The Roger Stone Commutation Is Even More Corrupt Than It Seems

President Trump’s commutation of the prison sentence of his longtime confidante Roger Stone is wholly unsurprising. Indeed, given Trump’s repeated teasing of the matter over the life of the case against Stone, it would have been something of a surprise had he not intervened so that his felonious friend was spared time behind bars.

But the predictable nature of Trump’s action should not obscure its rank corruption. In fact, the predictability makes the commutation all the more corrupt, the capstone of an all-but-open attempt on the president’s part to obstruct justice in a self-protective fashion over a protracted period of time. That may sound like hyperbole, but it’s actually not. Trump publicly encouraged Stone not to cooperate with Robert Mueller’s investigation, he publicly dangled clemency as a reward for silence, and he has now delivered. The act is predictable precisely because the corrupt action is so naked.

In a normal world, this pattern of conduct would constitute an almost prototypical impeachable offense. But this is not a normal world. Congress is unlikely to bestir itself to do anything about what Trump has done—just as it has previously done nothing about the obstruction allegations detailed in the Mueller report. Indeed, in the midst of a presidential campaign, a second impeachment would surely be ill advised. The only remedy for this behavior, at least while Trump remains in office, has to lie in accountability in the context of Trump’s campaign for reelection.

That is why it is so important to understand the history that led to the Stone commutation, just how corrupt it is, and why the predictability of the president’s action actually inflames public outrage—not inures the public to what Trump has done here.

Roger Stone isn’t just Trump’s confidante or friend. According to newly unsealed material in the Mueller report, he’s also a person who had the power to reveal to investigators that Trump likely lied to Mueller—and to whom Trump publicly dangled rewards if Stone refused to provide Mueller with that information. Now, it seems, the president is making good on that promise.

When the report first became public in April 2019, it described how Stone reached out to WikiLeaks during the 2016 campaign and represented himself to the Trump campaign as having inside information on upcoming releases of information damaging to Hillary Clinton. But a significant portion of the material on Stone was redacted because of ongoing criminal proceedings against him. Recently, however, following the guilty verdict against Stone, a court unsealed that hidden material thanks to litigation by BuzzFeed News and the Electronic Privacy Information Center (EPIC). The newly unredacted information—some but not all of which was revealed over the course of Stone’s trial, but some of which was not previously public—is highly revealing of Stone’s relationship with the president.

During the 2016 campaign, Mueller writes, Stone “made several attempts to contact WikiLeaks founder Assange, boasted of his access to Assange, and was in regular contact with Campaign officials about the releases that Assange made and was believed to be planning.” He spoke repeatedly about his connections to Assange, witnesses told Mueller, and his ability to find out what new releases of information WikiLeaks was planning. Crucially, the unredacted information includes testimony from multiple witnesses who described Stone’s conversations about upcoming WikiLeaks releases with high-level campaign officials—including Trump’s campaign chairman, Paul Manafort—and even Trump himself.

According to Manafort, Trump personally told the chairman that he should keep in touch with Stone about WikiLeaks. Another campaign official, Rick Gates, recalled an incident during the campaign in which Trump spoke by phone with Stone and then told Gates that, as Mueller paraphrases, “more releases of damaging information would be coming.” Trump’s former lawyer Michael Cohen told Mueller about overhearing a phone call in which Stone told Trump that “he had just gotten off the phone with Julian Assange and in a couple of days WikiLeaks would release information.” Then, Mueller writes, once WikiLeaks began dumping material damaging to Clinton in July 2016, Trump “said to Cohen something to the effect of, ‘I guess Roger was right.’”

So Trump clearly knew about and encouraged Stone’s outreach to WikiLeaks, the unredacted report shows. Yet in written answers the president provided to Mueller’s office in the course of the special counsel’s investigation, Trump insisted that he did not recall “the specifics of any call [he] had” with Stone during the campaign or any discussions with Stone of WikiLeaks. And shortly after he submitted those answers, the unredacted report states, Trump began tweeting publicly in support of Stone—calling him “brave” and congratulating his “guts” for refusing to testify.

Trump’s tweets were always suspicious, to say the least. And his answers to Mueller seemed less than entirely credible even when the redacted report was first released. But the newly revealed text makes clear Mueller’s suspicions that Trump lied in his written answers—and then pushed Stone not to testify in order to prevent Mueller from discovering that lie. As Mueller put it dryly: “[T]he President’s conduct could also be viewed as reflecting his awareness that Stone could provide evidence that would run counter to the President’s denials and would link the President to Stone’s efforts to reach out to WikiLeaks.” The special counsel also writes that Trump’s tweets to Stone—along with his tweets criticizing Cohen, who was by then cooperating with investigators—“support the inference that the President intended to communicate a message that witnesses could be rewarded for refusing to provide testimony adverse to the President and disparaged if they chose to cooperate.”

