I'm not here to judge you. Instead, desperate for distraction from quarantine and curfews, I've cooked up my own wild theory--a theory that I may have fooled myself into believing is true. Maybe I'm right. Or maybe I've just been stuck inside for too long.
News outlets have reported for some time, with renewed interest today, that President Trump may be about to pardon Roger Stone, who was sentenced to three years in prison back in February after being convicted of lying to authorities, obstructing a congressional investigation, and witness intimidation. My wild theory is that Stone has already been pardoned as a result of Trump's tweets.
From Politico, earlier today:
President Donald Trump on Thursday promised his longtime informal political adviser Roger Stone would not serve time in prison, revealing the convicted Republican provocateur “can sleep well at night” and reprising his fiery criticisms of former special counsel Robert Mueller’s probe.
The pledge from the president came on Twitter, after Charlie Kirk, the founder of the conservative group Turning Point USA, wrote Tuesday that Stone “will serve more time in prison than 99% of these rioters destroying America” — referring to the ongoing nationwide protests over the killing of George Floyd, a 46-year-old black man, by a Minneapolis police officer.
“This isn’t justice,” Kirk added. “RT for a full pardon of Roger Stone!”
Trump went on to share the tweet Thursday morning, writing in his own accompanying message: “No. Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history. He can sleep well at night!”Here is the tweet:
No. Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history. He can sleep well at night! https://t.co/HHg24tcZrx— Donald J. Trump (@realDonaldTrump) June 4, 2020
This is not the first time Trump has tweeted something like this. Kirk wrote a similar tweet criticizing Stone's conviction back in April, which also prompted a response from Trump:
This is a disgraceful situation! https://t.co/s2qZSrGw6U— Donald J. Trump (@realDonaldTrump) April 18, 2020
Politico and other outlets are reporting that Trump's tweet today appears to be a promise by Trump to pardon Roger Stone, as his suggestion that Stone "can sleep well at night" strongly suggests that Stone will not end up spending the night in prison (because he will be pardoned).
I'll go a step further and suggest that there's an argument to be made that this tweet itself (and his April tweet) constitute a pardon of Roger Stone.
The Argument
Trump's tweet is a quote-retweet of Charlie Kirk, an outspoken commentator whose shtick is to appear down with the youths and whose tweets are frequently hyperbolic, misleading, or false. In addition to Kirk's false claim that Stone was sentenced to prison simply because he supports Trump, Kirk's tweet includes this key, final sentence: "RT for a full pardon of Roger Stone!"
For those who are unfamiliar with Twitter, first let me say good for you! Here's some background: the last sentence in Kirk's tweet is a request for retweets (RTs). Twitter users can hit a "retweet" button that appears below another user's post ("tweet") that shares that tweet with the retweeting user's followers. The typical goal behind retweeting something is that it results in the original tweet being shared with a larger audience. Users have the option of simply retweeting, which shares the tweet (with a little note that the user retweeted it) with that user's followers, or quote-retweeting, where they share the original tweet, plus their own commentary, with their followers. That is what Trump did here.
For members of the general public on Twitter, the statement "RT for a full pardon of Roger Stone!" is similar to a petition, as retweets symbolize agreement with Kirk's sentiment. If I thought that Roger Stone should receive a full pardon, I could retweet Kirk, both to spread the word, and to express my agreement with Kirk. While there are some users who occasionally claim that "retweets are not endorsements," this is generally unconvincing--particularly as users now have the option to make critical quote-retweets of statements with which they disagree. In any event, Trump has no such caveat in his account description.
For nearly all Twitter users, retweeting or quote-retweeting has the effect of spreading the message, expressing agreement, or--in the case of certain quote retweets--expressing criticism. But for the president, retweeting Kirk's particular message may have an additional effect--as he, and only he, has the power to issue the pardon. Kirk's tweet is worded without qualifications--rather than saying "RT if you think Stone should be pardoned!" it asks other users to retweet "for a full pardon."
Indeed, the specific wording of the tweet suggests that it may be aimed at Trump in particular. Stone may argue that if Trump retweets, he is not expressing mere agreement or stating his opinion--he taking an action that, given the context of the original tweet, constitutes a full pardon of Stone.
An analogy would be that Kirk is standing in public, holding out a pardon of Stone for everyone to sign. I could sign it. My friend Max could sign it. This would have no legal effect. Our signing the document could be taken as an expression of agreement that Stone should be pardoned--albeit in a somewhat awkward way. But if Trump happens to sign the pardon, then the legal effect of doing so is that Stone is pardoned. That, Stone can argue, is precisely what Trump has done here. Kirk's tweet indicated that a retweet could constitute a full pardon, Trump retweeted, and the pardon has been effectuated.
Can The President Pardon Someone Via Tweet?
The presidential pardon power is almost entirely a matter of presidential discretion. While the Constitution limits the president from exercising the pardon power in cases of impeachment, it does not set forth specific procedures or requirements that the president must follow when issuing the pardon. And although there are regulations in place governing the procedure for submitting a petition for clemency (see 28 C.F.R. § 1.1, et seq.), these regulations are advisory and do not restrict the president's authority. 28 C.F.R § 1.11.
Some background on the historic exercise of the pardon power is here. And commentary on Trump's particular pardon practices is here.
