Flipping Roger Stone

Flipping Roger Stone

FORT LAUDERDALE, FLORIDA - JANUARY 25: Roger Stone, a former advisor to President Donald Trump, leaves the Federal Courthouse on January 25, 2019 in Fort Lauderdale, Florida. Mr. Stone was charged by special counsel Robert Mueller of obstruction, giving false statements and witness tampering. (Photo by Joe Raedle/Getty Images)

As a federal prosecutor working organized crime cases, I routinely staked trials on testimony from some of the worst human beings on the planet.  Prosecutors call them “cooperating witnesses,” defendants and defense attorneys call them “rats,” “snitches” and worse, and trials often turn on their testimony.  One of my star cooperators shot so many people during his career as a mob enforcer that he couldn’t count them all, so we had him give the jury an estimate (about 30 to 35, he testified).  Another described how he lured his friend into the woods, then beat him over the head with a shovel before dumping him into a shallow grave.  One cooperator explained how he engineered a series of home invasions in which victims were woken up in the middle of the night, zip-tied and pistol-whipped.  Another particularly remorseless cooperator testified that he shot a dog to get even with the owner.  Yet another cooperator had a large tattoo reading “GOD” across his chest; when I asked if that meant he believed in God or he thought he was God, he responded, “Both.”  Bottom line: I was never squeamish about relying on cooperators, even those with staggering criminal baggage.

That said: Roger Stone just might top them all.  No, Stone hasn’t done anything remotely as violent or horrible as my old stable of mafia cooperators.  But, from a prosecutor’s point of view, everything with cooperators comes down to one thing: credibility.  Give me a mobster or murderer or a leg-breaker as a star witness any day, if he has fully admitted what he did.  What keeps prosecutors up at night are the snakes –  the cooperators who lie and cheat and scheme.  Cooperation isn’t a popularity pageant; it’s a credibility contest.

At first glance, Stone seems both extraordinarily slippery and exceedingly unlikely to cooperate.  His career is marked by overarching hostility to the law, fair play and the truth.  Stone started his political career in the 1970s, working for Richard Nixon.  As would become a career hallmark, it was unclear what exactly Stone did; he boasted that he worked as a scheduler during the day but “[b]y night, I’m trafficking in the black arts.”  Stone’s back is adorned with a large tattoo of Nixon’s face.  In 1980, Stone co-founded the lobbying firm Black, Manafort, Stone and Kelly.  (Yes, that’s Manafort as in Paul; the firm now is two-for-four in having its principals federally indicted).  In the 1980s, Stone began to work for Donald Trump, lobbying for Trump’s casino business.  Stone has continued to work for Trump on and off since then. Throughout his career as a political operative, Stone has espoused hyper-aggressive theories you’d expect to hear from a college sophomore who has just read Sun-Tzu for the first time:  “Admit nothing, deny everything, launch counterattack.

Stone publicly declared in mid-2018 that he expected to be indicted by Mueller, decrying the investigation as “an effort to silence or punish the president’s supporters and his advocates.”  Stone has remained openly defiant of Mueller ever since.  In December 2018, Stone flatly declared, “there is no circumstance under which I would testify against the President.” Trump in turn tweeted his support for Stone’s vow of silence: “Nice to know that some people still have ‘guts!’”  After his arraignment on Friday, Stone reiterated from the courthouse steps that he “will not plead guilty to these charges.

All in all, seems like a pretty clear no-go.  But let’s step back for a moment.  I’ve seen plenty of people cooperate who once seemed even less likely to flip than Stone.  Every one of my mafia cooperators took a blood oath when they joined an organization whose fundamental principles require that cooperators be put to death.  Indeed, several of my cooperators pled guilty to murdering people because those people were suspected of cooperating.  So if my cooperators could turn on the mob, in violation of their blood oaths and at the risk of their own lives, then Stone can flip against a testy politician with a quick twitter thumb.

