Roger Stone Gets His Reward

Last Friday, a few days before Roger Stone was due to report to prison, president Trump commuted his sentence. Stone remains a convicted felon (for now) but will not have to serve his forty-month prison term. Trump’s move was not a surprise; he’s hinted at pardoning Stone for months and it always seemed unlikely he would allow his friend and confidant to actually serve time. But although expected, Trump’s action to reward Stone for his criminal cover-up on Trump’s behalf is still profoundly corrupt. The only consolation is that Trump was forced to act before the November election so voters can respond accordingly.

Roger Stone

Background on Stone’s Conviction

In 2016 Russian hackers stole tens of thousands of emails and documents from the Hillary Clinton campaign and Democratic party sources. In the months leading up to the presidential election, they gradually released those documents via Wikileaks, in an effort to boost the Trump campaign and harm Clinton. Special Counsel Robert Mueller’s team ultimately indicted twelve Russian intelligence officials for taking part in that hacking. Although they documented multiple contacts between Russians and the Trump campaign, Mueller’s investigators did not conclude that anyone in the campaign had actively conspired – or “colluded” – with the Russians concerning the hacking and release of the emails. Mueller did conclude that the Russians perceived they would benefit from a Trump victory and worked to make that happen, and that the Trump campaign perceived that it would benefit from Russia’s actions.

Stone is a long-time Republican operative and advisor to Trump and his campaign. During the fall of 2016, he acted as an intermediary between the Trump campaign and Wikileaks, gathering information about what stolen documents might be released and when. He made repeated public statements claiming inside knowledge of what Wikileaks was doing and claiming to be in touch with Wikileaks founder Julian Assange. The Mueller report documented multiple contacts between Stone and the campaign concerning the Wikileaks releases, as well as Trump’s own knowledge and encouragement of Stone’s efforts.

In 2017, Stone was called to testify before a Congressional committee investigating Russia’s interference in the election and possible connections to the Trump campaign. During his Congressional testimony he repeatedly lied about his role as an intermediary between the campaign and Wikileaks and his contacts with others in the campaign. Over a period of several months he also repeatedly threatened another witness, Randy Credico, trying to persuade him not to testify or to lie to investigators.

Mueller’s prosecutors ultimately indicted Stone for seven felony counts of obstruction of justice, lying to Congress, and witness tampering. A jury in the District of Columbia found him guilty of all charges in November of 2019. The sentencing guidelines in his case called for sentence of about 7 to 9 years. But after prosecutors had filed papers arguing for a guidelines sentence, Attorney General Barr, in an extraordinary personal intervention, ordered the U.S. attorney to disavow that position and seek a more lenient sentence – resulting in all of the career prosecutors withdrawing from the case. Judge Amy Berman Jackson ultimately sentenced Stone to forty months in prison, noting during the sentencing hearing that Stone had been “prosecuted for covering up for the president.”

Stone sought to postpone serving his sentence, citing concerns about his age and Covid-19. Judge Jackson denied his request to delay his report date until September, noting that there were no Covid outbreaks in Stone’s designated prison. Stone was due to report to prison today, Tuesday, July 14. But late last Friday evening, president Trump announced he was commuting Stone’s sentence.

White House Press Secretary Kayleigh McEnany

The White House Statement on Clemency

The official White House statement on this grant of “executive clemency” is, quite frankly, an embarrassment. It reads like a Trump Tweet. It alleges that, “Roger Stone is a victim of the Russia Hoax that the Left and its allies in the media perpetuated for years in an attempt to undermine the Trump Presidency.” It claims that frustrated prosecutors, unable to prove collusion, resorted to “process based charges” borne of “frustration and malice” and a desire for “splashy headlines.” It further claims that, “The simple fact is that if the Special Counsel had not been pursuing an absolutely baseless investigation, Mr. Stone would not be facing time in prison.” And it concludes with one of Trump’s trademark exclamation points: “Roger Stone is now a free man!” (Interestingly enough, though, the statement never denies that Stone committed the crimes for which he was convicted.)

