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.
