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.

Roger Stone
Roger Stone

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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The Crimes in the Articles of Impeachment

Last week the House Judiciary Committee voted out two Articles of Impeachment of President Trump. The full House is expected to vote on them this week. Article One charges Trump with Abuse of Power for his actions toward Ukraine, and Article Two charges him with Obstruction of Congress. One common refrain among the president’s supporters is that impeachment is not appropriate because these articles do not allege the president committed a crime. But this is not correct: although the articles do not cite specific federal statutes, the facts they allege do establish several federal offenses. There are indeed crimes in the Articles of Impeachment.

But First: Impeachment Doesn’t Require a Crime

The Constitution provides the president may be impeached and removed from office for “Treason, Bribery, or other high Crimes and Misdemeanors.” Alexander Hamilton, in Federalist 65, wrote that impeachment is a remedy for abuse of office and is appropriate for “those offenses which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust.”

Although there is some debate about the exact meaning of “high Crimes and Misdemeanors,” there is a general consensus that impeachment does not require proof of a federal crime. Of the four law professor experts on impeachment who testified before the House Judiciary Committee on December 4, all four – including the expert called by the Republicans – agreed that impeachable offenses are not limited to conduct that violates federal criminal statutes. Professor Noah Feldman of Harvard Law School testified: “the essential definition of high crimes and misdemeanors is the abuse of office,” and that the “classic form … is using the office of the presidency for personal advantage or gain, not for the public interest.” He went on to note that: “the traditional meaning of high crimes and misdemeanors was not restricted to acts defined as ordinary crimes by statute.”

Even if you believed conduct should be criminal to be impeachable, that wouldn’t mean the conduct should have to track the precise elements of the current U.S. criminal code. The men who wrote the Constitution could not have been thinking of the federal criminal code because it did not exist at the time. Crimes such as bribery have been around as long as there have been politicians, and have common-law meanings not tied to the language of particular statutes. What’s more, the current federal criminal code contains a number of different statutes that prohibit bribery, and they do not all share the same definition of the offense.

Linking impeachable offenses to particular acts of Congress would mean Congress effectively could amend the Constitution by passing criminal statutes. For example, if “bribery” in the impeachment clause is defined by the current federal bribery statute, Congress could amend that statute and thereby alter the standard for impeachable offenses, rather than going through the normal Constitutional amendment process. This is exactly backwards: the Constitution is the supreme law of the land. Acts of Congress must conform to the Constitution, not the other way around.

In the Judiciary Committee report released on December 16 to accompany the articles of impeachment, the Republican committee members who dissented from the report admitted that impeachments of past presidents have included articles of impeachment that did not allege a specific crime. But they claimed this is the first time a presidential impeachment has consisted solely of articles that do not state a criminal offense, and that this is improper. According to the Republicans, “The Majority’s Articles of Impeachment are unprecedented in American history because they are not based on criminality, as were all prior presidential impeachments.”

But the Republicans are wrong: there are crimes in the Articles of Impeachment, and they are indeed “based on criminality.”

A Crime By Any Other Name

The claim that these Articles of Impeachment do not allege criminality reminds me of the claim from the days of the Mueller investigation that “collusion is not a crime.” There was an almost obsessive focus on the label applied to the conduct under investigation. Yes, it’s true there is no crime called “collusion.” But if people agree to engage in criminal activity, that act of collusion may violate the federal conspiracy statute. There’s also no crime called “shooting someone until they are dead” – but if you do that, you will be prosecuted for the crime called homicide. What matters in criminal law is the conduct, not the label applied to that conduct.

The Articles of Impeachment don’t cite specific federal statutes that the president allegedly violated. As noted above, there’s no particular reason they would; impeachable conduct is not defined by the terms of federal criminal statutes, and this is not a criminal indictment. But the facts alleged in those Articles would, if proven at a criminal trial, establish the commission of a number of federal crimes.

Article One: Bribery and Honest Services Fraud

The blog Just Security just published a collection of articles about the crimes implicated by president Trump’s conduct, called “Federal Criminal Offenses and the Impeachment of Donald J. Trump.” (I wrote the piece on bribery for the collection.) It identifies a number of crimes that Trump may have committed in his dealings with Ukraine. The first Article of Impeachment most clearly establishes two of those crimes: bribery and honest services fraud.

Bribery

The first Article of Impeachment, charging Abuse of Power, focuses on Trump’s attempts to pressure Ukraine into announcing two investigations that would be personally beneficial to Trump. One investigation was into the Bidens and the Ukrainian energy company Burisma, and the other into a debunked conspiracy theory involving alleged Ukrainian interference in the 2016 election. It alleges that Trump acted with “corrupt purposes” in pursuit of this personal benefit. And it alleges that he “conditioned two official acts” on Ukraine’s public announcement of the investigations: release of the Congressionally-approved military aid to Ukraine, and agreeing to a White House meeting that was desperately sought by Ukrainian president Zelensky.

Although Article One does not cite the bribery statute, the Article’s language closely tracks that law’s requirements. The statute, Title 18, United States Code, Section 201, provides that a public official commits bribery if he corruptly solicits or demands a thing of personal value in exchange for being influenced in the performance of an official act. All of the elements of the offense are clearly alleged in impeachment Article One. It alleges that Trump acted to obtain a thing of personal value, that he acted corruptly, and that he was agreeing to be influenced in the performance of official acts in exchange. This is the language of bribery.

