You're listening to Bloomberg Law with June Grazzo from Bloomberg Radio. Roger Stone has always been a controversial figure in American politics, and President Trump's commutation of his prison sentence is no less controversial. On Friday, Trump issued a commutation for his longtime ally, who had been sentenced to three years in prison for witness tampering and lying to Congress. Joining me is former federal prosecutor Revert Mints, a partner at Carter.
In English, residential pardon powers are extremely broad. So is this pardon of Roger Stone clearly within them. It's absolutely within the president's power. The act of pardon is essentially the president for giving somebody for a crime that they committed. It's rooted in Article to section two of the United States Constitution, and it wipes the slate clean for the recipient, even halting judicial proceedings that maybe underway. That's what a partner,
a communtationation. By contrast, which is what the President gave to Riser Stone, makes a punishment milder. In this case. It eliminated the prison sentence altogether, but it does not wipe out the underlying conviction. Just let's go back a moment and explain what roger Stone was convicted of and the prison term he was facing. Roger Stone went to
trial facing seven counts. He ultimately was convicted on all of those seven counts, including five counts of lying to Congress, one count of witness tampering, and one count of obstruction of a proceeding. Basically, what those charges focused on was stone sworn testimony in September seen before the House Intelligence Committee in which he allegedly misled the committee on several
key elements of their probe. He was also charged with witness tampering by urging a former associate, a man named Randy Cretico, to exercise his fisthem en and rights and to not cooperate with the committee. President Trump has issued three dozen clemencies in three years, and critics find a problem with them in that he avoids the office of Pardon Attorney, which is the office that presidents normally go
to because it's their duty to examine clemencies. So our President Trump has issued twenty five pardons and eleven commutations during his term in office. The standard procedure for presidents is selected Justice Department that these possible pardons and commutations, and they actually have a series of guidelines that they enforced in considering whether or not to grant clemency, and this department within the Department of Justice investigates and reviews,
and it makes a recommendation to the president. In this case, President Trump tends to not follow the advice of the Office of Partner Attorney or in many case says he has granted clemencies and situations where a request and not
even been filed with the Office of Pardon Attorney. So he is departing from the standard practice that many presidents have used in the past, which is to rely on the Department of Justice, the professionals who have institutional knowledge of how pardons and clemencies are typically granted, and in this case is acting more on his own without following those godlines, or, as they said earlier, in many cases, without even the request having been made to that office
in the first place. Many presidents have faced criticism for how they used their pardon powers. Some say this particular pardon stands out because President Trump is granting clemency to someone who is convicted of lying to protect him the president, it's useful to put this into context. The history of presidential clemencies is replete with disputes over the years of whether or not these clemencies ought to have been handed
down in the first place. As any example in n Lawrence Walls, she was then the Independent Council investigating their rand contrasts, there filed a new indictment against former Defense Secretary Casper Weinberger. Then President H. W. Bush responded the next month by pardoning Mr Weinberger and five others. Bill Clinton, for example, issued more than a seventy five partners or commutations on his last day in office, including one to
his half brother Roger. Clinton had several other former administration officials. He also pardoned Susan McDougall, a former business partner from Mark and Saw who spent twenty one months behind bars refusing for refusing to cooperate with the Independent Council kind of start in the investigation of the Whitewater land venture. That case, so it's important to point out, is one in which Susan McDougal had already served her sentence and
has been released. But the biggest fear that came about during the Clinton administration was the pardon at the end of his term of financier Mark Rich, who had fled the country to avoid charge of evading forty billion dollars in taxes and obcame clemency after his ex wife, Denise Rich, a Democratic donor, contributed money to Mr Clemon's presidential library. So there have been other controversial pardons or commutations in
the past. What sets this apart is that this individual, rise or Stone, was the first one to be pardoned in connection with the investigation into the alleged ties between the Trump campaign and Russia and the dump of the
Wiki Leaks documents. So the argument for those who are critics of this decision is to say that Mr Trump essentially rewarded somebody for not cooperating with prosecutors and perhaps withholding information ultimately could have led to charges against the president, or at least perhaps to have tied the president to information that showed that the Trump campaign had knowledge of these Wiki Leaks dumps, which were used in the end of the campaign to try to discredit Mrs Clinton, who
was at the time running for presidents against Mr Trump. I've been talking to Robert Manson, McCarter and English about Trump's commutation of Roger Stone's sentence Roger Stone's case in particular has drawn criticism from many people because it was also the case in which four prosecutors for the line prosecutors in the case resigned from the case rather than revised their sentencing recommendation. This case seems to be one where time after time there's controversy. In this case has
been controversial right from the get go. It started with the arrest of Roger Stone, where critics of the Department of Justice claimed that they came down with an army of investigators and FBI agents overkill in the in the circumstances of Roger Stone, who was asleep in his house with his wife. Uh. And then it just went on
from there with one controversy after another. The latest controversy prior to this commutation of a sentence was the sentencing of Riser Stone itself, and that was a case where prosecutors had filed the sentencing memorandum calling for Stone to receive between seven and nine years in prison. The President tweeted that he thought that that recommendation was horrible and
very unfair and the miscarriage of justice. And then within hours the Justice Department told reporters that there was a mistake in the filing of that sensing memorandum, which again had been filed with the court, had been presented to the judge, and the Department of Justice withdrew that recommendation and ultimately replaced it with a sentencing memorandum that recommended a more lenient sentence, And the move was considered so outrageous that the four career prosecutors who were handling the
