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Rat-Fucker Rashomon: Guccifer 2.0 the Go-Between

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Fresh off the weekend of Roger Stone’s trial, prosecutors got Rick Gates to testify, and then called former FBI Agent Michelle Taylor back on the stand. Ostensibly, they needed to call Taylor to introduce a transcript of a scene from Godfather II that Stone kept using to try to convince Randy Credico to lie to the House Intelligence Committee, something that the two sides had been debating throughout the first week of the trial.

But the first thing prosecutors did when they got their FBI witness back on the stand was to bring Guccifer 2.0 into it.

Q. When you first testified last week, do you remember testifying about the release of some emails of the Democratic National Committee by an organization called WikiLeaks on July 22nd, 2016?

A. Yes, I do.

Q. What was the name of the online persona or figure who took credit for hacking or obtaining those documents from the Democratic National Committee?

A. Guccifer 2.0.

Q. During Mr. Stone’s testimony before the House Intelligence Committee, was he asked about that persona, Guccifer 2.0, and that alleged hack?

A. Yes, he was.

MR. ZELINSKY: I would like to publish now, please, for the witness and the jury, what’s been admitted as Government’s Exhibit 1. This is page 28 of Government’s Exhibit 1.

BY MR. ZELINSKY: Q. Ms. Taylor, I want to direct your attention to the portion of — oh, and, Ms. Taylor, just to remind the jury, what is Government’s Exhibit 1?

A. This is a transcript of Mr. Stone’s testimony before HPSCI.

Q. I’ve put on the screen in front of you page 28 of the transcript. Can you read for us, please, the question and answer that I have highlighted there?

A. “MR. SWALWELL: In 2016, August of 2016, you and the American public are aware, from press reporting, that Russia is accused of hacking democratic emails, is that — “MR. STONE. Yes.”

Q. I want to direct your attention now to page 29, the next page of the same exhibit. Can you read, please, the question and answer that I’ve highlighted on page 29 of Government’s Exhibit 1, the transcript?

A. “MR. SWALWELL: It took me a while, too. “Were you aware when you wrote that article, the Breitbart one, that Guccifer 2.0 was assessed by the Intelligence Community as a cutout for the Russian intelligence services? “MR. STONE: I was aware of that claim, but I don’t subscribe to it. There’s a substantial amount of information you can find online that questions that. I realize it’s an assertion, but as I said in my statement, our intelligence agencies are often wrong.”

Q. Finally, Ms. Taylor, I would like to direct your attention to page 113, bottom of 113 to the top of 114 of the same exhibit, the transcript. First, can you read for us, please, the question that starts at the bottom of page 113 of the transcript?

A. “MR. SCHIFF: Mr. Stone, you’ve acknowledged that it’s the conclusion of the intelligence community that Guccifer 2 is a cutout of the Russian intelligence agencies.”

Q. And Mr. Stone’s response?

A. “MR. STONE: They have said that, yes.”

Mind you, Guccifer 2.0 had been mentioned earlier in the trial, as when Taylor read off HPSCI communications with Stone or Randy Credico’s texts with Stone mentioning the persona, as well as legal debates outside the presence of the jury. Prosecutors also had Taylor present two Guccifer 2.0 posts that were published on the same days as calls involving Stone, June 15 and June 30, in the latter case, a call to Trump.

Q. Can you please read for us the first two sentences of the Guccifer 2 Word Press post from June 15th, 2016?

A. Sure. “Worldwide known cyber security company CrowdStrike announced that the Democratic National Committee, DNC, servers had been hacked by sophisticated hacker groups. I’m very pleased the company appreciated my skills so highly, but, in fact, it was easy, very easy.”

[snip]

Q. Did this same author, Guccifer 2.0, post another message about the hack a few weeks later?

A. He did.

Q. I’d like to publish now, please, for the witness and the Court — and the jury, excuse me, Government’s Exhibit 150, which appears at tab 4 of your binder. What is Government’s Exhibit 150?

A. This is another Word Press post by Guccifer 2 dated June 30, 2016.

Jonathan Kravis would remind the jury how the latter post coincided with a call between Stone and Trump in his closing arguments.

And Stone’s lawyers raised the persona a few times, in their opening, in cross examination, and their close.

But this was the first time prosecutors directly addressed Stone’s claims and communications about Guccifer 2.0, as opposed to with Trump or — via a never identified go-between — with WikiLeaks.

In the prosecution prior to this point, as in most of these Roger Stone stories, the WikiLeaks story was kept remarkably distinct from the Guccifer 2.0 story.

Of the four stories told about Roger Stone, two adopt a structure that treat Stone’s communication with Guccifer 2.0 and WikiLeaks in parallel: there are a handful of communications between him and Guccifer 2.0 (pages 194 to 196 of the SSCI Report, one paragraph on page 44 of the Mueller Report), and a separate discussion of Stone’s attempts to optimize the WikiLeaks releases (pages 221 to 252 of the SSCI Report, pages 51 to 59 of the Mueller Report).

The affidavits show that initial investigative work focused on Guccifer 2.0, not WikiLeaks. The way in which later affidavits present these issues changed over time. But many of them separate Stone’s “Public interactions with Guccifer 2.0 and WikiLeaks” from the (later) “Private Twitter Direct Messages with WikiLeaks and ASSANGE.” The affidavits generally stopped mentioning Stone’s private DMs with Guccifer 2.0 in March 2018.

That parallel structure applies to the indictments, too. Stone gets his own paragraph, ¶44, in the GRU indictment. But the Stone indictment makes absolutely no mention of Guccifer 2.0. The government declared Stone’s prosecution a “related case” to the GRU one, meaning the same judge — Amy Berman Jackson — would preside. Stone’s team unsuccessfully objected. Prosecutors explained the designation, in part, because, “Certain Netyksho defendants, through a fictitious online persona they created, Guccifer 2.0, also interacted directly with Stone concerning other stolen materials posted separately online.” Ultimately, ABJ denied Stone’s attempt to dissociate the case. Stone made an equally unsuccessful attempt to make the Russian attribution more central to the case, even addressing his communications with Guccifer 2.0. Ultimately, however, the case was totally separate.

And yet, just before it closed their case, the government got their FBI witness to review the part of Stone’s HPSCI testimony where he acknowledged that the intelligence community had assessed that Guccifer 2.0 was a cut-out for Russian intelligence.

In response, Stone’s attorney Bruce Rogow got Taylor to confirm that she didn’t know independently whether Guccifer is Russian and “was not aware” of any other communications between Stone and Guccifer 2.0, something he tried unsuccessfully to emphasize in his close.

Q. Good morning, again, Ms. Taylor.

A. Good morning.

Q. Do you know, independently, whether or not Guccifer is Russian?

A. I don’t.

Q. Did Mr. Stone turn over his communications with Guccifer that he mentioned in the transcript?

A. He did.

Q. Did you find any other communications between Mr. Stone and Guccifer?

A. I’m not aware of any.

Taylor’s response was the same one the Mueller Report gave, in that sole paragraph on Stone’s communications with Guccifer 2.0 referenced above. A sentence that has been unsealed since the original release reads, “The investigation did not identify evidence of other communications between Stone and Guccifer 2.0,” beyond the DMs in August and September, 2016. Earlier in that paragraph, however, a previously redacted passage reveals the significance of it. “After the GRU had published stolen DNC documents through Guccifer 2.0, Stone told members of the Campaign that he was in contact with Guccifer 2.0,” which it cites to this almost entirely redacted passage in a Rick Gates interview, a passage that seems to discuss events that predate the July 22 DNC release.

SSCI has read this unredacted 302, and they assess (as I have in the past, about a different 302) that Gates was just confused between the illusory deleted Clinton emails and actual advance knowledge of emails.

FBI, FD-302, Gates 4/10/2018. The Committee assesses· that, at this time, the references to Clinton’s “emails” reflected a focus on allegedly missing or deleted.emails from Clinton’s personal server during her tenure as Secretary of State.

But in context, the unredacted passage in the Mueller Report suggests that Stone told Gates — and others — that he spoke to Guccifer 2.0 before those known August and September exchanges.

This is a question that prosecutors might have asked Gates to testify about publicly. As noted, his testimony directly preceded Taylor’s second trip to the stand. Rather than ask for clarification on that question, though, Aaron Zelinsky instead had Gates describe how, on June 15, in the wake of the DNC announcement that it had been hacked by Russia (and, though Zelinsky didn’t say it, the launch of the Guccifer 2.0 site), Stone asked for the phone numbers of Jared Kushner and one other staffer “to debrief them on the developments of the DNC announcement.” Indeed, Zelinsky treated this as entirely a discussion about WikiLeaks’ upcoming leaks, not Guccifer 2.0’s existing one.

