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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Pardons and Plea Bargains: Q & A

President Trump’s former campaign manager Paul Manafort and former personal attorney Michael Cohen have pleaded guilty and are cooperating in the Mueller investigation. This has led to renewed debate over whether Trump might pardon them, what effect that would have, and whether there are ways for Mueller to circumvent a pardon. Pardons aren’t in the legal news all that often, but the special counsel investigation has raised a host of issues — many of them untested — concerning pardons and plea bargains and their effect on criminal investigations.

Update: After writing this post, I made a video for the Washington Post on this topic called Pardons 101:

 Where Does the Pardon Power Come From?

Article II, Section 2 of the U.S. Constitution gives the president the power “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Other than excluding impeachment, the Constitution contains no express limitations on the pardon power. (Some argue the president’s constitutional duty to “take care that the laws be faithfully executed” limits the ability to grant pardons for improper purposes, but that theory is untested.)

The Office of the Pardon Attorney in the Department of Justice is tasked with reviewing and investigating all applications for pardons and clemency and making recommendations to the president. It operates under a number of guidelines, including that a person should not file a petition requesting a pardon until at least five years after their conviction or release from prison.

In the Trump administration, however, this practice has not been followed. Trump has issued several controversial pardons, including those for Arizona Sheriff Joe Arpaio, former Bush White House official Scooter Libby, and conservative activist Dinesh D’Souza, without following the Pardon Attorney guidelines. Although this is irregular, there is little doubt the president has the power to do it. The DOJ regulations themselves state they are merely advisory and do not restrict the power of the president under Article II.

Paul Manafort was thought to be holding out for a pardon

What Does a Pardon Cover?

The president may only pardon witnesses for federal crimes. Exactly what crimes are covered depends on the language of the pardon itself. The crimes must be already completed; you can’t receive a prospective pardon that frees you to go out and commit future crimes with impunity. The president also can’t pardon someone for state crimes.

Manafort and Cohen, even if they received a presidential pardon, might face prosecution in New York for state financial crimes. The issue then becomes whether a state prosecution would be barred by the double jeopardy clause. The first thing to note is that a double jeopardy claim requires that you have already been placed in jeopardy once for same misconduct. Jeopardy usually attaches only when a jury is sworn in your criminal trial or a judge accepts your guilty plea. A pardon of someone who has not yet been prosecuted – for example, if Trump were to preemptively pardon members of his own family – would not prohibit a state prosecution based on double jeopardy. Those individuals may have been pardoned, but they were never placed in jeopardy on the federal crimes.

Manafort and Cohen have been placed in jeopardy as to at least some federal crimes. But those prosecuted for federal crimes generally are still subject to state prosecution for the same misconduct, assuming there is a corresponding state offense. The “dual sovereignty doctrine” holds that states and the federal government are free to prosecute the crimes over which they have jurisdiction, and that this does not violate double jeopardy. However, some states, including New York, have enacted more expansive double jeopardy protections that may prohibit a state prosecution for misconduct that has already been federally prosecuted. Professor Jed Shugerman has argued that Mueller may be deliberately avoiding certain federal charges in order to leave the states free to prosecute the state version of those crimes in the event of a pardon.

A case on the Supreme Court’s docket this year, Gamble v. United States, challenges the dual sovereignty doctrine and argues it should be overturned. If that happens, it could have implications for the ability of state prosecutors to pursue those who have been placed in jeopardy for federal crimes based on the same misconduct. (You can find my post discussing Gamble and its implications for the Mueller investigation here.)

Can Granting a Pardon Be a Crime?

If the president granted a pardon for corrupt reasons, the pardon itself might still be valid. But the president and others involved could be investigated for criminal misconduct in connection with granting the pardon. This would not be unprecedented; for example, President Clinton was criminally investigated after he left office for his pardon of financier Mark Rich, amid suspicions that the pardon was in exchange for hefty campaign contributions and donations to the Clinton library.

