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Written by Robert E. Lehrer, Board Member of the Chicago Council of Lawyers

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Almost immediately after President Trump’s July 10 commutation of Roger Stone’s 40-month prison sentence (Stone being Trump’s longtime friend and confidante, a 2016 campaign adviser—and a convicted felon), Senator Chris Murphy (D. Ct.) explained the provenance of the commutation on Twitter:

This is, like, super simple, right? Stone had info that would have put Trump in jail. He told Trump he’d obstruct justice if he got clemency. Trump agreed.

Explaining why the commutation subverts the rule of law in our democratic republic is a much more complex task than explaining its provenance. 

But it turns out, Senator Murphy’s “simple” analysis elegantly explains both.

First, the agreement between Trump and Stone.Even before the FBI arrested Roger Stone in January 2019—principally for lying to Congress about his role, and Trump’s, in facilitating Russian interference in the 2016 election—he expressed his loyalty to his longtime friend: “I will never roll on Donald Trump,” Stone said. Critically, he thereby suggested, however, that he had information worth rolling—such information being the stuff from which prosecutorial deals are made.

Then, in the 18-months between Stone’s arrest and the commutation, Stone ofttimes publicly professed his hope for clemency given his continuing refusal to cooperate with prosecutors. Stone’s trial itself confirmed the elements of a quid pro quo deal in the making.  Prosecutors argued that Stone had lied to Congress in order to protect the President and a jury convicted Stone of all seven felony charges against him. In turn, Judge Amy Berman Jackson, in explaining Stone’s sentence, said: “[Stone] was not prosecuted for standing up for the President,” but “for covering up for the President.” Following the sentencing, Stone launched a television and social media campaign appealing for clemency.

Throughout the ordeal, Trump repeatedly expressed sympathy for Stone’s position, contending that he (Stone) was the victim of a political prosecution by elements of the “deep state” within the President’s own Justice Department. And in the days before the commutation, Trump signaled that he had decided to grant Stone what Stone had been seeking in exchange for his silence. Told by Howie Carr, a radio talk show host on State Radio that Stone was “praying” for a pardon before he had to report to prison, Trump stated: “if you say he is praying, his prayer may be answered.”

Stone, in any event, knew that clemency was on its way, and why. In an extraordinary interview with Howard Fineman (an NBC contributor) hours before the public announcement of the commutation, Stone said that his hope of clemency was well-founded because Trump knew he had resisted intense pressure from federal prosecutors to cooperate.

By the commutation, Trump delivered on his part of the agreement the two had reached: clemency in exchange for silence—past, present, and future. A promise sought, a promise made, a promise kept.

A commonly accepted, general understanding of the “rule of law” is that all people are subject to law that is fairly applied and enforced. The fair application and enforcement of the law by the government in turn means, at least: everyone is treated equally under the law; facts matter because truth matters, and the facts are the path to the truth.

Trump’s commutation of Stone’s sentence subverts these principles of the rule of law.

For the government to treat everyone as equals under the law, it must treat its friends and foes alike—friends not being extended special favors while foes are subject to special burdens. Especially is this so when the favors being extended are correctly understood as also benefiting the government favor-givers.

The agreement between Trump and Stone requires the conclusion that Trump commuted Stone’s sentence principally to protect himself against likely federal and/or state criminal prosecution based in part on Stone’s testimony, were he to offer it. The prosecutions will come sooner or later—sooner if Trump were to lose his reelection bid, later if he were to win it. Trump also commuted Stone’s sentence to prevent further erosion of his reelection prospects were Stone to “roll” on Trump before the election. 

The Washington Post, in its editorial following the commutation, is therefore justified in describing this as “one of the most nauseating instances of corrupt government favoritism the United States has ever seen” making it, accordingly, a “perversion of justice.” 

As for the facts and the truth, the White House attempted to justify the commutation by dismissing the charges against Stone as “process-based.” It asserted that these charges had nothing to do with any underlying substantive “criminality” on Stone’s part, but only, it suggested, with some procedural missteps he may have made—so trivial that they were unworthy of the Justice Department’s attention.

Special Counsel Robert Mueller wrote an op-ed in the Washington Post discussing the commutation. He explains that far from being unworthy of prosecution, the crimes with which Stone was charged and ultimately convicted—obstruction of a congressional investigation, making false statements to Congress, and witness tampering—required prosecution because such crimes subvert a governmental function essential to the maintenance of the rule of law, which is to obtain “accurate information from its witnesses.” “When a subject [such as Stone] lies to [Congressional] investigators [and tampers with a witness],” he wrote, “it strikes at the core of the government’s efforts to find the truth and hold wrongdoers accountable.”