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Roger Stone’s WikiLeaks statement is still not enough to charge Trump

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Former Trump associate Roger Stone this week became the latest alleged link of President Trump to collusion with the Russians. The special counsel is investigating Stone’s statement that he had dinner with WikiLeaks founder Julian Assange before predicting the release of damaging Clinton campaign emails. The inquiry has been portrayed as placing Trump just a stone’s throw away from a criminal charge. However, this is another disconnect between the coverage and the criminal code. Even if Stone received early word of the Wikileaks release, it would not necessarily be a crime for Trump, his campaign, or Stone himself.

The latest conspiracy is built around one of the least credible characters. Stone is fast becoming the Martha Mitchell of the Trump scandal. Mitchell was the wife of John Mitchell, Richard Nixon’s attorney general, who gained fame for her outlandish conspiracy theories that earned her the nickname “Martha the Mouth.” Stone is known for his dubious veracity and penchant for publicity. The founder of a lobbying firm with the now indicted Paul Manafort (and, ironically, a former low-level Nixon administration official), Stone is widely referred to as a “dirty trickster.”

{mosads}In a 2016 email to his former protégé, Sam Nunberg, Stone wrote, “I dined with my new pal Julian Assange last nite.” After his email, Stone went on the conspiracy site Infowars on Aug. 4, 2016 and said the Clinton campaign knows “what is coming and it is devastating.” He added, “I think Julian Assange has that proof, and I think he is going to furnish it for the American people.” The suggestion is that Stone coordinated with Assange and, by extension, Russian hackers.

Factual disconnect

Before turning to the legal implications, some factual disconnects exist in this latest “smoking gun.” Stone denies having any dinner with Assange and says the email was a joke. He has turned over his phone and credit card records to show he was on a red-eye flight from Los Angeles to Miami on Aug. 3, when the dinner would have taken place in London. Moreover, you cannot simply pop by for dinner with Assange, who is surrounded in the Ecuadorian embassy by British security and under tight control. The timing of the email does not make for a grand, or even not-so-grand, conspiracy. Weeks before the time of the Nunberg email, Assange said publicly that he had such material. Indeed, the first batch of emails from the Democratic National Committee was already released on July 22, 2016, and the second was posted on Nov. 6, 2016.

The Washington Post reported that it had two former Stone associates who recalled Stone referring to damaging Wikileaks information in the “spring of 2016” before the first release by Wikileaks. However, it does not give a date, which is key, given earlier whispers and teases by Wikileaks. Moreover, one of the two sources is Nunberg, who shredded any credibility in a series of bizarre interviews. In one rambling interview, a CNN host noted that Nunberg smelled of alcohol and asked if he was drunk. Stone himself recently turned on Nunberg, calling him a “psycho,” a “coke head” and a “lying a–hole.” Moreover, Nunberg has only referenced the August email as a statement indicating a direct communication with WikiLeaks.

The emails with WikiLeaks belie a relationship of any kind. Wikileaks publicly denied any communications with Stone and dismissed him as a pretender in 2016. On Oct. 13, 2016, Stone sent WikiLeaks a private Twitter message warning that he had defended Assange in the past and “you may want to reexamine the strategy of attacking me.” WikiLeaks responded that “false claims of association are being used by the Democrats to undermine the impact of our publications. Don’t go there if you don’t want us to correct you.” If this was a conspiracy with WikiLeaks, it seemed one party short.

Legal disconnect

However, the real problem with the current coverage is that, even if Stone was actively trying to get the emails, it was not a crime of any kind. A criminal case would be ideally based on a conspiracy to use the Russians or others to hack the DNC or Clinton camp. The emails suggest the opposite. Stone appears to be seeking information on the release, as opposed to conspiring to hack the systems. Even if Trump encouraged Stone to get copies of the Wikileaks material, that would be the same as trying to get copies of information leaked to the media.

Campaigns often seek information illegally leaked by whistleblowers or public officials. Indeed, the Clinton campaign admitted after long denials that it financed the Trump dossier assembled by a former British spy, including information Russians connected to the intelligence services. Mueller would raise serious First Amendment concerns over political speech with such sweeping theories.

When the emails started to roll out, Trump publicly praised Wikileaks and mentioned it 137 times on the campaign trail. He was hardly hiding in the shadows in declaring “WikiLeaks! I love WikiLeaks” and “This WikiLeaks stuff is unbelievable. You’ve got to read it!” He also said he hoped the Russians had copies of the tens of thousands of emails deleted by Clinton. There is no law preventing Trump from citing such information in the public domain, or even praising the hackers.

Putting aside the propriety of such statements, they do not constitute a criminal conspiracy to hack the system, even after the fact. Under Title 18 of the U.S. Code, an accessory after the fact is limited to those who “knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment.”

None of these allegations suggest an effort to hinder or prevent the apprehension of any offender. None of this means Stone could not prove to be the next Mata Hari, as opposed to the next Martha Mitchell. If there was a prior encouragement or involvement in the hacking, there would be a credible claim. However, none of these facts would suggest a criminal case, let alone a criminal nexus to Trump.

Stone is a recreational disrupter. His modus operandi was summed up by Martha Mitchell in her own handwriting next to her high school yearbook picture: “I love its gentle warble, I love its gentle flow, I love to wind my tongue up, and I love to let it go.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

Tags campaign Donald Trump Election Government Investigation Julian Assange Justice Department Paul Manafort Roger Stone Russia Special counsel White House

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