Pelosi Presidential Pardon Promise Baffles Legal Analysts, Draws Scorn Among GOP Strategists

By Mark Tapscott
Mark Tapscott
Mark Tapscott
Congressional Correspondent
Mark Tapscott is an award-winning investigative editor and reporter who covers Congress, national politics, and policy for The Epoch Times. Mark was admitted to the National Freedom of Information Act (FOIA) Hall of Fame in 2006 and he was named Journalist of the Year by CPAC in 2008. He was a consulting editor on the Colorado Springs Gazette’s Pulitzer Prize-winning series “Other Than Honorable” in 2014.
July 13, 2020Updated: July 14, 2020

News Analysis

Constitutional law experts and legal analysts across the political spectrum challenged Speaker of the House Nancy Pelosi’s (D-Calif.) promise on July 11 to introduce legislation that would limit a president’s power to pardon.

Pelosi’s promise followed President Donald Trump’s commutation on July 10 of the 40-month prison sentence of Roger Stone, the flamboyant political provocateur, who was to report to a federal facility July 14 to begin serving his time.

Trump’s action didn’t reverse Stone’s seven felony convictions, but may have been motivated by a federal appeals court’s previous reversal of his request to delay his reporting to jail.

More than 94,000 inmates have been released from jails across the country due to concerns about their susceptibility to the CCP virus. The 67-year-old Stone argued unsuccessfully that his age and poor health made him even more susceptible to the disease, so forcing him to jail now could be a death sentence.

Significant procedural questions—especially the credibility of the jury forewoman, a former Democratic candidate for Congress—surround Stone’s prosecution on multiple charges, including witness tampering, obstructing an official congressional investigation, and making false statements to Congress.

But Attorney General William Barr declared Stone’s conviction was a “righteous prosecution” and he recommended against commuting the sentence.

“President Trump’s decision to commute the sentence of top campaign advisor Roger Stone, who could directly implicate him in criminal misconduct, is an act of staggering corruption,” Pelosi said in a July 11 statement.

“Congress will take action to prevent this type of brazen wrongdoing. Legislation is needed to ensure that no President can pardon or commute the sentence of an individual who is engaged in a cover-up campaign to shield the President from criminal prosecution,” she said.

Pardon Power

The problem for Pelosi is that the Constitution gives no power to Congress to limit presidential pardons, so she opened herself up to withering criticism by promising such legislation.

Former Assistant Attorney General Joseph A. Morris told The Epoch Times there’s no question about the pardon power. Morris is also a former chief counsel for two federal agencies.

“The President’s powers of pardon and clemency with respect to prosecutions and convictions for federal crimes are virtually unbounded. They are vested exclusively in the President, and they are not subject to limitation or command by Congress,” he said.

“The ‘pardon clause,’ U.S. Const. art. II, Section 2, cl. 1, authorizes the President ‘to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.’

“The Supreme Court has stated,” Morris said, “that ‘[t]he plain purpose of the broad power conferred by Section 2, cl. 1, was to allow plenary authority in the President to ‘forgive’ the convicted person in part or entirely.” (Schick v. Reed, 419 U.S. 256, 266 (1974).)

Similarly, George Washington University law professor Jonathan Turley, a Democrat who opposed Trump in 2016 and previously voted for Democratic Presidents Barack Obama and Bill Clinton, wrote on Twitter that “the fact is that Pelosi’s proposal would be dead-on-arrival at the courts.”

Turley, who says he opposed commuting Stone’s sentence, detailed his argument in an op-ed in The Hill, saying “the commutation of Stone barely stands out in the old gallery of White House pardons, which are the most consistently and openly abused power in the Constitution. This authority under Article Two is stated in absolute terms, and some presidents have wielded it with absolute abandon.”

From the right, Hans von Spakovsky told The Epoch Times that “Nancy Pelosi is once again showing her profound ignorance of the Constitution. Congress has no power to limit the pardon power of a president.” Von Spakovsky is senior legal fellow at the conservative Heritage Foundation’s Meese Center for Legal and Judicial Studies.

An emailed request by The Epoch Times for comment from Pelosi was opened more than two dozen times after being received, but no response was provided.

Republican Hill veterans also denounced Pelosi for promising congressional legislation to curb presidential pardon powers.

“Speaker Pelosi should know better than to attempt to limit the constitutional pardon power of the President. The presidential power to pardon and commute sentences is explicit,” Brian Darling, former senior counsel to Sen. Rand Paul (R-Ky.) told The Epoch Times on July 13.

“A bill to limit the president’s power is unconstitutional and nothing more than an attempt to create a political talking point for Democrats going into the fall election,” Darling said. “Any so-called legal scholar who tries to spin a way for Congress to limit the president’s power is doing nothing more than legal navel-gazing.”

He added that if Pelosi actually is able to have such a proposal introduced in the House, it “should be laughed off by Republicans and if they can raise a constitutional point of order against this unconstitutional legislation, Republicans should.”

Similarly, Americans for Tax Reform President Grover Norquist told The Epoch Times that “it is increasingly clear that Pelosi has not read the entire U.S. Constitution.

“And the bits she is familiar with—the First Amendment’s protection of religious liberty and the Second Amendment’s protection of the right to keep and bear arm —she doesn’t much like.”

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