Roger Stone was arraigned on Tuesday. After he was arrested last week, he presented himself on the courthouse steps as a conquering hero. Does he have any idea what’s really in store for him?
It’s rare that a federal indictment – particularly one criminally charging an associate of the president of the United States – directly invokes a Godfather movie character. But then again, how often do we see headlines such as “President Trump Brings Mafia Ethics to the GOP” or “Donald Trump’s Mafia Mind-Set”? And now, Roger Stone, the latest Trump-related (alleged) obstructionist to face Special Counsel Robert Mueller’s steamroller, didn’t really leave a comparison to chance.
In allegedly having told “Person 2,” widely believed to be conservative radio personality Randy Credico, to not contradict Stone’s own 2017 testimony before the U.S. House Permanent Select Committee on Intelligence, Stone flatly told Person 2 to “do a Frank Pentangeli,” according to the indictment. Who hasn’t seen Godfather II? Michael Corleone walks into the Senate hearing with the brother of Frankie “Five Angels” (Pentangeli) as Frankie is about to testify publicly. Seeing his brother next to Corleone, Pentangeli tells the Senators: “I don’t know no godfather;” “The FBI guys promised me a deal. So I made up a lot of stuff . . . cause that’s what they wanted,” even though he earlier swore in an affidavit to the entire Corleone family structure, and that he killed on Michael’s orders.
Now, this is not to suggest in any way that Stone was even subtly threatening to kill anyone, as was clearly the case in the movie (and trying compare Trump machinations to mafia behavior is unfair). But to “do a Frank Pentangeli” is – no question – to lie under oath. True, the movie is far different than the allegations about Stone’s real-life “do a Frank Pentangeli.” Here, it is claimed, Person 2 actually told Stone to amend his own testimony – presumably to now tell the truth – before Person 2 would be forced to contradict it under oath. The problem for Stone is that, unlike in Godfather II, Mueller obviously has independent proof of Stone’s wrongdoing – either by virtue of Person 2’s own admission, tape recordings, emails or texts, or all of the above.
Now, Stone may try to wiggle out of the natural implication of the “Pentangeli” reference by arguing that what he really meant was that Person 2 should put on a Hollywood-like dramatic performance before the House Committee like Pentangeli did, seeking to draw attention away from his Godfather. And maybe some jurors might believe Stone’s story. After all, Stone has amazingly played that card for more than one president, Nixon being the most notable.
There’s more, though, and it’s something the press didn’t really talk about much. Stone, the indictment charges, told Person 2, “Because of Trump, I [Stone] could never get away with a certain [likely, autocorrect for “asserting”] my Fifth Amendment rights but you can. I guarantee you[,] you are the one who gets indicted for perjury if you’re stupid enough to testify.” Okay, so every sixth grade kid who’s ever watched even one Law and Order episode knows that everyone has the right to take the Fifth. What’s more, most any attorney who doesn’t give advice to his client to clam up may well be committing malpractice.
So, and here’s the message, while it’s perfectly proper and legal for one’s attorney to advise his client to invoke the Fifth Amendment privilege, case law makes it an outright crime – “obstruction of justice” – for a subject or target of an investigation to tell a potential witness against him to take the Fifth. In other words, it is entirely legal to take the Fifth, but illegal to encourage another to do so if the goal is to protect yourself, i.e., when having a corrupt motive. U.S. v. Cioffi, 493 F 2d 1111.
It is not uncommon for organized crime families to conduct themselves using the omerta code – as real life “made man” Jimmy “the Weasel” Fratianno testified, “you can’t go to a grand jury and tell the truth; you can’t testify in no way say nothing.” What is significant in the stream of Mueller indictments, however, is that these omerta tactics are coincidentally what Trump’s people, when faced with a subpoena, seem to be about. And unlike the mafioso of Mario Puzo’s day, who never put anything in writing and never even imagined emails or texts, the Trump crowd should have known better. Prosecutors like Mueller needn’t always rely on testimony – even recalcitrant testimony. They sometimes are simply able to obtain the information they need in black and white, with all the meta data and an incriminatingly connective date in the upper left hand corner of the email.
Whether the message Michael Corleone was sending Pentangeli by bringing his brother from Sicily into the Senate Committee chamber was designed to have Pentangeli lie or, rather, shut up, Michael managed to accomplish his goal, without a word written or uttered. Not the same, though, for Roger Stone – as we’ll surely see at trial.
Joel Cohen practices white collar criminal law at Stroock & Stroock & Lavan LLP and is an adjunct professor at Fordham Law School. He is the author of Blindfolds Off: Judges on How They Decide and Broken Scales: Reflections on Injustice. Dale Degenshein is special counsel at Stroock and contributed to Broken Scales.
[Image via Bloomberg screengrab]