If I were the prosecutor on Roger Stone’s case, I’d be delighted that he continues to speak out publicly.
Capitol Hill has finally started to take notice of Special Counsel Robert Mueller’s brass-knuckles investigative tactics: Rather than call defense counsel to arrange Stone’s surrender on charges of misleading Congress that have been expected for months, Mueller had dozens of well-armed agents swarm Stone’s home as if it were Osama bin Laden’s compound. But Stone’s lunatic theories, spun nightly on cable TV, make Mueller look downright judicious. In his latest rant, Stone deduces that “Russian collusion” is Mueller’s pretext not just to nail to him, but to impeach both President Trump and Vice President Pence, then install Speaker Nancy Pelosi and, finally, Hillary Clinton as president. Mueller, of course, has not even charged Stone with a conspiracy, or anything to do with Russia’s espionage; and in the many indictments he has filed, the prosecutor has never hinted at criminal misconduct by Trump, much less Pence.
As I mentioned to Rich Lowry during The McCarthy Report podcast this week, Stone’s statements in the raucous press conference outside the courthouse the day he was arrested were about 90 percent of the way to a guilty plea. The defendant conceded that, sure, he may have made some untrue statements in his congressional testimony, but they were surely immaterial or the result of failed recollection. Good luck with that. On CNN a few days later, while stressing that he had no advance knowledge of the WikiLeaks disclosures of Democratic emails, Stone acknowledged, “I always said that there could be some process crime.” Not the best approach when the indictment does not accuse you of such advance knowledge but does charge seven felony counts of process crime.
Still, the fact that it is not in Stone’s interest to keep talking does not vitiate his First Amendment right to do so.
On that score, Politico reports that a gag order is apt to be slapped on Stone this afternoon. That’s when he is to appear for a first status conference before Judge Amy Berman Jackson of the federal district court in Washington. Judge Jackson has already issued a number of gag orders, including in Mueller’s prosecution of Paul Manafort. This is obviously a boon for prosecutors obsessed with maintaining investigative secrecy and avoiding criticism. But that doesn’t make it right.
Judges certainly have qualified authority to regulate the speech of attorneys in matters before them. Lawyers are deemed “officers of the court,” and their admission to practice before a court is contingent on agreeing to follow its rules. In the District of Columbia, that includes a rule obliging lawyers to refrain from commentary that could “interfere with a fair trial or otherwise prejudice the due administration of justice.” Moreover, lawyers in criminal proceedings have privileged access to non-public information; it is thus reasonable to condition that access on respect for the information’s sensitivity — e.g., by barring its publication until it is properly made part of the public record in pretrial or trial proceedings.
Nevertheless, free-speech limitations justified by the peculiar duties lawyers owe to the court’s processes do not extend to non-lawyers, even if their commentary might make the administration of justice more challenging. A court is powerless, for example, to restrain the press from reporting on a criminal case and pundits from analyzing it, even though such commentary — whether accurate or inaccurate — can undermine the court’s capacity to conduct a fair trial before an impartial jury.
Judge Jackson and her colleagues appear to presume that the qualified power to regulate the speech of attorneys can be stretched into a generalized power to muzzle the parties and witnesses as well. In her gag order in the Manafort case, Jackson observed that the district court’s rule 57(c) gives the judges authority
in a widely publicized or sensational criminal case . . . [to] issue a special order governing such matters as extrajudicial statements by parties, witnesses and attorneys likely to interfere with the right of the accused to a fair trial by an impartial jury.
For this proposition, Judge Jackson relied on language mined from the Supreme Court’s 1991 decision in Gentile v. State Bar of Nevada, which noted the “evils” of out-of-court commentary that could prejudice the jury pool or influence the outcome of a trial.
There are at least three problems with Jackson’s reasoning.
First, Gentile dealt specifically with the regulation of speech by lawyers. It had nothing to do with commentary by non-lawyers involved in a criminal case, such as the accused and trial witnesses. While it is true that the majority discussed a prior case (Sheppard v. Maxwell) in which it “contemplated” restricting non-lawyer participants from “divulging prejudicial matters” — in the context of reversing a conviction due to pervasive publicity that prejudiced the accused — the issue of silencing a defendant was not before the Gentile Court.
Second, Gentile is a confusing split decision, in which the majority comprises different groups of justices in different parts of the opinion. Four justices (Kennedy, Marshall, Blackmun, and Stevens) were prepared to rule that the fair-trial concerns of federal courts must yield to the free-speech rights of even lawyers when the commentary at issue involves potential governmental abuse of power.
Significantly, the lawyer in Gentile publicly alleged that the prosecution of his client was politicized. The four justices opined that this was “classic political speech.” Besides lying “at the very center of the First Amendment,” such commentary was seen as promoting the “forum of public opinion” as a check against potential abuse of the judicial process. To be sure, this was not a majority sentiment. Yet, given that the Court was so closely divided on the matter of case-related speech by lawyers — whom courts, for institutional reasons, have great leeway to regulate — why should we assume that non-lawyer trial participants, such as the accused, may be restrained from publicly complaining about the possible politicization of a prosecution? Unlike the lawyers, the defendant does not volunteer to be involved in a criminal case and subordinate his rights to the court’s interests.
Third, the fair-trial right that the Constitution guarantees belongs to the accused, not the prosecutor. This is expressly acknowledged in Judge Jackson’s own Manafort gag order, in which she claimed to be protecting “the right of the accused to a fair trial by an impartial jury.” How is it fair to the accused to allow the government to file its charges publicly, to orchestrate an arrest that portrays the accused as a dangerous violent criminal and flight risk, and to employ law-enforcement and intelligence agents who leak like sieves, but then tell the accused he must keep his thoughts to himself?
Roger Stone is an odd character with a mile-wide self-destructive streak. Any public statements he makes may be used against him in court. If he keeps speaking out, the chief beneficiary will no doubt be the prosecutors. If he gets convicted (a high probability), the court will take his commentary into account in imposing a sentence. If he says things that are libelous he may be sued, and if he says things that are obstructive he may be further prosecuted.
The risks are obvious. But they should be his risks to run. The First Amendment gives him that right. A judge’s desire to run a tight ship is worthy, but it is secondary.