As Impeachment Draws Near, An “Agent Provocateur” May Have To Wait For An Urgent Pardon

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Below is my column in USA Today on the conviction of Roger Stone and his final battle for a presidential pardon to avoid a potentially terminal prison sentence.

Here is the column:

In his documentary, “Get Me Roger Stone,” Roger Stone begin with the signature declaration “My name is Roger Stone, and I’m an agent provocateur.” In what may be his most impressive success as a provocateur, Stone seemed to provoke a jury in Washington, D.C., to render a sweeping conviction on all counts for his role in the investigation into Russia and the 2016 election.

False statements, witness tampering, and other charges could put Stone, 67, behind bars for 50 years. Even a modest sentence could result in a practical life sentence for Stone. According to far-right conspiracy theorist Alex Jones, Stone reached out to him to pitch a pardon from President Donald Trump.

In response to the conviction, Trump cried foul that Stone was prosecuted while others were not. Trump did not question that Stone lied but asked “Crooked Hillary, Comey, Strzok, Page, McCabe, Brennan, Clapper, Shifty Schiff, Ohr & Nellie, Steele & all of the others, including even Mueller himself? Didn’t they lie?”

As Stone himself can now attest, “everyone lies” is not a particularly useful defense to criminal false statements. It is particularly weak when a self-professed provocateur was eager to speak to everyone except the jury. Stone declined to take the stand in a case where his intent behind statements were critical to the verdict.

Performance art can land you in jail

Roger Stone is precisely why 7.8% of Americans suffer from coulrophobia, or fear of clowns. You can add 100% of the jury in this case. Stone has insisted that what he does in politics is “performance art. Sometimes for its own sake.” However, this performance art seemed to work for not only its own sake, but for the sake of Stone, and ultimately Trump. 

The most damaging was Stone’s warning to Randy Credico, who was called as a witness to speak to any effort of Stone’s to obtain hacked emails from WikiLeaks. Referencing a character in “The Godfather: Part II,” Stone told Credico to “Practice your Frank Pentangeli.” In the movie, Frank “Frankie Five Angels” Pentangeli committed suicide after lying to Congress to protect the mob.

The statement was vintage Stone: reckless, alarming, and, yes, entertaining. The problem with being a performance artist is when your performance is suggesting a criminal act.

Jones said that Stone was certain of his own demise before the verdict was returned. It was not hard to predict. Not only did Stone decline to testify but his team put forward a defense as opaque and convoluted as Stone himself. Get the Opinion newsletter in your inbox.

The argument was that, even if Stone intended to lie to Congress in denying an effort to use intermediaries with WikiLeaks, it was not a lie because the people he contacted did not ultimately work as intermediaries because they lied to Stone. Thus, despite his best efforts, Stone essentially argued that he did not lie when he lied about using intermediaries because it turned out that those intermediaries may have lied to him. Since they did not actually work as intermediaries, the earlier false statement was portrayed as true (or least not proven to be false) because they never actually contacted WikiLeaks.

A pardon from Trump isn’t guaranteed

Stone now joins a list of former Trump associates as a convicted felon. Michael Cohen and Paul Manafort are serving time while Michael Flynn and Rick Gates are awaiting sentencing. At the same time, the president’s legal provocateur, Rudy Giuliani, is under investigation by federal prosecutors in New York and could be facing indictment, according to anonymous officials who spoke to Bloomberg. 

Stone will not be sentenced until Feb. 6, 2020. That timing is not ideal for Stone’s pitch for a pardon. The House appears all-but-certain to impeach Trump by the end of December. Any trial would likely occur in January and February. Pardoning Stone would hardly create the optics needed for a Senate trial.

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The assumption is any Trump pardons would likely happen after the end of any impeachment trial. Indeed, presidents like Clinton have often waited to make controversial pardons until the end of their terms. These elderly men will hardly feel that time is on their side when they start to serve jail terms. That would put Trump in a position of issuing pardons the same year as the 2020 election and during, if not shortly after, an impeachment trial.