Stone did, indeed, refuse to provide testimony adverse to Trump. And while his precise relationship to WikiLeaks and Assange was never fully explained, he stood trial for lies to Congress denying his efforts to contact WikiLeaks, and for intimidating another witness who could have contradicted those lies. As the judge in Stone’s case put it: “He was prosecuted for covering up for the President.”

Now, with Trump’s commutation, Stone has received the precise reward Trump dangled at the time his possible testimony was at issue.

“Roger Stone is a victim of the Russia Hoax that the Left and its allies in the media perpetuated for years in an attempt to undermine the Trump Presidency,” the White House said Friday evening. In the White House’s telling, Stone was targeted by out-of-control Mueller prosecutors for mere “process” crimes when their “collusion delusion” fell apart. He was subject to needless humiliation in his arrest, and he did not get a fair trial. “[P]articularly in light of the egregious facts and circumstances surrounding his unfair prosecution, arrest, and trial, the President has determined to commute his sentence. Roger Stone has already suffered greatly. He was treated very unfairly, as were many others in this case. Roger Stone is now a free man!”

Indeed he is. But the story may not be over.

Time to put Roger Stone in the grand jury to find out what he knows about Trump but would not tell. Commutation can’t stop that,” tweeted Andrew Weissman, one of Mueller’s top prosecutors, following the president’s action.

That’s most unlikely while the Justice Department remains in the hands of Attorney General William Barr. But it’s far from unthinkable should Trump leave office in January. What’s more, the commutation means that the story Mueller tells about potential obstruction vis-a-vis Stone did not end with the activity described by the Mueller report. It is a continuing pattern of conduct up until the present day. That potentially makes it easier for a future Justice Department to revive at least one of the obstruction questions that Barr squelched when he closed the cases Mueller intentionally did not resolve. In addition to all the facts reported by Mueller, including facts that have been redacted until recently, Trump has now consummated the deal he dangled before Stone.

That’s something the Justice Department may want to examine anew—someday.

Corey Lewandowski’s Self-Immolation

The former Trump campaign manager’s disastrous performance shows that impeachment hearings work.

The Mueller Investigation Was Always an Impeachment Probe

There is only one rational explanation for this performance. Mueller wants Congress and the public to presume that if it were not for the OLC guidance, it is very likely that he would have charged the president with obstruction — maybe not an absolute certainty, but nearly so.

And then, just in case we were too dense to understand the nods and winks, Mueller took pains to emphasize that, in our constitutional system, it is up to Congress, not federal prosecutors, to address alleged misconduct by a sitting president.

Simple as 1 + 1 + 1 = 3. Likely felony obstruction, plus inability of prosecutors to indict, plus duty of Congress to deal with presidential criminality, equals: Impeachment is the only remedy, unless congressional Democrats are saying that Donald Trump is above the law. (Good luck, Speaker Pelosi, trying to pipe down your AOC wing, to say nothing of the 2020 primary contestants, after that one.)

This should not be a surprise. We have been saying since shortly after Mueller was appointed that his investigation was not a collusion probe but an obstruction probe, and that this necessarily made it an impeachment probe.

Competing Views of Obstruction
As noted above, the apparent contradiction between Mueller and Barr is clarified by the timeline.

To grasp this, you must first understand that Mueller and his staff are completely result-oriented. If you’ve decided to act as counsel to a congressional impeachment inquiry rather than as a federal prosecutor, the objective is to get your evidence in front of Congress, with the patina of felony obstruction.

In the Nixon and Clinton situations, the rationale for impeachment was obstruction of justice. Significantly, the issue in impeachment cases is abuse of power, not courtroom guilt. Consequently, unlike a prosecutor, a counsel to a congressional impeachment committee does not need evidence strong enough to support a criminal indictment; just something reasonably close to that, enough to enable a president’s congressional opposition to find unfitness for high office.

Once you understand that, it is easy to see what happened here.

Mueller’s staff, chockablock with progressive activists, has conceptions of executive power and obstruction that are saliently different from Barr’s (and from those of conservative legal analysts who subscribe to Justice Scalia’s views on unitary executive power).

Why Justin Amash stands alone

“Contrary to Barr’s portrayal, Mueller’s report reveals that President Trump engaged in specific actions and a pattern of behavior that meet the threshold for impeachment,” Amash said. “In fact, Mueller’s report identifies multiple examples of conduct satisfying all the elements of obstruction of justice, and undoubtedly any person who is not the president of the United States would be indicted based on such evidence.” That judgment is supported by more than 900 former federal prosecutorswho have signed onto a letter reaffirming this exact point.

