MORE: Late yesterday there was word that the DoJ is actively investigating the leak of Michael Cohen's bank records. Those bank records were obtained via a Grand Jury subpoena, so that means the investigation involves a violation of Rule 6(e)(2)(B) -- see below. This pattern of occurrences could be seen as the Special Counsel's modus operandi--leaks of Grand Jury testimony and material.
Roger Stone's attorneys have filed a motion requesting a "Show Cause Order". What this means is that Stone's attorneys believe that, in the facts that they allege in the motion, they establish a prima facie case that Grand Jury secrecy rules codified in the Federal Rules of Criminal Procedure have been violated by the Office of the Special Counsel (OSC). Specifically, this refers to the fact that CNN had a "draft" copy of the Stone indictment at the time of Stone's arrest--two and a half hours before the indictment was unsealed by the Court. Not only that, but CNN is stated to have told Stone's attorneys that they received the "draft" from the OSC. The problem with that is that the indictment had been sealed by the Court at the OSC's request, but the "draft" copy was in fact identical to the supposedly sealed indictment--the copy in CNN's possession could only have come from the Government, as per CNN's statement, and is identical to the indictment that the Court ordered sealed.
So, Stone's attorneys are asking that the OSC be required to show cause why they didn't commit contempt of the court order that sealed the indictment. In other words, the OSC should be required to rebut the prima facie case that Stone's attorneys claim they have established. That would involve presenting some reason to believe that the disclosure was made by some person outside the OSC.
The person most affected by this motion is the "AAW" who drafted the indictment: Andrew Weissmann, senior deputy to special counsel Robert S. Mueller. Will this be a case of live by the leak, die by the leak?
In what follows, what I've done is I've pasted in the first part of the motion by Stone's attorneys, which sets out the facts that they say constitute a prima facie case of contempt. However, before that I've also pasted in the relevant portions of Rule 6(e)(2), which governs Grand Jury secrecy. Bear in mind, regarding Grand Jury secrecy, what John Dowd stated in his ABC interview: the primary purpose of Grand Jury secrecy is to protect the innocent. That would include Roger Stone who, in our system, is presumed innocent until the Government can convince a jury of his peers otherwise. The disclosure of the indictment, in flagrant contempt of the court order sealing it, works directly against that presumption of innocence because it enabled the Government to arrange for a media circus arrest that was massively prejudicial to Stone's presumptive innocence. So, first Rule 6(e)(2):
Rule 6. The Grand Jury(e) Recording and Disclosing the Proceedings.
(B) Unless these rules provide otherwise, the following persons must not disclose a matter occurring before the grand jury:
(i) a grand juror;
(ii) an interpreter;
(iii) a court reporter;
(iv) an operator of a recording device;
(v) a person who transcribes recorded testimony;
(vi) an attorney for the government; or
(vii) a person to whom disclosure is made under Rule 6(e)(3)(A)(ii) or (iii).
UNITED STATES OF AMERICA, Plaintiff,
ROGER J. STONE, JR., Defendant.
Defendant Roger J. Stone, Jr., requests a show cause order to determine whether the
Court’s Order sealing the indictment of Roger J. Stone until his arrest, was violated by the premature release of a draft copy of the sealed indictment, enabling news media to attend and witness Stone’s 6 a.m. arrest.
Roger Stone has been charged with lying to Congress and witness tampering under 18 U.S.C. §§ 1001, 1505, 1512 and 18 U.S.C. §2. On January 24, 2019, after securing Mr. Stone’s indictment by the grand jury, the government moved to seal the court files and proposed an order granting its request. (ECF No. 2). The Court granted the motion and sealed the documents, including the indictment, until Mr. Stone was “in custody.” See Order sealing, ECF No.3, January 24, 2019. Thus, the Court ordered that the indictment was not to be a matter of public record until after Mr. Stone was arrested, taken into custody by the government, and the Court notified, so that the Court could instruct that the actual indictment be unsealed and placed on the public docket.
The FBI arrested Roger Stone at 6:06 a.m. on January 25, 2019. At that time the indictment remained subject to the Court’s Order sealing it from public disclosure. At 4:58 a.m. a news crew and truck arrived at Mr. Stone’s residence and set up a camera on the street in front of Mr. Stone’s house, obviously awaiting his arrest. The FBI arrived while the camera crew was on the street. At 6:11 a.m., prior to Mr. or Mrs. Stone calling counsel, a reporter for the same news outlet as the camera crew called counsel and informed him that Mr. Stone had been arrested. At 6:22 a.m., the same reporter sent counsel a text message attaching a draft copy of the still sealed indictment. (See Exhibit 1). The copy of the unsigned indictment provided by the reporter appears to have come from the Special Counsel’s Office. (See Exhibit 2). The reporter offered that the copy had been received from the Special Counsel’s Office.
The “draft” indictment contained no PACER designation across the top of any page. The metadata of the “draft” indictment, which was in PDF (portable document format), indicates that the last “modification” of the document was on January 23, 2019, at 11:04 p.m., “author[ed]” by “AAW” from "Company: JCON,” which appears to be a reference to the Justice Consolidated Office Network. (See Exhibit 3).[Footnote 1] The metadata does not establish that “AAW” sent the “draft” of the sealed indictment to the reporter who texted it to Mr. Stone’s counsel on January 25, minutes after the arrest. But it does mean that a person with privileged access to a “draft” of Roger Stone’s Indictment, identical to that which had been filed under seal and which was stamped “sealed” in red, with the appropriate PACER markings, had – in violation of the Court’s Order – publicly distributed the Indictment prior to its release from the sealing ordered by the Court.
[Footnote 1] Metadata describes and gives information about other data. A document’s metadata contains facts relating to the author, the computer and network on which it was created, the time it was created, etc. Metadata travels with a document unless a program is used to strip it out of the document.
According to the PACER docket entry, the Indictment was unsealed and entered onto the public docket on January 25, 2019, without a notation as to time, and contained only the initials of the person who created the entry, “zvt.” The Clerk’s office informed counsel for Mr. Stone that the Indictment’s entry into the docket was made on January 25 at 8:55 a.m., more than two-and-a-half-hours after the news reporter sent the “draft” Indictment to counsel, and four hours after the news organization’s camera crew arrived at Mr. Stone’s house to film his arrest on the sealed Indictment.
The Court’s order sealing the Indictment stated:
IT IS FURTHER ORDERED that the government shall inform the Court as soon as the defendant named in the Indictment is in custody so that the foregoing materials can be unsealed and entered on the public docket.
That Stone’s 6:06 a.m. arrest preceded, by three hours, the Court being informed, is par for the course. What is not par for the course is that a news crew knew the time and place of the arrest, and was “staked out” to watch the arrest unfold, having been provided an unfiled, draft copy of the indictment the Court had ordered sealed.