My colleague, friend, and co-author Ethan Leib and I are working with Free Speech for People to contest Roger Stone’s commutation in the trial court. Ron Fein, John Bonifaz, and Ben Clements filed a motion yesterday before Judge Amy Berman Jackson. We argue that the Constitution limits the pardon power to uses that are in the public interest, not primarily for self-interest, self-dealing, or self-protection.
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. 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 Free Speech for People public statement is here.
UPDATE July 31: You win some, you lose some… Motion denied, but I’ll take solace in Judge Jackson calling us “well-intentioned law professor[s].”
Our articles supporting this argument are:
Andrew Kent, Ethan Leib, and Jed Shugerman, “Faithful Execution and Article II,” 132 Harv. L. Rev. 2111 (2019)
Leib and Shugerman, “Fiduciary Constitutionalism: Implications for Self-Pardons and Non-Delegation,” 17 Georgetown Journal of Law & Public Policy 463 (2019)
Shugerman and Leib, “This overlooked part of the Constitution could stop Trump from abusing his pardon power,” Washington Post, March 14, 2018