We Can Still Get the Truth From Roger Stone
The Justice Department should vindicate the rule of
law by putting him before a grand jury.
By Andrew
Weissmann
Mr.
Weissmann was a senior prosecutor in the Mueller investigation.
July 14,
2020, 5:00 a.m. ET
Attorney
General Bill Barr reportedly opposed President Trump’s commutation of Roger
Stone’s prison sentence for seven felonies — the latest act by this
administration to undermine the rule of law. If Mr. Barr’s resistance is to be
believed, the Department of Justice still has a path to vindicate the rule of
law by putting Mr. Stone before a grand jury.
In November
2019, a federal jury unanimously found Mr. Stone guilty, beyond a reasonable
doubt, of lying to Congress about the coordination between the Trump 2016
campaign, Mr. Stone, WikiLeaks and Russia. The seven counts included five of
perjury and one count each of obstruction of Congress and tampering with a
witness. Mr. Stone was sentenced to spend 40 months in prison until he got his
reward for keeping his lips sealed.
This does
not have to be the end of the story.
Prosecutors
are well armed to get to the bottom of what Mr. Stone knows but has refused to
disclose. If there was nothing nefarious about his coordination efforts, why
did he lie about them to Congress? This question remains unanswered, as the
Mueller report notes.
In spite of
the president’s commutation, prosecutors can seek to discover the answer by
calling Mr. Stone before a grand jury. Grand juries are used every day all
across the country, at the federal and state levels, to investigate potential
criminal matters.
Mr. Stone’s
criminal conviction resulted from his testimony under oath in the fall of 2017
before a Republican-controlled committee in Congress. He was asked about his
interactions with WikiLeaks regarding Russian dirt on Mr. Trump’s presidential
rival Hillary Clinton and his potential coordination with Mr. Trump and others
on the Trump campaign about the same.
Mr. Stone
denied such communications. Yet scores of his own contemporaneous emails and
texts proved otherwise. He repeatedly proclaimed his connections to WikiLeaks
and in August 2016 privately wrote to Trump campaign senior advisers that he
had a plan “to save” Mr. Trump but said it wouldn’t be pretty.
At
sentencing, the federal judge pointedly noted that Mr. Stone had been
prosecuted for “covering up for the president,” and Mr. Stone boasted just
before the president’s act of clemency that he had dutifully remained silent.
Mr. Trump tweeted that Mr. Stone had “guts” for not cooperating with
prosecutors.
To get at
the truth of why he lied, Mr. Stone can be served with a grand jury subpoena —
by a federal or state prosecutor — or even with a congressional subpoena,
requiring him to answer the question: Why did you lie to Congress? And many
others.
Mr. Stone
has three options at that point.
First, he
can choose to lie, but that would mean he could be prosecuted for perjury and
obstruction of the grand jury. The president’s commutation does not and could not
apply to future crimes by Mr. Stone, including lying under oath to a grand
jury. And federal charges need not be lodged until, say, Jan. 20, 2021. State
charges could be brought sooner.
Mr. Stone’s
second option is to refuse to comply with the subpoena, but that could lead to
his being held immediately in civil and criminal contempt. Contempt is simply
the act of refusing to comply with an order to testify. Civil contempt is a
legal tool that courts wield to coerce compliance with their orders and,
notably, would not be subject to the president’s clemency power. Criminal
contempt is a penalty for the crime of willfully refusing to comply with such
an order. Civil and criminal contempt can result in years of jail time.
And if Mr.
Stone were to refuse to testify based on a valid Fifth Amendment right not to
incriminate himself, the prosecution can obtain an immunity order from the
court. That would require him to speak — if Mr. Stone lies then, he can be
prosecuted for perjury, because testifying pursuant to an immunity order does not
protect a witness from a perjury charge.
Finally,
Mr. Stone’s third choice — the one that does not carry with it the risk of
criminal charges and jail — is simply to tell the truth. Does this ever happen?
Yes. In the Enron investigation, after the company’s treasurer, Ben Glisan Jr.,
pleaded guilty but refused to cooperate, we put him before the grand jury.
Instead of facing additional jail time, he came clean and became one of the
government’s most compelling witnesses. In a Genovese mob case, a foot soldier
who had pleaded guilty and then was served with a grand jury subpoena to learn
who his conspirators were chose to cooperate, explaining to us, “I was willing
to do my time, but I was unwilling to do the time for my conspirators.”
Mr. Stone
may well choose one of the first two options, but that would expose him to
criminal liability — precisely the result that he has sought to avoid.
This
Department of Justice may not authorize pursuing the truth about the unanswered
question: Why did Roger Stone lie to Congress? But that does not mean future
federal prosecutors must make the same decision or that a state prosecutor
cannot now seek Mr. Stone’s testimony.
