October 28, 2020

We Can Still Get the Truth From Roger Stone

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.”