Editor’s Note: Elie Honig, a former federal and state prosecutor, is a CNN legal analyst and a Rutgers University scholar. The opinions expressed in this commentary belong to the author. View more opinions at CNN.
The Supreme Court, like baseball, has its own set of unwritten rules – that age-old list of widely understood but never memorialized things you just don’t do. In baseball, don’t step on the mound unless you’re the pitcher. Never look back at the catcher to try to see the sign. Run, don’t jog, around the bases after hitting a home run. And in the Supreme Court: never openly accuse your fellow Justices of playing politics.
By this standard, Justice Sonia Sotomayor’s recent, blistering dissent in an immigration case was a 96 mile per hour fastball buzzed under the chins of her conservative colleagues. Sotomayor criticized the Court for repeatedly permitting Trump administration lawyers to utilize a procedural shortcut designed for emergency situations only. Indeed, the Trump administration has sought to bypass the intermediate federal courts of appeals far more than prior administrations, and the Court has permitted it to do so.
Sotomayor noted: “Most troublingly, the Court’s recent behavior” has benefited “one litigant over all others.” There’s no mystery at all about the identity of that “one litigant:” the Trump administration.
It didn’t take Trump long to respond, calling on Sotomayor to recuse herself from “anything having to do with Trump or Trump-related.” He called on Justice Ruth Bader Ginsberg to do the same, claiming that she went “wild during the (2016 presidential) campaign.” (In July 2016, Ginsberg made critical comments about then-candidate Trump – including calling him a “faker” – which she later said she regretted.)
Don’t count on that happening. First, recusal is up to each individual justice. Second, a fair reading of Sotomayor’s remarks makes clear that she aims her criticism at her fellow Justices, not at Trump or the Administration.
No doubt, Sotomayor ruffled some robes with her words, and there’s a fair debate about whether she went too far. Opponents can argue that Sotomayor herself aggravated any partisan divide on the Court by airing its dirty laundry in public; indeed, Trump has already tried to cast Sotomayor’s words as evidence of her own partisan leanings by suggesting her recusal. But supporters could counter that she simply said what needed to be said, calling out an undeniable and problematic trend on the Court.
This much is certain: the partisan divide on the Court exists. The Court currently consists of four generally liberal Justices, all appointed by Democratic presidents (Sotomayor, Ginsberg, Elena Kagan, and Stephen Breyer), four reliably conservative Justices, all appointed by Republican presidents (Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh), and the Republican-appointed, conservative (but somewhat unpredictable) Chief Justice John Roberts as the potential swing vote.
Against that backdrop, the Court is about to take on a history-making docket that will fundamentally reshape the United States. Between now and the end of the term in June, the Court is expected to determine the fate of the Deferred Action for Childhood Arrivals (“DACA”) program, which will impact nearly 800,000 undocumented immigrants. It is also expected to hand down major rulings on Second Amendment gun rights, equal protection for LGBTQ and transgender people, and – in a case to be argued this week – abortion rights. And then there’s the matter of ruling on whether a president should be immune from criminal proceedings and Congress’s ability to obtain his tax returns; we could have answers on those cases sometime between now and the November 2020 election. (The timing could be interesting there).
Will we see a series of 5-4 rulings, right down widely-perceived ideological and perhaps political lines, in favor of “one litigant,” as Sotomayor put it? Or will we see a series of rulings based on the law, without regard to political leanings (or at least not entirely dictated by politics)? If it winds up being the former, remember: Justice Sotomayor may have broken one of the Court’s unwritten rules, but she called it out first.
Now, your questions:
Mary (Colorado): Does the President have the legal power to pardon anyone, at any time – even if the person has been convicted of a crime that is directly tied to or implicates the President himself?
Article II of the Constitution gives the President power to “grant reprieves and pardons for offenses against the United States.” This pardon power is exceptionally broad and virtually unlimited.
(Terminology note: a president can either pardon somebody, which essentially wipes an entire conviction from the books, or can issue a commutation, which reduces or modifies a sentence without erasing the underlying conviction.)
In terms of timing, a president can pardon a person or commute a sentence before the person is criminally charged. President Gerald Ford famously pardoned President Richard Nixon after Nixon resigned over the Watergate scandal but before Nixon was ever charged with a crime. And several presidents have pardoned broad groups of people who dodged wartime drafts, before many of those people were criminally prosecuted.
The president also can pardon or commute the sentence of a person who has been convicted, while the person is serving a sentence – as Trump did last week for former Illinois Gov. Rod Blagojevich convicted of corruption charges. Or a president can issue a pardon after a person has been convicted and has served his full sentence, as Trump did for former junk bond trader Michael Milken. In fact, presidents have even issued pardons after the recipient has died. For example, Trump pardoned deceased boxer Jack Johnson who was convicted of kidnapping. Obviously, such pardons serve primarily (or entirely) as symbolic gestures.
AC (Virginia): Is there anything to stop President Trump from pardoning his friends and political associates if he feels they have been mistreated by the justice system?
There is nothing in the law to limit a president’s ability to pardon his own friends, political associates, or even relatives – though such pardons naturally tend to be politically unpopular.
Examples abound. Just in recent history, President Bill Clinton controversially pardoned his own half-brother Roger Clinton who had done time for drug charges.
Clinton also pardoned fugitive Marc Rich whose former wife was a Clinton donor. And President George W. Bush commuted the sentence of Scooter Libby, who had been chief of staff to Vice President Dick Cheney in Bush’s administration and had been convicted of obstruction of justice, perjury and lying to investigators. (Trump later fully pardoned Libby).
It remains an open question whether a president has the power to pardon himself – though Trump has proclaimed that “I have an absolute right to pardon myself.” No president has ever attempted to pardon himself, and there is no specific law either way on this question.
Ross (AZ): The judge in the Roger Stone case sentenced him to less time than the prosecutors initially requested, and below the federal sentencing guidelines. How common is this, and does the judge have to make any special findings to do this?
It is not at all surprising that Judge Amy Berman Jackson sentenced Stone to less than the seven to nine years that prosecutors originally recommended. In fact, I predicted just that.
The prosecutors based their original sentencing recommendation on the federal sentencing guidelines, which provide instructions for calculating an advisory sentence. (In a second submission, the Justice Department recommended “far less” than the original seven to nine years). The sentencing recommendation by prosecutors typically is relevant and influential, but ultimately federal judges are not bound by the guidelines and can impose whatever sentence they deem just and appropriate. The judge does not have to make any special finding to do this, but does have to lay out her reasons for imposing the sentence (as Judge Berman Jackson did, noting that Stone lied to protect the President and tampered with a witness).
Sentences below the guidelines range are common. In Fiscal Year 2018 (the most recent year for which data is available), federal judges imposed sentences below the guidelines in over 46% of all cases. And in the District Court for the District of Columbia, where Stone was sentenced, judges sentenced below the guidelines in over 59% of all cases. The judge’s job, ultimately, is to shut out the political noise – Trump’s tweets about the case, Barr’s highly unusual intervention, and the resulting public uproar – and to sentence the individual in front of her based on the specific circumstances of the case. I believe Judge Berman Jackson did just that in sentencing Stone.
Three questions to watch
Three questions to watch:
1. Will President Trump’s pardon parade continue?
2. Will President Trump continue to publicly weigh in on Justice Department cases?
3. How will Attorney General William Barr respond, if at all, if President Trump continues to defy Barr by tweeting about DOJ matters?