Of course, pardon power is given to the absolute discretion to a president. Moreover, Trump has shown a willingness to shoulder criticism in the pardons of controversial figures like former sheriff Joseph M. Arpaio, commentator Dinesh D’Souza or former Bush administration official I. Lewis “Scooter” Libby. His tweet with the “list of liars” may lay the foundation for his rationale in issuing pardons for people like Flynn, Stone and others. 

In the meantime, Stone will be left contemplating the next act in his performance art. The problem is that federal Judge Amy Jackson released Stone but kept in place the gag order preventing him from most public comments. I fail to see why such a gag order is necessary since such orders are primarily designed to protect the integrity of the jury pool. The jury has been heard. 

For Stone, the gag order takes him off his game. He once said, “If you’re not controversial, you’ll never break through the din of all the commentary.” Any case for a pardon will have to be made by others, but Stone is now clearly playing to an audience of one.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley

81 thoughts on “As Impeachment Draws Near, An “Agent Provocateur” May Have To Wait For An Urgent Pardon”

  1. Sorry the entire stone case is a travesty.

    I do not really give a crap if Stone misrepresented a non-crime.

    Frankly the entire prosecution sreaks of Mueller’s bullying – something Mueller has an incredibly long history of – Richard Jewel for starters.

    The gag order – even during the trial is itself criminal.

    I know that the law currently supports that – THE LAW IS WRONG, you do not lose rights merely by being accused of a crime. If Stone thought that pissing on the Judge publicly was a good strategy – he is free if unwise to do so.
    It the court beleives Stone is tainting the Jury – then the court can sequester the jurors.
    The integrity of the justice system is the responsibility of the government, and can not be accomplished by shredding the rights of the accused.

    If the Judge is too think skinned to conduct a trial with an outspoken defendenat – then she should remove herself. Again it is the governments job to conduct the trial fairly and unbiased and not by screwing over the rights of the defendant.

    And frankly the government does not have a right to an untainted jury pool.
    That is a right of the defendant.

    So we have a bogus conviction by a DC jury and a DC judge looking to punish Stone because Trump won in 2016.

    None of this had anything to do with any actual crime.

    Even the conviction is ludicrous. As ONE example Credico testified that HE started the Godfather references, and that he was never intimidated by Stones exchanges.

    And yet the jury convicted Stone of Witness tampering.

    The jury should be convicted for criminal ignorance.

    But then this has been the entire Mueller MO.

    I have no idea what is going to happen in the Flynn case – but if 10% of what Powell seems to have proven is true – it is Muellers people who should be headed to jail.

    The same holds true for pretty much the rest of Muellers prosecutions.

    No one can figure out what the actual lie Flynn told was.
    Papadoulis got a date wrong.

    And yet Comey, McCabe, Strzok, Clinton are all roaming arround free ?

    What is increasingly self evident is this entire Trump/Russia nonsense was contaminated and bogus from the start.

    House democrats are seeking to impeach Trump for asking for an investigation where there is more than “probable cause” that crimes were committed.
    It is inarguable that Biden at the very least acting unethically, and the only question is whether that misconduct rose to a criminal level.

    Yet today – almost 4 years after it started, there does not and never has existed reasonable suspicion that a crime existed for “cross fire huricane” to investigate.

    We have a tree poisoned all the way to its roots.

    I understand that Mueller was NOT part of the original corrupt foundations.
    But it should not have taken more than a few minutes to grasp that the investigation he was tasked with rested on corrupt foundations. Further, it should not have taken very long for him to realize that there was no basis to proceed.

    The vast majority of us realize that the Cater Page warrant was secured corruptly.

    Well if there was never a basis for a warrant against Carter Page – what the heck was the basis for any of that hundreds of warrants and subpeona’s that Mueller issued ?

    The standard is exactly the same.

    What we see is a bullying special prosecutor pressuring witnesses to tell him the lies he wants to hear or be destroyed by him, and we wonder when under enough pressure for long enough they make some mistake ?

    Again Mueller has been doing this LONG before Trump/Russia.

    I am not prepared to make this an absolute, but it should be damn near impossible to convict anyone of a process crime, without establishing that the crime purportedly being investigated in the first place actually occurred.

    Frankly lying to congress – particularly this congress should be a duty not a crime.

    And lying to the FBI NEVER should have been made a crime.
    And it does not appear to be – if you are a democrat.

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