Q. During the balance of June — we’re still in June of 2016 — did you continue to discuss WikiLeaks with Mr. Stone?

A. Yes, off and on.

Q. Why did you continue, in June, to continue to discuss WikiLeaks with Mr. Stone?

A. Because at that point, both myself and Mr. Manafort didn’t believe the information was coming because it still hadn’t come out. And Mr. Manafort had asked me from time to time to check with Mr. Stone to see if the information was still real and viable.

Q. And when you say the “information,” you mean releases from WikiLeaks; is that correct?

A. That’s correct.

As for Agent Taylor’s response to Bruce Rogow’s question — that she was not aware of any other communications between Guccifer 2.0 and Stone besides the DMs he shared with HPSCI — she might not be aware of any late-discovered communications between Stone and Guccifer 2.0 beyond those he shared with HPSCI even if there were any. She testified that her role on “that piece” of the investigation — meaning the investigation of Roger Stone — was as a case agent.

Q. Ms. Taylor, in the course of your work with the FBI, was there a time in your career when you were assigned to work on the investigation led by then Special Counsel Robert Mueller?

A. Yes.

Q. And in particular in the course of your work on the special counsel’s investigation, did you participate in the piece of the investigation that concerned the defendant in this case, Roger Stone?

A. Yes, I did.

Q. What was your role on that piece of the special counsel’s investigation?

A. I was one of the case agents on the investigation of Mr. Stone.

According to Andrew Weissmann’s book, though, her primary role on Mueller’s team wasn’t on the Stone team, she was the lead agent on the obstruction team (which, given the involvement of Andrew Goldstein in certain interviews in fall 2018, was closely involved in investigating Roger Stone’s witness tampering and cover story as part of the obstruction piece). Taylor wrote none of the affidavits targeting Stone. Additionally, she had left the FBI months before the trial, in August 2019, so she also wouldn’t have been included in an interview conducted over the weekend of the trial (possibly with Andrew Miller, Stone’s aide who had managed his schedule at the RNC, where Stone appears to have gotten advance notice of the DNC leak).

So even with Taylor on the stand, Bruce Rogow may not have been able to discover — much less convey to the jury — the government’s full understanding of what Guccifer 2.0’s relationship with Stone was … not what it was when other FBI agents wrote affidavits hiding part of the investigation from him a year earlier, not what it was when they obtained Andrew Miller’s testimony weeks after the release of the Mueller Report, not what it was after that last interview on November 9, 2019, over seven months after the completion of the Mueller Report and smack dab in the middle of the trial.

Indeed, when he was standing there asking the question of Mueller’s lead agent from the obstruction team about communications between his client and Guccifer 2.0, Rogow would know that the FBI had found searches, starting on May 17, 2016, that seemed to indicate that Stone had foreknowledge of the Russian hack-and-leak; Stone had received those two warrants (one, two) in discovery. But Rogow would not know — because it was among the 15 warrants that the government had withheld, in part, to hide the full scope of the investigation from Stone — that two minutes after the FBI obtained a warrant for Stone’s cell site location from June 14 to November 15, 2016, in part to confirm whether Stone had done the searches indicating foreknowledge of the Guccifer 2.0 operation and in part to figure out whom he met with on August 3, 2016 in LA when he would later claim to have been dining with Julian Assange — a different FBI agent, one likely tied to the GRU investigative team, obtained a search warrant for an email that Guccifer 2.0 set up on July 23, 2016. That email was set up the day after the DNC drop, and perhaps not coincidentally, on the last day on which Stone may have deleted his Google search history, hiding those earlier searches showing foreknowledge of the Russian operation.

Up to that moment when former Agent Taylor discussed Stone’s HPSCI testimony confirming he knew the intelligence community believed Guccifer 2.0 to be a Russian cut-out, Stone’s trial was about his lies about who his go-between with WikiLeaks was, not about truths and lies he may have told about Guccifer 2.0.

Unless Guccifer 2.0 was that go-between.

In any case, the trial was, ultimately, about Guccifer 2.0, because some of the evidence prosecutors used to prove that Stone spoke with the campaign about a go-between to WikiLeaks involved Guccifer 2.0. In addition to the disclosure that Stone spoke to Trump before the June 15 and after the June 30 Guccifer 2.0 posts, the trial made something else public for the first time, something that had been a key detail in the affidavits, and would be in the SSCI Report, but which was not one included in the Mueller Report (or Stone’s indictment).

At 8:16AM on August 15, Corsi texted and then at 8:17 AM Corsi emailed Stone the same message, telling him there was “more to come than anyone realizes”:

Appearing in the midst of a story about Stone’s lies about his go-between with WikiLeaks, the texts and emails are fairly innocuous. Though the SSCI Report does seem to believe Corsi’s story that this moment — and the 24 minute call between Corsi and Stone at 12:14PM on August 15 — is when Corsi told Stone about what the Podesta files would include.

(U) The Committee is uncertain how Corsi determined that Assange had John Podesta’s emails. Corsi initially explained in an interview with the SCO that during his trip to Italy, someone told him Assange had the Podesta emails. Corsi also recalled learning that Assange was going to “release the emails seriatim and not all at once.”1572 However, Corsi claimed not to remember who provided him with this information, saying he could only recall that “it feels like a man” who told him.1573

(U) Corsi further recalled that on August 15, after he returned from Italy, he conveyed this information to Stone by phone.1574 According to Corsi, the information was new to Stone. Stone seemed “happy to hear it,” and the two of them “discussed how the emails would be very damaging” to Clinton. 1575 Corsi also reiterated by both text and email to Stone on August 15 that there was “[m]ore to come than anyone realizes. Won’t really get started until after Labor Day.”1576

But that’s only so long as you keep the Guccifer 2.0 story separate from the WikiLeaks story, as the SSCI and Mueller Reports do.

If you combine those stories, though, here’s what a partial timeline looks like:

August 2, 2016: Corsi informs Stone that “the hackers” will release one dump shortly after he returns on August 12 and another in October; he also mentions Podesta.

August 3, 9:12AM: Stone emails Manafort to tell him about, “an idea to save Trump’s ass.”

August 4: Stone tells Sam Nunberg that he dined with Assange the night before (he had been in LA).

August 5: Stone flip-flops on prior public statements backing the Russian attribution, writing a column declaring that Guccifer 2.0, not Russia, did the DNC hack.

August 9: Both Julian Assange and Stone start pushing the Seth Rich conspiracy.

August 12, 5:41PM: Guccifer 2.0 releases DCCC docs, fulfilling the timing (but not the outlet) that Corsi predicted.

August 12, 6:31PM: Guccifer 2.0, Emma Best, and WikiLeaks begin a discussion about exclusivity on the DCCC documents for WikiLeaks.

August 12, 10:16PM: Guccifer 2.0 says he’ll send major trove of DCCC documents to WikiLeaks; WikiLeaks never publishes any DCCC documents.

August 12, 10:23PM: Guccifer 2.0 publicly calls out Stone, “Thanks that u believe in the real #Guccifer2.”

August 13, 10:19AM: Corsi texts Stone: “Call when you can.”

August 13, 10:42AM: WikiLeaks tweets “‘@Guccifer_2’ has account completely censored by Twitter after publishing some files from Democratic campaign #DCCC”

August 13, 11:15AM: Stone tweets, “@wikileaks @GUCCIFER_2 Outrageous! Clintonistas now nned to censor their critics to rig the upcoming election.”

August 13, 7:29PM: Stone tweets, “@DailyCaller Censorship ! Gruccifer is a HERO.”

August 14, 12:58PM: Guccifer 2.0 tweets, “#Guccifer2 Here I am! They’ll have to try much harder to block me! #DNCleak #dccchack”

August 14 (unknown time): Stone DMs Guccifer 2.0: “Delighted you are reinstated.”

August 14 (unknown time, per Corsi article): Corsi starts a file called “Podesta.”

August 15, 1:33AM: Stone tweets about Podesta for the first time ever, seemingly in response to NYT story on black ledger implicating Manafort: “@JohnPodesta makes @PaulManafort look like St. Thomas Aquinas Where is the @NewYorkTimes?”

August 15, 8:16 and 8:17 AM: Corsi texts and emails Stone, “More to come than anyone realizes.”

August 15, 12:14PM: Corsi and Stone speak for 24 minutes.

August 15, 2016 (unknown time): Guccifer 2.0 DMs Stone: “thank u for writing back . . . do u find anyt[h]ing interesting in the docs i posted?”