In the Just Security piece on bribery, and in other articles (here and here, for example), I’ve written in detail about how the elements of the bribery statute are satisfied here. President Trump is a public official, the announcement of the Ukrainian investigations would be a thing of personal value to him, granting the White House meeting and releasing the aid are both “official acts” under the statute, and he acted corruptly by wrongfully linking his official actions to his demand for the announcement of the investigations.

Again, what matters are the facts of the president’s conduct. You can call it Abuse of Power, or you can call it Bribery. But the largely uncontested evidence of the president’s conduct toward Ukraine does in fact constitute bribery under current federal law.

Honest Services Fraud

When it comes to honest services fraud, the analysis is largely the same. Honest services fraud is a species of federal mail and wire fraud. In an honest services case, the defendant is charged with defrauding the victims of the right to fair, honest, and impartial services they are owed by someone. It’s most commonly used as a public corruption theory, with corrupt public officials charged with defrauding their constituents of the fair and honest services the officials owe the public.

In the 2010 case of Skilling v. United States the Supreme Court ruled that honest services fraud prosecutions are limited to cases involving bribery or kickbacks. The Court also held that it would define bribery for purposes of honest services fraud by using the definition in the bribery statute, 18 U.S.C. 201. As a result, the legal analysis for honest services fraud ends up mirroring the bribery analysis discussed above. As president, Trump owes a duty of honest services to the public. Because his conduct meets the elements of federal bribery, these facts also would qualify as honest services fraud. The only additional requirement would be proof that he used the mail or a wire or wireless transmission in furtherance of the fraud. The telephone call with president Zelensky would easily satisfy that requirement.

Article Two: Obstruction of Congress

The second Article of Impeachment charges the president with Obstruction of Congress. It alleges that Trump has improperly obstructed Congress’s impeachment inquiry by declaring it illegitimate and completely refusing to cooperate. He instructed numerous executive branch officials and key witnesses to defy subpoenas and refuse to testify. He also instructed the White House, State Department, and other agencies to refuse to turn over any documents in response to Congressional subpoenas. Article Two alleges that:  “In the history of the Republic, no President has ever ordered the complete defiance of an impeachment inquiry or sought to obstruct and impede so comprehensively the ability of the House of Representatives to investigate ‘high Crimes and Misdemeanors’”. 

Obstructing the impeachment inquiry itself was also one of the impeachment charges against presidents Nixon and Clinton. It relies heavily on the fact that the Constitution gives Congress the “sole power” to conduct impeachments. By declaring the entire inquiry illegitimate and refusing to cooperate, the Article alleges, Trump has “sought to arrogate to himself the right to determine the propriety, scope, and nature of an impeachment inquiry into his own conduct.” This undermines the system of checks and balances set forth in the Constitution, which gives Congress the power to check a president’s conduct through impeachment. It is like a criminal suspect seeking to dictate to the FBI exactly how it should investigate him and what techniques it could use.

The president’s defenders argue that Congress should go to court and seek rulings on the president’s refusal to cooperate, rather than simply moving forward on impeachment. The House Report explains why the Democrats reject this claim. First, it would likely result in unacceptable delay, because court rulings and appeals can take months or even years. Particularly where the misconduct concerns an attempt to manipulate the upcoming 2020 election, the Democrats argue that they need to move quickly. Second, they argue that because the Constitution grants Congress the sole power to try impeachments, Congress has never relied on court review concerning its impeachment powers. The House Report states: “Under these strange and unprecedented circumstances, it is appropriate for the House to reach its own independent judgment that the President is obstructing the exercise of its constitutional impeachment power, rather than seeking judicial review.”

Unlike the term “Abuse of Power” alleged in Article One, “Obstruction of Congress” actually is a crime – although again, the Article of Impeachment does not cite any particular criminal statute. Obstruction of Congress may be prosecuted under at least two different federal statutes that prohibit obstruction of justice: Title 18, United States Code, Sections 1505 and 1512.  Section 1505 applies to anyone who “corruptly . . . influences, obstructs, or impedes or endeavors to influence, obstruct, or impede . . . the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House . . . . “  Section 1512(c)(2) punishes anyone who “corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so.”  “Official proceeding” is defined to include Congressional investigations. 18 U.S.C. 1515(a)(1)(B).

These statutes readily apply to conduct such as defying Congressional subpoenas and ordering subordinates not to testify. If this were a criminal prosecution, then as with most obstruction of justice cases the key issue would be proving corrupt intent. The president would argue he is simply asserting valid executive privileges in response to Congressional overreach and is not acting with corrupt intent. Congress would respond by pointing out the unprecedented nature and breadth of the president’s complete refusal to cooperate in the investigation or even to recognize its legitimacy.

It seems there would be a compelling case that by completely stonewalling Congress’s efforts to conduct an impeachment inquiry, the president did indeed act with the requisite corrupt intent to obstruct. And that’s a federal crime. The merits of the president’s defense would be up to the Senate during the impeachment trial. But there’s no question that Article Two contains allegations of criminality.

Conclusion: The Crimes Are In There

Once again, you don’t need to prove specific federal crimes for impeachment. But those who argue that these Articles of Impeachment are not based on criminal misconduct are wrong. The Articles may not cite specific federal statutes, but the conduct they describe would be indictable under several federal criminal laws.