U.S. prosecutors urged a judge Friday to reject Trump confidant Roger Stone’s request to throw out his indictment in special counsel Robert S. Mueller III’s Russia investigation, including rejecting Stone’s claim that the Justice Department improperly funded the probe using money Congress set aside for “independent” instead of “special counsels.”
The distinction may seem technical, but prosecutors devoted a considerable portion of filings to Stone’s novel argument, which is centered on what Congress meant when it authorized the Justice Department under a 1987 law “to pay all necessary expenses of investigations and prosecutions by independent counsel appointed pursuant to the . . . law.”
Stone, 66, who has pleaded not guilty to charges of lying to Congress and obstructing justice, argued via his attorneys that Congress allowed the independent counsel statute to expire in 1999. Mueller was appointed special counsel under rules the Justice Department set up later, but Stone claims Congress should have changed its funding law.
U.S. District Judge Amy Berman Jackson of Washington has set a May 30 hearing to decide the question, but in a 44-page brief, prosecutors said that Mueller’s appointment was valid and noted that the Justice Department has repeatedly paid other special counsels under the statute. “The text, history, and long-standing practice, as approved by Congress, confirms that view,” prosecutors for Justice argued in the brief.
“Contrary to Stone’s interpretation, in legal circles the term ‘independent counsel’ has regularly been used to describe” attorneys specially named to conduct sensitive investigations with assurances of independence, Assistant U.S. Attorney Jonathan Kravis of Washington said.
Backing that view, they cited the department’s funding of special counsels appointed in 1999 to investigate the events surrounding a law enforcement assault on a religious group’s compound in Waco, Tex., and in 2003 to investigate the leak of the identity of CIA employee Valerie Plame.
Even if there were a technical error, prosecutors said, Stone’s proposal would do more public harm than good. The seven-count grand jury indictment of Stone was valid; the investigation, charge, and prosecution were authorized by and carried out with other Justice Department personnel; and the agency would have funded Mueller’s using other money, they wrote.
Stone faces trial Nov. 5 on charges that he lied about his efforts to gather information about Democratic Party emails that were hacked by Russian operatives during the 2016 presidential campaign and released through the anti-secrecy group WikiLeaks and others.
Separately, prosecutors also opposed Stone’s defense team’s motions to be provided with a full, unredacted copy of Mueller’s report, and to find that the indictment accusing Stone of lying to Congress violates the Constitution’s separation of powers clause, because Congress did not refer his case to the Justice Department for investigation.
Prosecutors said the Justice Department is empowered to prosecute crimes against Congress such as lying, obstruction and witness tampering without a referral, because the charging statues do not require any such referral.
If anything, prosecutors said, greater separation-of-powers concerns would arise if the Justice Department were barred from charging witnesses with lying to Congress without a congressional referral. That would require the legislative branch to “play an indispensable role in the [executive] decision whether to prosecute a federal crime,” they wrote.