Should Roger Stone be gagged?

Should Roger Stone be gagged?
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At Roger StoneRoger Jason StoneRoger Stone shares, quickly deletes Instagram photo of federal judge on his case Mueller probe figures use fame to pay bills New filing suggests Mueller has evidence Stone communicated with WikiLeaks MORE’s court appearance on Feb. 1, U.S. District Judge Amy Berman Jackson said she was considering issuing a gag order. Yes, Stone could continue to publicly speak about men’s couture, Tom Brady (even more so now), foreign relations and the rest of his idiosyncratic opinions on “stuff,” but both parties would not be able to publicly talk about the case.  Specifically, Stone could not treat the buildup to trial as if it were a “book tour.” Needless to say, such an order, as it would relate to typically taciturn special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE, would be there for balance.

A gag order most often is designed to protect a criminal defendant from a prosecutor’s excesses. After all, it’s usually the prosecutor who could prejudice the defendant’s fair trial rights in the public square (recall how then-U.S. Attorney Preet Bharara notably was remonstrated by a federal judge for his excesses in that regard).  

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Not this time. It is Stone who, much like his friend, President TrumpDonald John TrumpRosenstein expected to leave DOJ next month: reports Allies wary of Shanahan's assurances with looming presence of Trump States file lawsuit seeking to block Trump's national emergency declaration MORE, can’t seem to stop talking — and in doing so, runs the risk of prejudicing himself in the court of public opinion. We don’t know what Mueller’s report will say, but one can imagine that it will contain a virtual bill of particulars, including every inconsistently damning statement the president has made to the public in speeches, at rallies, or in tweets.

As for Stone, his public comments over the past two years almost certainly will come home to roost as well — for him, unlike the president, in a criminal trial courtroom. But for Mueller? Nothing. He refuses to rise to the bait from any critic. If he has anything to say, he says it in a court filing (except that one time the press unfairly overplayed an accusation against the president, and Mueller decided to issue a statement to correct it).

So, one must ask, if Stone is his own worst enemy — and clearly has a constitutional right to hurt himself by prejudicing his case with sophomoric acts such as his Nixonian victory sign after his arraignment and otherwise self-defeating bravado — why should the judge stand in his way? What’s wrong with a defendant having some fun at his own expense, especially if the prosecutor isn’t complaining that, on account of that self-defeating “fun,” the prosecution won’t get a fair trial?

Indeed, if a defendant must face the music and, if convicted, a possible long stretch in jail, why shouldn’t he be able to tell his side of the story to the public whenever and however he chooses?  Especially since, as Stone might argue, the prosecutor has authored and filed a “speaking indictment” that has told the world — including the potential jury pool — in extravagant detail why Stone is indefensibly guilty. Yes, the Department of Justice website tells the public in rote fashion that an indictment is just “an accusation,” but who’s kidding whom? To be sure, there is a very high bar discouraging trial judges from issuing gag orders, particularly against a defendant or his lawyer.

Now, lest it go unsaid, nearly 30 years ago, the Supreme Court said in Gentile v. Nevada, an attorney disciplinary case, that “an attorney’s duties do not begin inside the courtroom door.”  That means a defense attorney has an affirmative duty, as part of his zealous representation of the accused, to help level the playing field in the court of public opinion — especially when his client’s right to a fair trial may have been tread upon by a prosecutor’s pre-indictment overreaching. And, in some way, although he’s not a lawyer, Stone has been representing himself in the public space his entire life.

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But do the equities argue that the court should simply stand down on this issue when there is something to be said for Stone, in this most unusual of cases, being allowed to speak freely about his case — given that the trial is at least six months away, so no real fear at the moment of prejudicing a jury pool?

Is Judge Jackson considering a gag order to protect Stone from himself (who, rightly or wrongly, prides himself on his ability to manufacture favorable public opinion for himself)? Or, might she be thinking that because Stone is so profoundly capable of creating a disjointed mishmash as a trial date impends, it will become far more difficult for the court to efficiently impanel an unbiased, unpoisoned jury? And here is the tricky part, in terms of the court’s obligations: If potential jurors are prejudiced against Stone, it really won’t matter if it is Stone who created that prejudice.

Don’t forget, the judge’s duties aren’t limited to ensuring that both parties receive a fair trial; the judge also must ensure the court gets to deliver a fair trial for the body politic. If her resolution is to confine Stone’s rhetorical excesses to the courtroom, especially when Mueller has been so scrupulously laconic, then perhaps justice ultimately is better served for all concerned.

That is, by the way, if President Trump’s twitchy fingers allow this to happen. Judge Jackson has no legal authority to restrain his Twitter feed or gag the president — he is not a party to the case. And that may be the biggest shortcoming in the setup.

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. Cohen is an adjunct professor at Fordham Law School. He regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications, and is the author of “Broken Scales: Reflections on Injustice.”