Roger Stone Can Be Tried, Again
President Trump may think his former adviser is now in the clear, but his clemency can’t shield Stone from future prosecutions.
About the authors: Neal K. Katyal is the former Acting Solicitor General of the United States and a professor of law at Georgetown University. Joshua A. Geltzer is the executive director of Georgetown University’s Institute for Constitutional Advocacy and Protection. He was the senior director for counterterrorism at the National Security Council from 2015 to 2017.
Donald Trump’s commutation of his friend Roger Stone’s criminal sentence is one of the most severe affronts to the rule of law during the Trump administration—and that’s really saying something. Fortunately, it’s not indelible. A future Justice Department could indict Stone once again. And this fact highlights that on the ballot in 2020 is not just a forward-looking end to Trump’s corruption and lawlessness, but also a reversal of some of his administration’s worst excesses.
Hours before the commutation, Stone said in an interview that he thought Trump would help him because the president “knows I was under enormous pressure to turn on him. It would have eased my situation considerably. But I didn’t.” Stone thought that his silence would buy a permanent get-out-of-jail-free card from his friend. But, like everyone else who’s dealt with Trump, Stone got a raw deal.
Sure, Trump helped Stone by invoking his extraordinary constitutional powers to relieve Stone of the consequences of his 2019 conviction for lying to investigators, obstructing a congressional inquiry, and witness tampering. But Trump, characteristically, did as little as possible: He commuted Stone’s sentence but didn’t pardon him. That means—as Special Counsel Robert Mueller wrote on Saturday—that Stone “remains a convicted felon, and rightly so.” A commutation does nothing to erase or even call into question a convicted defendant’s guilt.
A future Justice Department would be well within its rights to open a new investigation into Stone’s activities. Such an investigation wouldn’t be hard: The very facts the jury found sufficient to convict Stone suggest that he may be guilty of other criminal offenses. For example, Stone was charged with (and convicted of) making false statements under the general false-statements law. That law criminalizes false statements when made in the context of any “matter within the jurisdiction of the executive, legislative, or judicial branch.” But another law specifically criminalizes “cover[ing] up … any record” to impede a federal investigation. It appears Stone did just that, as his indictment alleges that he lied about no longer having emails and text messages that he did still possess. That could be the basis for a new charge—and it certainly provides a basis for a reopened investigation. Stone’s claims might also violate the federal perjury statute, which punishes making a false statement under oath.
Likewise, Stone was charged with (and convicted of) obstruction of Congress under a federal law. That behavior likely runs afoul of other federal laws, such as the omnibus obstruction-of-justice provision.
There’s more. Mueller brought charges against Russian intelligence officials for their hacking of the Democratic National Committee and for conspiring with WikiLeaks to release the hacked emails. Recent litigation has uncovered some previously redacted sections of Mueller’s final report. Those passages reveal that the former Trump-campaign chair Paul Manafort told Mueller that Stone knew of the WikiLeaks releases before they happened and, strikingly, that Stone told Trump about those releases before they happened. Put that together, and Stone could be charged with aiding and abetting the hack-and-dump that was the cornerstone of Russia’s interference in the 2016 election. Again, the point isn’t that Stone necessarily could be charged—it’s that there’s enough evidence to reopen an investigation into him, and that he’s far from being in the clear.
Ordinarily, protections against double jeopardy forbid trying someone for the same crimes twice. But the crimes above have different elements from the ones Stone was convicted of, so they are not the same—and being forced to prove different facts to establish different elements of a crime is, in general, a key indication that prosecutors are not running into constitutional double-jeopardy concerns. Moreover, one can imagine that a future Justice Department investigation would uncover more facts not available previously due to the Trump administration’s attempts to cover up what happened—after all, the entire second half of Mueller’s report described the administration’s attempts to impede Mueller’s investigation.
And it appears that Stone, by dint of his alliance with Trump, never faced true jeopardy. Instead, from what Stone said on Friday, it looks more like Stone wielded his dirt on Trump as a mechanism to secure the commutation. If so, that raises the possibility that Stone’s journey through the criminal-justice process was a bit of a show, even a facade. If he had Trump’s assurances all along, he was really never in jeopardy. And, at least logically, there can be no double jeopardy without a first jeopardy—another argument prosecutors could make in court when bringing new charges.
Finally, the commutation itself may be null and void if Trump carried it out to protect himself. As Judge Amy Berman Jackson, who presided over Stone’s trial, said, Stone “was not prosecuted, as some have complained, for standing up for the president. He was prosecuted for covering up for the president.” If the commutation itself was the product of nefarious activity, a future Justice Department may well conclude that Stone shouldn’t benefit from it.
The law of double jeopardy is notoriously unclear. Had Stone been pardoned, judges might have been reluctant to allow new but related criminal charges, much as judges are more inclined to find double-jeopardy concerns when new charges are brought against someone who has been acquitted. But a commutation “condones” nothing: It eradicates nothing of the guilt found by the jury. It may be the president’s prerogative, appalling as it is, but it’s not an elimination of Stone’s guilt. There’s simply no reason for the commutation to pose an obstacle to future investigation and prosecution.
Indeed, Stone’s conviction and commutation may supercharge another avenue: state prosecutions. The same facts that led to Stone’s conviction suggest possible local charges in Washington, D.C.; New York; and Florida, as each appears to be a place where Stone committed his crimes or caused his crimes to be committed. None of this has to wait until integrity is restored to the Justice Department; those investigations can begin now.
To be sure, none of this is how prosecutors go about their business in ordinary cases, but there’s nothing ordinary here. The president has commuted the sentence of a key witness against him, apparently to reward Stone for his silence. The majesty of the law is that it is supple enough to provide a remedy for this grave action.
Like many other times when Trump has shortchanged those he cuts deals with, Trump hasn’t actually protected Stone from further prosecution. If Stone wants to earn the finality he so obviously craves, he should try the same approach used by other convicted criminals: Come clean, and tell prosecutors what they want to know about the crimes in which he was involved.