One criminal theory is that if Trump pardons witnesses against him he could be charged with obstruction of justice. Some academics, most notably Harvard Law School’s Alan Dershowitz, argue that official executive actions such as granting a pardon – or firing the FBI director – could never, standing alone, be charged as obstruction of justice. Dershowitz claims that the motivation behind such “constitutionally authorized acts” may never be questioned in a criminal prosecution. I think that’s wrong, for reasons I’ve discussed here and here.

But even Dershowitz agrees that if the president commits a separate crime in connection with granting a pardon he would be subject to punishment for that offense. For example, if the president took a bribe to grant a pardon, he could be investigated for bribery. As I explained here, Trump pardoning a witness against him could constitute the crime of bribing a witness. Similarly, a witness who agreed to keep quiet in exchange for a pardon could be charged with bribing the president (and the president with accepting that bribe).

Pardoning a witness against him also could be considered an overt act by Trump as part of a broader conspiracy to obstruct justice, even if not charged as a separate crime.

Does Accepting a Pardon Mean You Acknowledge Guilt?

You frequently hear that if someone accepts a pardon, it means they admit they are guilty. This stems from language in a 1915 Supreme Court case, Burdick v. United States, where the Court said that accepting a pardon involves a “confession of guilt.” Recently on MSNBC, Ari Melber thought he had a “gotcha” moment with Arizona sheriff Joe Arpaio when he told Arpaio that accepting president Trump’s pardon for contempt of court meant he was admitting he was guilty.

But the reality is more complicated. The language in Burdick was dicta – not necessary to the holding – and is too sweeping. Pardons are granted for different reasons. For example, suppose DNA testing concludes a defendant was wrongly convicted and the president pardons him. Clearly by accepting that pardon the exonerated defendant is not admitting that he was in fact guilty. Writing last year in the Washington Post, Eugene Volokh reviewed Burdick and other old Supreme Court authorities and concluded: “I doubt that any judge today would genuinely view acceptance of pardons as always being an admission of guilt.”

Michael Cohen says he would refuse a pardon from Trump

Can You Refuse a Pardon?

Michael Cohen’s lawyer has been quoted saying Cohen would never accept a pardon from president Trump. Does he have that option?

That same 1915 Supreme Court case, Burdick, also said a pardon is not effective unless it is accepted. That was based on an even older Supreme Court decision from 1833, United States v. Wilson. In Wilson the Court held that if a defendant chose not to put his pardon before the court, the court had no power to act on it.

In Burdick, the defendant was refusing to testify based on his right not to incriminate himself. The government obtained a pardon and then tried to compel Burdick to testify by arguing he no longer had any fear of prosecution and so could not take the Fifth. The Court disagreed, holding that Burdick did not have to accept the pardon.

But in a 1927 case, Biddle v. Perovich, the Court cast doubt on its holding in Burdick. Perovich had been convicted of murder and sentenced to death, but President Taft commuted his sentence to life in prison. A decade later, as part of a challenge to his conditions of imprisonment, Perovich argued his current detention was unlawful because he had never accepted the president’s action. The Court held that the ability to commute a sentence is part of the president’s executive power and does not depend on the defendant’s consent. The Court also noted the practical difficulties posed by Perovich’s claim: “Supposing that Perovich did not accept [the commutation], he could not have got himself hanged against the executive order.” The Court concluded that the reasoning of Burdick “is not to be extended to the present case.”

These cases are old and send mixed signals on whether a defendant can really refuse a pardon. But in practical terms, it’s hard to see how doing so would have much more than a symbolic effect. If a defendant was in jail and the president pardoned him, he could say he refuses to accept. But he couldn’t force the government to continue to hold him, just as Perovich could not force his jailers to hang him. Presumably the Federal Bureau of Prisons, part of the Executive Branch, would release him. If pardoned while being investigated or prosecuted, a defendant might say he refuses to accept it. But the federal prosecutors and the FBI, who work for the president, presumably would drop the case.

In Burdick prosecutors were trying to use a pardon like a grant of immunity, to compel a witness to testify. I don’t know what the immunity laws were like in 1915. But under modern immunity statutes, if a defendant said he refused to accept a pardon because he wanted to continue to assert the Fifth, the government would just immunize him. You can’t defy court-ordered immunity, and it doesn’t require you to accept it. You have to testify, on pain of contempt.

