Below is my column in The Hill newspaper on the Stone memorandum and the specific counts indicted by Special Counsel Robert Mueller. Notably, after investigating Stone for much of two years, Mueller ended up indicting Stone overlapping false statements from a transcript that he secured just weeks ago from Congress. The coverage has been wildly out of sync with the substance of the indictment. There were many people, including journalists, who were trying to review the Wikileaks materials. That is not a crime. The stated desire to see any Wikileaks material is neither surprising nor illegal. Moreover, we already knew that Stone wanted to see the Wikileaks material and that he was seeking information from Wikileaks. He stated so publicly.
Here is the column:
Years ago I read about a Wisconsin man named John Longo who found a dead deer on the road, took it home, ate it, and then mounted the head as a trophy. It was never clear why he valued his roadkill to mount it, or why state game wardens went to court to recover it. The story came to mind with the indictment of Donald Trump associate Roger Stone by a grand jury in the special counsel investigation. Stone is charged with false statements, obstruction based on those false statements, and witness tampering.
This is not the big game that Robert Mueller was hunting when he began his investigation of Russian interference in the 2016 presidential election. Despite the breathless news coverage, the indictment is underwhelming and far from what many predicted. As for the media, it seems to be only counting heads of Trump associates indicted, as opposed to what they were actually charged with. The media has long described Stone as the possible Trump campaign conduit to WikiLeaks and the Russians, citing his presumed communications with Julian Assange and his advance knowledge of the Democratic Party and Clinton campaign email hacks.
Yet, none of that was confirmed or even suggested in the indictment. There was no charge of collusion. No hint of meetings or arrangements with Assange. Not even a charge as an unregistered foreign agent of the Russians. Just collateral crimes with nary a mention of collusion and a defendant who alternatively presents himself as the tragically comic and the comically tragic figure mired in the special counsel investigation.
Indeed, if a deer could run over itself, then Stone is the ultimate roadkill defendant. Mueller has relentlessly pursued him for almost two years, and Stone has equally relentlessly taunted him and his team. Various grand jury witnesses recounted being questioned about Stone and theories of collusion for months. Mueller worked every evident angle before bringing down this indictment in what could be the final charging stage of his investigation. It was only last month that Mueller asked for the transcript of the testimony of Stone before Congress. Largely based on alleged false statements, the entirety of the indictment comes out of that transcript.
Of course, this is the same Roger Stone who described politics as little more than “performance art” and himself as an “agent provocateur.” Accusing him of false statements is akin to charging a circus clown with reckless driving, as Stone contradicts himself even in short interviews. Mueller has now pulled over this clown car, and what comes out may be entertaining but it is hardly consequential in proving Russia collusion.
A close review of the indictment reveals there is less than meets the eye to both Stone and his alleged crimes. The indictment contains the same collateral crimes used against every person who is not Russian charged by Mueller with false statements or unrelated crimes. Stone was charged on five overlapping claims of false statements in an indictment of seven counts. For example, Mueller alleges that Stone lied when he denied communicating through texts or emails with a WikiLeaks intermediary.
Since Stone must have known his texts and emails would be reviewed by the special counsel, it is certainly plausible that he simply did not recall such written messages since he admitted that he had communicated with the individual. Mueller also charged that Stone lied about having written messages referencing Assange. Notably, these were not communications with Assange but simply communications that refer to Assange. However, Stone admitted to wanting to contact Assange in public, told others that he did so, and only denied having written communications, which Mueller would ultimately review with the rest of the archived records for Stone.
Likewise, Stone is accused of falsely denying possession of emails with other people, or of lying about the intended meaning of prior statements about contacting Assange. Indeed, the falsity of some of his statements is not entirely clear. The third count states that Stone testified falsely that his August 2016 references to being in contact with the head of WikiLeaks were references to communications with a single intermediary who Stone identified as “Person Two.” The indictment does not allege such specific contacts with Assange. Thus, either Mueller is alleging that Stone told the truth the first time in claiming to contact Assange, or that he bizarrely lied about his lying about contacting Assange. Mueller then reused the false statements to add a redundant obstruction charge to the indictment.
Finally, Mueller charged Stone with witness tampering because he told a witness not to cooperate with the special counsel investigation, which falls into the same type of statements that Stone was making publicly. That witness also was speaking to Stone about his testimony, but Stone was the one making outlandish statements to stonewall Mueller. The witness, identified as “Person Two,” is believed to be New York comedian Randy Credico. In 2017, Stone told Credico to pull a Frank Pentangeli, the character from “The Godfather II” who refused to incriminate the mob boss and declared, “I don’t know nothing about that.” It was a uniquely stupid communication and seen as the most serious of the allegations.
Whether Stone is found guilty of lying to investigators or tampering with witnesses, nothing in the indictment suggests he took part in Russia collusion. Nevertheless, some commentators proclaimed the indictment was precisely what it clearly was not. House Judiciary Committee member Ted Lieu of California declared that, if the indictment is true, there is now unmistakable proof of collusion and Mueller “has the goods.” Speaking as a former prosecutor, Lieu said that this all “looks like collusion” because Stone spoke to Trump campaign officials and a senior Trump campaign official “was directed to contact Stone about any additional releases.”
That theme was picked up by other news outlets, which declared that communications between Trump campaign officials and a leading Trump supporter on the WikiLeaks material is finally the long awaited proof of a conspiracy. That is wrong. Stone has previously admitted to wanting to see WikiLeaks material, as did Trump himself on the campaign trail. Many reporters also wanted to see the WikiLeaks material during this period.
Seeking the WikiLeaks material is not illegal. Both campaigns actively sought dirt on each other, including from Russian sources. What is illegal is conspiring to hack a computer system or steal files, and Stone is snot accused of any such actions. None of that makes this indictment invalid. There are indeed conflicts in his testimony before Congress. However, a conviction of Stone will not yield much of a winning trophy for Mueller.
Of course, Mueller now must deal in federal court with someone who has long maintained that “if you are not controversial, you will never break through the din of all the commentary.” Well, Stone certainly has broken through the din, right into a criminal prosecution. This will be the final episode of what he once called the “Stone Zone.” His trial will include the challenge of proving a witness tampering charge based on a conversation between a comedian and a clown. Now that will be true performance art.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.