Whatever it lacks in legal merit, the latest motions from Roger Stone’s legal team more than make up in chutzpah. A blizzard of filings that Politico calls a “Hail Mary” play aim at getting Stone’s indictment dismissed, or at least to make it as painful as possible to pursue. Some of the demands are retreads, but one in particular might create some headaches for Robert Mueller and the Department of Justice:
The longshot arguments, some of which have already been considered and rejected by judges in the same courthouse, suggest that Mueller’s appointment was unconstitutional because he wasn’t commissioned directly by President Donald Trump. Stone also argues that the Justice Department improperly funded Mueller’s investigation because the pot of money supporting his probe wasn’t explicitly authorized by Congress. He separately contends that he has been selectively targeted by Mueller because of his closeness to Trump. …
In addition to arguing that his indictment should be tossed, Stone is seeking access to the full contents of Mueller’s final report on links between the Trump campaign and the Kremlin, arguing that he has a unique right to see the report and review any evidence it may contain that is relevant to his defense.
“His lawyers must be allowed to review the Report in its entirety because it contains the government’s evidence and conclusions on matters essential to Stone’s defense,” Stone’s attorney Robert Buschel wrote in the filing.
Stone’s hardly the only one with an interest in the unredacted report. Wouldn’t it be delicious if House Judiciary chair Jerrold Nadler filed an amicus brief in support of Stone’s motion? Politics make strange bedfellows indeed.
The rest of the challenges look less than promising. Courts have repeatedly ruled that Mueller’s appointment was constitutionally sound, including a unanimous decision by the DC appellate circuit. The DoJ has the authority to redirect funding to a special counsel as needed; in fact, Congress repeatedly challenged the DoJ to prove that they weren’t trying to starve Mueller into stasis. It doesn’t do any damage to file the motions, but they’re unlikely to do Stone much good other than generate a little publicity over the weekend.
In other words, the raw Mueller report is the real prize here. Would Stone have a right to see the full Mueller report without redactions? Defendants in criminal trials generally have a right to see all of the evidence collected by law enforcement relevant to the charges in the case. That’s why the government occasionally chooses not to prosecute espionage even when they have evidence to support a conviction, if the evidence gives away sources and methods. When that happens, the DoJ will opt to prosecute on other charges to avoid exposing critical intel in the discovery process — or drop the prosecution altogether.
What are the charges in Stone’s case? Well …
Stone is facing seven charges connected to his testimony before the House intelligence committee in its investigation of Russian interference in the 2016 election and whether any Trump associates participated in the scheme. He faces one charge of obstructing the House [probe], five charges of making false statements and a charge of witness intimidation for his communications with another witness, Randy Credico.
All of these are process crimes, which is all Mueller ever charged any US person with committing in the entire probe. The report states that there was no collusion on the part of any Trump campaign figure and Russian intelligence anyway, which make it seem unlikely that the redacted portions of the report would matter to the charges Stone faces. However, the obstruction and false statements allegations relate to contact with the Trump campaign and Wikileaks, which might involve some source-and-method concerns:
Stone was not charged with any crimes related to communicating with WikiLeaks about its activities, and he has repeatedly denied that he conspired with the group.
The 24-page indictment of Stone alleged that a senior Trump campaign official was directed by an unnamed person to contact Stone as soon as WikiLeaks began publishing Democratic emails.
The indictment also asserts that Stone communicated about WikiLeaks with “a high ranking Trump Campaign official,” whose emails in the filing match those of former campaign chief executive Stephen K. Bannon. And, according to prosecutors, Stone received a query about the group’s activities from a “supporter involved with the Trump campaign.”
Those are issues that were clearly within the scope of Mueller’s probe, but they also appear to be charges based on data rather than grand jury testimony. If William Barr is as parsimonious with redactions as he has pledged, anything to do with those charges will likely be in the public version of the report. Mueller would known to make sure the obstruction and false statements charges could be tried in open court anyway, and the witness intimidation charge would have little to do with any of the report. The best that Stone could hope to accomplish in the short run would probably to have the court appoint a special master to review the redacted portions and report back if any of them relate to any legit defense Stone could mount against obstruction and false statement charges.
Maybe that’s enough to worry prosecutors, or so Stone and his legal team have to hope. If they have to turn over the unredacted report, for which his attorneys argue that “no other person, Committee, or entity has Stone’s constitutionally based standing,” then maybe prosecutors would be encouraged to retreat from the case. So far Mueller and his team haven’t shown any indications of retreat from any indictment, which makes this a grand bluff, if not a Hail Mary play. Let’s see if Mueller and Barr call him on it.