Bill Clinton pardoned his own brother for felony distribution of cocaine. And a key witness in the Whitewater scandal for which he and Hillary Clinton were under investigation. And three others convicted in independent counsel Ken Starr’s probe. And Marc Rich, in what was a straight up political payoff. And his CIA director. And his HUD secretary. And eight people convicted in an investigation of his Agriculture Department.
No surprise there: The Clintons and their supporters then, like Trump and his supporters now, regarded the special-prosecutor probes into the administration as witch hunts.
Clinton also commuted the sentences of convicted terrorists, some of whom hadn’t even asked for clemency. Shameless as he was, though, even he couldn’t bring himself to pardon Oscar Lopez Rivera, the defiantly unrepentant FALN leader.
President Obama took care of that.
Obama also commuted the sentence of a U.S. soldier who passed top-secret information to WikiLeaks. He pardoned his former Joint Chiefs of Staff vice chairman, who’d been convicted of making false statements about a leak of classified information to the New York Times. And when he couldn’t get Congress to amend federal drug laws the way he wanted them amended, Obama used the pardon power to slash hundreds of sentences, under an executive initiative later sharply criticized by the Obama-appointed DOJ inspector general.
That doesn’t even account for the Obama administration’s penchant for making sure things never got to the pardon stage by distorting the law to give Hillary Clinton — the same Hillary Clinton who was nearly indicted in the aforementioned Clinton-era scheme — a pass, asserting executive privilege to obstruct the Fast and Furious investigation (for which Obama’s attorney general was held in contempt of Congress), ignoring his CIA director’s spying on the Senate Intelligence Committee, and turning a blind eye to the abuses of power and obstructions attendant to the scandal that engulfed his IRS.
So, as abuses of the pardon power go — and they do go — I can’t get too whipped up over President Trump’s commutation of Roger Stone’s 40-month sentence for non-violent criminal obstruction of a bogusly based and ridiculously over-prosecuted investigation.
Not under circumstances in which jail-house doors have been swung open all over the country by federal, state, and local governments, which are using the coronavirus pandemic as a rationale to release both hardened criminals and elderly convicts (i.e., those around Stone’s age).
Not under circumstances in which Trump is keeping Stone’s felony convictions intact (i.e., Stone has not been pardoned . . . at least not yet).
Not under circumstances in which many of Trump’s loudest critics are the same Democrats and media cheerleaders who not only soft-pedaled the outrageous Clinton and Obama pardons, but who would have been blissfully content to have the pervasively corrupt Hillary Clinton in the Oval Office exercising the pardon power — no doubt on her husband’s model.
I should here specify that Roger Stone is a whack job. If we are assessing President Trump’s job performance, though, it is more damaging that he has brought people such as Michael Cohen, Paul Manafort, Rick Gates, and Stone into his inner circle than that he has used the pardon power to spare one of them from imprisonment. Especially since the one in question poses no threat to society — or at least, no threat other than to those who choose to endure his rantings (“Practice your Frank Pentangeli!”) on night-time cable.
That’s just my opinion, of course, which is the point: The check on abuses of the pardon power is political. If you are offended by Trump’s act of clemency on behalf of a longstanding ally of checkered character, go ahead and vote him out of office. Just please spare us the righteous indignation if you’d be perfectly happy to have the Clintons or the Obama-Biden team back in power making the clemency calls.
Beyond that, the worst thing about the Stone pardon is the damage Trump has inflicted on his Justice Department. If he was going to commute Stone’s sentence, then he should have done it after Stone was convicted — or just pardoned Stone outright, since he claims to believe Stone did nothing wrong. Instead, because Trump did not want to take the political heat for that, the trial prosecutors, accurately applying the harsh sentencing guidelines, recommended a nine-year sentence. That induced Attorney General Barr to intervene and propose a much more reasonable sentencing recommendation, along the lines of the 40-month term that the judge ended up imposing.
Naturally, this caused the AG to be scalded by the Democrat–media complex for purported corruption in intervening on behalf of a Trump crony, notwithstanding that he did not lift a finger to undo Stone’s multiple felony convictions and was content to send the near-septuagenarian to a penitentiary for over three years even as the COVID-based humanitarian release of convicts ensued. Moreover, Stone’s day of reckoning was at hand — he was due to surrender to begin serving his sentence on Tuesday — only because Barr’s Justice Department opposed any further delay, and Barr reportedly recommended that Trump not grant clemency. In any event, if the president had been transparent about his intentions, there would have been no cause for Justice Department infighting over Stone’s sentence. Instead, that will be the subject of congressional-hearing fireworks later this month.
As for the rest it, we’re left with the usual unhinged commentary from people who ought to know better. Take top Mueller deputy Andrew Weissmann. After the clemency was announced, Weissmann took to Twitter to assert, “Time to put Roger Stone in the grand jury to find out what he knows about Trump but would not tell. Commutation can’t stop that.” Well, no, but the Fifth Amendment can.
Stone is appealing his convictions. Weissmann, a longtime prosecutor who is intimately familiar with the appellate process, has to know that because Trump did not pardon Stone, the case is still on direct appeal. That means the convictions are not final as a matter of law. Stone thus maintains his Fifth Amendment privilege against self-incrimination and cannot be forced to testify in the grand jury. He probably has scant hope of getting his convictions reversed, but he’s entitled to try.
A lawyer of Weissmann’s acumen should not get such a basic legal point wrong, but he is so politically and emotionally invested in attacking Trump that he obviously tweeted without thinking things through. The tweet underscores that Weissmann — an overt Biden surrogate these days — was a terrible choice for a special-counsel probe that should have been rigorously non-partisan. He scorched the earth investigating Trump for three years; to imply that he might have nabbed the president were it not for Roger Stone’s omertà is pathetic. Weissmann could have immunized Stone if he believed Stone was withholding vital incriminating evidence against Trump — and then he could have prosecuted Stone for contempt if Stone resisted.
He didn’t do that because there is no reason to think Stone had incriminating evidence. Stone was alleged to have lied about discussing WikiLeaks; that’s why he was charged only with process crimes, despite all of the heavy breathing about collusion in Mueller’s indictment of Stone. Weissman & Co. did not come close to proving that he or Trump had anything to do with the hacking of Democratic Party emails by Russia or by anyone else.
The Stone episode has been farcical from the start, and it’s still not over.