So long as the WikiLeaks story is kept separate from the Guccifer 2.0 one, that August 15 DM from Guccifer 2.0 to Stone appears to be a question about the DCCC emails posted on August 12, and so, as Stone claimed, totally innocuous. But given the evidence that Corsi and Stone acquired advance knowledge of the content of select Podesta emails by August 15 — particularly given Stone’s claim, reportedly made before July 22, to have been in touch with Guccifer 2.0 and his apparent foreknowledge of the GRU personas — that August 15 DM appears to be a comment on the Podesta files.

That is, that August 15 was not innocuous at all. It appears to have been, rather, the GRU’s persona asking Stone whether he liked what he had received in advance.

 

The movie Rashomon demonstrated that any given narrative tells just one version of events, but that by listening to all available narratives, you might identify gaps and biases that get you closer to the truth.

I’m hoping that principle works even for squalid stories like the investigation into Roger Stone’s cheating in the 2016 election. This series will examine the differences between four stories about Roger Stone’s actions in 2016:

As I noted in the introductory post (which lays out how I generally understand the story each tells), each story has real gaps in one or more of these areas:

My hope is that by identifying these gaps and unpacking what they might say about the choices made in crafting each of these stories, we can get a better understanding of what actually happened — both in 2016 and in the investigations. The gaps will serve as a framework for this series.

Roger Stone Invented a New Cover Story Rather than Defend Himself at Trial

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In the wake of Friday’s commutation, I’ve been prepping to write some stuff about Roger Stone I’ve long been planning.

In this post, I’d like to elaborate on a comment I made several times during the trial.

Stone’s defense, such as it existed, consisted of two efforts. Along with ham-handed attempts to discredit witnesses, Stone — as he had always done and did even after the commutation —  denied he had anything to do with “Russia collusion.” In the trial, that amounted to an attempt to claim his lies about WikiLeaks were not material, which, if true, would have undermined the false statements charges against Stone. But that effort failed, in part, because Stone himself raised how the stolen emails got to WikiLeaks early in his HPSCI testimony, thereby making it clear he understood that WikiLeaks, and not just Russia, was included in the scope of HPSCI’s investigation.

More interestingly, however, in Bruce Rogow’s opening argument for Stone, Rogow reversed his client’s claims — made during his HPSCI testimony — to have had an intermediary with WikiLeaks.

Now, the government has said something about Mr. Stone being a braggart. And he did brag about his ability to try to find out what was going on. But he had no intermediary. He found out everything in the public domain.

[snip]

And the first one at paragraph 75, it says that Mr. Stone sought to clarify something about Assange, and that he subsequently identified the intermediary, that’s Mr. Credico, who, by the way, the evidence is going to show was no intermediary, there was no go between, there was no intermediary. Mr. Corsi was not an intermediary. These people were playing Mr. Stone.

And Mr. Stone took the bait. And so that’s why he thought he had an intermediary. There was no intermediary. There were no intermediaries. And the evidence is going to show that. And I think when Mr. Credico testifies, he will confirm that he was not an intermediary.

And what is an intermediary? What is a go-between? An intermediary is someone between me and the other party. And the other party, the way the government has constructed this, was Julian Assange. And there was no intermediary between Mr. Stone and Julian Assange. It’s made up stuff.

Does it play in politics? Does it play in terms of newspaper articles and public? Did Mr. Stone say these things? You saw the clips that are going to be played. We don’t hide from those clips. They occurred. Mr. Stone said these things.

But he was playing others himself by creating for himself that notion that he had some kind of direct contact, which he later on renounced and publicly renounced it and said that is not what I meant, that is not what was happening. And to the extent that anybody thinks that Credico was a direct intermediary, a go-between between Stone and Julian Assange, Mr. Credico will destroy that notion. Mr. Corsi will destroy that notion.

All these people were playing one another in terms of their political machinations, trying to be important people, trying to say that they had more than they really had in terms of value and perhaps value to the committee, I mean, value to the campaign.

That story certainly had its desired effect. Some credulous journalists came in believing that whether Stone had an intermediary or not mattered to the outcome. Those who had reason to discount the possibility that Stone had advance knowledge of the stolen emails grasped on this story (and Jerome Corsi’s unreliability), and agreed that Rogow must have it right, that Stone was really working from public information. For a good deal of the public, then, this story worked. Roger Stone didn’t have any inside track, he was just trying to boost his value to the Trump campaign.

From a narrative standpoint, that defense was brilliant. It had the desired effect of disclaiming any advance knowledge of the hack-and-leak, and a great many people believed it (and still believe it).

From a legal standpoint, though, it was suicidal. It amounted to Roger Stone having his lawyer start the trial by admitting his guilt, before a single witness took the stand.

That’s true partly because the facts made it clear that Randy Credico not only had not tricked Roger Stone, but made repeated efforts, starting well in advance of Stone’s HPSCI testimony, to correct any claim that he was Stone’s intermediary. This is a point Jonathan Kravis made in his closing argument.

Now, the defense would have you believe that Randy Credico is some sort of Svengali or mastermind, that Randy Credico tricked Roger Stone into giving false testimony before the committee; that Randy Credico somehow fooled Roger Stone into believing that Stone’s own statements from August 2016 were actually about Credico. That claim is absurd.

You saw Randy Credico testify during this trial. I ask you, does anyone who saw and heard that man testify during this trial think for even a moment that he is the kind of person who is going to pull the wool over Roger Stone’s eyes. The person that you saw testify is just not the kind of person who is going to fool Roger Stone.

And look at the text messages and the email I just showed you. If Randy Credico is trying to fool Roger Stone about what Roger Stone’s own words meant in August 2016, why is Credico repeatedly texting and emailing Stone to set the record straight, telling him: I’m not the guy, there was someone else in early August.

Kravis also laid out the two times entered into evidence (there are more that weren’t raised at trial) where Stone coordinated his cover story with Corsi. If he really believed this story, Stone might have argued that when Corsi warned Stone that he risked raising more questions by pushing Credico forward as his intermediary, it was just part of Corsi duping him. But while he subpoenaed Corsi, Stone didn’t put him on the stand to testify to that, nor did he ever make such a claim in his defense.

There’s a more important reason why such a defense was insane, from a legal standpoint.

Rogow’s story was that Stone believed that both Credico and Corsi had inside information on the hack-and-leak, and that he was fully and utterly duped by these crafty villains.

If that were true, it would still mean Stone intended to lie. It would still mean that Stone sufficiently believed Corsi really was an intermediary when he testified to HPSCI that he believed he needed to — and did — cover up Corsi’s role. If Stone believed both Corsi and Credico had inside information on the hack-and-leak, it would mean he lied when he claimed he had one and only one interlocutor. If Stone believed both Corsi and Credico really were back channels, it would mean only one false statement charge against him — the one where he claimed Credico was his back channel (Count 3) — would be true. The rest — that he had no emails about Assange (Count 2), that he didn’t make any request of his interlocutor (Count 4), that he had no emails or text messages with his interlocutor (Count 5), and that he didn’t discuss his communication with his interlocutor with the campaign (Count 6) — would still be false.

Rogow’s claim that poor Roger Stone was too stupid to realize Corsi wasn’t really an interlocutor would suggest that Stone nevertheless acted on that false information, and successfully obstructed the HPSCI investigation anyway. Rogow was effectively arguing that Stone was stupid and guilty.

Moreover, if Stone really came to realize he had been duped, as Rogow claimed, then it would mean Stone had his lawyers write multiple follow-ups with HPSCI — including as late as December 2018 — yet never asked them to correct the record on this point.

(Compare that with Michael Caputo, who did correct the record when he learned Mueller knew of his ties with Henry Greenberg in his FBI interview.)

Those who bought this story did so because they believed Stone was all about claiming credit, so much so he was willing to face prison time rather than correct the record. But Stone sustained this story even at a time when Stone was explicitly avoiding making any claim he deserved credit for Trump’s victory.

So long as you don’t think through how insane this defense strategy was, it made a nice story, one that (as Stone’s original HPSCI testimony had) disclaimed any role in optimizing the fruits of the Russian operation and thereby protected Donald Trump. But that’s a narrative, not a legal defense, and as a legal defense this effort was absolutely insane.

That doesn’t mean we know precisely what secret Roger Stone was willing to risk prison time to hide. But Stone’s confession of guilt as a defense strategy makes it far more likely that he was — and is — still trying to keep that secret.

Why Roger Stone Threatened to Sue emptywheel!

