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Tuesday, August 4, 2020

Pardoning Roger Stone Could Itself Be an Unpardonable Crime

Roger Stone — who was part of the Trump campaign's effort to collude with the Russian government and then helped to cover it up — is set to report to prison on …
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Roger Stone — who was part of the Trump campaign’s effort to collude with the Russian government and then helped to cover it up — is set to report to prison on July 14. Stone was convicted of lying to Congress during its investigation into Russian interference in the 2016 election; as the judge noted in his case, Stone “was prosecuted for covering up for Trump.”

Stone refused to testify against Trump and now Trump has all but said that he will pardon Stone, stating that Stone “can sleep well at night” in response to a complaint that he would serve a lengthy prison sentence.

In addition to being a brazen abuse of power, a pardon could put both Trump and Stone at risk of further criminal liability for conspiracy to obstruct justice. And, in doing so, Trump could create legal liability that is impossible to wipe away through a subsequent pardon.

When the Pardon Is the Crime

As I noted in a previous piece for Just Security, pardons only apply to past acts. Otherwise, if the president could pardon future behavior, he or she could give anyone a permanent “get-out-of-jail-free” card that would let them commit federal crimes without consequence.

Caselaw reflects a recognition of this important limitation on the pardon power, even when courts grant that the power has tremendous breadth. In Ex parte Garland, the Supreme Court noted that the pardon power was virtually “unlimited” and “extends to every offence known to the law”; however, the Court also noted that it applies to an offense “after its commission.”

Similarly, in United States v. Wilson, the Court noted that a pardon ”exempts the individual … from the punishment the law inflicts for a crime he has committed.”

This limitation takes on particular significance when a pardon is part of a broader conspiracy, for example to obstruct justice. Conspiracies are ongoing crimes; as the Court has noted, once a defendant has joined a conspiracy he or she “continues to violate the law ‘through every moment of [the conspiracy’s] existence.’”

So if a conspiracy exists to obstruct an investigation, and part of that obstruction involves pardoning someone who hid evidence or lied to investigators, then the pardon itself is a continuation of the conspiracy. That means that when the pardon is issued, there is an ongoing crime that both the president and the recipient of the pardon are committing at that time.

Since pardons can only apply to already-completed crimes, a pardon that furthers a conspiracy to obstruct justice would be invalid with respect to that conspiracy, as would any subsequent pardons that further the same conspiracy. Both the individual issuing the pardon and the one receiving it would remain fully liable for the conspiracy to obstruct justice.

The Need to Investigate a Stone Pardon

Should Trump pardon Stone, there are a number of reasons to be concerned that it is part of a larger conspiracy to obstruct justice and thus invalid with respect to the conspiracy.

First, there is the nature of the offenses that Stone committed. He lied to Congress repeatedly to obstruct the investigation into the Trump campaign’s contacts with Russia. But his lies were not only numerous, they were obvious. He claimed to have no written communications about WikiLeaks founder Julian Assange, yet he had many such communications. He claimed to have no written communications with his intermediary to WikiLeaks, yet there were hundreds of such records. He said he never discussed his conversations with the intermediary with anyone in the Trump campaign, yet he did so on a number of occasions. To tell such blatant lies, and expose oneself to prosecution, raises a question as to whether he was doing so with the belief that he would not be punished for these actions and, if so, why he thought that was the case.

Second, recently revealed sections of the Mueller report show that the special counsel’s obstruction investigation specifically included Trump’s behavior towards Stone. The report shows there was good reason for Trump to be concerned about Stone’s testimony. In written answers to the special counsel, Trump claimed, “I do not recall discussing Wikileaks with [Stone], nor do I recall being aware of Mr. Stone having discussed WikiLeaks with individuals associated with my campaign.” Yet there were several witnesses who had said Trump was told of Stone’s access to WikiLeaks, and at least one said he had witnessed a call between Trump and Stone on this very topic.

Shortly after submitting his written answers, Trump criticized witnesses who testify about the illegal conduct of others, saying “this flipping stuff is terrible” and noting that Stone did not flip on him and that was “very brave.” Trump went on to publicly praise Stone’s “guts” for not testifying against him. At the same time, Stone’s public comments made clear he was aware of Trump’s written answers, and thus the legal risk they posed to Trump.

The Mueller report concludes that Trump’s actions “support the inference that the President intended to communicate a message that witnesses could be rewarded for refusing to provide testimony adverse to the President and disparaged if they chose to cooperate.”