Perhaps even more relevant here, everybody else in Mueller’s sights has flipped, or tried to, no matter how loyal they once were to Trump.  Former campaign adviser and national security adviser Michael Flynn:  flipped.  Manafort:  tried to flip but failed because he lied.  Rick Gates, George Papadopoulos: flipped and flipped.  Perhaps most notably, Trump’s former personal attorney and head cheerleader Michael Cohen – who once declared he would “take a bullet” for Trump – wound up cooperating with Mueller and implicating Trump in crimes.  So, when it comes to Stone cooperating, I’m still firmly on “unlikely’ but far from “impossible.”

So what would it take to turn Roger Stone into a government witness?  I see three areas of vulnerability.  First, a prosecutor would need to appeal to – perhaps exploit – Stone’s natural sense of self-preservation.  For all the trouble he has been mixed up in over his long career, Stone has never been at any real risk of serving time behind bars.  Friday’s indictment might change his bearing a bit.  It’s one thing to rail publicly against the possibility of a theoretical future indictment, but another to see seven federal criminal charges, carrying a total maximum sentence of 50 years, in black and white.  As a practical matter, Stone isn’t looking at anything close to 50 years, but he easily could be facing five years or so if convicted on all counts.  For a 66 year-old man like Stone, that could mean most or all of the rest of his life, which has to be at least a bit sobering.  And the evidence laid out in the indictment seems locked in; over and over again, the indictment quotes Stone’s lies and then cites hard proof – typically Stone’s own texts – to prove that he lied.  A good prosecutor could make a compelling case that cooperation offers Stone his best and most realistic chance to get through the case without having to serve time.

Second, as much as we don’t like to acknowledge it in our quest for pure justice, money matters.  It is expensive to defend yourself in federal court, and it is jaw-droppingly costly to go to trial.  Stone has flashed vulnerability on this, declaring that he faces legal fees of $2 million – not an outrageous estimate, if a trial is involved – while noting that he is “not a wealthy man” and begging for crowdfunded donations.

Third, Stone is nothing if not ego-driven.  We all are, of course, but Stone’s in his own league.  A prosecutor might therefore make a pitch to Stone along these lines.  You can stay quiet, you can be a “stand-up” guy, you can fight the government and maybe even go to trial.  Trump will send nice tweets about you, you’ll have a heavy media following for a couple years, but ultimately you’ll be a strange footnote in history.  Or you can flip and be John Dean.

Of course, there’s one trump card – sorry, it’s just the right word – that could override all of this:  a presidential pardon.  A pardon is the golden ring for Stone.  He’d walk free and it costs nothing.  Many took Trump’s tweet supporting Stone’s silence as a hint of Trump’s inclination to issue a pardon.  Perhaps the best response then is to remind Stone that he’d be taking an awfully big roll of the dice on the generosity of a guy not exactly known for it.  Stone knows Trump’s personality: do you think Trump would do a favor for you, I’d ask Stone, if it meant putting himself in one ounce of political jeopardy over the backlash?  Trump’s already got enough problems, legal and political, without taking on any more water to protect a far-past-his-prime political brawler.

If Stone somehow did see the light and cooperate, the rewards could be dizzying.  If Stone did come clean, imagine what he could deliver.  Starting with Friday’s indictment, Stone presumably could identify the “senior Trump Campaign officials” he spoke with about Wikileaks and dissemination of hacked e-mails – including, most tantalizingly, the person who “directed” a “senior Trump Campaign official” to contact Stone about the Wikileaks releases.  Stone also could bolster a long-rumored case against Wikileaks founder Julian Assange, identified as “the head of Organization-1” in the indictment.  And that’s just based on Friday’s indictment, without even getting into Stone’s decades of political rough trade.

Stone remains unlikely to cooperate.  But I’ve seen crazier things happen.  If a prosecutor played it just right, he just might press the right buttons of self-interest and grandeur necessary to get Stone in the door.  And if that happened somehow, Stone would pose a unique threat to Trump and his administration.

Elie Honig served as an Assistant U.S. Attorney in the Southern District of New York for 8.5 years and as the Director of the Division of Criminal Justice at the Office of Attorney General for the State of New Jersey for 5.5 years.  He is currently a legal Analyst for CNN and Executive Director at Rutgers Institute for Secure Communities