Roger Stone raises First Amendment concerns in fighting possible gag order

February 8, 2019

Roger Stone raised constitutional concerns Friday over a gag order being considered by the federal court judge presiding over the government’s criminal case against him.

Lawyers for Mr. Stone, President Trump’s recently indicted former election campaign adviser, argued in a filing entered in D.C. federal court that imposing an order barring him from pleading his case publicly would violate his right to free speech.

“To foreclose Mr. Stone’s exercise of his First Amendment rights on any subject would serve no compelling governmental interest,” his attorneys wrote. “No evidence exists that would provide a clear and convincing basis for concluding that any of Mr. Stone’s free speech exercise presents a clear and present danger to a fair trial and that no alternative is available to protect his right to a fair trial.”

“To silence a defendant who has demonstrably been the subject, and will continue to be the subject, of unrestrained comment, speculation, opinion and criticism by the press would be particularly constitutionally suspect,” the lawyers added.

Mr. Stone, 66, was arrested last month in connection with a criminal indictment charging him with seven counts of lying to Congress, obstruction and witness tampering related to the government’s attempt to investigate alleged Russia interference in the 2016 U.S. presidential race. He has pleaded not guilty to all charges and is currently free on a $250,000 bond.

Addressing a flurry of media appearances made by Mr. Stone in the aftermath of his arrest and release, U.S. District Judge Amy Berman Jackson cautioned him during a status hearing last week against treating the case like a “book tour” and acknowledged the possibility of imposing a gag order effectively preventing him from discussing it publicly.

“I want to recognize and I think it’s important that this defendant has a legitimate interest in exercising his First Amendment rights,” she said at the hearing. “But he’s also affirmed that he has an interest in exercising his constitutional right to have a trial and to put the government to its proof. And it’s my responsibility to ensure that he has a fair trial.”

Mr. Stone was indicted as a result of the Justice Department’s investigation into the 2016 race being led by Robert Mueller, a former FBI director appointed special counsel in May 2017, making him the 34th person charged in the probe’s 21-month history.

In a filing of its own later Friday, the special counsel’s office suggested ordering Mr. Stone to “refrain from making further statements to the media or in public settings that are substantially likely to have a materially prejudicial effect on the case.”

“This case has already received extensive media attention,” Mr. Mueller noted. “A considerable amount of that media attention has been devoted to extrajudicial statements of the defendant himself. These statements create the risk that the defendant will seek to use media coverage of this case to gain favorable attention. Moreover, continued extrajudicial statements by the defendant are likely to increase the level of pretrial publicity and create a substantial risk of tainting the jury pool.”

It was not immediately clear if or when the judge, an Obama appointee, would decide to authorize a gag order.

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