Attorneys for longtime Trump confidant Roger Stone urged a federal judge overseeing his criminal trial not to impose a gag order, citing his constitutional rights to free speech as a writer and political commentator, and asked to have his case reassigned to a different judge.
U.S. District Judge Amy Berman Jackson of Washington last week warned she might cut off public comments by parties and attorneys in Stone’s case after he went on a week-long media blitz following his indictment and arrest in special counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 U.S. election.
“This is a criminal proceeding, not a public-relations campaign,” Jackson said, suggesting both sides argue the case in court, “not on the talk show circuit,” or on “a book tour.”
She asked each side to inform her of its position on a proposal to set a gag order by Friday. In their reply, prosecutors with Mueller’s team and the U.S. attorney’s office for the District of Columbia did not oppose an order, citing a “substantial likelihood” that out-of-court comments will undermine a fair trial.
Stone, 66, a longtime GOP operative and self-described “dirty trickster,” has pleaded not guilty to charges of lying about his efforts to gather information about hacked Democratic Party emails that were published by the WikiLeaks organization.
In saying he should be free to comment during his case, Stone’s defense team played down his celebrity and the impact his comments might have on potential jurors.
“While Roger Stone may be familiar to those who closely follow American politics, he is hardly ubiquitous in the larger landscape of popular consciousness,” and has no Twitter account. “On Instagram, Kim Kardashian has 126 million followers. Roger Stone’s Instagram following amounts to 39 thousand subscribers,” his attorney wrote.
A seven-count indictment unsealed Jan. 25 alleges that Stone sought information about the emails before the election at the direction of an unidentified senior Trump campaign official. He faces charges of lying, obstruction and witness tampering, including by pressuring another witness to lie or refuse to talk to Congress.
In their eight-page response Friday, Stone’s defense said Stone should be “entitled to speak as he wishes” absent convincing evidence that his statements would make it impossible to seat an impartial jury.
“Roger Stone is a writer and a speaker,” wrote his defense team in a filing signed by Bruce S. Rogow and L. Peter Farkas. “To foreclose Mr. Stone’s exercise of his First Amendment rights on any subject would serve no compelling governmental interest.”
Stone’s attorneys added that no court order would limit outside commentators. “To silence a defendant who . . . will continue to be the subject, of unrestrained comment, speculation, opinion and criticism by the press would be particularly constitutionally suspect,” they said.
Prosecutors in their response noted Jackson’s observation that publicity in the case has been “fueled in large part by” Stone himself as he attacked the merits of the charges, evidence, credibility of witnesses and the prosecution’s motives.
Repeating phrases from the judge, the government noted she has said continued statements by Stone would create a substantial risk that “a much larger percent of the jury pool” will be “tainted by pretrial publicity.”
In a separate filing, Stone’s defense also asked that the case be reassigned from Jackson, a 2011 appointee of President Barack Obama who is also overseeing the criminal case of former Trump campaign chairman Paul Manafort.
Jackson drew the Stone case because prosecutors designated it as related to the Mueller probe prosecution of a dozen Russian military intelligence officers indicted in July on charges of hacking and sharing Democrats’ computers and emails to disrupt the 2016 election.
Prosecutors said the two share a common search warrant, and “there are activities which are a part of the same alleged criminal event or transaction,” according to Stone’s filing.
However, his lawyers added, “At first blush and without the benefit of discovery, there is nothing about these cases that suggests they are suitably related, other than they are both brought by the Office of Special Counsel.”
They said prosecutors should be required to turn over all evidence to support the allegation and asked the case to be randomly reassigned.
Jackson gave prosecutors until next Friday to reply to that request.
Stone, a veteran GOP operative and friend of Trump’s for four decades, briefly advised the presidential campaign in 2015 and remained in contact with Trump and top advisers through the election.
Prosecutors allege that in 2016, Stone repeatedly sought to learn when potentially damaging internal emails from Hillary Clinton’s campaign would be released, but after the election tried to cover up what he had done by lying about it in his testimony to Congress.
In Stone’s indictment, prosecutors alleged that after the initial release of stolen Democratic emails on July 22, 2016, “a senior Trump campaign official was directed to contact Stone about any additional releases and what other damaging information Organization 1” had regarding the Clinton campaign.
The indictment does not name the campaign official or say who directed the alleged outreach to Stone. People familiar with the case identified “Organization 1” as WikiLeaks, the global anti-secrecy group founded by Julian Assange.
Stone has repeatedly denied having any contact with Russia or WikiLeaks. He has said that he had no advance knowledge of what material WikiLeaks held and that predictions he made about the group’s plans were based on Assange’s public comments and tips from associates.
Stone, WikiLeaks and Assange have said they never communicated with one another.
Stone is free on bond and limited to travel between South Florida, Washington and New York City.