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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Bridgegate and Flynngate

Last Thursday was an eventful day in the white collar world. In the morning the Supreme Court decided Kelly v. United States, the “Bridgegate” case, a significant ruling concerning the scope of federal mail and wire fraud. Then in the afternoon came word that the Department of Justice had moved to drop the case against Trump’s former national security advisor Michael Flynn. The Bridgegate decision was not a surprise, and I think the Court got it right. As for the Flynn case, DOJ’s action was deeply troubling and, frankly, dishonest — the latest demonstration of Attorney General William Barr’s politicization of the DOJ.

Former NJ Governor Chris Christie

The Bridgegate Decision

The facts of Bridgegate are familiar by now. In September 2013, officials at the Port Authority of New York and New Jersey closed two of the three inbound lanes on the George Washington Bridge that spans the Hudson River between New Jersey and Manhattan. This caused several days of severe traffic gridlock that paralyzed the town of Fort Lee, New Jersey. School buses were unable to transport students, first responders had trouble responding to calls, and tens of thousands of commuters were stuck in hours-long traffic jams.

When the incident was investigated, officials falsely claimed they had closed the lanes to conduct a traffic study. The true purpose was to punish the Democratic mayor of Fort Lee for refusing to endorse then-Republican Governor Chris Christie for re-election. The scandal caused severe political damage to Christie, who once had presidential ambitions. Christie himself was not prosecuted, but federal prosecutors did charge his Deputy Chief of Staff Bridget Anne Kelly and Port Authority official William Baroni with fraud for their role in the scheme. They were convicted at trial and sentenced to prison.

The issue in the case was never whether or not the defendants had misbehaved. Everyone agrees their actions were deplorable. The issue was whether it was criminal, and in particular, whether it was federal fraud. In a unanimous opinion by Justice Kagan, the Court ruled it was not.

Before 2010, prosecutors almost certainly would have charged this case as honest services fraud. That popular theory charged defendants with scheming to deprive victims of the intangible right of fair and honest services that they were owed by someone – most often by a public official. The theory was used to prosecute a wide range of political misconduct that was not necessarily otherwise illegal. But in the 2010 case of Skilling v. United States, the Court ruled that honest services fraud must be limited to cases involving the payment of bribes or kickbacks – core corruption. There were no bribes or kickbacks involved here.

With honest services fraud off the table, prosecutors chose to charge the bridge-closing scheme as wire fraud and federal program fraud. Those fraud statutes require proof that the defendant sought to deprive the victim of money or property. Prosecutors had two different theories. The first was that the defendants had “commandeered” the bridge lanes to carry out their scheme and had thereby deprived the Port Authority of its property. The second was that the defendants had deprived the Port Authority of the salaries of the employees whose labor was necessary to execute the scheme, such as those who manned the toll collection booths.

The Limits of Fraud

The Supreme Court rejected both arguments. The Court first held the defendants did not deprive the Port Authority of property by shifting the bridge lanes. It relied primarily on a 2000 case called Cleveland v. United States. In Cleveland the defendants were convicted of defrauding the state of Louisiana when they obtained video poker licenses by lying on the license application forms. The Court  threw out those convictions, holding that an unissued license was not property in the hands of the state and so could not support a fraud conviction. The state’s interest in the unissued licenses was a regulatory interest, not a property one.

The Court in Bridgegate held that the same was true of the bridge lanes. The Port Authority was not deprived of any property; it still controlled the lanes and collected the tolls. All the defendants did was re-allocate the use of the lanes by different drivers. Like issuing a license, that is a government regulatory power, not a property interest. Even if the defendants made that decision for a bad reason and lied about it, that did not deprive the Port Authority of property for purposes of the fraud statutes.   

The Court likewise rejected the claim that the defendants had deprived the Port Authority of the salaries of the employees who carried out the scheme. Those employees were still doing the work they were hired to do, moving cones and collecting tolls. If the defendants lied about the true reason for having the employees carry out particular tasks, that was not enough to constitute fraud. The object of a fraud scheme must be to obtain money or property; here the object was to create a traffic jam. Salary payments to Port Authority employees were merely incidental side-effects of that scheme. For the payment of those salaries to constitute a fraud, the defendants would have had to order the employees to perform some personal task for them unrelated to their Port Authority duties. That was not the case here.

Not All Misconduct Is Criminal

Bridgegate was the latest example of federal prosecutors trying to use expansive fraud theories to pursue political misconduct that was not otherwise clearly criminal. The Bridgegate defendants did not use their public positions for personal financial gain, as in a bribery case. Closing the lanes was not otherwise illegal our outside of their authority. They just lied about why they were doing it. But politicians routinely lie – or more politely, engage in “spin” – about why they are taking actions that are otherwise within the scope of their duties. Without more, such political misconduct is usually not considered criminal.