Where to begin? The “Russia Hoax,” of course, was never a hoax. It was a serious investigation into Russian interference in the election and the possible involvement of those in the Trump campaign. Mueller indicted about two dozen Russians for that interference, and documented scores of contacts between Russian individuals and those associated with the Trump campaign.

This should go without saying, but the fact that no campaign officials were charged with conspiring with Russia does not render the investigation itself a hoax. Often the purpose of such a white collar investigation is to determine whether a crime has been committed, when that may be unclear at the outset. There was a more than sufficient reason to investigate, as recognized not only by the Department of Justice but also by both parties on Capitol Hill, who conducted their own probes.

What’s more, as Mueller noted, the fact that witnesses including Stone and the president himself lied to investigators or refused to cooperate impeded the ability to find the whole truth about the Trump campaign’s contacts with Russia. Even if those contacts were not ultimately criminal, Stone’s obstruction kept investigators and the public from learning the full details and the extent to which the Trump campaign encouraged foreign interference in the election. Truthful testimony from Stone also may have indicated that Trump himself lied in his written answers to Mueller, when he denied any recollection of Stone’s involvement with the Wikileaks document dumps. Stone’s stonewalling kept all that information concealed and protected the president.

By the way, speaking of Congressional investigations, contrary to the White House statement’s implications, Stone was not convicted of lying to Mueller’s investigators. He was convicted of lying to a Congressional committee — one that, at the time, was led by Republicans. You might think some of those Republican members of Congress would be concerned about the president granting clemency to a defendant convicted of lying to them and obstructing their investigation. But so far – crickets.

The idea that Mueller was seeking “splashy headlines” is also pretty comical. Mueller was notoriously tight-lipped during the investigation, refusing to speak out even after the investigation was concluded and Attorney General Barr had distorted his findings. In fact, he only now broke his silence in the wake of the Stone commutation, writing an extraordinary op-ed in the Washington Post defending the prosecution and his team from the attacks by the White House. Mueller never sought headlines during his investigation, but Trump’s actions concerning Stone were finally enough to push him over the line.

Attorney General William Barr

Better Ask Barr

The White House might have checked with Trump’s own Attorney General before releasing the statement trashing the Stone prosecution. Attorney General William Barr has shown himself willing to go very far to protect Trump and the presidency, resulting in multiple calls for his own resignation and impeachment. And he did personally intervene in the Stone case, undermining his own career prosecutors to call for a sentence below that recommended by the sentencing guidelines.

But apparently commuting Stone’s sentence was too much even for Barr. He recently said that he thought Stone’s prosecution was “righteous” and that his (reduced) sentence was appropriate. According to news reports, he counseled Trump against commuting Stone’s sentence. It’s hard to know whether such reports are credible or whether Barr is just trying to save face. But regardless, I won’t be holding my breath waiting for Barr to resign in protest.

Stone Gets His Reward

Throughout Mueller’s investigation and his own trial, Stone repeatedly and proudly proclaimed that he would never testify against the president. Trump regularly praised Stone for keeping his mouth shut, with Tweets like this:

Just last week, as if to remind the president that he’s been a stand-up guy, Stone said in an interview with journalist Howard Fineman: “He [Trump] knows I was under enormous pressure to turn on him. It would have eased my situation considerably. But I didn’t.  They wanted me to play Judas. I refused.” And now, with the grant of clemency, Stone has been rewarded for his loyalty.

To see how Trump operates, all you have to do is look at how different witnesses from his inner circle were treated. Cohen and former campaign manager Paul Manafort, who ultimately cooperated with investigators, have gone to jail and received no clemency. Cohen was publicly derided by Trump as a “rat.” But Stone, who stood fast and took the rap, found favor with the boss and will never see the inside of a jail cell. The whole thing sounds like the script from a mob movie.

The Potential Crimes in the Commutation

Other presidents have issued controversial pardons and commutations. But Trump’s clemency for Stone is unique in that it so clearly appears to be part of a personal quid pro quo, a reward for Stone’s refusal to cooperate in a case potentially implicating the president himself. This makes Trump’s clemency for Stone not merely unseemly, but potentially criminal itself. Indeed, Barr himself acknowledged during his confirmation hearing that it would be a crime for a president to pardon a witness in exchange for a promise not to testify against him.

