The Mueller Investigation

Stone cites Barr, Kavanaugh writings in last-ditch effort to dismiss Mueller indictment

Roger Stone.

Roger Stone, the longtime political ally and confidant of President Donald Trump, issued a series of Hail Mary legal arguments late Friday to dismiss the indictment against him from special counsel Robert Mueller that is pending before a federal judge in Washington D.C.

The longshot arguments, some of which have already been considered and rejected by judges in the same courthouse, suggest that Mueller’s appointment was unconstitutional because he wasn’t commissioned directly by President Donald Trump. Stone also argues that the Justice Department improperly funded Mueller’s investigation because the pot of money supporting his probe wasn’t explicitly authorized by Congress. He separately contends that he has been selectively targeted by Mueller because of his closeness to Trump.

Stone is facing seven charges connected to his testimony before the House intelligence committee in its investigation of Russian interference in the 2016 election and whether any Trump associates participated in the scheme. He faces one charge of obstructing the House prove, five charges of making false statements and a charge of witness intimidation for his communications with another witness, Randy Credico.

In addition to arguing that his indictment should be tossed, Stone is seeking access to the full contents of Mueller’s final report on links between the Trump campaign and the Kremlin, arguing that he has a unique right to see the report and review any evidence it may contain that is relevant to his defense.

“His lawyers must be allowed to review the Report in its entirety because it contains the government’s evidence and conclusions on matters essential to Stone’s defense,” Stone’s attorney Robert Buschel wrote in the filing.

Among Stone’s arguments: Congress never explicitly referred Stone to Mueller for criminal prosecution, suggesting Mueller can’t be sure his alleged false statements were severe enough to impede Congress’ investigation.

Because Mueller concluded his investigation without indicting any Americans for conspiring with Russians, Stone says he can no longer be credibly linked to the ongoing prosecution of Russian operatives that Mueller charged with a hacking effort to sway the election. As a result, Stone said, he is seeking a new judge to preside over his case rather than the current judge, Amy Berman Jackson, who also handled proceedings against former Trump campaign chairman Paul Manafort.

Perhaps most notably, though, Stone cites the controversial writingsof two Trump appointees — Supreme Court Justice Brett Kavanaugh and Attorney General Bill Barr — to suggest that the case against him lacks merit.

Stone points to Barr’s 19-page argument, delivered in an unsolicited memo to Mueller’s overseers nearly two years before Trump appointed him attorney general in February, laying out a narrow view of the crime of obstruction of justice. Stone argued that under Barr’s reasoning, Mueller would have had to “prove at trial that a conspiracy existed to interfere with the 2016 presidential election and that it involved the Russian government, before Stone could be charged with obstructing an investigation into that Russian conspiracy.”

Stone cites Kavanaugh in a separate filing seeking to dismiss his case, quoting a 1998 law review article that figured prominently in Kavanaugh’s confirmation hearings last year. In the article, Kavanaugh argues that any independent counsel investigating a president would inherently become politically toxic and the possible indictment of a president would be “disabling” for the federal government. Kavanaugh indicates that impeachment, rather than indictment, is the method the framers of the Constitution envisioned to hold a law-breaking president accountable. Stone adopted the same view.

“If Congress truly believes that a President has engaged in high crimes and misdemeanors, the Constitution already provides the remedy: Impeachment,” Stone’s attorneys write.

Stone also makes an argument that he is being selectively targeted by prosecutors because of his proximity to Trump. He notes that another Trump associate who figured in Mueller’s investigation, conspiracy theorist Jerome Corsi, was never charged with lying to investigators even though he had acknowledged making misstatements and even publicly revealed a draft of a plea agreement he says was offered to him by Mueller’s team. But he was not charged after Mueller ended his investigation.

It’s unclear whether Corsi or other figures swept up in Mueller’s probe are the subject of ongoing investigations. Mueller referred various branches of his inquiry to other prosecution offices and branches of the Justice Department.

Stone, who along with his lawyers is under a court-imposed gag order not to publicly discuss their case, which is set to go on trial Nov. 5. The next public status hearing in the case is set for April 30, and a pretrial conference is scheduled for Sept. 17.