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D.C. Circuit Upholds Roger Stone's Media Ban With Trial Looming

Roger Stone Outside of District Court in Washington, D.C.
By Joseph Fawbush, Esq. on October 24, 2019

Roger Stone, the now-famous political consultant accused of lying to Congress, obstruction of justice and witness tampering involving Robert Mueller's investigation into the 2016 election, is slated for trial on November 5. We haven't heard much lately from Stone himself regarding the charges or his defense, however, because the district court judge has imposed a gag order on Stone after he published several ill-advised and inflammatory social media posts about the presiding judge. Stone then repeatedly violated those gag orders.

Stone, along with several of his family members, challenged that gag order in the Court of Appeals for the D.C. Circuit, claiming his First Amendment rights were violated. In a unanimous ruling, the panel held that Stone had not exhausted his alternative remedies, and therefore the D.C. Circuit did not have jurisdiction to lift the gag order.

Continued Pre-Trial Attacks on the Judge

Due to the significant publicity of the charges, the district court initially issued a restrictive order preventing Stone from discussing the case in and around the courthouse. Three days after this order, however, Stone posted an image of the district court judge with a crosshairs next to her head on his Instagram account.

The district court judge then modified the order, preventing Stone from discussing the case in any media, except to solicit funds from his followers and generally proclaim his innocence. Nevertheless, Stone posted several times about the case on social media in subsequent months, leading to yet another amended order, in which the judge wrote that “it didn't take a week [for Stone] to call a witness in this investigation a liar." The subsequent order barred Stone from using social media at all, either himself or through surrogates.

Should Have Gone to the Judge

Stone never challenged any of the orders, although his lawyers did once ask for the judge to clarify the order when Stone re-wrote the introduction to his book criticizing Mueller. Despite never timely challenging the orders, in August he asked the D.C. Court of Appeals to issue a writ of mandamus to vacate the gag orders, which were all still in effect. The panel, in a brief 16-page decision, held that they did not have jurisdiction.

This leaves open the possibility for further challenges, but it is not clear if Stone will pursue this line of attack.

As for the upcoming trial, expect the unexpected. For example, the government recently asked the judge to show a clip from the movie “Godfather Part II," since Stone referenced a character from the iconic movie in a text message to a witness in the case, in which he wrote that the witness should "do a 'Frank Pentangeli'" and lie to Congress. The District Court judge ultimately allowed the transcript to be admitted, but ruled that the movie clip itself would be too prejudicial to Stone.

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