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Remember when Roger Stone threatened to sue me? It was in response to this post, in which I noted that Don McGahn had been helping Stone rat-fuck for Trump for years.

Well, it turns out that that’s the topic of something the government would like to introduce as evidence about why he lied to HPSCI.

As I noted, a debate over whether the government can introduce 404(b) evidence at trial — often used to show motive — has been going on under seal. But a snippet of the topic got aired in yesterday’s hearing on such issues. And one of the things the government wants to introduce under 404(b) is that, in addition to all the lies Stone told HPSCI laid out in his indictment, he also told further lies about his coordination with the Trump campaign.

Separately, Jackson also held off in ruling on Stone’s bid to block DOJ from talking about other alleged false statements he made before the House committee during the September 2017 testimony that led Mueller to press charges.

During Wednesday’s hearing she fretted that raising Stone’s statements could prolong the trial and confuse jurors over allegations that the government didn’t choose to prosecute.

DOJ attorney Michael Marando argued that the government’s allegations needs to be heard in the context of Stone’s overall motivations.

“He went in with a calculated plan to lie, to separate himself from the campaign in order to shield the lie about his connections to WikiLeaks. He had to create that space,” Marando said.

One of those lies pertains to Stone’s communication with the campaign about the activities of his PAC.

Assistant U.S. Attorney Michael J. Marando argued that Stone falsely denied communicating with Trump’s campaign about his political-action-committee-related activities, and that the lie revealed his calculated plan to cover up his ties to the campaign and obstruct the committee’s work.

Rogow disagreed, calling the allegation more prejudicial than revealing and saying that it would divert jurors into a matter that Stone was not charged with.

Note, this is likely why he wants to call Steve Bannon, which other news outlets are inexplicably quite surprised about; Stone asked Bannon for funding from Rebekah Mercer for this stuff. And, as I noted in the post in question, Don McGahn helped Stone avoid charges for voter intimidation for his PAC activities. So I guess Stone wanted to sue me because I laid out proof that he lied to HPSCI about something that served the larger purpose of distancing his rat-fucking from the campaign.

Amy Berman Jackson ruled on most of the motions in limine as follows:

Government motion to introduce two categories of 404(b) evidence: Under advisement

Government motion to introduce two newspaper articles related to such evidence: Denied, with the opportunity to submit redacted versions if the evidence is submitted

Government motion to exclude claims of prosecutorial misconduct: Granted, but Stone can introduce impeachment information

Government motion to exclude evidence of Russian interference: Granted

Stone motion to introduce evidence challenging claims that WikiLeaks obtained stolen documents from Russia: Denied

Stone motion to subpoena Crowdstrike for its reports to the DNC: Denied

Stone motion for a recording of his HPSCI testimony: Moot

Government motion to introduce upload dates for videos: Granted

Government motion to introduce an excerpt of Godfather II: Deferred

Government motion to partially redacted a grand jury transcript: Granted, along with permission to file a motion in limine to limit the same witnesses’ court testimony

ABJ ordered the two sides to figure out what portion of the HPSCI report they need to submit at trial, as well as what communications between Randy Credico and Stone should be excluded

Roger Stone Lawyer Bruce Rogow Concedes His CrowdStrike Ploy Was Just That

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Most of the reporting on Roger Stone’s status hearing yesterday has focused on whether Judge Amy Berman Jackson would hold Stone in contempt for violating her gag. She did find he had violated her gag, but responded only by prohibiting him from using Twitter, Facebook, or Instagram — an outcome consistent with what I laid out here. Shortly after the hearing ended, Stone’s spouse, Nydia, posted a picture of the two of them on Instagram, though on terms that are within the terms permitted by ABJ’s gag.

I’m more interested, however, in the exchanges covering Stone’s Fourth Amendment challenge to all the warrants against him and his demand to obtain full copies of the CrowdStrike reports (including descriptions of what new defenses CrowdStrike implemented) provided to the Democrats and shared with the FBI, a pair of motions that Stone successfully used to inflame conspiracies among frothy right and denialist left.

It was always clear this was about disinformation. After all, the very same lawyers had argued for the very same client that Russia did do the hack in the DNC lawsuit.

Predictably, ABJ was clearly having none of the Fourth Amendment challenge. She repeatedly challenged Stone’s motion by undermining his false claim, noting that the FBI relied on the US Intelligence Committee’s attribution of the DNC hack to Russia and not — as Stone had claimed and the useful idiots responding to his motion had repeated unquestioningly — the CrowdStrike reports. Aaron Zelinsky sounded like a DFH blogger when he described the effort as an attempt, “to backdoor a debunked conspiracy theory.”

A more telling moment came when ABJ got Bruce Rogow to concede that Stone’s team had not acted as if they really needed the CrowdStrike reports, as they had claimed to inflame their useful idiots.

The government had represented they didn’t have the full reports (as noted, in the reports the Democrats shared with the FBI, they redacted the information describing what they did to harden their networks).

At the direction of the DNC and DCCC’s legal counsel, CrowdStrike prepared three draft reports.1 Copies of these reports were subsequently produced voluntarily to the government by counsel for the DNC and DCCC. 2 At the time of the voluntary production, counsel for the DNC told the government that the redacted material concerned steps taken to remediate the attack and to harden the DNC and DCCC systems against future attack. According to counsel, no redacted information concerned the attribution of the attack to Russian actors. The government has also provided defense counsel the opportunity to review additional reports obtained from CrowdStrike related to the hack.

[snip]

As the government has advised the defendant in a letter following the defendant’s filing, the government does not possess the material the defendant seeks; the material was provided to the government by counsel for the DNC with the remediation information redacted. However, the government has provided defense counsel the opportunity to review additional unredacted CrowdStrike reports it possesses, and defense counsel has done so. 3

1 Although the reports produced to the defendant are marked “draft,” counsel for the DNC and DCCC informed the government that they are the last version of the report produced.

2 The defendant describes the reports as “ heavily redacted documents,” Doc. 103, at 1. One report is thirty-one pages; only five lines in the executive summary are redacted. Another runs sixty-two pages, and redactions appear on twelve pages. The last report is fifty-four pages, and redactions appear on ten pages.

3 These materials are likewise not covered by Brady, but the government produced them for defense counsel review in an abundance of caution.

As ABJ noted, given the representation that the government doesn’t have full unredacted reports, asking for them from the government is pointless, something Rogow conceded. The way to get the full reports, ABJ noted, would be to subpoena them from the Democrats or CrowdStrike itself.

And Stone’s lawyer admitted they hadn’t done that.

This is tantamount to a confession that Stone never really needed the documents in the first place, but instead only wanted to use them to stake a false claim about them in the press.

And given the large number of people who repeated the claim credulously, that effort succeeded.

Update: After issuing a minute order yesterday, ABJ issued a written one today, making it clear that Stone can’t just move to Gab or have Nydia post for him to get around the gag.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Roger Stone’s Seemingly Credible Excuse Starts Falling Apart Well before Bruce Rogow Asks for a Note from His Doctor

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On February 21, Roger Stone and his attorneys walked into Amy Berman Jackson’s court room with the swagger of apparent certainty they were going to convince her not to impose a gag on the rat-fucker. As I’ve laid out, that swagger was misplaced. ABJ got both Stone and his lead attorney, Bruce Rogow, to lay out the case for a gag themselves, on public safety grounds.

On the way back to Florida after that hearing, the swaggering rat-fucker and his lawyers now claim, Roger Stone reminded his lawyer, Grant Smith (who had negotiated his book contracts, edited the new introduction [see page 49], and even arranged some of the right wing media publicity for it, post-indictment), that he had a second edition of a book coming out — for which he had just received his advance copies three days earlier — that might violate the expanded gag she had just imposed. Stone then forwarded the email attaching the new introduction to Smith [update: or maybe not–see below], who forwarded it on to Bruce Rogow, who reacted with alarm. Once Stone told his lawyers, they scrambled to respond, they claim. Ultimately they “clarified” that the book was coming out to ABJ on March 1, a week later.

That’s the story that Stone’s lawyers told in a response to an angry order about all this from ABJ, which they submitted last night. It seems credible, if you don’t look too closely at the details or the arrogant close.

There was/is no intention to hide anything. The new introduction, post February 21, 2019, presented a question we tried, obviously clumsily, to address. Having been scolded, we seek only to defend Mr. Stone and move ahead without further ado.1

1 Bruce Rogow may not be able to attend the March 14, 2019 status conference because he is under a physician’s care for a temporary disorder impeding his ability to travel.

There are, however, a few problems with the story.

Multiple claims they make in their new filing are doubtful, some rely on legal gimmicks, and at least some are outright false. I’ll deal with them one by one, ending with the first claim (about publicity) last.