Not surprisingly, Trump punched back at Amash on Sunday, tweeting that Amash is “a loser” and “a total lightweight who opposes me and some of our great Republican ideas and policies just for the sake of getting his name out there through controversy.”

.. First are the cynics who know Trump is unfit, if not dangerous; however, they’ll get what they can (e.g., judges, tax cuts) and bolster their resumes (e.g., working for the administration, getting fawning Fox News coverage). When Trump bottoms out, they’ll move on, probably insisting they were secretly against Trump all along. They consider Republicans who’ve resisted Trump such as the Weekly Standard’s editors and writers, who refused to imbibe the Trump Kool-Aid and in the process lost their publication, to be fools, saps and fusspots upset about a few tweets, dumb lies and crass language. All politicians are rotten, right, so why not grab what you can get?

..So we return to the question that vexes NeverTrumpers and Democrats: Why are Republicans such quivering sycophants, willing to lie and debase themselves in support of an unpopular president who is repudiating many of the principles they have spent their lives advancing?

I’d suggest there are three distinct groups of Republican grovelers. Some may fall into multiple categories.

  1. First are the cynics who know Trump is unfit, if not dangerous; however, they’ll get what they can (e.g., judges, tax cuts) and bolster their resumes (e.g., working for the administration, getting fawning Fox News coverage). When Trump bottoms out, they’ll move on, probably insisting they were secretly against Trump all along. They consider Republicans who’ve resisted Trump such as the Weekly Standard’s editors and writers, who refused to imbibe the Trump Kool-Aid and in the process lost their publication, to be fools, saps and fusspots upset about a few tweets, dumb lies and crass language. All politicians are rotten, right, so why not grab what you can get?
  2. In the second category are Republicans convinced that they’ll never find work if they speak out against Trump. They’ll lose their offices and/or offend Republican officialdom, including think tanks, right-wing media, donors, party activists and elected officials. (They are part of a right-wing ecosystem; some might call it a racket.) No plum lobbying gigs or Fox contributorships for them. They fear ostracism would ruin them financially and personally, leaving them in a political wilderness from which they fear they’d never return. They, like the cynics, occasionally feel a pang of conscience, especially when NeverTrumpers remind them that there is an alternative to self-debasement. They then will swiftly revert to “But Gorsuch and Kavanaugh” or “But taxes” to justify their moral and intellectual collapse. They’ll whisper behind closed doors that Trump is a menace, but coo and kvell over him when the cameras are on.

  3. And finally, there are the cranks, the zealots, the racists and the haters — a group, it turns out, much larger than many ex-Republicans could ever fathom. This includes not just the overt white nationalists and the tea party crowd but also those who have been simmering with personal resentment against “liberal elites.” Vice President Pence insists he and his fellow evangelical Christians are hapless victims; the children and grandchildren of Dixiecrats fume that everything went downhill in the 1960s. Some of these people will insist they are not racists nor misogynists — but yet they sure seem to have an extraordinarily high tolerance for those who are.

If you eliminate the retirees who couldn’t take it any more (e.g., former U.S. senator from Arizona Jeff Flake), the cynics, the scaredy-cats and the resentful self-made victims, you’re down to a precious few congressional Republicans who will refuse to rationalize (and even praise) whatever Trump does. Only 13 House Republicans and 12 Senate Republicans voted to block Trump’s noxious emergency declaration on the U.S.-Mexico border, which amounted to a repudiation of our constitutional government of separation of powers.

I’d love to think Amash’s statements free and embolden many more Republicans in the House and Senate to step forward.

Is that likely? No.

This is why voters must continue to reject Trump and Trumpism, driving the current crew of Republicans out of office. Only then, like saplings poking up from the ashes of a forest fire, can new, sustainable and decent political life on the right emerge. Unless and until Amash has many, many allies, the voters must do the heavy lifting of ridding ourselves of Trump and Trumpism.

How Barr’s Excerpts Compare to the Mueller Report’s Findings

Attorney General William P. Barr sent a letter to Congress last month citing brief fragments from the Mueller report. Now that the document is public, his selections are coming under scrutiny.

“In making this determination, we noted that the special counsel recognized that ‘the evidence does not establish that the president was involved in an underlying crime related to Russian election interference,’ and that, while not determinative, the absence of such evidence bears upon the president’s intent with respect to obstruction.”