A defendant might claim he will not accept a pardon because he does not want to admit he is guilty. But as noted above, it’s unlikely that accepting a pardon today would always be considered an admission of guilt (sorry, Ari), so a defendant could choose to accept a pardon while still maintaining his innocence.

In sum, a witness like Cohen might claim he will not accept a pardon from a tarnished president, but it seems to me this is largely symbolic. Refusing the pardon is not going to have any practical effect – the president has the power to pardon Cohen, whether Cohen likes it or not.

Do You Lose Your Fifth Amendment Right if Pardoned?

If you are pardoned for particular acts, you no longer have a well-founded fear of prosecution based on those acts. That means you could not assert a valid Fifth Amendment claim and a court could compel you to testify, at least assuming the pardon was broad enough to cover the activities you were testifying about. (As noted above, you could try saying you refuse to accept the pardon, but then the government could just immunize you and make you testify anyway.)

In connection with the Mueller investigation, you often hear that president Trump might hesitate to pardon witnesses because then they would lose their right to claim the Fifth if asked to testify against him. That’s true, but it’s never struck me as a very powerful point. If a close ally of Trump’s receives a pardon, you would expect that in the grand jury he would either lie or claim a lack of recollection in order to protect Trump, his benefactor. If that happened, and in the relatively unlikely event the witness actually ended up charged with perjury or obstruction of justice, the president could just pardon him again and keep pardoning him (as long as Trump remained in office, anyway). I think those salivating at the prospect of pardoned witnesses being put in the grand jury and breaking the case wide open would end up disappointed.

It’s possible that if a witness like Manafort were pardoned by Trump he could still take the Fifth based on his fear of state prosecution. That fear would have to be well-founded, and some of Manfort’s federal crimes, such as failing to register as a foreign agent, don’t really have a state criminal counterpart. And federal prosecutors could always ask a state to immunize a witness as well, if that became necessary.

Could You Make Refusing a Pardon Part of a Plea Deal?

In the wake of the Michael Cohen plea there was some debate over whether Mueller could make a promise to refuse a pardon part of a plea agreement. I guess he could – a plea agreement is basically a contract and could include such a condition – but I think it would be largely meaningless.

Suppose as part of his plea agreement Cohen had promised to reject any pardon from president Trump. After he pleads guilty, Trump goes ahead and pardons him. Cohen then says, “Okay, never mind, I do accept the pardon.” The remedy for this breach of the plea agreement normally would be to say the deal is off and the government is free to prosecute Cohen for all his crimes. But now the government can’t prosecute Cohen for those crimes, because he’s been pardoned.

So yes, you could include a promise to reject a pardon as part of a plea deal, but I think it’s unenforceable – there’s no remedy for the government if the defendant reneges on the promise. And as noted above, even if he tried to keep the promise and reject a pardon, practically speaking it’s not clear how prosecutors and the FBI could continue to pursue the case against him.

Donald Trump’s Tweet – June 4, 2018

Can the President Pardon Himself?

No one knows for certain, and it’s obviously never been tested. Although the president claims that “numerous legal scholars” believe he has the absolute right to pardon himself, most experts seem to disagree. In 1974, during Watergate, president Nixon was advised by the Department of Justice that a president may not pardon himself. The argument against it stems from the common law – and common sense – notion that no one can be the judge and jury in his own case. It would put the president above the law and give him free reign to commit criminal acts and then pardon himself – although the prospect of state prosecution presumably would still act as a deterrent, at least in some cases. (If, in his famous hypothetical, Trump shot someone in the middle of Fifth Avenue, he could try to pardon himself for any applicable federal crimes but would still be subject to a New York state prosecution for homicide.)

If Trump were to pardon himself, that could lead to impeachment and removal from office. Once out of office, an impeached official is subject to prosecution. If Trump were then prosecuted, he could raise his self-pardon as a defense and a court would have to rule on the pardon’s validity.

Who knows how that would come out? As with so much in the Trump presidency, we are in uncharted waters.

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