Roger Stone faces a gag order. He has a plan to resist it.
Roger Stone leaves the Prettyman United States Courthouse after pleading not guilty to charges from Special Counsel Robert Mueller that he lied to Congress and engaged in witness tampering on Tuesday in Washington, DC. | Chip Somodevilla/Getty Images
The political rabble-rouser has a well-known First Amendment attorney on his legal team and has designated a pair of close friends as spokesmen.
Roger Stone has long feared he would be slapped with a gag order if he got indicted — and he’s readied a plan to make sure he won’t have to stay silent.
The federal judge in Stone’s case, Amy Berman Jackson, has already hushed a coterie of others caught in special counsel Robert Mueller’s dragnet, including Paul Manafort, Rick Gates and their attorneys. They were quieted after one of the lawyers told reporters that Mueller’s case was “ridiculous.”
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Jackson will have a much longer record of public commentary from Stone to work with when the longtime Donald Trump associate appears Friday afternoon for his first status hearing tied to the special counsel’s charges that he lied to Congress and obstructed the House’s investigation into Russian election meddling.
If Stone is gagged, his contingency plan is already in place. He’s got a well-known First Amendment attorney on his legal team who represented the rap group 2 Live Crew against obscenity charges in the early 1990s. And Stone has designated a pair of close friends as spokesmen in the event he and his lawyers are told to stop talking.
Until then, Stone won’t stop chattering.
Since his arrest last Friday, Stone has been on a media blitz. He gave his first interview to the conspiracy theory website InfoWars and then addressed reporters outside the Fort Lauderdale courthouse. He’s discussed his legal defense plans during a series of interviews with the major television and cable networks, as well as in impromptu press conferences outside his South Florida home. Anyone on Stone’s email list got a message Monday with the subject line “Let’s talk about my arrest” and a plea for “emergency” contributions to help pay his mounting legal bills.
On Instagram, Stone as of Tuesday night had posted 30 times about the indictment, including a mocked-up photograph of the special counsel in a waiter outfit holding up a tray topped with an empty hamburger bun. “Here’s what Mueller has on me #nothingburger” Stone wrote.
“It’s always been Roger’s intention to maintain his First Amendment rights throughout the process,” said Michael Caputo, a longtime Stone associate and one of the people who is in position to step up as a spokesman if Stone gets gagged.
During Stone’s arraignment hearing on Tuesday, magistrate judge Deborah Robinson opened with a warning that he’d be wise to not speak about the charges in the indictment. “Any statements you make may be used against you,” she said.
But Grant Smith, one of Stone’s attorneys, said in an interview that Robinson’s comments appeared to him as pro forma. And on social media, Stone acted like he was still free to speak out.
“No gag order! I will fight and the deep state is in panic mode! Onward,” Stone wrote Tuesday afternoon in an Instagram post that featured a picture of him surrounded by police officers outside the Washington, D.C., courthouse.
Tuesday night, Stone appeared on Fox News with host Laura Ingraham — his third interview on the conservative cable network since his arrest. Appearing Monday night with Sean Hannity, Stone argued that Mueller had charged him for “errors of memory” and later played the gag order card.
“They want to silence me because I stand up for Donald Trump,” he said. “That’s what this is really about.”
Come Friday, many legal experts expect Stone will be in for a rude awakening with Jackson, a no-nonsense judge appointed by President Barack Obama who reacts harshly to what she perceives as showboating. From the very beginning of the Manafort case in the fall of 2017, she chafed at statements his defense lawyer made, both in and out of the courtroom.
“This is a criminal trial, and it’s not a public relations campaign,” the judge warned at the first hearing she held in the Manafort case, a little more than a week after his late October 2017 indictment. “I expect counsel to do their talking in this courtroom and in their pleadings and not on the courthouse steps.”
Jackson immediately floated the idea of a gag order under a court rule that permits them in “widely publicized or sensational criminal cases.” Neither side objected, so less than a week later she fired off such an order.
On its face, the edict Jackson issued in the Manafort case didn’t ban all public statements by the lawyers involved, but she made clear as the case progressed that she viewed it as barring any out-of-court remarks that could influence how a jury would view the case.
Such gag orders are often more of a burden on the defense than the prosecution, since prosecutors typically issue a press release or hold a press conference to announce the charges and then go mum about the case — at least officially. In addition, Justice Department policies discourage government attorneys from the same kinds of statements most gag orders would rule out.
Following the rules didn’t turn out to be easy for Manafort, who has since pleaded guilty to one set of Mueller’s charges and been convicted in a separate case on bank and tax fraud charges. Within a matter of months of his initial indictment, he found himself in hot water over the gag order after prosecutors used intercepted emails to accuse him of secretly trying to orchestrate an op-ed in a Ukraine newspaper. Manafort’s lawyers said it wasn’t clear the order applied to him or to something to be published thousands of miles away.
But she was less forgiving after Manafort was accused of witness tampering last spring and the judge cited his earlier actions related to the gag order as contributing to her decision to order him jailed pending trial. “This is not the first time we’ve had to talk about the rules, and about you skating close to the line,” she told him in June 2018.
Manafort’s lawyers said on several occasions that they planned to file a pleading with the court arguing for a narrower interpretation of the gag order. They never did.
Stone’s associates say he’ll contest any judicial moves to shut him up. “If they put a gag order on him I’m quite certain he’ll fight it,” Caputo said.
Shanlon Wu, a former attorney for Gates, said Stone could make the move and perhaps narrow the order. It also could help win a pardon from Trump. But he warned it could also tick off the judge. “Most criminal defense lawyers don’t want to antagonize the judge about something collateral,” Wu said.
In Stone’s case, Wu said a fight over his First Amendment rights might be a wasted effort. “It’s not an obscenity trial. It’s not that he was arrested for protesting,” he said. “Nine out of 10 lawyers would say, ‘Hey, just shut up and let us do our job and don’t make things worse.’”
If Stone chooses the combative route when facing a gag order, the dispute could end up before the D.C. Circuit Court of Appeals.
An appeals court fight over a gag order is uncommon, but not unheard of, in federal criminal cases in Washington. Such a dispute erupted last year when lawyers for James Wolfe, a Senate Intelligence Committee staffer accused of lying to the FBI during a leak investigation, tried to expand a gag order to cover the president. The request came after Trump publicly disparaged Wolfe after his arrest. The judge ultimately declined to issue an order that would reach the president.
Indeed, legal experts noted that no Mueller-related gag order can blunt the intense media coverage, cable news chatter and steady flow of Trump tweets.
Annemarie McAvoy, another former member of the Gates defense team, predicted a silencing dictate will probably come soon from Jackson against Stone. “It is unlikely any judge is going to want a defendant in the public eye commenting about a case to the extent that Roger Stone has been doing,” she said, adding that Stone would face the harsh backstop of a criminal contempt order — punishable with fines and jail — if he doesn’t follow along.
“He will abide by it, because he will understand that he will otherwise be subject to significant negative ramifications from the court,” McAvoy said.
For his part, Manafort has been in jail since last June, and his lawyers have said in legal briefs that his time in solitary confinement has contributed to deteriorating mental and physical health, including a case of gout that landed him in a wheelchair for several months.
That’s the chilling reality facing Stone, who told POLITICO in an interview last May that his plan was to keep talking until Mueller files any charges — and then to keep on talking afterward.
“The most dangerous thing is to go silent,” Stone said then. “When you’re silent people assume you’re guilty of something.”