Vol. II, Page 157: Obstruction of justice can be motivated by a desire to protect noncriminal personal interests, to protect against investigations where underlying criminal liability falls into a gray area, or to avoid personal embarrassment. The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong. In this investigation, the evidence does not establish that the president was involved in an underlying crime related to Russian election interference. But the evidence does point to a range of other possible personal motives animating the president’s conduct. These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events — such as advance notice of WikiLeaks’ release of hacked information or the June 9, 2016, meeting between senior campaign officials and Russians could be seen as criminal activity by the president, his campaign or his family.

Mr. Barr, in explaining why he was declaring Mr. Trump cleared of obstructing justice, cited this sentence fragment about how the evidence Mr. Mueller had gathered did not prove there had been any conspiracy with Russia for Mr. Trump to cover up. This use of Mr. Mueller’s words turned the special counsel’s meaning on its head: The brief excerpt came from a list of other possible reasons Mr. Trump might have had to corruptly impede the investigation, and which Mr. Barr did not mention.

FROM WILLIAM P. BARR

“The special counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election. As the report states: ‘[T]he investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.’”

FROM ROBERT S. MUELLER III

Vol. I, Page 1:The investigation also identified numerous links between the Russian government and the Trump campaign. Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.

Mr. Barr took a larger passage in which the Mueller report suggested that the Trump campaign and the Russian government were knowingly dancing together at a distance, and then excerpted a fragment to make it look like a cleaner exoneration.

“In assessing potential conspiracy charges, the special counsel also considered whether members of the Trump campaign ‘coordinated’ with Russian election interference activities. The special counsel defined ‘coordination’ as an ‘agreement — tacit or express — between the Trump campaign and the Russian government on election interference.’”

FROM ROBERT S. MUELLER III

Vol. I, Page 2:We understood coordination to require an agreement — tacit or express — between the Trump campaign and the Russian government on election interference. That requires more than the two parties taking actions that were informed by or responsive to the other’s actions or interests.

In the second sentence, which Mr. Barr omitted, Mr. Mueller again emphasized that there can be a type of complicit conduct that falls short of how the special counsel defined coordination.

FROM WILLIAM P. BARR

“After making a ‘thorough factual investigation’ into these matters, the special counsel considered whether to evaluate the conduct under department standards governing prosecution and declination decisions but ultimately determined not to make a traditional prosecutorial judgment.”

FROM ROBERT S. MUELLER III

Vol. II, Page 2: Second, while the O.L.C. opinion concludes that a sitting president may not be prosecuted, it recognizes that a criminal investigation during the president’s term is permissible. The O.L.C. opinion also recognizes that a president does not have immunity after he leaves office. And if individuals other than the president committed an obstruction offense, they may be prosecuted at this time. Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.

In his letter to Congress, Mr. Barr did not explain that Mr. Mueller was trying to leave open the possibility that prosecutors in the future, after Mr. Trump leaves office, could look at the evidence he gathered and decide then whether to indict Mr. Trump. That rationale — which stemmed from the view of the Justice Department’s Office of Legal Counsel, or O.L.C., that sitting presidents cannot be indicted but former presidents lose such immunity — conflicted with Mr. Barr’s move to pronounce Mr. Trump cleared now.

FROM WILLIAM P. BARR

“The special counsel therefore did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction. Instead, for each of the relevant actions investigated, the report sets out evidence on both sides of the question and leaves unresolved what the special counsel views as ‘difficult issues’ of law and fact concerning whether the president’s actions and intent could be viewed as obstruction. The special counsel states that ‘while this report does not conclude that the president committed a crime, it also does not exonerate him.’”

Mr. Mueller used those two phrases twice, in slightly different formulations:

FROM ROBERT S. MUELLER III

Vol. II, Page 2: Fourth, if we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the president’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the president committed a crime, it also does not exonerate him.

Vol. II, Page 8: Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the president’s conduct. The evidence we obtained about the president’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the president committed a crime, it also does not exonerate him.

In his letter, Mr. Barr did not explain why the special counsel had demurred from making any prosecutorial judgment on obstruction beyond a cryptic reference to what he said Mr. Mueller had described as “difficult issues” of law and fact. His suggestion was that these unspecified issues prevented Mr. Mueller from making a call “one way or the other.” In fact, Mr. Mueller made clear that the difficulties resided in accusing Mr. Trump of committing a crime; if the facts had exonerated him, he would have been willing to say so.

Attorney general may withdraw from Mueller report hearing over terms of his testimony, House Democrats say

Democrats and the Justice Department are in a standoff over the terms of Attorney General William P. Barr’s planned testimony before the House Judiciary Committee this week, raising the prospect that the hearing might not go forward at all.

