Threat of Gag Order Prompts Challenge by Roger Stone

Roger Stone, a confidant of President Donald Trump, leaves the federal courthouse following a hearing, Friday, Jan. 25, 2019, in Fort Lauderdale, Fla. Stone was arrested Friday in the special counsel’s Russia investigation and was charged with lying to Congress and obstructing the probe. (AP Photo/Lynne Sladky)

WASHINGTON (CN) – Roger Stone took a constitutional stand Friday against a potential gag order that will bar him from talking to the press about the charges leveled against him by Special Counsel Robert Mueller.

U.S. District Judge Amy Berman Jackson had first toyed with the gag order at a Feb. 1 hearing, expressing concern that “pretrial publicity” in the case would make it hard to seat an unbiased jury.

Jackson issued a similar order in the case against former Trump campaign chair Paul Manafort, but Stone’s attorney at Buschel Gibbons said Friday such an order would be unlawful.

“There should be no imposition of prior restraint on Mr. Stone’s First Amendment free speech rights,” the filing says.

Robert Buschel called the impact on a potential jury pool “entirely speculative” at this point, since a trial is likely “many months away.”

Putting his client in contrast to Kim Kardashian and her nearly 60 million Twitter followers, Buschel said Stone is relatively unknown outside of those who follow American politics closely, making it unlikely that the entire Washington, D.C., jury pool would be tainted should he speak publicly about the case.

“Roger Stone is entitled to speak as he wishes unless it can be established, by clear and convincing evidence, that a clear and present danger to the seating of an impartial jury is presented,” the 8-page filing says.

No compelling government interest would be served by issuing a gag order in the case, Buschel argued. He also said it would effectively silence his client in the midst of “unrestrained comment, speculation, opinion and criticism by the press.”

The government filed its own brief Friday afternoon, saying it has no objection to a narrow gag order in the case.

“The government submits that the order would be supported by a finding that there is a substantial likelihood that extrajudicial comments by trial participants will undermine a fair trial,” the 6-page filing states.

Assistant U.S. Attorney Jonathan Kravis pointed to a Fifth Circuit ruling in United States v. Brown, which noted that a District Court order barring extrajudicial statements in the case “was supported by its finding that the parties had ‘already demonstrated a desire to manipulate media coverage to gain favorable attention.'”

That order, the Fifth Circuit had determined, threatened “to taint the jury pool.” No other alternative, including a change in venue, would be sufficient to address the potentially injurious impact of “enormous pretrial publicity.”

Kravis pointed to Jackson’s own observation that Stone’s public statements about the case have already fueled “considerable publicity” in the case. Should that continue, Kravis argued, it would increase the risk that pretrial publicity would taint the relatively small jury pool in Washington, D.C.

In a separate filing Friday, Stone objected to his case being formally related to Mueller’s indictment of Russian intelligence officer Viktor Borisovich Netyksho.

Netyksho was one of 12 Russian intelligence officers Mueller charged with crimes related to Russia’s interference in the 2016 U.S. presidential election, including hacking into Democratic computer networks, including Hillary Clinton’s campaign.

“An analysis of the allegedly ‘related’ indictments clearly demonstrates there is no nexus of any kind between the two cases,” Buschel wrote.

Buschel argued that none of the defendants in the case against Netyksho appear on the Roger Stone witness list, which remains under seal for now.

“Nor have there been any allegations indicating a conspiracy between the Netyksho defendants and Defendant Stone,” Buschel wrote.

Noting that Mueller charged his client with witness tampering and lying to Congress, Buschel said the indictment against Stone contains “no mention of hacking, stealing, or involvement with Russia or the Netyksho defendants.” 

Buschel also drew attention to the fact that the Justice Department was careful to state that the Netyksho indictment contained no allegations that any American knowingly participated in the election meddling or knowingly communicated with Russian intelligence.

Buschel highlighted as well that the indictment against Stone does not accuse him of having knowledge at the time about the hacked emails, only that he tried unsuccessfully to get that information.

Stone is scheduled for his next court appearance on March 14.

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