The tools
to get at the truth are there and should be used. If Mr. Barr does not support
their use, we should all ask ourselves why not.
Andrew
Weissmann, a senior prosecutor in Robert Mueller’s special counsel
investigation, is a senior fellow at N.Y.U. School of Law and the author of the
forthcoming book “Where Law Ends: Inside the Mueller Investigation.”
Roger Stone should face grand jury, Mueller
prosecutor says in op-ed
Trump’s commutation ‘does not have to be the end of
the story’, Andrew Weissmann wrote in a New York Times column
Martin
Pengelly
@MartinPengelly
Tue 14 Jul
2020 14.28 BSTLast modified on Tue 14 Jul 2020 14.38 BST
Donald
Trump’s commutation of Roger Stone’s sentence for lying to Congress and other
crimes discovered in the Russia investigation “does not have to be the end of
the story”, the former Mueller team member Andrew Weissmann said on Tuesday,
advocating that the self-confessed political dirty trickster be brought before
a grand jury.
Robert
Mueller, the special counsel who investigated Russian election interference and
links between Trump and Moscow, suspected Stone of being the link between Trump
and WikiLeaks, the pro-transparency organisation which leaked material damaging
to Hillary Clinton that was hacked by Russian intelligence. Mueller also
suspected the president of lying about such links.
“If there
was nothing nefarious about [Stone’s] coordination efforts, why did he lie
about them to Congress?” Weissmann asked in a column for the New York Times.
“This
question remains unanswered, as the Mueller report notes. In spite of the
president’s commutation, prosecutors can seek to discover the answer by calling
Mr Stone before a grand jury.”
Mueller did
not prove a criminal conspiracy between Trump and Moscow but did lay out
extensive contacts and instances of possible obstruction of justice. The
investigation produced more than 30 indictments.
One would
have put Stone, 67, behind bars for 40 months had the president not intervened
on Friday. Trump has claimed “rave reviews” for the decision. The Utah senator
Mitt Romney called it an act of “unprecedented, historic corruption”.
Mueller
himself has spoken out, via a column in the Washington Post.
“Stone was
prosecuted and convicted because he committed federal crimes,” the former FBI
director wrote. “He remains a convicted felon, and rightly so.”
Weissmann
has written a book, Where Law Ends: Inside the Mueller Investigation, which
will be published by Random House on 29 September. Announcing it on Monday, he
said: “I am deeply proud of the work we did … but the hard truth is that we
made mistakes. We could have done more.”
For the
Times, he wrote: “Stone’s criminal conviction resulted from his testimony under
oath in the fall of 2017 before a Republican-controlled committee in Congress.
He was asked about his interactions with WikiLeaks … and his potential
coordination with Mr Trump and others on the Trump campaign about the same.
“Mr Stone
denied such communications. Yet scores of his own contemporaneous emails and
texts proved otherwise.
“… At
sentencing, the federal judge pointedly noted that Mr Stone had been prosecuted
for ‘covering up for the president’, and Mr Stone boasted just before the
president’s act of clemency that he had dutifully remained silent. Mr Trump
tweeted that Mr Stone had ‘guts’ for not cooperating with prosecutors.
“To get at
the truth of why he lied, Mr Stone can be served with a grand jury subpoena –
by a federal or state prosecutor – or even with a congressional subpoena,
requiring him to answer the question: why did you lie to Congress? And many
others.”
Weismann
outlined three choices Stone would then have: to lie again, thereby opening
himself to new prosecution; to refuse to comply, which could result in contempt
charges and jail time; or to tell the truth.
Weismann
compared that option to that taken by witnesses in two of his previous cases as
an attorney in the Department of Justice: the Enron scandal and “a Genovese mob
case, [in which] a foot soldier who had pleaded guilty … was served with a
grand jury subpoena to learn who his conspirators were [and] chose to
cooperate”.
Stone spoke
publicly on Monday night – to the Fox News host and fellow Trump ally Sean
Hannity.
“I had a
biased judge,” he said, “I had a stacked jury, I had a corrupt jury forewoman.”
He also
thanked Hannity and other prominent conservatives including Michael Flynn,
Tucker Carlson and Matt Gaetz, and said he would have been in danger of dying
from coronavirus had he gone to jail.
Mueller’s
team, Stone said, “wanted me to be the ham in their ham sandwich because they
knew the Mueller report, particularly on Russia, it was a dud. It was a goose
egg.”
Weissmann,
however, wrote that Trump’s Department of Justice “may not authorise pursuing
the truth about the unanswered question: why did Roger Stone lie to Congress?
But that does not mean future federal prosecutors must make the same decision
or that a state prosecutor cannot now seek Mr Stone’s testimony.
“The tools
to get at the truth are there and should be used. If [Attorney General William]
Barr does not support their use, we should all ask ourselves why not.”
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