alternatively, if the conviction resulted in a sentence that did not include any form of confinement, including community or home confinement, the waiting period begins on the date of sentencing. In addition, the petitioner should have fully satisfied the penalty imposed, including all probation, parole, or supervised release before applying for clemency. Moreover, the waiting period begins upon release from confinement for your most recent conviction, whether or not this is the offense for which pardon is sought.”
A person currently serving an incarceration sentence for a federal offense cannot apply for a pardon but may file an application for commutation or request a remission of restitution or fine from the Office of the Pardon Attorney. There is no five-year waiting period, but a commutation is purely a matter of grace at the President’s discretion. No hearing is held on the application either at the DOJ or the White House, and a final decision is usually sent by mail. If the commutation petition is denied, DOJ rules say that the offender cannot apply again until one year after the date of denial.
The President does not have to be presented with an application from the Pardon Attorney’s Office. He may act on his own accord to grant a pardon, commutation, or reprieve in any federal criminal matter. The power to grant a commutation or pardon is not reviewable by the courts and there is no appeal if the President denies a request. The President, however, does not have any authority to grant any pardon, commutation or reprieve to any state criminal offenses. The governors or the parole boards of the individual states have the power under state law to grant commutations and pardons for state offenses. Every state has their own procedure for applying for a state level pardon under their own laws and statutes.
Receiving a pardon or commutation from the President for a federal offense is a rare and extraordinary grant of relief. However, it may be a viable option to pursue when all other avenues for relief are closed. If you have any questions about a legal matter and need representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.