trial quit the case in protests. One of them in fact resigned from the Department Justice whiltogether, and the revised recommendation of ultimately went to the court for more lean sentence was signed only by the then acting U S Attorney, who had been a former aid of Bill Barr had
had been installed in the post less than two weeks earlier. Well, it's interesting there is ultimately when the sentence was handed down, that the jug did hand down a sentence that was less severe than the original recommendation by the original prosecutors. It was more in line with what the bar recommendation m suggested. And Bill barr Uh to this day has
maintained that the prosecution of Roser Stone was righteous. As he put it, he believed it was a legitimate prosecution, and he believed the ultimate sentence of forty months was there. So he has taken a position directly contrary to the President here by believing that the prostitution was not a witch chunk, that it was a fair prosecution at the at the sentence but ultimately was handed down here was the correct one. This means that the conviction against Stone
is still intact. He's appealing his conviction, says he wants to overturn it and clear his name. How difficult is it to get a conviction like his reversed on appeal. The fact that the President here issued a commutation of sentence rather than a part means that the appeal of
this conviction will continue to go forward. The appeal is ensures that the facts tied to the Stone case, which includes evidence that the President knew about Wiki Leak's plans to release the hacked emails damaging to Mrs Clinton's sixteen campaign, that will continue to be an issue. It also means that there will be an odd circumstance here where the Attorney General William Barr and his Justice Department will continue to defend that conviction despite the fact that the President
has condemned the prosecution as being unfair. The issues on appeal are essentially that the charges were politically motivated. Mr Stone has claimed that the charges were fabricated and that he was denied to stay our trial by an unbiased
judge and by an honest jury. So he is going after a sort of broad range of charges about the entire process being unfair, and UH is trying to, I think, particularly focus on comments that were made by the jury for woman who later it turns out to have been someone who has tweeted about the president in an unfavorable way, and he's going to argue that he should have been granted a new trial based on the fact that this jury forum woman had not disclosed certain information about her
prior political conduct which was UH not supportive of the president. The fact that this is a commutation rather than a pardon means that Roger Stone can still plead the fifth if he's ever called to testify against the president. One of the distinctions between the pardon and the commutation is that not only is the underlying conviction still standing, which gives riser Stone the right to clear his name, which
is what riser Stone wanted. By the way, he was not looking for a full pardon because he believes that he was wrongly convicted and wants the opportunity to clear his name in court. But one of the other consequences of the commutation is that it raises this interesting question about whether Mr Stone will continue to have a Fifth Amendment right if he were to be subpoened before a grand jury and ask questions about his involvement with Wicky Leaks and what he may or may not have told
the President about that situation during the campaign. Does the President commuting Roger Stone's sentence before he goes to prison and before he appeals his case, does it put a question mark about the fairness of the justice system. Critics of the president would suggest that he has wielded the pardon power in a more overtly political way than many
of his predecessors. For example, the President pardoned former Arizona Sheriff Joe or Pio in August of regarding our Pio's ongoing legal battle and his conviction for contempt of court. That was a case in which our Pio had been supporting the President's agenda regarding illegal immigration. Another example was the partnering of Scooter Libby, who was former Vice President
Dick Cheney's age, he was pardoned by the president. Another pardon that many people viewed as more political than in the national interest was a pardon of former New York City Police Commissioner Bernie Carrick, who was sinced to four years in prison for failure to pay taxes. I'm lying to White House officials. He also pardoned former Illinois Governor Rod Blogoyevic to Democrats, had been convicted of public corruption, and it actually been on the President's reality television show,
which is how he got to know him. So there is this thread going through many of President Trump's pardons and commutations in which each of these individuals either know him personally or no, a family member or no. Somebody knows it well. And each of these individuals, at least in the President's eyes, were either wrongly convicted or given a sentence that was too harsh. But they all in some way are tied either to the President personally or
to the president's agenda. And that's why many of the critics are saying that he's using the presidential partner computation power in a way that is unprecedented and inconsistent with the way the former presidents have used this very important
and essentially unchecked power. That's Robert McCarter and English. The government backed down from a high profile confrontation with Harvard University, M I T and hundreds of other college just over foreign student visas, ending a standoff that could have sent thousands of foreign students back to their home countries and
left schools scrambling to plan for the fall. A federal judge announced the government had agreed to rescind a new policy requiring international students to take at least one in person class, permitting the foreign students to take online classes only during the health crisis. Joining me is Leon Fresco, a partner at Hollandon Knight. Leon. Let's start with a little bit of background explain what the government did in
its July six directive. So here's what happened. We had a normally functioning student visa system for many, many years, and then when COVID nineteen struck America in January and then really really started to strike in March, I started to have a problem because university started closing down. And so the question was what would I do with all
of these foreign students? Because the existing state of The law had been for many years that you cannot get a student visa to come to America to take fully online classes. The limit was you can only take three hours a week of online class and you needed to take at least nine additional hours per weeks of in person education. So that's the law, that's the laws that existence.