Even if the conduct here could have been criminal, the Court said that was a matter for New Jersey state authorities, not the federal government. The Court expressly noted it was possible New Jersey criminal remedies could apply, and that “federal fraud law leaves much public corruption to the States (or their electorates) to rectify.” Even absent a state prosecution, the state’s residents have remedies at the ballot box and can exact political penalties, as they did by tanking Governor Christie’s career. But ever since the McNally case first rejected the sweeping honest services fraud theory in 1987, the Court has been wary of allowing federal prosecutors to use federal fraud statutes to set “standards of disclosure and good government for state and local officials.”

I’ve been critical of a number of the Court’s recent public corruption decisions, but I think they got Bridgegate right. This was bad and harmful behavior, but it wasn’t federal fraud. If the case had gone the other way, then almost any case of state or local political mischief could be the subject of a federal criminal prosecution, because there will almost always be a salary paid to someone in connection with it. Federal prosecutors should not try to stretch fraud theories to cover local political hardball that can be handled at the local level, either by state prosecutors or by the voters. More broadly, I think Bridgegate was one of several recent high-profile cases where the appropriate remedy was probably not a criminal prosecution.

Michael Flynn
Michael Flynn

The Flynn Motion to Dismiss

In last Thursday’s other news, the government filed a motion to dismiss the criminal case against former national security advisor Michael Flynn. Flynn pleaded guilty in December 2017 to lying to the FBI about his contacts with the Russian ambassador on behalf of the incoming Trump administration. He cooperated extensively with the government during the Mueller investigation. But in 2019, after the Mueller probe was completed, Flynn changed his mind.  He fired his attorneys from the top D.C. law firm of Covington and Burling and hired Sydney Powell, a vocal DOJ critic and Fox News regular. She began an aggressive campaign to withdraw Flynn’s guilty plea and have the case dismissed based on alleged government misconduct.

Attorney General Barr recently appointed the U.S. Attorney from St. Louis, Jeff Jensen, to review the handling of Flynn’s case. Now, reportedly on Jensen’s recommendation, Barr has decided DOJ should drop the Flynn case altogether and that it never should have been brought in the first place. But the government’s arguments in support of this motion to dismiss are dishonest and disingenuous.

Flynn pleaded guilty to one count of false statements, 18 U.S.C. 1001. DOJ now claims it doesn’t believe that Flynn’s false statements were material. Materiality is a very low bar. To be material, a false statement does not need to actually affect any government decision, it only needs to be the type of statement that has the potential to do so.

DOJ says that Flynn’s lies about his contacts with the Russian ambassador could not have been material because the FBI did not have a legitimate reason to interview him. At the time of Flynn’s interview, the FBI was conducting an investigation, code-named Crossfire Hurricane, into the Trump campaign’s contacts with Russia and Russian interference in the election. It had a separate, related investigation into Flynn and his own Russian contacts, code-named Crossfire Razor. Having found nothing incriminating, the FBI was preparing to close Crossfire Razor when it learned about Flynn’s contacts with the Russian ambassador on behalf of the president-elect. In light of that new information, the FBI decided to keep the investigation of Flynn open until it could interview him about those contacts.

Flynn’s supporters have characterized this sequence of events as nefarious and as evidence that Flynn was “set up.” And DOJ has now said it basically agrees. It claims that, having decided to close the Flynn investigation, there was no good reason for the FBI to interview him, even after learning the new information about his conversations with the Russian ambassador. And because the interview was therefore not properly predicated, DOJ says, any lies that Flynn may have told could not possibly have been material.

Flynn’s Statements Were Material

This is nonsense on several different levels. First, whether or not the FBI had properly opened or closed an internal case file has nothing to do with whether Flynn lied about something that matters. If the FBI screws up some internal docket entry it doesn’t mean a witness gets a free pass to lie. I don’t know of any case where a false statement to the FBI was found not to be criminal because the interview was not “properly predicated.” Why the FBI is talking to you and whether you choose to tell material falsehoods are completely unrelated.

Second, you don’t have to be investigating someone personally to have a reason to interview them. Even if the FBI believed Flynn himself was not a security risk and they should close their file on him, there would still be reason to talk to him in connection with Crossfire Hurricane. It would be an odd investigative world where the only people the FBI was allowed to speak to were those who were personally under investigation. People who are interviewed and are not under investigation are known as “witnesses.” And Flynn was, at the very least, an important witness to Trump-Russia contacts who needed to be interviewed.

Whether or not the Crossfire Razor file was properly open or closed, the FBI had every reason to talk to Flynn as part of the broader Crossfire Hurricane investigation. Remember, the focus of that investigation was Russian contacts with the Trump campaign. Flynn had been a part of the campaign, and the FBI had just learned that he had recent contacts with the Russian ambassador. How could the agents possibly ignore that? 