News outlets and commentators have emphasized the lack of constraints on the pardon power in light of President Trump's use of pardons on political allies. Following the pardon of Joe Arpaio, the BBC speculated that Trump could pardon someone via tweet--suggesting that signing his name at the end of the tweet would be the equivalent to a signature on a pardon. That article cites to this 1929 memorandum by Acting Solicitor General Alfred A. Wheat to the Attorney General, which notes that the Constitution does not prescribe how the president should exercise the clemency power and that it is "wholly a matter for the president to decide, as a practical question of administrative power." Wheat goes on to suggest that the pardoned person should at least have "some token to show that he has been pardoned," such a token need not bear the president's signature. While Wheat cites an 1893 executive order that requires pardons to be countersigned by the Attorney General, the scope of that order is limited to warrants of pardons and commutations "heretofore prepared at the Department of State on the requisition of the Attorney General," and would not apply to a pardon tweet.
As the BBC notes, Wheat could not have contemplated something like Twitter when he wrote his 1929 memo. But the general points Wheat sets forth in his memo confirm the breadth of the president's pardon power, and several of his statements are applicable to Trump's present day practices.
In light of the president's broad pardon power, there is a strong argument that Trump could pardon someone by tweet. The tweet itself could be the "token" showing that a person has been pardoned, and the fact that it comes from Trump's verified account can be treated as the equivalent of a signature. There are responses to both of these arguments--particularly, there may be a factual question as to whether Trump himself wrote the tweet. But courts would likely refuse to second guess a purported pardon-by-tweet, as lack of constitutional and legal procedural requirements would constitute a political question. For more on court's unwillingness to second-guess pardons, see the discussion at the end of this prior post.
Counterarguments
There are many arguments that Trump has not pardoned Stone with his tweet. Some are stronger than others, but all of them have some issues.
One response would be to run with the petition analogy that I used above. Kirk's tweet served no purpose other than a forum in which people could express their agreement that Stone should be pardoned. Trump's quote-retweet was therefore akin to signing a petition that Stone be pardoned rather than signing the pardon itself. This is how media outlets have interpreted the tweet, treating it not as a pardon, but a strong suggestion of an impending pardon.
The absolute nature of Kirk's original tweet undermines this interpretation. Moreover, Trump has previously tweeted suggestions that he will pardon somebody. He did so in mid-March with former national security adviser, Michael Flynn, stating "I am strongly considering a Full Pardon!" Unlike the Roger Stone tweet, that prior tweet was not made in response to a tweet asking for users to "retweet for a full pardon." And the Flynn tweet was qualified with language that Trump was "strongly considering" the pardon. There is no such qualifying language in the present tweet.
Alternatively, one could argue that Trump's quote-retweet of Kirk's original tweet is not an outright retweet, so Trump has not technically "retweeted" Kirk. This argument is weak. Quote-retweeting, as the name suggest, constitutes a retweet with the addition of a comment. Rather than not being a retweet, it is a retweet, plus something else. Sometimes, a tweet may appear to be a quote-retweet because a user has linked to a tweet, rather than quote-retweeting it. But there is no link in the tweet suggesting that Trump copied and pasted the tweet at the end of his comment.
Another argument against the tweet being treated as a pardon is that it is, instead a refusal to pardon Stone, as it begins with "No." A narrow reading suggests that this contradicts the message of the quoted tweet. But this reading is not plausible. An uncomplicated contradiction would be a situation where Trump retweeted Kirk with a comment like, "Stone is a good friend, but his trial was fair and I will not upset the court's ruling." Here, Trump's simple statement of "No," in the context of his full comment, which criticizes Stone's sentence, is much more plausibly read as a reaction to Kirk's statement in the original tweet that "This isn't justice."
A stronger argument against the pardon interpretation is that Trump tweeted this from his personal account. Since he did not use the official presidential twitter account, this is simply Trump expressing his own opinion rather than taking official action. But the personal/official distinction is troublesome as well--particularly in light of case law regarding lawsuits by Twitter users who were blocked by Trump's personal account. Most recently, an en banc Second Circuit refused to review the Second Circuit's ruling that Trump's account "bear[s] all the trappings of an official, state-run account" and that the account is "one of the White House's main vehicles for conducting official business." And, as noted above, Trump's statement and its context was not couched in terms of opinion and contained no qualifiers as to whether Trump was "considering" pardoning Stone.
I have also seen arguments that Trump is prohibited from pardoning Stone, since doing so would be a pardon in a case of impeachment, which the Constitution prohibits. Those arguments are beyond the scope of this post, and do not alter the analysis on whether Trump has pardoned Stone through his retweets.
The sheer number of counterarguments, and the unusual nature of a pardon-by-retweet, appear to be enough to give pause to Stone and commentators from arguing that Trump has already issued a pardon. But if Trump's presidency and 2020 thus far are to be any guide, what may seem outlandish one day may be routine the next.
Conclusion
I don't expect anything to come of Trump's recent Stone tweet, since he tweeted essentially the same thing in April and Stone did not claim that he had been pardoned. I would be surprised to see Stone make such an argument now, as Trump has repeatedly expressed a desire to pardon him. If Stone were to start arguing the aggressive interpretation of Trump's tweets that I set forth above, this could jump the gun on what appears to be an inevitable pardon.
If Trump indeed goes ahead and pardons Stone, the discussion above will be moot for his case. But this phenomenon shouldn't be ignored--as Trump is pretty quick to retweet particular commentators on certain subjects. Charlie Kirk, and others like him, will likely tweet similar statements in the future, and this question will likely come up again. At the very least, the pardon argument and the counterarguments shed light on the flexibility of the pardon power and its application, and how the intricacies of technology relate to the pardon power and presidential actions more generally.
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