Third, Stone has already received preferential treatment from the Trump administration. After his conviction, the Department of Justice took the unprecedented step of overruling careers prosecutors to request a more lenient sentence for Stone. In response, all four career prosecutors resigned from the case rather than sign the new sentencing memo. One of the prosecutors who worked on the case stated that:

What I heard – repeatedly – was that Roger Stone was being treated differently from any other defendant because of his relationship to the President. I was told that the Acting U.S. Attorney for the District of Columbia, Timothy Shea, was receiving heavy pressure from the highest levels of the Department of Justice to cut Stone a break, and that the U.S. Attorney’s sentencing instructions to us were based on political considerations. I was also told that the acting U.S. Attorney was giving Stone such unprecedentedly favorable treatment because he was “afraid of the President.”

In response to the department’s egregious politicization of Stone’s sentencing, a bipartisan group of more than 2,600 former DOJ lawyers has noted that Attorney General Bill Barr was “doing the President’s personal bidding” and called on him to resign. Stone did something to justify the administration taking such extreme steps to protect him; the question is what.

Finally, this is not the only instance of Trump reportedly using his pardon power to encourage people to lie for him. The Mueller report details how Trump advisor and lawyer, Michael Cohen, said that he had discussed a pardon with Trump’s personal lawyer, and “understood based on this conversation and previous conversations about pardons with the President’s personal counsel that as long as he stayed on message, he would be taken care of by the President, either through a pardon or through the investigation being shut down.”

After Trump’s National Security Advisor Michael Flynn pleaded guilty and began cooperating with Special Counsel Robert Mueller’s team, Trump said he had no worries about what Flynn would tell investigators and shortly thereafter publicly discussed the possibility of pardoning him.

Trump Campaign Chairman Paul Manafort told his deputy Rick Gates not to plead guilty to any charges because Manafort was talking with Trump’s lawyer and “we’ll be taken care of.” The Mueller report notes that “the evidence supports the inference that the President intended Manafort to believe that he could receive a pardon, which would make cooperation with the government as a means of obtaining a lesser sentence unnecessary.”

Like Stone, all three of these men lied to investigators to hide information that would have been very damaging to Trump. Cohen lied to Congress about the business deal that Trump was pursuing with Russia during the campaign. Flynn lied to investigators about serving as the middleman between the Trump transition team and the Russian ambassador to discuss sanctions for Russian interference in the 2016 election and ensure the incoming Trump administration could have a “better conversation [with Russia about] where we are going to go regarding our relationship.” Manafort lied to federal investigators about his contacts during the campaign with an associate who had ties to Russian intelligence, including sharing private polling data with him.

Nor are these the only reported instances of Trump offering a pardon to encourage lawbreaking. Worried about his political prospects if he did not complete construction on his border wall, Trump reportedly offered to pardon administration officials if they broke the law to build the wall quicker. Trump also reportedly told the head of Customs and Border Protection that he would pardon him if border agents illegally blocked asylum seekers from entering the United States.

How to Investigate a Stone Pardon

Given the blatant nature of Stone’s obstruction and the significant evidence that Trump sought to influence Stone’s behavior with the promise of rewards for not testifying against him, any Stone pardon would demand investigation. That Stone received special treatment from the DOJ after not testifying against Trump and that Trump has a pattern of offering pardons to people to induce them to break the law are further reasons to examine the matter closely.

But clearly the current DOJ, which Barr has warped into a political tool of Trump, would not undertake a fair investigation. However, this does not mean there is nothing to be done.

Congress has an important role to play in the aftermath of a Stone pardon. It should immediately launch an investigation, subpoenaing witnesses and documents relevant to the pardon. Even given the likely stonewalling by the administration, these actions would help to preserve evidence and signal to career staff that Congress takes this abuse of power seriously. That could lead conscientious whistleblowers to come forward, as has happened repeatedly when Congress presses an investigation into Trump’s abuse of power. It also could dissuade career officials from taking or cooperating with obstructive acts directed by the White House or DOJ leadership, making it that much harder for those acts to be successful.

In addition, should Trump lose the election, there would still be plenty of time to investigate and prosecute any crime. In this case, the next administration should ensure that career prosecutors can investigate without fear or favor whether the pardon is part of a broader conspiracy to obstruct justice. The remedy for the current politicization of the DOJ is to let law enforcement follow the facts wherever they lead, including with respect to potentially criminal behavior by a prior administration.

There is little question that presidential exercises of the pardon power can themselves be criminal. Trump’s own attorney general acknowledged in his confirmation hearing that it “would be a crime” to pardon a witness in exchange for their refusal to testify. In other words, pardons used to obstruct justice violate the law. Moreover, there is precedent for investigating the pardons of a prior president: for example, the DOJ investigated pardons by President Bill Clinton to determine if they constituted bribery, obstruction of justice, or other illegal acts.

It is important to remember that while the pardon power is broad, it is not unlimited. If Trump has entered into a conspiracy to obstruct justice, then the pardon power cannot save him or his co-conspirators from accountability.

Image: Trump associate Roger Stone departs for lunch during his trial on November 13, 2019 in Washington, DC. (Photo by Mark Makela/Getty Images)

 

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