Roger Stone and Grant Smith had no confusion that his book was being released on March 1

Stone claims when he first submitted his “clarification” on March 1, there was confusion about when the book would be published.

That the New Introduction “had been sent to a publisher in January and was scheduled for release in February” (Order, p. 3, n. 2), is now certain. See Composite Exhibit B. There was confusion. We apologize for the confusing representation about publication.

This refers to a discrepancy about what Stone variously claimed with regards to the release date of his book. In his lawyers’ initial “motion to clarify,” which remains under seal, they appear to have referred to its “imminent general release.” Stone’s March 4 motion states,

The book, with the [new introduction], was published by the Publisher on February 19, 2019. Copies were distributed by the Publisher to hundreds of retailers nationwide in late January 2019.

[snip]

the imminent general relase [sic] of the book’s contents, including the [new introduction], Defendant respectfully requests that the publication of this book (together with the ) should not be viewed as contravening the Court’s prohibitions because these prohibitions were not extant and could not have been known prior to February 21, 2019.

The government pointed out on March 4 that the book was available as an ebook, but was silent about any existing paperback edition.

So Stone claims the paperwork he submitted proved that the book was scheduled for release in February. In fact, they appear to be conflating the online and hard copy release.

In fact, Stone’s publisher Tony Lyons told him in January the release date was March 5 (PDF 65).

And while an editor told Stone that the paperbacks were being printed “soon” on January 24 (remarkably, the very day he was indicted, though he should not have known about the sealed indictment at that point), Stone didn’t actually tell him where to send his own review copies until February 15, after his attorneys had already submitted the first filing regarding a gag. (PDF 84)

In his response that same day (PDF 96), Mike Campbell talked about forthcoming plans for media appearances relating to the book. In response, Stone specifically mentioned that ABJ might gag him “any day now” (she issued the first gag sometime that day, just days before Stone threatened her).

According to the Instagram posts submitted with the filing, as recently as February 18 — notably, the day Stone now claims the book was “published” — Stone understood the books would be “In stores March 1!” (PDF 111)

And on February 21, immediately after Stone got gagged, Grant Smith (who negotiated the deal, edited the new material, and helped with publicity) reflected the understanding that the book would come out on March 1. (PDF 9)

At least one of Stone’s lawyers did not believe publicity would wane

Stone’s lawyers claim they believed  — and still believe — what they submitted to ABJ on February 8, that publicity in the case would wane after his initial arrest on January 25.

But, the February 8 representation that “‘[t]hat first wave of publicity surrounding the indictment . . . will subside. To be sure, the interest in this case will continue, but nothing compels the conclusion that the Court’s present expressed confidence in seeking an unbiased jury will, in months hence, be compromised by the press or Mr. Stone as we move forward.’” (Order at 3, n. 2, quoting February 8 submission), is still true. The Court views the New Introduction as “entirely  inconsistent with the assurances,” but those “assurances” were not made in an effort to conceal anything. They reflected a belief in both waning publicity and the ability of the Court to seat a jury. That opinion still holds.

But in an email chain from January 28 setting up a publicity appearance for the book on Hannity, Smith received an email from Kristin Davis stating she was “looking forward to making another New York Times Bestseller.” (PDF 100)

Authors selling NYT times bestsellers spend a lot of time on publicity. And Smith was part of an effort to garner whatever publicity for this book they could get.

The entirety of Paragraph 3 seems only to relate to Bruce Rogow

Then, there’s this paragraph, which serves to deny they’re trying to pull a fast one over on ABJ (I’ve numbered the sentences and bolded the apparent subject of each sentence to make the following discussion more clear):

[1] That the lawyers who submitted the Notice of Apology, and who condemned the posting which prompted it, “did not seek an exception for a recently revised introduction to a book that was in the hands of retailers as he spoke” (Opinion at 3-4) is true. [2] But any suggestion that not doing so was intended to mislead, is not true. [3] Even if it had crossed counsel’s mind to raise the new introduction (and it did not), it seems a bit awkward to have sought to introduce the New Introduction at that very moment during argument. [4] As the 6:33 p.m. February 21, 2019 email exchange reflects, reading for the first time the New Introduction, while waiting for a plane back to Fort Lauderdale, brought the issue home and led to the Motion to Clarify.

Read quickly, you might assume the paragraph has just one subject: “the lawyers,” plural, meaning Stone’s entire legal team.

Not so.

First, note that just two of his attorneys signed the Notice of Apology referenced in sentence 1: Peter Farkas (through whom all the rest have their pro hac vice in DC), and Bruce Rogow (that’s true of the February 8 gag filing as well).

That’s important, because (as noted) Smith was not only involved in every step of this publication process, but helped Stone set up publicity for the book after he had been indicted. I’m guessing that he doesn’t feel any regret about Stone’s incitement.

Sentence 2 of paragraph 3 has no human subject — it refers to the action the counsels in the previous sentence took, or not (in this case, not disclosing the publication of Stone’s book).

The next human subject, in sentence 3, “counsel,” is referred to in the singular, perhaps speaking exclusively for the single lawyer who spoke on Stone’s behalf at the gag hearing, Rogow.

Sentence 4 may appear to use a gerund as its subject (as the second sentence does), reading for the first time. But in fact, that gerund actually modifies the unstated subject. That subject, too, is singular, given that the email referenced is not Smith’s (which was sent at 5:58PM), but Rogow’s (sent at 6:33PM).

The claims made in this paragraph may apply only to Rogow, and they definitely do not apply to Smith, about whom all the claims would probably be false, and the claim he had only read the new introduction for the first time on February 21 (which, again, he edited on January 15) would absolutely be false.

Stone may not have turned over all relevant communication

Stone’s lawyer’s claim that all records regarding publication date appear in Exhibit B.

Perhaps they do. But that exhibit shows Stone forwarding emails he believed to be relevant to Smith. All the ones he sent on March 7 and 8 are numbered, like the first of those emails. (PDF 19)

Only, assuming Stone numbered consecutively, around 8 of the emails he seems to have found relevant are missing: 3, 5, 6, 7, 9, 12, 15, and 16.

Stone sent some more on March 11 that weren’t numbered, so it’s unclear if there were still more emails that didn’t make this exhibit.

Stone’s lawyers are obfuscating about online availability

Stone claims that his publisher answered definitively.

DEFENDANT MUST INFORM THE COURT OF THE EXACT DATE THE BOOK WAS FIRST MADE AVAILABLE FOR PURCHASE ONLINE, AND THE INTRODUCTION WAS MADE AVAILABLE FOR VIEWING, AT AMAZON.COM AND GOOGLE BOOKS OR ANY OTHER ONLINE VENDOR.

Response:

As provided by the Publisher, the exact date the book was first made available for purchase online, and the Introduction was made available for viewing to Amazon.com and Google books or any other online vendor was on January 18, 2019. They could choose to make them publicly available any time after they received them.

Both times the publisher answers the question, however, the answer is not that clear. The first time Tony Lyons answers the question (knowing he has to answer correctly to keep Stone out of jail), he says “both” were live before the gag order, which could refer to both e-book versions, Amazon and Google, or both kinds of availability.

Lyons answers the question again the next day, again using an unspecified February 19 in spite of being asked two questions.

As proof that Tara Campion did not take this date to refer to hard copies, she asked him a follow-up the next day.

Stone professes to have no idea what he posted in his own Instagram

In spite of all the details I’ve posted above showing that Stone believed, as late as February 18, that the book would be in stores on March 1, he now claims to know none of that.

DEFENDANT MUST INFORM THE COURT WHETHER AND WHEN HE BECAME AWARE OF: THE FACT THAT THE NEW EDITION OF THE BOOK HAD BEEN PRINTED BY THE PUBLISHER; THE FACT THAT COPIES OF THE BOOK HAD BEEN SHIPPED FROM THE PRINTER; THE FACT THAT COPIES WERE AVAILABLE AT BOOKSTORES; THE FACT THAT RETAIL BOOKSTORES WERE SELLING THE BOOK; AND THE FACT THAT THE BOOK WAS AVAILABLE FOR PURCHASE OR VIEWING ONLINE.

Response:

1) Mr. Stone became aware of the fact that the New Edition of the book had been printed in early February, exact date unknown, when an acquaintance of Mr. Stone reached out to him to say he had purchased and had in-hand a copy of the book.

2) Mr. Stone knew books had been shipped from the printer as late as February 18, when Mr. Stone received two boxes of approximately 30 books each at his home delivered to him by the publisher which he began giving to friends and family. See also, Composite Exhibit B.