A senior Democratic committee aide said Sunday that Barr risks being subpoenaed if he refuses to testify over his objections to the lawmakers’ desired format for the hearing.

Barr is expected to appear before the Senate and House Judiciary committees Wednesday and Thursday, respectively, to address questions about special counsel Robert S. Mueller III’s report on Russian interference in the 2016 election. But according to senior aides for the panel’s chairman, Rep. Jerrold Nadler (D-N.Y.), Justice Department officials have objected to Democrats’ plans to permit extended questioning, including by the committee’s lawyers, and threatened that Barr may withdraw.

“The attorney general agreed to appear before Congress,” Justice Department spokeswoman Kerri Kupec said in a statement. “Therefore, members of Congress should be the ones doing the questioning. He remains happy to engage with Members on their questions regarding the Mueller report.”

.. Democrats maintain that statements and letters Barr issued before releasing Mueller’s redacted report have helped Trump make a case to the public that the special counsel investigation exonerated him, despite what they believe to be a wealth of incriminating evidence detailed throughout the 448-page document. A televised hearing is seen among lawmakers as their opportunity to hold Barr to account and make their case to the American people.

Daniel Schwarz, a spokesman for Nadler, said Sunday, “It would be a shame if Barr refused to show up for the hearing, but it is important that there be a chance to ask follow-up questions as has been done in the past, and members should not be prohibited from asking about redacted sections of the Mueller report, which means we would need to go into executive session in order for Barr to be able to answer in a secure setting.”

.. Democratic members think it’s important, given Barr’s past testimony and what they viewed as his attempt to shape the narrative on Mueller’s report, that he be subjected to extended questioning, including by committee lawyers, said one congressional aide familiar with the matter, who spoke on the condition of anonymity because of the sensitivity surrounding Mueller’s report. Ordinarily, each member gets five minutes for questioning.

Democratic lawmakers “have seen administration witnesses filibuster for 4½ minutes, then say something nonresponsive in the last half-minute,” the aide said. “The Democratic members have been nearly unanimous in their opinion that circumstances warrant extended questioning, including by counsel.

Democrats also want to reserve the right to vote to have Barr participate in a closed-door session following his public hearing to address questions about the information that remains shrouded by redactions in Mueller’s report, aides said.

But according to Nadler aides, Barr’s team objected to that proposal as well and said such a demand would prevent Barr from delivering his testimony as anticipated.

A Justice Department official came back to the committee Democrats on Friday “very worked up about” Nadler’s plan, and said that if the Democrats insisted on following their plan, Barr “might not come,” the aide said.

The chutzpah of telling us how the hearing is going to be structured and then threatening to walk goes directly to our working thesis that [Barr] is interested in carrying water for the president but not interested in providing answers to the public,” the aide said.

The committee staff have researched other instances in which committee lawyers have questioned Cabinet officials during open congressional hearings, the aide said. The last time was during the 1980s, when President Ronald Reagan’s attorney general, Edwin Meese, gave testimony during the Iran-contra hearings, the aide said.

“The attorney general can choose to come in voluntarily under the chairman’s framework or risk being subpoenaed at a later date,” the senior aide said.

Barr and Democrats have long been at odds over the Mueller report and how the attorney general has handled its rollout. Many Democrats say Barr misrepresented Mueller’s findings in his public statements before the report’s release, and the party as a whole is frustrated that Barr has not taken further steps to ensure that all members of Congress are able to view the information that was redacted.

Barr’s most recent offer was that a select group of lawmakers, including several committee chairs, be allowed to view the redacted information, except for passages that cite grand jury testimony. Democrats have rejected that offer, arguing that more members and staffers should be privy to the redactions, and that Barr should assist lawmakers in seeking a court order to release the grand jury testimony to them.

A spokesperson for committee Republicans said Barr “wasn’t asked to testify before the committee — he offered.” The attorney general provided the Mueller report voluntarily and invited Democratic leaders to view a less-redacted version of the report in person, said the spokesperson, who like others spoke on the condition of anonymity to discuss sensitive information.

“Yet the only thing, apparently, that will satisfy Democrats, who refuse to read the less-redacted report, is to have staff pinch-hit when a Cabinet-level official appears before us,” the spokesperson said. “What actual precedent is there for our committee making such demands of a sitting attorney general as part of our oversight duties? The attorney general isn’t a fact witness, and this committee’s investigations — as Democrat leadership reminds us daily — don’t constitute impeachment, so Democrats have yet to prove their demands are anything but abusive and illogical in light of the transparency and good faith the attorney general has shown our committee.”