As I wrote in this post, one potential crime is bribery. A president who grants clemency in exchange for a witness refusing to cooperate against the president could be guilty of bribery of a witness, in violation of 18 U.S.C. 201(b)(3). The president is providing a thing of value – the grant of clemency – to Stone in exchange for Stone’s agreement not to testify against him. It doesn’t matter that the actual refusal to testify took place some time ago. The crime is the corrupt deal; the president is now simply consummating that earlier, understood agreement.

Another possibility is that Trump and Stone’s actions could be seen as steps in a conspiracy to obstruct justice. It’s the culmination of an ongoing corrupt endeavor to prevent the Mueller investigation and various Congressional committees from learning the truth. Although those investigations are largely concluded, the commutation could be considered an overt act in furtherance of an ongoing conspiracy, lasting several years, to obstruct those investigations.

If Trump loses in the fall, a new Department of Justice could potentially investigate such charges. It’s unclear whether there will be any appetite to do so. The country may just be ready to move on. And of course, Trump may grant a flurry of new pardons after the election – including potentially trying to pardon himself – that could complicate any such efforts.

The Silver Lining – Sort Of

It was inevitable that Trump would spare Stone from prison. If there is a silver lining, it’s that he was forced to do so prior to the election. Trump has been pretty successful at stonewalling and running out the clock on a number of potentially damaging controversies. Although the Supreme Court decided in a pair of cases last week that he does not have absolute immunity from turning over his tax returns to investigators, it looks like he will be able to tie those subpoenas up with further litigation until after the election. Various White House officials, such as former White House counsel Don McGahn, have refused to testify before Congress and those claims are still tied up in court. Lawsuits pending for several years about Trump enriching himself in violation of the Emoluments Clause have yet to produce any significant public information. And although it seems extremely likely that Trump will ultimately pardon his former national security advisor Michael Flynn, that case too continues to slog through the courts and Trump may be able to avoid acting until after the election.

But when it came to Stone, Trump ran out of time. He may still decide to grant Stone a full pardon once the election is over. But for now, he either had to act or let Stone go to prison. Many details about Trump administration corruption and Trump’s personal finances remain hidden, but at least this latest episode of corruption is out there for the voters to see. Trump has to own this one. And in a long litany of corrupt acts and perversions of the justice system by this administration, rewarding Stone for his refusal to “rat out” the president deserves a place near the top of the list.  

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Corruption Is the New Collusion

If we were creating one of those New Year’s “In and Out” lists, collusion would be “Out” and corruption would be “In.” Allegations of corruption are central to the Articles of Impeachment of president Trump, which charge that the president acted for “corrupt purposes” and with “corrupt motives” in his dealings with Ukraine. Trump supporters claim, however implausibly, that his actions were justified by his concerns about corruption in Ukraine. But “corruption” is not a criminal offense, so general claims of corruption don’t tell us much about the seriousness or criminality of the underlying behavior.

This reminds me of the debates about “collusion” over the past couple of years. During the Mueller investigation, allegations of collusion and whether it was a crime served primarily to muddy the waters. The term collusion can refer to a wide variety of actions that are not at all criminal. Trump and his supporters were thus able to argue that “collusion is not a crime” while ignoring that conduct that could be described as collusion could also, in some cases, violate criminal statutes.

Just as arguing about collusion was not illuminating, claims about corruption are similarly unhelpful. They allow supporters of the president to argue that everyone is corrupt and so what the president did was not unusual. Certainly, they claim, you can’t impeach a president for engaging in the kind of conduct that goes on every day in the Washington D.C. swamp. But general allegations of corruption obscure the critical differences between conduct that may be merely unseemly or “politics as usual” and conduct that is truly criminal and an abuse of office. As the impeachment proceedings move forward, that’s a distinction that should not be lost.

