Saturday, January 26, 2019

UPDATED: The Meaning Of The Roger Stone Indictment

There's really not all that much to say about the Roger Stone indictment that hasn't already been said--that wasn't said many months ago.

If you want the details of the seven counts in the indictment, you can read Byron York's summary. York feels compelled to indulge in a bit of virtue signalling at Stone's expense, but his summary is accurate.

As for the virtue signalling, while the factual circumstances in Stone's case can be distinguished from the Flynn case, some of the same issues are present and were addressed in Setting False Statement Traps Is Not Official FBI Business. The main point regarding factually untrue statements made under oath to the Government really comes down to this. People make untrue statements all the time. All investigators and prosecutors know this. Sometimes these untrue statements are made in good faith, i.e., the person actually believes or has persuaded themselves that the statements are true. And then there are untrue statements that are untrue to varying degrees and are made for various, sometimes complicated and all too human, reasons: shame, defensiveness, malice--whatever. The traditional approach to these situations was basically to let false--or inaccurate--statements slide, unless: unless the statements significantly hindered the Government from getting at the actual facts, and the matter involved was serious. This traditional approach was motivated by simple human decency and understanding as well as by a concern that justice should be done--the justice system should not be turned into a game of "gotcha."

So, for example, the Flynn case would have been a perfect example of investigative and prosecutorial overreach and abuse under the traditional approach. Flynn's inaccurate statements (assuming they were inaccurate) did not hinder the FBI in arriving at the truth because the FBI already knew the truth; further, the subject of the interview was arguably not even within the legitimate bounds of an FBI inquiry, so it could hardly be regarded as serious.

That traditional approach changed with a lowlight from the late Justice Scalia's generally distinguished career. Here I'll quote Justice Ginsburg's (!) concurring opinion, which I quoted in the link, above:

However, for anyone who wants to learn more about 1001, its history and intent and its potential for serious and dangerous abuse of the rights of US citizens, I can't recommend highly enough Justice Ginsburg's concurring opinion in the leading 1001 False Statements case: BROGAN v. UNITED STATES. Really. To give you a flavor, consider these brief excerpts in light of what we know happened to Flynn:
     "Yet it is noteworthy that Congress enacted that amendment to address concerns quite far removed from suspects’ false denials of criminal misconduct, in the course of informal interviews initiated by Government agents. Cf. ALI, Model Penal Code §241.3, Comment 1, p. 151 (1980) (“inclusion of oral misstatements” in §1001 was “almost [an] accidental consequenc[e] of the history of that law”).  
     "Even if the encompassing language of §1001 precludes judicial declaration of an “exculpatory no” defense, the core concern persists: “The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime.” Sherman v. United States, 356 U.S. 369, 372 (1958).  
     "Thus, the prospect remains that an overzealous prosecutor or investigator–aware that a person has committed some suspicious acts, but unable to make a criminal case–will create a crime by surprising the suspect, asking about those acts, and receiving a false denial."
And, in fact, what happened to Flynn is even more egregious than Ginsburg imagined could happen.

Stone's case can be distinguished from Flynn's but it is similar, and that similarity can be captured in the second bolded quote from Ginsburg's concurrence:

“The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime.” (quoting Sherman v. United States)

I submit that a major part of the problem stems from the fact that prosecutors now often control investigations and turn investigations into vehicles for furthering their own careers. However, turning to Stone's situation, Andy McCarthy captured the spirit of Ginsburg's quote from Sherman v. US--the traditional approach--admirably, in an interview with Fox News in the immediate wake of Stone's arrest:

MCCARTHY: I read that indictment and what it says to me is that the special counsel and the FBI have known for at least a year — probably much longer than that — that there is no espionage conspiracy and there was none between the Kremlin and the Trump campaign. And because of their obsession for investigative secrecy, the thing that the country should have known, the country hasn’t been allowed to know. It’s been a situation where we’ve operated under the possibility that the person we elected as president was suspected of being a Russian agent. They’ve known that wasn’t true for a very long time. And they had an obligation to correct the record.

If we examine what McCarthy is saying here, it comes down to this. The Mueller Russia Hoax operation has known for at least a year--but probably much longer--that there is no crime for them to investigate. This means that the Team Mueller has prolonged their operation far beyond any reasonable or legal rationale for conducting their investigations. The motivation is clearly to prolong the investigation in the hope of catching Trump in something that has nothing to do with the authorization for a Special Counsel under the laws and regulations of the United States.

Alan Dershowitz makes the same argument, in an excellent interview. His fundamental point is basically the same as McCarthy's, but expressed from the viewpoint of a criminal defense lawyer rather than McCarthy's prosecutorial viewpoint: There were no crimes until Mueller's operation started. And, as McCarthy says, Mueller and everyone else involved--Rosenstein preeminently--knew that there were no grounds for a Special Counsel. This is a political operation, pure and simple, with the object to "get" by hook or by crook as many Republicans and, especially, Trump associates as possible--with the ultimate goal impeachment. Again, with no regard for truth or justice. It's the theory of the Big Lie, and Pelosi repeated it yesterday:

“In the face of 37 indictments, the President’s continued actions to undermine the Special Counsel investigation raise the questions: what does Putin have on the President, politically, personally or financially?”

That's the real meaning of the Stone indictment.

Finally, two Youtube links to excellent interviews, in case anyone missed them. These two interviews get into the outrageous Police State tactics that Rosenstein approved and that FBI Director Chris Wray agreed to. As an intro to the interviews, it's hard to do better than this tweet from Kurt Schlichter:

Kurt Schlichter

President needs to have the FBI director in front of his desk this morning explaining exactly why an American citizen was assaulted by a SWAT team with tipped off cable news cameras. He should ask for the written safety analysis that showed this was required. There isn't one. 
9:43 AM - Jan 25, 2019

Schlichter is absolutely right, and the minimal bail--a surety bond and personal recognizance--shows what the judge thought of those tactics.

