“The sordid history of White House pardons makes this commutation look positively chaste in comparison.”

—-George Washington University Law School Professor Jonathan Turley, responding to the wildly exaggerated indignation of pundits and Democrats over President Trump’s commutation of Roger Stone’s sentence.

Turley, who is always courtly and, for my tastes, excessively restrained even when pulling apart the most irresponsible positions, was clearly irritated by CNN’s legal analyst Jeffrey Toobin, a grand hack, who declared that the commutation was “the most corrupt and cronyistic act in perhaps all of recent history” (“cronyistic”?) and  Senator Mitt Romney’s characterization of it as “unprecedented, historic corruption.”

Turley took to The Hill to give Toobin, who should know better, and Romney, who was just exercising his Trump-bashing muscles without concern for such trivialities as facts, a lesson in American Presidential history, saving me the time and trouble:

[C]riticism of this commutation immediately seemed to be decoupled from any foundation in history or in the Constitution. Indeed, Toobin also declared, “This is simply not done by American presidents. They do not pardon or commute sentences of people who are close to them or about to go to prison. It just does not happen until this president.” In reality, 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.

Thomas Jefferson pardoned Erick Bollman for violations of the Alien and Sedition Act in the hope that he would testify against rival Aaron Burr for treason. Andrew Jackson stopped the execution of George Wilson in favor of a prison sentence, despite the long record Wilson had as a train robber, after powerful friends intervened with Jackson. Wilson surprised everyone by opting to be hanged anyway. However, Wilson could not hold a candle to Ignazio Lupo, one of the most lethal mob hitmen who was needed back in New York during a mafia war. With the bootlegging business hanging in the balance, Warren Harding, who along with his attorney general, Harry Daugherty, was repeatedly accused of selling pardons, decided to pardon Lupo on the condition that he remain a “law abiding” citizen.

Franklin Roosevelt also pardoned political allies, including Conrad Mann, who was a close associate of Kansas City political boss Tom Pendergast. Pendergast made a fortune off illegal alcohol, gambling, and graft, and helped send Harry Truman into office. Truman also misused this power, including pardoning the extremely corrupt George Caldwell, who was a state official who skimmed massive amounts of money off government projects, such as a building fund for Louisiana State University.

Richard Nixon was both giver and receiver of controversial pardons. He pardoned Jimmy Hoffa after the Teamsters Union leader had pledged to support his reelection bid. Nixon himself was later pardoned by Gerald Ford, an act many of us view as a mistake. To his credit, Ronald Reagan refused to pardon the Iran Contra affair figures, but his vice president, George Bush, did after becoming president. Despite his own alleged involvement in that scandal, Bush still pardoned the other Iran Contra figures, such as Defense Secretary Caspar Weinberger.

Bill Clinton committed some of the worst abuses of this power, including pardons for his brother Roger Clinton and his friend and business partner Susan McDougal. He also pardoned the fugitive financier Marc Rich, who evaded justice by fleeing abroad. Entirely unrepentant, Rich was a major Democratic donor, and Clinton had wiped away his convictions for fraud, tax evasion, racketeering, and illegal dealings with Iran.

It’s important to make clear that this isn’t a Rationalization #22 argument, with the professor trying to excuse the President’s action because “There are worse things.”

His point, and mine, is that if an expert or an opinion maker criticizes a Presidential act as “the worst,” he is obligated to moor such a verdict to reality, and Romney, Toobin and others didn’t come close to meeting that burden. It is the “worst” to Toobin, Romney and others because anything this President does is by definition the worst—that’s the Big Lie and the “resistance” narrative. They, and the news media, can get away with it repeatedly because of the public’s pathetic ignorance of law, history and the Presidency.

Turley also points out that unlike many of the convictions other Presidents mitigated in the past, “there were legitimate questions raised over the Stone case”:

The biggest issue was that the foreperson of the trial jury happened to be a Democratic activist and an outspoken critic of Trump and his associates who even wrote publicly about the Stone case. Despite multiple opportunities to do so, she never disclosed her prior statements and actions that would have demonstrated such bias. Judge Amy Berman Jackson shrugged off all that, however, and refused to grant Stone a new trial, denying him the most basic protection in our system….Moreover, I think both the court and the Justice Department were wrong to push for Stone going to prison at this time, because he meets all of the criteria for an inmate at high risk for exposure to the coronavirus. None of that, however, justifies Trump becoming directly involved in a commutation, when many of these issues could be addressed in a legal appeal.

I disagree with Turley regarding the last part, as I explained in today’s earlier post. Stone was targeted as part of a “Get Trump” plot, and the President had good reason to feel responsible.Trump had the power to release Stone immediately, and his decision to do so is ethically defensible, though there are legitimate reasons to object to it as well.

Turley’s conclusion is sound: “There is plenty to criticize in this move by Trump without pretending it was a pristine power besmirched by a rogue president….Nevertheless, compared to other presidents, his commutation of Stone is not even a distant contender for ‘the most corrupt and cronyistic act’ of clemency.”