Stone faces uphill battle in court

Stone faces uphill battle in court
© Aaron Schwartz

Roger StoneRoger Jason Stone3 real problems Republicans need to address to win in 2020 Judge rejects Stone's request to dismiss charges Judge dismisses DNC lawsuit against Trump campaign, Russia over election interference MORE is having a rough time in court.

The longtime Trump associate attended a 2 1/2-hour hearing in a D.C. courthouse Thursday, during which a federal judge repeatedly pressed his attorneys over their legal arguments, saying previous court rulings prevent her from ruling in their favor.

The high level of skepticism from Judge Amy Berman Jackson, an Obama appointee, suggests Stone faces a tough audience in his arguments ahead of a November trial.

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Among his requests: that he receive the redacted portions of the Mueller report relating to him; that the charges of lying to Congress and impeding a congressional investigation be dismissed; and that the indictment be invalidated because the special counsel's office was improperly funded.

Jackson, known for her no-nonsense demeanor, did not make any rulings during the hearing. But her line of questioning offered clues as to which way she might be leaning.

At one point, Jackson said she didn't believe that Stone's lawyers were accurately depicting the charges against him. During a back-and-forth about what kind of documents Stone should be allowed to obtain, Stone's attorney Robert Buschel said the Republican operative was charged with lying about his interactions with others about WikiLeaks.

"I’m not even sure if that’s true," Jackson replied, before noting that it was unrelated to the motion before her.

Stone, wearing a gray double-breasted suit, did not speak publicly during the hearing, but could be seen quietly talking with his legal team during the proceedings.

His court appearance follows an indictment earlier this year for allegedly lying to Congress about who he claimed was his back channel to WikiLeaks, telling lawmakers that it was associate Randy Credico when emails obtained by the special counsel indicate that it was another associate, Jerome Corsi.

He is also charged with impeding a congressional investigation and for witness tampering. Stone has pleaded not guilty to all charges.

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During another notable exchange on Thursday, Jackson pointed out that one of Stone's legal arguments — that the executive branch can't investigate the president — wouldn't hold up since the Supreme Court has already stated that authority exists.

She also asked why Stone's lawyers were citing a dissent written by the late Justice Antonin Scalia in their argument, instead of any case law.

"Is there any reason why, as a district court judge, I’m supposed to apply to the law a dissent, no matter how well-written or thoughtful one might consider it to be?" Jackson asked, noting that any decision contrary to Supreme Court precedent would face a "likely prompt reversal."

Stone attorney Bruce Rogow replied that Jackson was likely bound by that precedent to rule against Stone.

In a later argument that Jackson said was also unlikely to hold up in court, Rogow said that even if Jackson had to rule against Stone, she could note in her opinion that she disagreed with the legal precedent.

"I appreciate that advice," Jackson said, noting that she has "probably" issued opinions making those kinds of notations. "If I agree with you, I'll consider that option."

Buschel argued that Stone should never had been charged with lying to Congress because the House Intelligence Committee, which heard Stone’s testimony, didn't refer Stone to the Justice Department for prosecution.

Jackson responded by saying that when the lawmakers voted to hand over the transcript to special counsel Robert MuellerRobert (Bob) Swan MuellerLewandowski says Mueller report was 'very clear' in proving 'there was no obstruction,' despite having 'never' read it Fox's Cavuto roasts Trump over criticism of network Mueller report fades from political conversation MORE, they stated that it could be used for any purpose.

Justice Department lawyers on Thursday noted that Stone held a press conference after delivering his statement to the House Intelligence Committee, during which Stone said he didn't think all of the committee members believed his remarks.

They said that Stone was essentially drawing attention to himself for having potentially made false statements to Congress. Jackson suggested the special counsel shouldn't be expected to ignore public comments that Stone made during the course of the investigation.

Still, Jackson indicated she might be willing to give Stone access to some of the information in the Mueller report on his investigation that has been, so far, shielded from public view.

Stone has been arguing that the redacted information in the 448-page report pertaining to his case are necessary for him to build a defense.

Justice Department attorneys have argued against giving him the report, saying he has all the evidence pertinent to his upcoming trial.

Jackson earlier this month ordered the Justice Department to give her the redacted parts of the Mueller report relating to Stone for private review as she weighed whether to allow him access to those portions. She said Thursday that she was not given the full Mueller report.

She said she might ask the Justice Department to rework some of the redactions made in his section to allow him to see more of the details included in there, especially since parts of those sections have already been made public.

But Jackson was wary of a more recent argument put forth by Stone: that the special counsel unfairly targeted him for prosecution.

She rattled off the names of other individuals who have been indicted as part of Mueller's investigation, including Paul ManafortPaul John ManafortUkraine could badly damage both Donald Trump and the Democrats Lewandowski refuses to say whether Trump has offered him a pardon Democrats return to a battered Trump MORE, Michael Flynn and Richard Gates, asking how Stone could claim he was being unfairly targeted when others have also been prosecuted.

Buschel said that Stone's legal team believes that other people who testified before the House Intelligence Committee and the special counsel — specifically Credico and Corsi — may have lied, and won't face charges.

Jackson said the government has the authority to decide which individuals to prosecute, as long as they don't violate constitutional protections like discrimination on the basis of race or sex.

Stone's legal arguments at times seemed to focus on the grammar of legal statutes; for example, whether a rule relating to the funding of independent counsels also applied to Mueller's office because Independent Counsel was capitalized in the statute.

A similar issue was raised pertaining to a rule on the obstruction charges leveled against Stone, on whether there was an Oxford comma between elements of the statute.

Stone had attempted to get a new judge in the case, but was rejected by Jackson this week for a second time.

Jackson slapped Stone with a gag order in the case after he posted an image of the judge on Instagram that depicted a crosshairs in the corner. He claimed that he took the image from another source and didn’t see the crosshairs, but Jackson still ordered him to stop talking to the media about his case.

Jackson's rulings on the motions argued before her on Thursday are likely to be issued in the coming weeks.

Stone has filed other motions that have not been fully responded to through court filings, meaning Jackson will have other arguments to consider in the future.