Stone on his indictment: This is about silencing me, criminalizing political expression

Corsi on Stone indictment: We are seeing an out of control Mueller operation determined to terrorize

UPDATE: Since the quote of Andy McCarthy, above, was central to this post, I want to recommend his article that elaborates on that quote, which was originated in a TV interview. The article is Stone indictment makes clear there was no Trump-Russia conspiracy. McCarthy lays out lucidly that by now the truth that there was never andy "Trump-Russia conspiracy" is totally non-controversial--in fact, the truth of this is proved by the pathetic "heavy breathing" narratives of Mueller's process crime indictments. That being the case, and in view of the fact that the FBI made what are now known to be patently false representations in the Carter Page FISA application, McCarthy proposes that Lindsey Graham, new chair of the Senate Judiciary Committee, present the following three questions:

So here are the questions that Chairman Graham might consider putting to FBI Director Christopher Wray and Deputy Attorney General Rod Rosenstein (who approved the last FISA warrant application on Page): 
* Do the Justice Department and the FBI still stand behind their representation to the FISC and their highly irregular, publicly announced suspicion that the Trump campaign coordinated in Russia’s cyber operations against the 2016 election? 
* If they do not continue to stand behind their representation to the court and public announcement to the committee, have they corrected the record with the FISC or the House Intelligence Committee (there not having been any public retraction)? 
* If they do stand behind their representation, how do they square that position with the indictments filed by Mueller, which have charged no Trump-Russia conspiracy, and which indicate there was no Trump-Russia conspiracy? 
Many would say such questions can await Mueller’s final report. But even if the special counsel’s investigation is winding down, the indictment of Stone eventually could lead to a trial, and there is an active grand jury, so additional indictments are possible. The Mueller probe could go on for months. Americans are entitled to know now if the president and his campaign are suspected of being clandestine agents of Russia.


  1. As strange as this may sound, I think you are understating the core problem. The FBI mustered 29 heavily armed operators to conduct a predawn raid on an unarmed 69 year old senior citizen accused of lying to Congress. That wasn't just an egregious abuse of power, it was a dangerously irresponsible act of aggression that could easily have resulted in great and lasting harm to any of the participants or home occupants. It was the kind of police action that one normally associates with the Gestapo or NKVD, but it happened here in the USA in the 21st Century. No sane American will ever view the FBI in the same light again, and that reputation damage will have huge repercussions long into the future. It is now rational for average citizens to shun interaction (or cooperation) with the FBI for fear that they will be also persecuted by this kind of rogue behavior. Wray crossed a line by enabling that travesty, and he should be replaced if the FBI cares about restoring honor and integrity to its ranks.

  2. Unknown, I hate to see leadership at the FBI becoming a purely political appointment but we have to face that that's what's happened. I think Wray has to go. In the current legal and political climate this business of appointing former DoJ prosecutors to run the Bureau is exactly what we DON'T need.

  3. Thanks for your cogent analysis.

  4. You're very welcome. As I said, none of this is actually new or news, but there's some merit in trying to gather it together. In my previous life I came up against 1001 related issues regularly and quickly came to see the wisdom in the "traditional" approach. The change in prosecutorial approach, and especially the SCOTUS's endorsement of that change, is tragic. It's the thing that opens the door to the total politicization of our legal system.

  5. At the top of this post I made a slighting reference to Byron York's "virtue signalling at Stone's expense." Apparently York must have taken some flack, because he has a new article out: Byron York: On closer examination, Roger Stone indictment is less than it seems. No apology for his precipitous judgmentalism, mind you.

  6. Why hasn't Rosenstein instructions to Mueller been released? Or is that too "obstruction of justice".

  7. D., I presume you're referring to the Nunes interview with Maria Bartiromo today, in which he stated that he believes the "instructions" or, more technically, the "scope memo", that Rosenstein directed to Mueller is based largely on the Steele "dossier". The obvious reason it hasn't been released is that the Deep State doesn't want We The People to know that the whole Russia Hoax from its inception to the continuing Mueller operation was based on the Clinton campaign's disinformation op. It's an open secret. It would be an excellent place to start the declass pushback.

  8. I agree, Yancey--the purpose of our criminal law is not to punish someone for being a BS artist. BTW, you may want to take a look at Mark Penn's typically excellent commentary: Mueller’s selective prosecution of Stone, Venezuelan-style. It's more interesting than the title sounds. I'll be addressing a particular aspect of it later, but first have to deal with snow.

  9. Yancey, I think I just did to you what I did to Mike several times--published your comment, then deleted it inadvertantly. I think I understand, kinda, what's going on.

    YANCEY WARD has left a new comment on your post "The Meaning Of The Roger Stone Indictment":

    The Stone indictment is less than it seems because the lies told are largely irrelevant. Stone never denied trying to figure out what Wikileaks had- indeed, he publicly, in 2016, advertised this fact. In his Congressional testimony, as far as I can tell, he didn't deceive the interrogators in any meaningful manner- it isn't like he was telling them he wasn't attempting to contact Wikileaks- he was telling them that. What he seemed to be doing was not selling out his intermediaries.

    The one part of the indictment that does seem solid is the part where he was attempting to get a witness to not testify. That is tampering as it is described in the document, and he should have listened to Person 2- the details themselves were not not damaging to anyone.

    The more I think about it, the more it looks to me that Stone was tempted to lie because he didn't want it exposed that all his entreaties to Wikileaks resulted in absolutely nothing of consequence.