United States v. Stone

• Citation: 394 F.Supp.3d 1
• Decision Date: 01 August 2019
• Docket Number: Crim. Action No. 19-0018 (ABJ)
• Parties: UNITED STATES of America, v. Roger J. STONE, Jr., Defendant.
• Court: United States District Courts. United States District Court (Columbia)

394 F.Supp.3d 1

UNITED STATES of America,

v.Roger J. STONE, Jr., Defendant.

Crim. Action No. 19-0018 (ABJ)

United States District Court, District of Columbia.

Signed August 1, 2019

Aaron Simcha Jon Zelinsky, U.S. Department of Justice, Adam C. Jed, Jonathan Ian Kravis, Michael John Marando, U.S. Attorney's Office for the District of Columbia, Andrew Daniel Goldstein, Jeannie Sclafani Rhee, Lawrence Rush Atkinson, U.S. Department of Justice Special Counsel's Office, Washington, DC, for United States of America.

Chandler Paige Routman, Law Office of Chandler P. Routman, Bruce S. Rogow, Pro Hac Vice, Tara A. Campion, Pro Hac Vice, Law Office of Bruce S. Rogow, P.A., Grant J. Smith, Pro Hac Vice, StrategySmith, P.A., Robert C. Buschel, Pro Hac Vice, Buschel & Gibbons, P.A., Ft. Lauderdale, FL, L. Peter Farkas, Halloran Farkas & Kittila LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge Defendant Roger J. Stone, Jr. has filed a number of motions attacking the validity of the indictment pending against him. He asks the Court to dismiss the indictment, to enjoin the prosecution, and to order the government to provide discovery related to the decision to bring this case in the first place. While the Court will require the government to provide the defendant with the bulk of the material redacted from the Report of the Special Counsel that relates to him, it concludes that the defense has not identified any legal grounds that would support dismissing or enjoining this action or authorizing discovery into the prosecutors' internal deliberations. Indeed, the defendant acknowledged at oral argument that many of his theories for why the indictment is invalid are foreclosed by Supreme Court and D.C. Circuit precedent that this Court is required to follow. Thus, with the limited exception of the motion to compel the production of the Report of the Special Counsel, which will be granted in part, the motions will be denied. This opinion does not assess, and it should not be interpreted as expressing any point of view about, the strength of the government's case. Defendant is presumed to be innocent unless and until the government proves his guilt beyond a reasonable doubt.

BACKGROUND

This case arises out of the investigation conducted by Special Counsel Robert S. Mueller III. On May 17, 2017, pursuant to 28 U.S.C. §§ 509, 510, and 515, Acting Attorney General Rod J. Rosenstein appointed Mueller to serve as Special Counsel for the United States Department of Justice. Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters, Order No. 3915-2017, https://www.justice.gov/opa/press-release/file/967231/download ("Appointment Order"). The Appointment Order authorized the Special Counsel to investigate

(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and

(ii) any matters that arose or may arise directly from the investigation; and

(iii) any other matters within the scope of 28 C.F.R. § 600.4(a)¹

and to prosecute federal crimes arising out of them. Id. ¶¶ (b)–(c).

On January 24, 2019, a grand jury returned a seven-count indictment against defendant Roger Stone for obstructing a congressional proceeding, lying to Congress, and tampering with a witness to that proceeding. See Indictment [Dkt. # 1]. According to the indictment, defendant is a political consultant who served as an official on Donald Trump's presidential campaign until approximately August 2015. Id. ¶ 4.

The indictment alleges that in mid-2016, the Democratic National Committee ("DNC") learned that its computer systems had been hacked, id. ¶¶ 1–2, and that from approximately July through November of 2016, an entity identified as "Organization 1" released tens of thousands of documents stolen from the DNC and from the personal email account of the campaign chairman of then-presidential candidate Hillary Clinton. Id. ¶ 3. During this time period, defendant made public and private statements that he had been in communication with the head of Organization 1 about its releases of information that would be damaging to the Clinton campaign. Id. ¶¶ 5, 6, 13, 14.

After the November 2016 election, the U.S. House of Representatives Permanent Select Committee on Intelligence ("HPSCI") was one of the congressional committees that undertook to investigate Russian interference in the 2016 presidential election. Id. ¶¶ 7, 18. As part of its investigation, the Committee asked defendant to appear before it and to produce certain documents. Id. ¶ 19. Defendant testified under oath before the Committee on September 26, 2017, and the indictment alleges that he made false statements to the Committee, lied about whether he possessed the documents requested by the Committee, id. ¶¶ 20–35, and attempted to prevent another person from contradicting the allegedly false account he had provided to the Committee. Id. ¶¶ 36–39. Stone is charged with one count of obstruction of a proceeding of the House Committee (Count One), id. ¶¶ 40–41; five counts of making false statements to the Committee (Counts Two through Six), id. ¶¶ 42–43; and one count of witness tampering (Count Seven). Id. ¶¶ 44–45.