Special Counsel Robert Mueller
Special Counsel Robert S. Mueller III

The Special Counsel and Collusion

During the investigation by special counsel Robert Mueller, there were repeated allegations of possible collusion with Russians by members of the Trump campaign. As I’ve noted here before, there is no crime called collusion. Collusion refers to working with someone, usually in secret and toward some improper end. In criminal law, we call that a conspiracy. When Mueller issued his final report, he also noted that collusion is not a criminal concept. He examined the various contacts between Russians and the Trump campaign under the law of criminal conspiracy, and determined that none of them rose to that level.

Some found it difficult to accept that the campaign’s contacts with and willing acceptance of help from various Russian sources might not be unlawful. But there’s a great deal of conduct that may be reckless, bumbling, or dishonorable and still not be a crime. In other words, there’s a lot of collusion that isn’t criminal.

In the public debates during the Mueller investigation, the constant references to all Russian contacts as collusion mostly resulted in confusion. It allowed the president’s supporters to argue that because collusion is not a crime, if Mueller was looking at collusion the investigation must be a political witch hunt. Using the catch-all of collusion obscured the distinctions between acts that were simply deplorable and those that might have been truly criminal.

There’s No Crime Called “Corruption”

As with collusion, there is no crime called “corruption.” That term covers a multitude of sins, most of which are not criminal. Much of what goes on in the D.C. “swamp” every day involving the confluence of money, power, and politics may look inappropriate or sleazy and may be considered corrupt by many. But most of it does not run afoul of the criminal law.

The heartland of criminal corruption is crimes such as bribery, improperly using the power of a public office for personal benefit. As I’ve argued elsewhere (here and here, for example) president Trump’s dealings with Ukraine meet all the elements of federal bribery law: the president demanded a thing of value (announcing the investigation of a political rival) in exchange for his official acts of releasing the military aid to Ukraine and agreeing to a state visit at the White House with Ukraine’s president. This kind of quid pro quo deal by a public official is textbook criminal corruption. This is actual criminal conduct, and an abuse of the power of the presidency.

But consider a politician who takes hundreds of thousands of dollars in campaign contributions from the oil and gas industry and later supports legislation benefitting that industry. Or a cabinet official who resigns and becomes a highly-paid lobbyist, working on behalf of the industry she used to be in charge of regulating. Many might consider such actions corrupt, but they are common occurrences. Without much more, they don’t amount to a crime. We can deplore such actions and argue they suggest a need for better ethics laws or campaign finance reform. But for better or worse, with the system that we have, such actions are not criminal.

The Zephyr Teachout Article

A great example of the problem with allegations of corruption is an article published this week in The Guardian by Zephyr Teachout, a law professor who has written a book about corruption in America and who has endorsed Bernie Sanders for president. The title is: “‘Middle Class’ Joe Biden has a Corruption Problem – It Makes Him a Weak Candidate.” Teachout argues that Biden “has a big corruption problem” that would make him a poor choice to take on president Trump. In support of her claim, she points to three areas — finance, health care, and energy — where she claims Biden has worked to benefit corporate interests that have funded his campaigns. She argues that Biden’s “record represents the transactional, grossly corrupt culture in Washington that long precedes Trump.” Teachout claims this “corruption” of Biden’s will enable Trump to “muddy the water, to once again pretend he is the one ‘draining the swamp’, running against Washington culture.”

There’s no allegation that Biden did anything illegal in any of the examples cited by Teachout. If he’s guilty of anything, it’s of simply playing the Washington swamp game as it currently exists. Many, including Teachout, might think that’s a problem and might decry the influence of money in politics. They might argue persuasively for the need for campaign finance reform. But politics as usual is not a crime. And although the behavior may be unseemly and undesirable, I wouldn’t label lawful political behavior as corrupt. It’s possible to argue for reforming the system without accusing those who are acting lawfully within that current system of corruption.

By calling Biden corrupt, Teachout obscures the differences between true criminally corrupt behavior and behavior that is legal, if swampy. She lumps Biden’s conduct together with Trump’s and labels it all “corruption,” although she agrees that Trump is worse. But any differences between them, apparently, are simply a matter of degree, not of substance. She’s helping Trump make the exact argument that she claims to fear: that everyone is corrupt and so Trump’s behavior is no different from any other politician’s. I think this is wildly misguided and plays directly into Trump’s hands.