3) Mr. Stone does not have any recollection of when he specifically knew they were available at bookstores.

4) Mr. Stone does not have any recollection of when he specifically knew they were being sold at retail bookstores.

5) Mr. Stone does not recall when he learned that the book was available for purchase or viewing online.

Stone claims he made no public statement about the book even though he booked a Hannity appearance to talk about it

Stone says he don’t remember pitching the book, ever.

To the best of Mr. Stone’s knowledge or records, he made no public statements regarding the publication of the book from January 15th to the present.

As noted above, Roger Stone booked an appearance on Hannity on January 28 specifically to pitch the book (and Smith appears to have spoken to folks there about it).

On top of messaging Trump (he said on the show he would not testify against Trump), the Hannity appearance was about adding to the media blitz and attacking Mueller.

Grant Smith, who edited the introduction, needed no reminder it existed

Stone’s filing claims he needed to “remind” counsel of the existence of the new introduction that violated the gag.

Immediately following the February 21 hearing, Mr. Stone reminded counsel about the existence of the New Introduction which covered topics now subject to restriction and that it could be construed as being written after the date for the February 21 Order because the various platform and location releases were not immediately known to him, although he had knowledge they had been printed and that there had been at least one commercial sale. Mr. Stone instructed Mr. Smith to send the new introduction to the others on his team for review.

As I keep noting, on January 15, Smith shared his own edits with the publisher — and Stone approved both the ones the publisher made and those Smith made (meaning he knows Smith did make edits).

Update: On Twitter, Reed Morris convinced me what happened is even worse than this. Smith, of course, didn’t need Stone to forward him this copy of the new introduction because he already had a copy. He was on the distribution list when it was originally sent!

Stone was included in direct communications with the publishers between February 21 and March 1, and continued to contact them directly after that

Stone’s lawyers claim he did not have “direct communications” with his publisher between the imposition of the gag and the first “clarification” to ABJ.

Mr. Stone did not have any direct communications with the publisher or any retailer between February 21 and March 1, all communications were indirect through counsel. To be completely transparent, Mr. Stone has authorized counsel to provide these communications to the Court.

Only here he was, being included in the conversations with the publishers on February 26. (PDF 121)

And while Stone’s lawyers don’t make any representations on this topic, it’s clear that Stone continued to be in direct contact with the publishers after that. Indeed, it appears the two-step process of forwarding relevant emails to Smith actually amounted to first sending them to Mike Campbell at the publisher, evidence to which got left in on this email and at least one other one. (PDF 96)

This is true, in spite of his lawyers’ claims that the publisher was keeping proprietary information from him.

As is reflected in this email exchange, Mr. Stone no longer had a “joint venture” with the publisher and the publisher viewed the information Mr. Stone was requesting to be proprietary as Mr. Stone neither participated in setting the schedule or any printing or distribution decisions.

For some reason, Stone’s lawyers don’t want to talk about Bruce Rogow’s communications with the publisher

Stone’s lawyers end this filing with claims about how serious they were because they took a week to present misleading data to ABJ.

On the morning of February 22, Mr. Smith sent an email to the publisher requesting, in light of the Court’s Order, a detailed explanation of where the books stood in the release/publishing process.

On February 26th, in preparation for the March 1 filing by Defendant, Mr. Smith requested additional information from the publisher to be able to accurately represent the status of the book to the Court. As is reflected in this email exchange, Mr. Stone no longer had a “jointventure” with the publisher and the publisher viewed the information Mr. Stone was requesting to be proprietary as Mr. Stone neither participated in setting the schedule or any printing or distribution decisions. The publisher ultimately provided the information requested in preparation for the Defendant’s filing.

The Defendant also asks the Court to take notice of the immediacy with which this was addressed by Mr. Stone and that the serious tone in the emails reflects the seriousness with which Mr. Stone took the Court’s February 21 order.

Curiously, they only mention the first two email threads, involving Grant Smith. After having gotten answers, sort of, to the questions they were seeking, Smith then emailed Tony Lyons and said that Lyon had to speak to Rogow immediately. He cc’s Tara Campion, another lawyer in Rogow’s office. (PDF 127)

Lyons says he’s too busy to talk but can respond to emailed questions (they’ve been emailing questions for 5 days at this point). Campion gets the same answers Smith already got, equally ambiguous about the hard copy print date as the earlier round. She asks Lyons when the books were sent out and he says, “I’ll put a call in to our sales director but usually 2-3 weeks before pub date.”

Remember: Everyone believed the “pub date” was March 1, which would put distribution of the books around February 18, which is when Stone himself received his copies.

When Campion follows up again about whether he has spoken with the sales director, he doesn’t say he has! but claims that he now knows they were sent in late January. (PDF 125)

Once again, on January 24, Michael Campbell told Stone the books were “printing soon.” He did not give Campbell the address to receive the books until February 15, in a conversation specifically referencing the expected gag order. And while Campbell’s response reflects review copies having been sent out by February 15, that’s different than actual retail copies. (PDF 96-97 shows this, which happens to be one of the ones Stone definitely shared directly with the publisher.)

Which means this exchange — which happened after Smith told Lyons he needed to speak to Rogow — probably is bullshit, but it provided dates that weren’t utterly damning for ABJ.

The thing is, they’re probably not true, and ABJ may well delve into all this on Thursday.

Stone claims this isn’t a publicity stunt

In a follow-up, I hope to look at why these people decided Stone had to update his book, which was a flop the first time he published it.

The March 1, 2019 Motion to Clarify (Dkt. # 51) was not “intended to serve as a means to generate additional publicity for the book.” Order of March 5, 2019 (Dkt. # 56), p. 2 n. 1. It was intended to address the fact that the “new” introduction was, after the February 21, 2019 hearing, recognized to be a potential problem. See Exhibit A, email exchange of February 21, 2019 at 6:33 p.m. We regret that the Court drew a contrary impression.

As noted above, the reference to the 6:33 email refers to what Rogow — who was rightly alarmed by Stone’s attacks on Mueller in the new introduction — believed.

It says nothing about what Grant Smith, who orchestrated this entire deal, believes.

Which is why I find it so interesting that Rogow plans to have a note from his doctor excusing him from attendance.

There was/is no intention to hide anything. The new introduction, post February 21, 2019, presented a question we tried, obviously clumsily, to address. Having been scolded, we seek only to defend Mr. Stone and move ahead without further ado.1

1 Bruce Rogow may not be able to attend the March 14, 2019 status conference because he is under a physician’s care for a temporary disorder impeding his ability to travel.

I have no idea whether this will result in Stone being jailed. As I noted, at first glance it looks pretty convincing Once you look closer, it’s pretty clear the lawyers — Grant Smith in particular — sign onto claims that cannot be true. And that’s before you look at the 8 emails Stone thought were relevant but don’t appear in this filing, some of which the FBI probably seized along with everything else on January 25.

No wonder Rogow doesn’t want to be the one on the stand on Thursday.

Update: Corrected incorrect claim that Tara Campion was not admitted in this case.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

How Amy Berman Jackson Got Roger Stone to Step in It and Then Step in It Again

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As you no doubt have heard, Amy Berman Jackson imposed a gag on Roger Stone yesterday in response to his posting a picture of her with a cross-hairs on it.

But I’d like to look at how she did so, not just because of the way she crafted it to withstand what may be a legal challenge from Stone’s lawyers, but for how she got Stone on the hook for lies that may get him jailed anyway.

At the beginning of the hearing, she puts Bruce Rogow, Stone’s attorney, on the record about several issues. She gets him to certify that the post in question came from Stone’s Instagram account, as well as the timing of its posting and removal.

THE COURT: And I note that the defendant is present. Who’s going to be handling the argument for the defendant?

MR. ROGOW: I am, Your Honor.

THE COURT: Okay. Well, why don’t you remain there. And you can be seated, Mr. Farkas. Mr. Haley, could you please provide a copy of something that I’ve marked as Exhibit A to Mr. Rogow?

MR. ROGOW: Received, Your Honor. I have a copy.

THE COURT: I would like to know if Exhibit 1 is the Instagram post for which the defendant docketed the notice of apology, found at docket 38, on February 18, 2019?

MR. ROGOW: It is, Your Honor.

THE COURT: So, Roger J. Stone, Jr. is the defendant’s Instagram account?

MR. ROGOW: Yes, sir — yes, ma’am. I’m sorry.

THE COURT: And the post depicted in Exhibit 1 was posted and later removed on that Instagram account on or about February 18?

MR. ROGOW: It was.

