United States v. Stone

Mr. Stone was convicted of seven felony counts, including obstructing a congressional investigation and witness intimidation, and sentenced to serve forty months in prison. The convictions stemmed from Stone’s efforts to impede Congress’s investigation into Russia’s interference with the 2016 presidential elections, crimes that Stone carried out in order to protect President Trump. As the sentencing judge, U.S. District Court Judge Amy Berman Jackson, explained in her closing remarks, Mr. Stone “was prosecuted for covering up for the president.”

“When the Framers added the phrase “faithful execution” to the Constitution, for the president to ‘take Care that the laws be faithfully executed’ and for the presidential oath, they were drawing on a long English tradition of this phrase signifying limited powers on behalf of the public interest, and rejecting the unlimited prerogatives of kings,” said Jed Shugerman, Professor of Law at Fordham Law School. “These republican limits are similar to fiduciary duties against self-dealing. Thus, pardons and commutations that are in self-interest and against the public interest are unfaithful execution of the office and are constitutionally invalid.”

“The pardon power is not above constitutional scrutiny and is not some absolute royal prerogative,” said Ethan J Leib, Professor of Law at Fordham Law School.  “The President took an oath to “faithfully execute” his office and that can limit his ability to pardon himself, his co-conspirators, or his friends and family–when that power is not exercised in the public interest.”

“The Supreme Court has acknowledged that the pardon power is not unlimited, and the Constitution requires the President to exercise that power loyally and carefully in the public interest rather than in his own self-interest,”  said Ron Fein, Legal Director of Free Speech For People.

As Professors Jed Shugerman and Ethan Leib of Fordham Law School have argued here and here, a president’s acts of clemency designed to protect himself from accountability may be inconsistent with the Constitution’s “faithful execution” clause and exceed the pardon power.

Unfortunately, on July 30, 2020, the court denied the motion for leave to file an amicus brief.