Silver linings, people, silver linings. When one looks down the barrel of a federal indictment for perjury and obstruction, one has to watch for the small victories. Through his attorney, Roger Stone claimed some vindication from today’s indictment and arrest, while claiming the rest was the result of “forgetfulness”:
JUST IN from @SaraMurray from Stone's attorney:
“Roger Stone is vindicated by the fact there was no Russian collusion,” adding that Stone received no materials from WikiLeaks ahead of their release.
He said Stone’s misstatements were due to forgetfulness and were “immaterial”
— Allie Malloy (@AlliemalCNN) January 25, 2019
First, let’s remember that indictments aren’t convictions; they aren’t even evidence in and of themselves. With that said, Stone’s attorney is asserting two common defenses against perjury. Both are why it’s not easy to get convictions on such charges, and why it might have taken this long for Robert Mueller to act against Stone.
Materiality is certainly a defense against false testimony, but “forgetfulness” isn’t likely to work. In order to be guilty of perjury, the government has to prove that a defendant (a) gave false testimony under oath, (b) knew that the testimony was false, and (c) the testimony had a material impact on the proceedings in which this testimony was offered. In other words, if you testify under oath in a burglary trial, stating that your hair is your own when you’re wearing a toupee, that would only matter if the hair was relevant to the evidence being offered. Otherwise you’re just being vain, and no prosecutor would charge you with perjury.
Similarly, if a jury believes the charges to be so technical that it would be difficult for a reasonable person to recall specific events, they might buy forgetfulness over a real intent to mislead. After all, reasonable doubt applies here just as it does in any other criminal prosecution. That’s a high bar for a prosecutor to clear.
So what were Stone’s false statements? The six counts of false testimony in the indictment allege:
- Stone lied when he claimed that he had no records pertinent to the House Intelligence Committee’s probe
- Stone lied when he claimed not to have sent or received e-mails and texts relating to the hacked e-mails
- Stone lied about the timing of his contacts with “Person 2” about Julian Assange, and had actually contacted “Person 1” rather than “Person 2”, which he did not disclose
- Stone lied when he claimed he never directed either to get more information about the hacked data, when in fact he asked both to get documents from Wikileaks
- Stone lied about never sending e-mails or texts to “Person 2”
- Stone lied about discussing all of the above with “anyone involved in the Trump campaign
It’s tough to argue that all of these are immaterial to the House’s purpose in investigating the issues surrounding the 2016 campaign, if — if — Mueller can prove these allegations in court. It’s also tough to establish forgetfulness on the first two, since there is a reasonable expectation that a subpoenaed witness would check to see if requested/demanded records exist before denying that they do. A jury is not likely to find “memory loss” as a reasonable explanation for this series of supposed senior moments.
Plus, let’s not forget (pardon the joke), that the questions of materiality and memory loss do not at all pertain to the witness-tampering charge. That charge might make it tough for Stone to sustain a memory loss defense, too:
e. On multiple occasions, including on or about December 1, 2017, STONE told Person 2 that Person 2 should do a “Frank Pentangeli” before HPSCI in order to avoid contradicting STONE’s testimony. Frank Pentangeli is a character in the film The Godfather: Part II, which both STONE and Person 2 had discussed, who testifies before a congressional committee and in that testimony claims not to know critical information that he does in fact know.
f. On or about December 1, 2017, STONE texted Person 2, “And if you turned over anything to the FBI you’re a fool.” Later that day, Person 2 texted STONE, “You need to amend your testimony before I testify on the 15th.” STONE responded, “If you testify you’re a fool. Because of tromp I could never get away with a certain [sic] 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.”
If Mueller’s team can establish this communication as genuine, and if Stone’s attorneys can’t establish any other context for demanding that Person 2 pull a Frankie Five Angels, it shows that Stone knew full well that he’d perjured himself.
Still, Stone’s attorney is correct that nothing in the indictment connects Stone to Russia or “collusion.” The 11 references to Russia in the indictment are all descriptions of the purpose of the congressional investigations. The word “collusion” never gets mentioned at all. With the exception of witness tampering, the indictment consists entirely of “process crimes,” not crimes that go to the core mission of the special-counsel probe.
Perhaps oddly, or perhaps not, the White House and Trump’s own attorney jumped on the “no collusion” message too, almost verbatim:
“There was no Russian collusion, it’s a clear attempt at silencing Roger,” Roger Stone’s attorney Grant Smith tells ABC News. “This was an investigation they started as about Russian collusion and now they’re charging Roger Stone with lying to Congress about something he honestly forgot about, and as Roger has stated publicly before, he will fight the charges,” Smith said.
President Donald Trump’s legal team weighed in with a statement from Counselor to the President Jay Sekulow.
“The indictment today does not allege Russian collusion by Roger Stone or anyone else. Rather, the indictment focuses on alleged false statements Mr. Stone made to Congress,” Sekulow said.
Earlier, in the initial White House comment, press secretary Sarah Sanders said on CNN, “Look my first reaction is real simple, this has nothing to do with the president and certainly nothing to do with the White House. This is something that has to do solely with that individual and not something that affects us here in this building.”
I wouldn’t be so sure of that, at least not yet. Mueller and his team have to know which “senior Trump Campaign official[s]” were connecting with Stone. Do any of them work in the White House now, or on Trump’s 2020 campaign? Stone’s attorney says he’ll fight the charges, but just how long that will remain the case is a potential question. For now, yes, there’s no Russia collusion, although the indictment paints an ugly picture of a presidential campaign toying with foreign hackers to attack its opponent. But Mueller’s not done yet, and maybe Stone isn’t either.
On the whole, Chris Christie’s reaction comes closest to the mark. No Russian collusion yet, but the campaign just got a little bit more connected to Wikileaks, too. The sound you’re not hearing is the popping of champagne corks.
Chris Christie on Roger Stone indictment: “When I read this indictment this morning, it once again proved out just how smart and careful Robert Mueller is being… This has got to be a very disturbing day for some senior members of the Trump campaign.” https://t.co/Lcrn8xPrds pic.twitter.com/O8B4zgen4W
— ABC News (@ABC) January 25, 2019