THE COURT: Okay. You can return the exhibit to the deputy clerk. And it will be sealed and made a part of the record in this proceeding. I’m not done with you. So what is your position on behalf of the defendant on whether the media contact order in this case should be modified? [my emphasis]

It probably didn’t help matters that Rogow — who has already broken local rules twice in this case — misgenders ABJ. And from the transcript he seemed surprised she was having him — an officer of the court — certify these things from the start.

Rogow tries to deliver his flourish — that he (insanely!!) was going to put Stone on the stand. ABJ lets him, but then proceeds to get him to restate the basis for his objection to a gag. Rogow presents it as a strict prior restraint issue, arguing that as a defendant Stone should have even more right to speak than a member of the press would.

MR. ROGOW: My position is that it should not be modified, that Mr. Stone should have another opportunity to comply. And I want to put Mr. Stone on the witness stand so that he can — you can hear him, Your Honor, and hear him explain what happened, why it happened, and how he apologizes for it, as he did in that filing a couple of days ago. But he would like to have another opportunity to comply with this Court’s original order. And I think that is our position with regard to that.

THE COURT: All right. Well, if you choose to put Mr. Stone on the stand, I’m going to give you that opportunity. I do have a few questions for you first, and then I may save my other questions for Mr. Stone. In docket 28, your submission in response to my solicitation of submissions about the media contact order, you relied heavily on Nebraska Press Association, a case involving prior restraints on the press. Does the — and I don’t know if it’s pronounced Gentile or Gentile or Gentile case — indicate that Nebraska — the Nebraska Press test, the clear and present danger test that you hung your hat on, has to be applied when the restraint is on a participant in a criminal trial?

MR. ROGOW: It does not.

THE COURT: All right. So how does it apply then in this situation?

MR. ROGOW: It applies by analogy. And I think even stronger with regard to a defendant which is on trial for his or her freedom. The Nebraska Press case, of course, deals with restraints upon the press. In a situation with Mr. Stone, we’re talking about a restraint upon the defendant. The Supreme Court has never addressed the restraint upon the defendant in the First Amendment context, as far as I’m aware, which is what I said in my filing to the Court.

That’s when ABJ makes her move. She asks him how this prior restraint issue applies under the Bail Reform Act, which requires a judge to use the least restrictive means to keep a trial and the public safe. Rogow doesn’t understand where she’s going, so concedes that the Bail Reform Act permits her to impose new conditions to keep the community safe.

THE COURT: All right. He’s currently on bond pending trial on an indictment charging multiple felonies, and subject to conditions of pretrial release. How do the principles that you’re talking about operate in connection with the Bail Reform Act?

MR. ROGOW: Well, they operate to the extent that the Bail Reform Act focuses on whether or not there is a risk of flight or a threat to the community, for the most part. And in this situation there is neither a risk of flight nor a threat to the community. The question in this case is whether or not there was a violation of this Court’s order, an order that the Court entered, with warnings. And Mr. Stone will address that. But our position is that the Bail Reform Act is not the issue in this case in terms of revocation of the conditions of his release.

THE COURT: Well, what if I want to modify the conditions of release? What’s the test for what a Court has to find to impose a condition of pretrial release that’s necessary to protect another person or the community? [my emphasis]

Rogow then introduces a standard — clear and present threat — that has no basis in case law, which ABJ calls him on, which he immediately concedes, then tries to reclaim.

MR. ROGOW: Well, if you found that there is a real threat to another person in the community, an actual clear and present threat to that person, then of course you could apply Your Honor’s power to restrain that person, including revocation of the conditions of release, or change of the conditions of release.

THE COURT: Where does the Bail Reform Act require a clear and specific threat to a specific person?

MR. ROGOW: It doesn’t require in those terms, a clear and present threat, Your Honor, but —

THE COURT: Right. You keep using those terms, and now you’ve told me that it hasn’t been applied in this situation to a participant in the trial and it doesn’t apply in the case of the Bail Reform Act. So why do you keep using that test?

MR. ROGOW: Because I think the test is the proper test to use in a situation where a person is about to go on trial, and is a defendant in a case, and has a right to bail, a right to release on conditions that the Court sets. And so it seems to me that at that point, if the Court is going to not allow him or her to be released, that there ought to be very specific facts. I use clear and present because clear and present seems to be a test that gets applied in many situations where important liberty interests are at stake. [my emphasis]

So she asks him again for case law, and he defers by saying he didn’t expect her to raise this issue because it’s not within the basis of his own argument against a gag.

THE COURT: All right. And what is the best legal authority you have for the theory that you’ve just laid out?

MR. ROGOW: Well, I didn’t have any legal authority on that issue because that was not the subject of my response with regard to the gag order. So I really don’t have any authority off the top of my head, Your Honor, to tell you what case or what statute holds with regard to the conditions of release in a situation like this. And I’m focusing on a situation like this, where you have a specific single instance where this occurred.

Having gotten him to admit that — at least as he stood there, not realizing where she was headed — he had no case law to dispute her, ABJ then gets Rogow on the record regarding how much of what he did claim — that Stone was effectively a journalist — really pertained to speech he needed to conduct for his livelihood.

THE COURT: You said the following in your very impassioned submission about the proposed media contact order: You said, “While it is true that most criminal defendants do not wish to be heard, either publicly or in the course of their trial, Mr. Stone is not such a defendant. His work, for more than 40 years, has been talking and writing about matters of public interest. “He’s published half a dozen books, many stating controversial viewpoints. He’s penned many hundreds of articles and has been the subject of many hundreds more, published in myriad publications. Whether it is his pursuit of a posthumous pardon for Marcus Garvey or the style of his clothes or the state of the nation, Roger Stone is a voice. “Given those realities, a prior restraint of Roger Stones’s free speech rights would be an unconstitutional violation of Stone’s right to work, to pursue his livelihood, and be a part of the public discourse.” That raised some questions in my mind, particularly in the wake of the recent events and his explanations for them that may bear on his conditions of release. And so my first question is: How exactly does he pursue his livelihood? [my emphasis]

ABJ gets Rogow to distinguish Stone’s blather from the things he gets paid for — effectively, PR. Rogow then proceeds to certify that his client is an expert of sorts in PR.

MR. ROGOW: He consults with different business and other political persons. That is one of his kinds of work. The other is he comments, obviously, and gets paid for his commentary. He speaks and gets paid for his speaking.

THE COURT: All right. So when he consults, he consults on the subject of communications or public relations? Is that his —

MR. ROGOW: It could be. It could be both.

THE COURT: — field of expertise? All right. Now, he told Pretrial Services Agency he was employed at Drake Ventures, LLC. So what is the nature of the work for which he reported an income of $47,000 a month? Is that the communications consulting?

She establishes a few more details about Stone’s business, then permits Rogow to call Stone to the stand — but not before she warns him that Stone will be sworn (Rogow knows that, but this will be important if and when he gets charged for lying on the stand) , then also warns Rogow she’ll have questions for him again when Stone is done.

THE COURT: All right. So as long as you understand he’s going to be subject to cross-examination. I have a number of questions. If you are saying to me that you would like me to pose them directly to your client, instead of to you, I will do that; he will be sworn.

MR. ROGOW: I am saying that, Your Honor.

THE COURT: All right. You can call Mr. Stone to the stand. I may still have questions for you after, since you entered your appearance in this case.

MR. ROGOW: I understand, Your Honor.

THE COURT: And I expect you to be able to answer my questions. All right. You can call your client to the stand. Understand that the United States will have the right to cross-examine him in the scope of his direct.

MR. ROGOW: I do. I do.

THE COURT: All right.

Remarkably, Rogow seems unprepared when ABJ tells him to go first.

MR. ROGOW: Thank you.

THE COURT: You may proceed.

MR. ROGOW: May I remain? I thought Your Honor was going to ask the questions.

THE COURT: You can start.

What happened next has been the focus of most of the coverage of this. Under Rogow’s direction, Stone tried to appear sorry. ABJ interjects, when Rogow tries to tie Stone’s livelihood to his speech, to challenge that.

Q. How could we be assured, Mr. Stone, if the Judge remains with the order that she had entered allowing you to speak freely, how can we be assured that there will not be a recurrence of something like this, or anything like this?

A. First of all, I’m very grateful to Your Honor for the initial order, because I do have to make a living. And I am sorry that I abused your trust. I —

THE COURT: Is anybody paying you to speak about this case?

THE DEFENDANT: No.

THE COURT: Okay. So an order that you couldn’t speak about this case wouldn’t affect your ability to make a living?

THE DEFENDANT: That is correct.

