September 25, 2020

Did Mueller Ever Stand a Chance Against Trump and Roger Stone?

In 1972, I served as an assistant special prosecutor for the Watergate Special Prosecution Force, which investigated the connection between the White House and the break-in at the Democratic National Committee headquarters, the subsequent cover-up and other crimes connected with the White House under Richard Nixon.

And nothing that I saw then — even during the so-called Saturday Night Massacre, when Nixon ordered his attorney general to fire the special prosecutor — rises to what we are witnessing now with President Trump.

The commutation last week of Roger Stone’s sentence is the latest of multiple, brazen efforts to make the fulfillment of Special Counsel Robert Mueller’s investigation all but impossible.

The efforts by President Trump have amounted to a cover-up — and they were often made possible by his ability to control the Justice Department and by the lack of independence of the Mueller investigation. It demands a renewed look at how we empower independent counsels — regrettably, history has shown us that, under extraordinary circumstances, they are needed to conduct proper oversight of abuse by the executive branch.

That is a big difference from my experience in the Watergate prosecution: Established in 1973 by the Justice Department, our investigation was functionally independent from it and the executive branch. We did not answer to the attorney general. We were not restricted from investigating or prosecuting Nixon, nor were we governed by any internal Justice Department rule that prohibited prosecuting a sitting president.

And as the efforts by the attorney general, Bill Barr, and Mr. Trump’s commuting of the Stone sentence make clear, that lack of independence has made a big difference.

From the start, Mr. Mueller was restrained by Justice Department regulations. He was barred, for example, from looking into the broader relationship between Mr. Trump and Russia through a review of Mr. Trump’s financial records and tax returns. Furthermore, according to the Mueller report, Mr. Trump made multiple attempts to fire the special counsel, and it is difficult, if not almost impossible, to conduct an investigation under those circumstances.

Ultimately, the Mueller investigation did complete its limited investigation into whether any member of the Trump campaign conspired with the Russian government (it did not “establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities”); it also detailed the evidence, without reaching conclusions, relating to Mr. Trump’s obstruction of justice. But as a result of those limitations, Mr. Trump, with the assistance of Mr. Barr, spun the narrative to affect the impact on the American public of the Mueller report and, as we have seen with Mr. Stone and Michael Flynn, undermined the criminal convictions obtained by Mr. Mueller’s team.

In the Watergate investigation, the special prosecutor decided not to indict Nixon because Congress was actively considering impeachment. After convicting the major figures in the scandal, including two attorneys general, almost no one (except Nixon) was pardoned and no one had their sentences commuted. Upon completion of our investigation, we issued a report without anyone in the executive branch spinning its results.

Mr. Mueller’s team convicted Mr. Stone for covering up for Mr. Trump. By granting clemency to Mr. Stone, the president expands the cover-up. Mr. Trump’s purpose has been clear: to prevent Mr. Stone and others (like Paul Manafort and Mr. Flynn) from recounting the full truth about the actions of the Trump campaign in 2016 concerning Russian interference. It is no coincidence that the only former Trump confidante in federal prison is the one who truthfully testified against Mr. Trump, his former lawyer and fixer, Michael Cohen.

Information released in the past year — primarily from Mr. Stone’s trial, as well as unredacted parts of the Mueller report — has offered more evidence about the areas of collusion and obstruction. For instance, according to this material, in summer 2016 Mr. Stone and Mr. Trump discussed future releases by WikiLeaks of damaging information against Hillary Clinton.

The Mueller report noted that it was “possible” that the president “no longer had clear recollection” of such discussions with Mr. Stone.

But it’s possible that the denials, according to the report, “could also be viewed as reflecting his awareness that Stone could provide evidence that would run counter to the President’s denials and would link the President to Stone’s efforts to reach out to WikiLeaks.”

More recently, other former administration officials have expressed alarm at Mr. Trump’s abuses — for instance, John Bolton, in his recent book, describes the president’s interference with Justice Department investigations as “obstruction of justice as a way of life.”

Mr. Trump’s grant of clemency to Mr. Stone was an unconstitutional use of the presidential clemency power. The Constitution obligates the president to “take care that the laws shall be faithfully executed.” It does not permit a president to grant clemency or to pardon a co-conspirator, an obvious conflict of interest.

Even Bill Barr has said as much. When asked at his confirmation hearing if a president can “lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him,” he answered: “No. That would be a crime.”

No court has ever confronted this issue, and no court is likely to be asked to confront this issue regarding Mr. Stone because there is no independent prosecutor to challenge Mr. Trump’s commutation of the Stone sentence. If Mr. Mueller’s prosecution team had been truly independent and was still intact, they would have the ability to contest the constitutionality of the president’s grant of clemency to Mr. Stone.

In the final report issued by the Watergate Special Prosecution Force, we opposed institutionalizing a special prosecutor by law. We believed it would be abused, that it would not abide by Justice Department standards and would become bureaucratic. Nevertheless, an independent counsel law was passed and expired in 1999 — and for the reasons we anticipated: Both Democrats and Republicans believed it was overused and abused.

Looking ahead, there needs to be a better mechanism in extraordinary circumstances — like Watergate and Russian interference in the 2016 election — that allows for the appointment of a truly independent special prosecutor.

We were lucky to get the Mueller report, but Mr. Mueller was acting under restraints. Unfortunately history tells us that we will need special counsels in the years ahead, under extraordinary circumstances, and like we did with Watergate, that office should have true independence to protect our country and Constitution.

Nick Akerman (@nickakerman), a partner at Dorsey & Whitney, was an assistant special prosecutor on the Watergate Special Prosecution Force.