Editor’s Note: Jennifer Taub is a professor at Western New England University School of Law. Joshua A. Geltzer is a professor at Georgetown University Law Center. Follow them on Twitter at @jentaub and @JGeltzer. The views expressed in this commentary are their own. Read more opinion at CNN.
By ruling on Thursday against President Donald Trump’s effort to prevent a New York grand jury from getting its hands on his financial documents, the Supreme Court emphatically told Trump that no one – not even the President of the United States – is above the law. All nine justices agreed with one aspect of the ruling, that a president does not enjoy absolute immunity from state criminal process. A 7-to-2 majority also ruled that a state grand jury does not need to show a “heightened need” before serving a subpoena on a president. And, when it comes to congressional subpoenas, that solid majority rejected Trump’s insistence that the House of Representatives must demonstrate “specific need” before obtaining his financial and banking records.
In short, there are real boundaries on Trump’s power, and checks and balances to patrol those boundaries.
Trump did not like what he heard. The following day he flexed his Article II muscles and commuted the sentence of Roger Stone, his longtime ally who was investigated by special counsel Robert Mueller in connection with Russian interference in the 2016 US presidential election. Stone, convicted by a jury on seven felony counts including lying to Congress, obstruction of a congressional investigation, and witness tampering, was days away from reporting for a 40-month federal prison sentence.
The commutation ends his prison sentence before it starts and gives Stone the opportunity to continue his appeal as a free man. This appeal could potentially include whether the guilty verdict itself should be overturned because of alleged juror bias.
The commutation is an outrageous step – but, astonishingly, outrage among senators was far from universal. We are a long way from the constitutional framers’ sense of what presidential overreach looks like and how senators would respond.
Many of us who teach and write about the law were angered but not surprised by the commutation. Stone had just spoken to the media, telling news analyst Howard Fineman that he expected it to happen. “[Trump] knows I was under enormous pressure to turn on him. It would have eased my situation considerably. But I didn’t.”
Fineman later summed it all up: “And so, in the fullness of time – which is to say, about an hour later – the White House made official what Stone already knew: Trump was commuting Stone’s felony convictions for lying to Congress and tampering with witnesses.”
What Stone said was an admission of an implicit quid-pro-quo bribery: an agreement to provide or receive something of value in exchange for an official act – here, Stone’s silence in exchange for Trump’s reprieve. It might not have been the traditional political bribe in the sense of money being offered to get a politician to do something, but in this case we can assume that Stone’s silence had value for Trump.
Bribery is a federal criminal offense defined in statute 18 USC 201 to criminalize the act of both the person who offers or gives the thing of value and the federal official who solicits or receives the thing of value in exchange for an official act. Moreover, it is a specific ground for impeachment set out in the Constitution.
Why include it as a particular basis for impeachment? Current circumstances show the wisdom of doing so. Even if federal prosecutors were to investigate both Trump and Stone for bribery, we know, given the Justice Department’s view that a sitting president can’t be charged, that they would not prosecute Trump while in office. (And with Attorney General Bill Barr at the helm it seems all but inconceivable they’d even investigate Trump, who claimed Monday that he was getting “rave reviews” for commuting Stone’s sentence.) That’s why, if we had a Senate prepared to do its institutional duty to hold accountable a president brazenly abusing his public office for private gain, the clear availability of impeachment would make total sense.
Sen. Mitt Romney knows this well. As he put it on Twitter, “Unprecedented, historic corruption: an American president commutes the sentence of a person convicted by a jury of lying to shield that very president.” This was a strong reaction from Romney, and he is not all talk. Recall that Romney was the only Republican this February to vote to convict and remove President Trump. And he is the only senator in our history to vote in this way against a President of his own party.
Romney has shown courage, but the Framers expected more – more than just Romney, and more than Republican Sen. Pat Toomey, who joined Romney in criticizing Trump’s commutation of Stone’s sentence.
The Framers would expect action and bravery from all 100 senators, regardless of party. The Framers anticipated that, faced with a President badly battering our constitutional guardrails, senators would see themselves not as Democrats or Republicans but as guards of our constitutional order, akin to the seven-justice Supreme Court majority that included Neil Gorsuch and Brett Kavanaugh, both of the justices Trump appointed to the bench, when it ruled on Trump’s tax returns last week. The President probably considers their votes personal betrayals, but fidelity to the Constitution – not to Trump – is their oath.
The Framers’ expectations were particularly clear when it came to presidential abuse of the pardon power. George Mason opposed giving a president that power precisely because “he may frequently pardon crimes which were advised by himself” – a prescient characterization of Trump’s public encouragement to Stone not to cooperate with investigators. But James Madison reassured Mason that the Constitution held a remedy: “If the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him.” For such impeachment to do any good, the Senate had to be prepared to consider, honestly and impartially, presidential wrongdoing. Yet we’ve heard precious little such consideration from most Republican senators since Friday’s commutation.
Senators, of course, do not hold their appointments for life, and their personal political futures must weigh upon their minds in a way that our Constitution’s provision of life tenure to federal judges and justices specifically avoids for them. But to uphold the rule of law and to stop this out-of-control president, just 20 would need to think less like senators concerned principally about retaining their offices and more like the all-in-one judges-and-jurors they would pledge to be at an impeachment trial. As the Framers anticipated in the extraordinary circumstances that would justify impeachment, this is about morality and legacy and our nation’s survival as a constitutional republic. It transcends anyone’s political future.
If 20 Republican senators were to state that Stone’s bribery-tinged commutation is too much for them at last, that they are ready to hear the evidence and will not shut their ears to the facts as they did with the Ukraine impeachment, Trump could be out of the White House swiftly – perhaps even before the election in November.
This isn’t farfetched – it’s roughly what happened to Richard Nixon in 1974 during the 15 days between the Supreme Court ruling requiring he hand over his tapes and his resignation. At that time, his chief defense counsel, James D. St. Clair, rallied Republican members of the House and Chief of Staff Alexander Haig to let Nixon know he no longer had the party’s support.
Surely this lawless commutation of Stone’s sentence is a smoking gun equivalent to the Watergate tapes. And yet, there’s no universal congressional outrage – instead, it’s overwhelmingly along party lines. That shows how far we have fallen below the Framers’ expectations. And it makes the absence of universal outrage today’s real outrage.
