Like a bad episode of Law and Order, Roger Stone pulled his latest argument in court right from the headlines. If Attorney General William Barr argues that one cannot prove an obstruction charge if no underlying crime existed in the investigation, then how can the Department of Justice prosecute him? After all, Stone’s attorneys argue, if that’s good enough for the president, it ought to be good enough for him.
Prosecutors, as one might imagine, have a slightly different perspective. Stone’s argument neglects some important context:
“To establish the defendant’s guilt of the crimes with which he is charged, the government is not required to prove the existence of a conspiracy with the Russian government to interfere in the U.S. presidential election,” Mueller’s team, along with the U.S. attorney in Washington D.C., wrote in response to filings Stone submitted on March 28. …
Barr argued that without proof of a conspiracy — the foundation of Mueller’s probe — Trump’s conduct must be viewed through a different lens, especially because as president, he had the inherent authority to fire Mueller and even, in Barr’s view, shutter any investigation he deems unfair and detrimental to his ability to govern.
Stone had pointed to these arguments to undercut Mueller’s prosecution against him, but prosecutors in the case said the arguments were both irrelevant — because they related only to the president — and misinterpreted.
“The indictment alleges, and the evidence admitted at trial will show, that after the 2016 U.S. presidential election, the [House and Senate Intelligence Committees], and the Federal Bureau of Investigation all opened or announced investigations into Russian interference in the 2016 U.S. presidential election,” prosecutors wrote. “The defendant acted corruptly to obstruct those investigations. And the defendant’s actions were capable of influencing the investigations. That is all the law requires.”
What’s the difference between Stone and Trump on obstruction? For one thing, prosecutors allege that Stone conducted specific acts of obstruction. For all of Trump’s venting and threats, Trump never actually took an obstructive act, except potentially to ask James Comey to take it easy on Michael Flynn and to fire Comey a few weeks later. Neither of those were obstructive on their face, however; as Barr argued, neither act was inherently illegal, so one would have to prove a corrupt intent.
Without an underlying crime, Barr argued, it would be nearly impossible to prove that Trump had a criminal intent to block the probe by using authority granted to him by the Constitution, especially since he never did take any action to shut it down when he also had that authority. Everything else in the Mueller report came down to Trump throwing tantrums and making demands that no one took seriously enough to undertake — which is why those didn’t amount to obstruction. Arguably, anyway, even though they certainly don’t paint Trump in a very positive light.
In contrast, prosecutors allege in their indictment that Stone took specific and corrupt acts to thwart investigations not just by the FBI and special counsel, but also Congress:
If true, all of those actions would be illegal on their face, and not part of some constitutional authority subject to a dissection of motive. Also, the defense argument overlooks another inconvenient detail, which is that only one of the seven counts on Stone is explicitly an obstruction charge. He also faces five counts of making false statements to investigators, all of them in his testimony to the House Intelligence Committee, and a seventh count of witness tampering. Assuming that prosecutors can prove those charges, they would apply whether the investigation turned up a Russia-collusion scheme or not.
Trump was smart enough to keep himself out of a perjury trap and to keep from making too much contact with other witnesses. Allegedly at least, Stone wasn’t.
Basically, this is a Hail Mary play, similar to a demand from Stone’s attorneys three weeks ago to gain access to the full, unredacted Mueller report. Prosecutors responded to that argument yesterday too by saying lotsa luck:
Roger Stone’s lawyers have no legal entitlement to an unredacted version of Special Counsel Robert Mueller’s report on Russian interference with the 2016 U.S. presidential election and possible obstruction of that probe by Donald Trump, U.S. prosecutors said in a court filing Friday evening. …
“Neither the rules governing discovery nor any other legal authority supports Stone’s request for this document,” prosecutors said in the filing in the case before U.S. District Judge Amy Berman Jackson in Washington. “Moreover, the government is already providing Stone with the evidence relevant to this case arising out of the Special Counsel’s investigation.”
That demand got filed with the court before the release of the Mueller report. The lack of massive redactions probably mooted this effort anyway. They may have anticipated that Barr would heavily redact the report, including the portions relevant to Stone. Instead, almost all of the report got published, with few redactions in relation to Stone. That basically cut off any leverage Stone’s attorneys may have hoped to use to get the government to drop the case by putting the redactions in the clear. (Democrats are presently trying to do so anyway, which would also pre-empt that strategy.)
Berman Jackson will rule on these motions in three weeks or so, but nothing here looks like it has much of a chance in altering the trajectory of Stone’s prosecution. They certainly are entertaining, though.