When Rogow finishes, ABJ then gets Stone on the record about several issues: who owns the Instagram account, what he claimed the crosshairs to be. Then she notes that Stone’s public comments about what he had done differed from what his lawyers had gotten him to sign in the apology they submitted to her. She gets Stone on the record trying to square what he had said publicly with what he and his lawyers had represented to her.

THE COURT: Well, according to the apology, the post was improper. What was improper about it?

THE DEFENDANT: My attorneys wrote that and I signed it because it was improper for me to criticize at all; I recognize that.

THE COURT: Well, at the time I imposed the order there were no restrictions on your talking about the case. So, my questions to you are not about the fact that you criticized the office of special counsel, that you criticized me, that you criticized an opinion in the case that I had written earlier. My question to you is what is it that you said was improper when you told me it was improper.

THE DEFENDANT: Again, I did not write that, I signed it on the advice of counsel. I would have —

THE COURT: Well, wait.

THE DEFENDANT: Yes.

THE COURT: You said to me, “I abused your trust.”

It goes on for a bit, leading up to ABJ getting epic rat-fucker Roger Stone to agree, under oath, that his post could have a malicious impact, regardless of what he himself claimed to intend by it.

THE COURT: Why is it consistent with how sorry you were, when you sent the apology, to continue for the next two days to speak publicly about the fact that you’re being treated unfairly in this situation as well, that it’s really this symbol, that it’s really that symbol, it’s the media going after you. How is that consistent with your telling me that you’re deeply and sincerely sorry?

THE DEFENDANT: Because that was a reference to what I believe was a media distortion of my intent. It was — I did not have a malicious intent, Your Honor.

THE COURT: Do you understand that what you did could have a malicious impact, notwithstanding your intent?

THE DEFENDANT: That’s why I abjectly apologized and I have no rationalization or excuse. I’m not seeking to justify it.

DC prosecutor Jonathan Kravis then gets Stone on the record about a bunch of things I’m sure the FBI is busy at work to prove to be false claims, such as who found the photo of ABJ with the crosshairs, which device was used to post it, which Proud Boy “volunteer” he worked with to make a threat against a judge. This is important, not just because the FBI is likely to find several issues about which Stone lied under oath yesterday (which if they can prove will provide immediate reason to deny Stone bail), but also because much of the eventual case (and much of what Mueller’s team spent a year getting all of Stone’s retinue on the record about) will be about proving what Stone personally tweeted or otherwise communicated, and what someone else did.

ABJ interjects a few times, including to call him on an attempt to use the passive voice to avoid saying something that the FBI will be able to prove is a lie.

THE COURT: When you say, “My phone is used,” who’s the subject of that sentence? The passive voice is not helpful. Who uses your phone to post?

THE DEFENDANT: All of the people who work for me.

She also gets Stone to contradict earlier testimony about who picked the photo. She gets Stone on the record affirming that he stated to InfoWars that the media was making him a target. She calls Stone on a bullshit claim about five people being too many to know who had access to his phone.

Stone really wasn’t prepared to be grilled by ABJ.

Just to be fair to Bruce Rogow, note that when ABJ asks Kravis for what the government wants, he doesn’t realize what she has just done, either. He still believed, at this point, that this was a question about the jury pool.

That conduct amounts to what the Court in United States versus Brown referred to as, quote, a desire to manipulate media coverage to gain favorable attention, unquote, thereby threatening to taint the jury pool. The defendant, even after the Instagram post was taken down, continued to give interviews where he reiterated the statements that appeared in the text of the message. He gave varying accounts of who was responsible for the post, what the symbol meant, where it came from, so on and so forth. And every time the defendant gave another one of those interviews, he continued to amplify the media coverage and increase the risk — increase the risk to the jury pool.

After Kravis argues jury pool jury pool jury pool, ABJ finally guides him to where she’s headed: the the safety of the community. Kravis doesn’t get the hint, and returns to the jury pool, before — lightbulb! — he notes that Stone’s comments might be deemed threatening and therefore appropriate for restrictions under the Bail Reform Act.

THE COURT: All right. Looking at the Bail Reform Act, however, under 18 U.S.C. Section 3142(g), when I’m considering imposing conditions on someone’s release, I’m supposed to consider the available information concerning the nature and circumstances of the charged offenses, the weight of the evidence against the defendant, the history and characteristics of the defendant, and the nature and seriousness of the danger to any person or to the community that would be posed by the defendant’s release, or release without certain conditions. Is there anything you would like to bring to my attention in that regard, assuming that I would be considering making any restrictions on speech a condition of his release?

MR. KRAVIS: Your Honor, the facts that I would bring to the Court’s attention are the facts and circumstances surrounding the content of the post, in that whatever the defendant’s testimony about his subjective intentions may have been, the result of his conduct was the wide dissemination of an image that could be construed, could reasonably be construed by people as a threatening image, and that introduces a new threat of — a new threat of taint to the — taint to the jury pool.

And because the conduct we’re talking about now, because the message we’re talking about now are not just messages about proclaiming innocence or articulating a defense, but are messages that could be construed as threatening, the government believes that the restriction on extrajudicial statements would be appropriate under the Bail Reform Act.

ABJ gets Rogow on the record once more to walk him through how Stone’s actions prove his own claims from last week about publicity to be false.

That’s when ABJ takes a break, then comes back and imposes a gag not just to ensure her ability to seat a jury, but to preserve the safety of the community. She presents Stone’s speech, rightly, as an incitement (and neatly blames the wingnuts he hangs out with for any potential violence).

Under Section 3142(g), in determining whether there are conditions that will reasonably assure the safety of other persons or the community, I’m supposed to take into account a number of things, including the nature and circumstances of the charged offenses, the weight of the evidence against the defendant, the history and characteristics of the defendant, and the nature and seriousness of the danger to any person, or to the community, that would be posed by the defendant’s release. In connection with that assessment, you can’t overlook the fact that this indictment does not charge the defendant with financial or regulatory irregularities in connection with some business deal a long time ago. It’s not even limited to the allegations that he lied to the United States Congress. It specifically charges him with threatening witnesses, within the past year. Now, it’s true those allegations have yet to be proven. But for purposes of Section 3142, the evidence detailed in the indictment alone is quite compelling. And the evidence of the past few days indicates that this defendant has not been chastened by the pendency of those charges, and that in connection with this matter, he has decided to pursue a strategy of attacking others.

[snip]

What concerns me is the fact that he chose to use his public platform, and chose to express himself in a manner that can incite others who may feel less constrained. The approach he chose posed a very real risk that others with extreme views and violent inclinations would be inflamed.

Importantly, ABJ uses Stone’s own testimony to emphasize that he chose to use a threatening image, and he’s an expert so he surely didn’t do it by accident.

The defendant himself told me he had more than one to choose from. And so what he chose, particularly when paired with the sorts of incendiary comments included in the text, the comments that not only can lead to disrespect for the judiciary, but threats on the judiciary, the post had a more sinister message. As a man who, according to his own account, has made communication his forté, his raison d’être, his life’s work, Roger Stone fully understands the power of words and the power of symbols. And there’s nothing ambiguous about crosshairs.

So here’s what she did.

First, in spite of the fact that both the prosecution and the defense were treating this as primarily a jury pool issue (which ABJ did return to and establish in the record), she instead — from the start — laid the ground work to impose a gag because Stone’s public comments pose a threat to the community, giving her the authority to impose the gag under the Bail Reform Act. She makes clear that whether or not he intends violence, those around him might.

In the process, she did a number of things:

  • Impose a gag that a Twitter account bearing Stone’s name may have violated within an hour
  • Get Rogow and Stone on the record explaining why the terms of her gag won’t impact Stone’s ability to make a living, undercutting a significant part of the First Amendment claim they’ve been making
  • Provide a basis for the gag that Rogow did not anticipate, which may be far harder — and politically more difficult — to challenge
  • Provide an opportunity for both the prosecution and herself to catch Stone in multiple sworn lies (which, again, I’m sure the FBI is busy at work proving now), which if charged as perjury would lead to Stone’s immediate jailing

Here’s why, I think, this was allowed to happen. For Stone’s entire life, the press has coddled Stone, treating him as a nifty character whose toxic speech doesn’t damage society. ABJ was having none of that, and used both Rogow’s position as an officer of the court and Stone’s insane willingness to take the stand to get them to acknowledge that his speech is toxic, that it does pose a threat to society. Stone presumably wasn’t prepared for that because no one has called him on his toxic speech before.

If Stone’s lucky, the now much harder to challenge gag will be the only detrimental outcome from yesterday’s hearing and he’ll avoid perjury charges.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.