Flynn lied to the FBI by denying he asked the Russian ambassador not to retaliate based on the sanctions the Obama administration had imposed on Russia in December 2016. Why was he having that conversation?  Who asked him to do it? Was there a possible link between the incoming administration promising to ease up on Russia and the Russian help for Trump during the election? There’s no question the FBI had a good reason to talk to Flynn, and that Flynn’s lies about his conversations with the ambassador had the potential to influence the FBI’s fledgling investigation into the Trump-Russia connection. That’s all that materiality requires.

What’s more, Judge Emmet Sullivan, the judge in Flynn’s case, has already ruled that Flynn’s statements were material. He made that ruling when denying Flynn’s earlier motion to dismiss based on alleged government misconduct. But the government now says (in a footnote) that doesn’t really count because the judge didn’t have all of the relevant facts before him – even though nothing in the government’s motion to dismiss should come as any news to the judge, and none of the supposedly “new” facts affect materiality.

The government also now claims, somewhat half-heartedly, that Flynn’s answers were not clearly lies, that they were “equivocal” or “indirect.” Again, this flatly contradicts both the evidence in the case and the position taken by the government for the past two years. And Flynn himself has admitted under oath  – twice — that he knowingly lied to the FBI. But as with Judge Sullivan, prosecutors now suggest that Flynn didn’t really know what he was doing.

As I wrote in my Washington Post column about the Flynn motion:

So to sum up: The government claims it cannot prove materiality when the judge has already ruled the lies were material, and the government says it cannot prove Flynn lied when he has already admitted twice that he lied. Such a bizarre argument could be put forward only in a Trumpian world where facts truly don’t matter.

The Politicization of the DOJ

The reaction by former Department of Justice officials to the Flynn motion has been almost uniformly negative. Former U.S. Attorney Chuck Rosenberg wrote in the Washington Post that there’s a long list of people who thought Flynn’s lies were material – including Trump himself. Mary McCord, Assistant Attorney General for National Security at the time of Flynn’s interview, wrote in the New York Times that the investigation and interview of Flynn were entirely appropriate and justified, that his lies were material, and that DOJ had wrongly twisted her words in the motion to suggest otherwise. Jonathan Kravis, one of the career prosecutors who resigned from the Roger Stone case when Barr intervened at Stone’s sentencing, wrote that the Flynn motion to dismiss was another “disastrous mistake” highlighting the politicization of the DOJ. And more than two thousand former DOJ officials of both parties signed an open letter protesting Barr’s actions and urging Judge Sullivan to scrutinize them carefully.

Attorney General William Barr

This Flynn motion is similar to the Roger Stone incident in a number of ways. In both cases, the career prosecutors assigned to the case withdrew in protest after they were undermined by the Attorney General’s intervention. In both cases that intervention was signed off on by acting U.S. Attorney for D.C. Timothy Shea, a longtime Barr aide who was recently installed to replace the former U.S. Attorney Jessie Liu. Both incidents involved attempts to undermine or discredit cases brought by the Trump’s nemesis, special counsel Robert S. Mueller. And both involved personal intervention by the U.S. Attorney General to benefit political allies of the president, in ways that would never happen with an ordinary defendant.

It will be very interesting now to see how Judge Sullivan acts on the motion. He has a number of options. The rules say the case may be dismissed only with “leave of court.” It would be rare for a judge to buck a prosecutor’s decision to drop a case – but this is far from a typical case. Judges don’t like to be manipulated, and you can imagine Judge Sullivan demanding that DOJ officials explain in person what exactly changed that caused them to drop a case they had defended for two years. As a sign that this may not be over, on May 12 Judge Sullivan issued an order essentially inviting outside parties to file amicus brief about what he should do. A group of sixteen former Watergate prosecutors has already filed a motion seeking permission to do so.

Regardless of the outcome, this is an outrageous and disheartening demonstration of the current rot at the Department of Justice. It’s more clear than ever that Barr sees his role as protecting the president and manipulating the justice system to benefit Trump’s political cronies. There is one brand of justice for the president’s friends, and another brand for everyone else. Barr’s decision also protects Trump from taking the political heat that would come if he were to pardon Flynn; instead, Barr will simply drop the case while claiming that’s what justice requires.

This latest incident makes one fear what else is coming. You can almost guarantee that between now and the election there will be reports “revealing” that the entire Mueller investigation was a hoax and an attempt by the FBI and the Obama/Biden administration to take down Trump. And I wouldn’t be surprised to see the announcement of some kind of criminal investigation of Joe Biden or his family. As others have pointed out, for an authoritarian the first step is using the justice system to benefit your friends. The next step is using it to investigate and punish your enemies.

That’s why what is happening is so frightening – and so dangerous.

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