STANDARD OF REVIEW

A criminal defendant may move to dismiss an indictment before trial based on a "defect in the indictment," Fed. R. Crim. P. 12(b)(3)(B), including constitutional challenges. See United States v. Eshetu , 863 F.3d 946, 952 (D.C. Cir. 2017), vacated in part on reh'g on other grounds, 898 F.3d 36 (D.C. Cir. 2018) ; United States v. Seuss , 474 F.2d 385, 387 n.2 (1st Cir. 1973). "When considering a motion to dismiss an indictment, a court assumes the truth of [the indictment's] factual allegations." United States v. Ballestas , 795 F.3d 138, 149 (D.C. Cir. 2015).

ANALYSIS

In the set of overlapping dispositive and discovery motions to be addressed in this opinion, the defendant raises the following issues:

• In his motion to dismiss, defendant argues that his indictment for making false statements to a Congressional committee violates the principle of separation of powers enshrined in the Constitution because the legislative branch did not specifically refer the matter to the executive branch for prosecution. See Def.'s Mot. to Dismiss [Dkt. # 69] and Mem. of P. & A. in Supp. of his Motion to Dismiss ("Def.'s Mem.") at 2–4.² Defendant's motion to dismiss due to defects in the indictment also contends that the indictment is invalid on this basis. Def.'s Mot. to Dismiss Pursuant to Fed. R. Crim. Proc. 12(b)(3)(B) [Dkt. # 72] ("Defect Mot.") at 1–4.

• Defendant argues that his indictment was unlawfully obtained and should be dismissed because the appointment and funding of the Special Counsel violated the Appropriations Clause of the Constitution. Def.'s Mem. at 4–16. He also seeks to enjoin the prosecution on this basis. Mot. to Enjoin the Prosecution [Dkt. # 71] ("Mot. to Enjoin").

• Defendant argues that the Vesting Clause and the Take Care Clause of the Constitution prohibit any investigation of a President by the executive branch, and that since his indictment grew out of such an unlawful investigation, it must be dismissed. Def.'s Mem. at 16–30.

• Defendant submits that his indictment was obtained in violation of the Appointments Clause of the Constitution because the Special Counsel was not appointed or commissioned by the President, and therefore, the charges must be dismissed. Def.'s Mem. at 30–31.

• Under Rule 12(b)(3)(B) and United States v. Safavian , 528 F.3d 957, 964 (D.C. Cir. 2008), the defendant seeks the dismissal of that portion of Count One – charging obstruction of a congressional investigation – that alleges he failed to turn over documents to the Committee. Defect Mot. at 5–6. He argues that a failure to produce documents voluntarily in the absence of a subpoena cannot be the basis for a criminal charge. Id.

• Finally, defendant posits that he has been targeted for prosecution due to his support of the President's candidacy and his other First Amendment activities, and he asks the Court to compel the prosecution to provide him with an unredacted copy of the Special Counsel's report and to authorize him to conduct other discovery to uncover evidence related to his claim of selective prosecution. Mot. to Compel Complete Report of the Special Counsel [Dkt. # 70] ("Mot. to Compel"); Mot. for Disc. Regarding Selective Prosecution [Dkt. # 73] ("Disc. Mot.").

As will be set forth in more detail below, none of these theories warrants dismissal of the indictment or an order enjoining the prosecution, and beyond receiving portions of the Mueller Report, the defendant may not embark on discovery concerning the prosecutors' charging decisions.

I. The Lack of a Congressional Referral Does Not Require Dismissal of the Case.

Defendant Stone has moved to dismiss Count One, which charges him with obstructing the investigation conducted by the House Permanent Select Committee on Intelligence, and Counts Two through Six, which charge him with falsifying or concealing material facts in his testimony before the Committee, on the grounds that the matter was not referred to the Special Counsel by Congress.³ Def.'s Mem. at 2–4; see also Defect Mot. at 1–4 (making the same argument). He proclaims, without citing any legal authority, that the Executive "may only act upon alleged criminal activity impacting the Legislative Branch upon the receipt of a ‘referral’ from Congress." Def.'s Mem. at 2. The motion to dismiss on this basis will be denied.

Defendant contends first that it would violate the separation of powers principles embodied in the Constitution if the Court were to permit this case to proceed. Def.'s Mem. at 2–4. "To do so would allow the Executive Branch to invade and impede Congress' right to conduct inquires," in violation of the separation of powers doctrine. Id. at 3; see also id. at 4 (stating that "[...