(And as a political aside, I think Teachout is kidding herself if she believes that Bernie Sanders, who has spent his entire career in the Washington swamp, will somehow be inoculated against Trump’s attacks if he’s the nominee. For his part, Sanders has disavowed the Teachout article and apologized to Biden for it.)

Hunter and Joe Biden

The Burisma Allegations

Now consider the Ukrainian energy company Burisma, which put Joe Biden’s son Hunter on its board at a hefty salary despite his lack of obvious qualifications. The president and his supporters have urged that Hunter Biden’s appointment to the Burisma board should be investigated as “corruption.” Trump’s demand that Ukraine conduct such an investigation is part of the basis for the Article of Impeachment charging him with abuse of power.

Burisma no doubt hoped that adding such a high-profile American name to its board would provide some political or economic benefit or burnish its image. It may seem unfair or inappropriate that Biden was able to cash in on his family name like this. We may decry the existence of this American aristocracy (although it is richly ironic for Trump and his children to do so). Given the appearances it created, it was poor judgment for Hunter to accept the position. But hope, unfairness, bad judgment, and having a prominent family name are not crimes.

There is no allegation that Hunter actually did anything illegal, just a vague implication that there must have been something fishy going on. Hunter was a private citizen, so there can be no allegation of criminal public corruption directly related to his own actions. He was legally free to accept the job, even if he believed he was unqualified and that Burisma was a sucker to pay him so much money. In hindsight I suspect he would agree that it was dumb for him to take the board seat, given the problems he created for himself and his father. But creating a mere appearance of impropriety is likewise not a crime.

Because Hunter was not a public official, any allegations of criminal corruption would have to link back somehow to his father, who was vice-president at the time. Trump allies have tried to suggest a link between Hunter Biden’s position and then-vice president Joe Biden’s work to convince Ukraine to oust its top prosecutor Viktor Shokin. The allegation is that Shokin was forced out because he was threatening to investigate Burisma, but the facts don’t support that allegation. Just the opposite, in fact: numerous reports have noted that Shokin was ousted because he was too soft on corruption.

In addition, the vice president’s efforts to pressure Ukraine to get rid of Shokin took place in public. Corrupt acts usually take place in secret. Biden’s actions were in furtherance of official American policy and were supported by the entire European community. There’s no credible evidence that Joe Biden acted as part of a quid pro quo or to benefit his son. Such theories live on only in the fevered conspiracy dreams of the likes of Rudy Giuliani.   

Trump’s demands to Ukraine, on the other hand, took place on a private phone call that the White House promptly took steps to conceal by placing the transcript on a classified server. We only know about it now because of the whistleblower. And there seems to be universal agreement even among people in Trump’s own administration that his withholding of the military aid was contrary to U.S. national interests.

But none of this has stopped those who claim that Hunter Biden’s mere presence on the Burisma board is proof of “corruption” that may have somehow justified Trump’s actions. For example, George Washington University law professor Jonathan Turley recently wrote that Hunter Biden’s contract with Burisma “was so openly corrupt it would have made Jack Abramoff blush.” But Abramoff was actually convicted of federal crimes, as were more than two dozen people in his orbit including a U.S. Congressman. He went to prison as part of perhaps the biggest criminal corruption scandal in the last twenty years. Equating Hunter Biden’s legal (if unseemly) board seat with Abramoff’s criminal misdeeds is the kind of facile argument made possible only by ignoring the malleability of term “corruption.” It’s the same kind of error made by Teachout.

Focus on the Criminal Conduct

Characterizing all swamp-like behavior as corruption enables the kind of “whataboutism” so common in today’s political battles. It allows the president and his defenders to suggest that everyone is corrupt and that his behavior is not really unusual. But just as most collusion is not criminal, most behavior that is labeled corrupt is not a crime. Trump’s conduct, on the other hand, was in fact criminal and involved abusing the power of the presidency for his own personal benefit. It is different in kind, not just in degree, from D.C. swamp politics as usual. As impeachment proceeds, Democrats would be wise to emphasize the criminal – not just corrupt — nature of president Trump’s actions.