I suspended that law in March because obviously students had paid tuition they did here and there was no use in saying they have to leave anyway because there were no planes that would have taken them home. And so they said students can finish their term online and this
would create no problems. The question that became now that we had some time and some critical distance, what would you do with September in a world where it was unclear whether schools would stay open, whether they would close down and do online, or whether they would do a bix of both. And so then because of that, I thought about the problem and the issue guidance that said, if the who has any in person components, then the students could remain in the United States and go to
the school. But if the school was a fully online school, there was no reason for the students to remain in the United States. And so there's so many dimensions and the levels to look at that problem. Because if you look at it as purely appointing headed immigration questions, I have no doubt that that's the correct decision, because you can't be in America for the purpose of doing something
that the visa does not permitt you to do. But if you look at it as a practical question, you start asking yourselves, well, what are these actual human beings who are here supposed to do? Are they supposed to, you know, they now paid for two years of college or three years of college. Are they supposed to go home and risk that they'll never come back again and never be able to us in this school. Are they supposed to subject themselves to flight that might in endanger them?
Are they supposed to, you know, go to school where that might endanger them? Whereas you know, there is a very simple solusion which the people stay home with is what they've been doing and takes the classes. And so if you look at it from that perspective, it seems very harsh, you know, what you would do to these foreign students. And so those are the two main competing issues, plus the third issue of the general desire by this administration to want to open schools, and they're desire to
use any lever possible to accomplish that. Are there some students who actually might not be able to return home because of restrictions in their country on people coming from the United States. There are countries that have completely banned re entry of anybody from that country. So, for instance, if you're coming from Venezuela or you're coming from some other countries in South America, you just can't come back
in the country. There are others where it's hard to get in but it can be done, and there are others where it's easier to get in. So it just depends on the student. And that's the perfect that's the perfect kind of thing where if you had a blanket rule, what you would want to do is put an exception in for that exact concept, which is fine. You want to have a rule that says you can't study purely online.
One of the exceptions you might want to build into that is but if the student can't return home because there are no flights available to that students country, then that might want to be an exception that you make for instance. So these are rules of ICE. Does ICE have the power to make these rules and regulations on
its own? Yeah, So what happens is there's a student needs a statute that's created by Congress in the Immigration of Nationality Act, and that gives broad delegations to the Department of Homeland Security RID Large, which sends the Department of Homeland Security then designated to I to run this
thing called the Student and Exchange Visitor Programs. And the Student Exchanged Visitor Program issued regulations a long time ago that were done appropriately, with notice in comment, and with all the proper procedures that said, when you come here to the United States, you have to be coming to the United States to physically attend school and could only spend no more than three hours offline. Those rules were relaxed, and what could argue there was no basis to relax
those rules. But in the end, nobody was going to oppose that because we were in the middle of a COVID crisis. But those rules were relaxed to say that students could fully attend online last semester. The question was whether those relaxed rules should be maintained for this semester. Liam was there any common claim in all these federal lawsuits. Yeah, there's basically three separate claims, and by the way, there should be more claims, I think, but there's three basic claims.
One claim is that this was a new rule that was announced with a formal notice and comment rulemaking. That's number one. That's the simple enough claim. Eating you know you're changing the whole system here, How are you going to do that unless you put notice in comments. The second was that the rule itself as arbitrary and capricius
because it's not serving a purpose. And so the way that would play out is the judge would ask what is the purpose of this rule, and the government's going to have to say, well, the purpose of this rule is to keep people out who aren't legitimate students. And the point would be in return, well, we already know these are are legitimate students. They've been here, they've been studying. This isn't about issue in some new visas. This is
about the legitimate students that were already here. Why can't they just stay here and finish their degree? And I think it will be hard to articulate a reason why you need to punish those people and kick them out of the country rather than let them finish their degree here.
