Pardoning Roger Stone Could Itself Be an Unpardonable Crime

By | July 9, 2020

Who was part of the Trump campaign’s effort to comply together with the Russian authorities and subsequently helped to cover it up — is set to report to prison on July 14.

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

In addition to being a brazen misuse of power, a pardon could place both Trump and Stone at risk of further criminal accountability for conspiracy to obstruct justice. And, in doing this, Trump could create legal accountability that’s impossible to wipe out through a subsequent pardon.

Whenever the Pardon Is Your Crime

As I mentioned in a prior bit for Just Security, pardons merely apply to previous acts. Otherwise, if the president may pardon prospective behavior, they could give anybody a permanent”get-out-of-jail-free” card which would let them commit federal crimes without consequence.

Caselaw reflects a recognition of this significant restriction on the pardon power, even if courts grant that the power has tremendous breadth.

This restriction takes on special significance when a pardon is part of a wider conspiracy, for example, to block justice. Conspiracies are continuing crimes; since the Court has noted, once a defendant has joined a conspiracy he or she”continues to violate the law through each second of [the conspiracy ] presence. ”’

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

Since pardons can merely apply to already-completed offenses, a pardon that furthers a conspiracy to obstruct justice could be invalid with regard to this conspiracy, as would any subsequent pardons that further the exact same conspiracy. Both the person issuing the pardon and the person receiving it’d remain fully liable for the conspiracy to obstruct justice.

The Need to Research a Stone Pardon

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

First, there is the essence of the offenses that Stone committed. He lied to Congress repeatedly to obstruct the investigation into the Trump campaign’s connections with Russia. However, his lies weren’t only a few, but they were also evident. He claimed to have no written communications regarding WikiLeaks creator Julian Assange, yet he had many such communications. He promised to have no written communications together with his deathbed to WikiLeaks, yet there were hundreds of these documents. He said he never spoke his conversations with the intermediary with anyone in the Trump effort, however, he did on a number of occasions. To tell such blatant lies, and introduce oneself to prosecution, raises a question as to whether he was doing with the belief he would not be punished for these activities and, if so, the reason he believed that was the case.

Second, lately revealed sections of the Mueller report reveal that the special counsel’s obstruction investigation especially included Trump’s behavior towards Stone. The report shows there was a great reason for Trump to be worried about Stone’s testimony. In written answers to the specific counsel, Trump promised, “I do not recall talking Wikileaks with [Stone], nor do I recall being conscious of Mr. Stone having discussed WikiLeaks with individuals associated with my effort.” Yet there were many witnesses who had said Trump was advised of Stone’s access to WikiLeaks, and one said he’d witnessed a telephone between Trump and Stone on this topic.

Shortly after filing his written replies, Trump criticized witnesses who whined about the illegal conduct of others, stating”this flipping stuff is terrible” and noting that Stone didn’t flip on him and that was”very courageous” Trump proceeded to publicly praise Stone’s”guts” for not testifying against him. At the same time, Stone’s public remarks made clear that he was conscious 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 planned to communicate a message which witnesses might be rewarded for refusing to give testimony adverse to the President and disparaged if they chose to collaborate”

Third, Stone has already received preferential treatment in the Trump government. In response, all four career prosecutors resigned from the case rather than sign the new sentencing memo.

What I discovered — was that Roger Stone was being treated differently from any other suspect because of his relationship to the President. I was also advised that the acting U.S. Attorney was giving Stone such unprecedentedly favorable treatment since he was”afraid of this President.”

In response to this division’s egregious politicization of Stone’s sentencing, a bipartisan group of more than 2,600 former DOJ attorneys has noted that Attorney General Bill Barr was”performing the President’s personal bidding” and called on him to resign. Stone did something to warrant the administration taking such extreme measures to protect him the issue is what.

Finally, this isn’t the only example of Trump reportedly with his pardon power to encourage people to lie for him. The Mueller report details how Trump advisor and attorney, Michael Cohen, stated he had discussed a pardon with Trump’s personal lawyer, and”understood based on this conversation and previous discussions about pardons together with the President’s personal counsel that as long as he stayed on message, he’d be taken care of by the President, either via a pardon or through the investigation being closed down.”

Trump Campaign Chairman Paul Manafort told his deputy Rick Gates not to plead guilty to some charges because Manafort was speaking with Trump’s lawyer and”we will be cared for.” The Mueller report notes that”the evidence supports the inference that the President intended Manafort to believe that he could get a pardon, which could earn cooperation with the authorities as a means of getting a sentence unnecessary”

Like Stone, all three of these men lied to investigators to hide information that would have been quite detrimental to Trump. Cohen lied to Congress about the business deal that Trump was chasing with Russia during the campaign. Manafort lied to federal investigators about his contacts throughout the campaign with a partner who had ties to Russian intelligence, including sharing private polling information with him.

Nor are these the only documented cases of Trump offering a pardon to promote lawbreaking. Worried about his political prospects when he did not complete construction on his edge wall, Trump allegedly offered to pardon administration officials when they broke the law to build the wall faster. Trump also allegedly told the head of Customs and Border Protection that he would pardon him if border agents illegally blocked asylum seekers from entering the USA.

How to Research a Stone Pardon

Given the obvious nature of Stone’s barrier and the substantial signs that Trump sought to affect Stone’s behavior together with the promise of benefits for not testifying against him, any Stone pardon would demand an investigation. This Stone received special treatment from the DOJ after not testifying against Trump and that Trump has a blueprint of supplying pardons to people to induce them to break the law are additional reasons to examine the matter carefully.

But clearly the current DOJ, that Barr has warped into a political instrument of Trump, would not undertake a reasonable investigation. But this doesn’t mean there is nothing to be accomplished.

Congress has a significant role to play in the wake of a Stone pardon. Even given the likely stonewalling by the government, these activities will help to preserve evidence and sign to career staff that Congress takes this misuse of power severely. That could direct conscientious whistleblowers to come forward, as has happened repeatedly when Congress presses an investigation to Trump’s abuse of power. It also could discourage livelihood officials from accepting or cooperating with obstructive acts led by the White House or DOJ leadership, which makes it much harder for those activities to be successful.

In addition, should Trump lose the election, there would still be plenty of time to investigate and prosecute any offense. In cases like this, the next administration should ensure that career prosecutors could investigate without fear or favor if the pardon a part of a broader conspiracy to obstruct justice. The remedy for the current politicization of this DOJ is to let law enforcement follow the facts where they lead, including with respect to potential unlawful behavior by a prior administration.

There is very little question that presidential exercises of the pardon power can themselves be criminal. In other words, pardons utilized to obstruct justice violate the law. Moreover, there is precedent for investigating the pardons of a prior president: for example, the DOJ researched pardons by President Bill Clinton to ascertain if they constituted bribery, obstruction of justice, or other prohibited acts.

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

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