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