And then the third one is sort of a due process type of claim, with the sort of the idea that the government's endangering the safety of these individuals who are here by either forcing them to go to school, which might endanger their safety, or by forcing them to take an airplane that they don't, you know, want to take if they're sick or whatever, that might endanger them if they're taking one or two or three or four flights, however many it takes to get to their ultimate destinations,
that that entire process could endanger the person as well, and that that would be a reason that you would build some sort of health exception into this. The government capitulated only eight days after it had announced the directive. The judge announced the recision of the directive at the very start of the hearing in Boston. What happened, I think what happened was there were so many lawsuits that
had been filed in the last twenty four hours. It was gonna have to be defended in so many different venues. And the fact that the results of all of those different lawsuits would have meant that by the tide you got to the Supreme court, it would have been in
the middle of the semester. I think they decided it's not worth it to have this kind of uncertainty for students here who are ultimately trying to figure out what the law is to supply by and they can't control either what their school does or what these courts do, and so I think that's why they pulled out of disguised.
So where does this leave their their guidance where so we have been talking about the concept of do they revert back to the original regulations or to March and so what was actually quite stunning is that they reverted back to March. So the guidance is at the moment that if you are pursuing your course of study, even if it's completely online, you could do it from the
United States. Now what's still unclear is whether visas will be granted, because some embassies are opening this week and next week for people who are going to come to the United States to do only online education. At the moment, there's nothing theoretically preventing that. But my suspicion is that somewhere along the line, the administration is going to try to block that again, because it's one thing to treat
the people here fairly. But it's another thing to see whether the administration will let people come to the United States for the purpose of studying online. This March guidance, this guidance now wasn't adopted under the rules of the Administrative Procedure Act, correct, It was just emergency. It was an emergency memorandum that said, we will not say that anyone is out of status as long as they're taking that classes they're supposed to take, regardless of whether they
are online or not. And what the administration has decided to do by settlement, which there are certainly allowed to do, and if it becomes a settlement effectually entered by the courts, and that's the force of law, so that's even stronger than a regulation, which would be to keep the March guidance going for a certain period. So we'd have to see what's in the actual settlement. But the Court a
orally announced the settlement. And what the court said is that that orally that that settlement is that they will revert back to the March guidance and they will in no way try to enforce any of the guidance that's benetued in July. What does the law say about international students? The regulations that governance the student in exchange visitor program says that a student cannot be lawfully in the United States if they're taking more than three hours of online classes.
The March guidance was emergency guidance, which says that the student can take entirely online classes as long as they're actually taking them and the schools are verifying that they're taking them. Expectually, pretty easy for the schools to do because you're leaving a digital footprint every time you log into, whether it's Zoom or Microsoft Sees or something like that, and so the school can certainly verify that the student attended the class, and so under that scenario, the student
maintaining their legal status. It's a little bit mind boggling to me that this happened so fast. The rule was put in last week and they had the lawsuits filed. They didn't even have a full court hearing before they decided, okay, we're gonna take it all back. I think what happens, and the best example of this in the past was the first travel ban, where I think what happens is despite the intention of what the law is and what the people want to do with the law. They realized
that the overwhelming weight of lawsuit. So we saw this from the travel ban, and we're seeing an ear. Sometimes you can actually get to an issue where when you get to it, you know you're not gonna be able to win. And the problem is, as we said, the best case scenario for the administration was going to be to revert back to the guidance and literally lead to the removal of all the foreign students because no school
is opening up completely and entirely. And so I just think in the end, the administration just didn't want to go there because they knew that the financial impact of doing that was actually more harmful to the United States than keeping people here in the United States who are taking money from their parents abroad and buying things and renting apartments and you know, buying clothes and food, et cetera, and so all of that is actually helpful to our
economy at this time, as opposed to removing those people from the economy. From what you know, the schools didn't give in at all. They didn't make any concessions, absolutely not. It does that look like any concessions I've been given. The only questions that is still left up in the air that I don't think I've been resolved by today is that the administration agreed to bind itself with regard
to new individuals coming into the United States. But my suspicion is, I don't think at the end of this one, this all plays out, that you will be able to get a visa to enter the United States to fully depend online. Clive, that's Leon Fresco of Holland and Night. I'm JOm Bosso and this is Bloomberg. Thank you.