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02/14/2020

On the Stone Sentencing [Updated]
Michael Ramsey

With the uproar over the Roger Stone sentencing episode, including supposed presidential bullying of the Attorney General and the Attorney General's supposed interference in the prosecution, it seems appropriate to review basic constitutional points.

(1) The President is the federal government's chief law enforcement officer.  As Professor Saikrishna Prakash has said (in 134 pages), that is "The Essential Meaning of the Executive Power," which Article II, Section 1 vests in the President.  This power encompasses the power to bring prosecutions, to decline to bring prosecutions (prosecutorial discretion) and to recommend sentences.  Although there are a range of academic views regarding the powers of the President under the original Constitution, most of them accept this core power; the debate is what additional powers, if any, the President has (e.g., here and here).

(2) The Attorney General is the principal officer through which the President exercises the executive power of law enforcement.  He is, as Jefferson said of the Secretary of State, like a pen in the hand of the President -- an extension of the President's will, a tool with which the President exercises his power.  In turn, the Attorney General is the head of the Department of Justice, whose employees are subordinates and extensions of his will.

(3)  Federal courts have authority over sentencing, and are part of an independent branch of government over which the President has no authority or control (and whose life-tenured appointments assure that independence).

(4) Separate from the power of law enforcement, the President has the express power to pardon federal offenses (including the power to commute sentences).

It follows from this:

(a) The President can say anything he wants to about sentencing recommendations, formally or informally.  Judges may take it into account, or not.

(b) The President can direct the Attorney General to make sentencing recommendations the President thinks are appropriate.  The Attorney General must comply (or resign).  Or the President can make just a suggestion, which the Attorney General might (but probably won't) ignore.

(c) The Attorney General can direct his subordinates to make sentencing recommendations that the Attorney General thinks are appropriate.  The subordinates must comply (or resign).  The Attorney General may generally leave sentencing recommendations to the discretion of his subordinate prosecutors, but that is his decision to make (or not).

(d) If the President thinks a sentence is too harsh, he can reduce it through the pardon power (which, though a separate power, reinforces points (a) through (c) above: if the President has ultimate control over federal sentences through the pardon power, the fact that he has power over sentencing recommendations -- which are only recommendations -- does not seem so weighty).

These conclusions are not altered if the person being sentenced is a friend (or enemy) of the President.  The structure and powers of the executive are stated generally, without exceptions.

Perhaps this is a bad system.  It puts the President in charge of prosecuting his friends (and his enemies) if they violate federal law.  We might be better off with a separately elected independent attorney general (that's what we have at the state level in California).  But at the federal level, the Constitution is clear that we don't have that system, because it gives the executive power to the President without qualification.  Perhaps Congress could change the federal structure by statute, at least in part, as the Supreme Court held in Morrison v. Olson (though I doubt it, under the Constitution's original meaning).  But Congress has not changed the structure as applicable here.

I don't think these points are materially in dispute as a matter of original meaning or modern law.  But some people in the Stone sentencing kerfuffle seem to have lost sight of them.

And as should be clear, these thoughts are addressed only to the constitutionality of actions relating to the Stone episode, not to their prudence.

UPDATE: Via the Washington Post, President Trump says "he has the 'legal right' to ask his top law enforcement official to get involved in a criminal case."  Yes he does.  Anyone who thinks otherwise has a strange idea of executive power.