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
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Author: Jed Shugerman
Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases.
He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.
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