The day after Robert Mueller officially completed his two-year stint as special counsel, it’s clear that spectacle that once surrounded the Russia probe has waned.
Roger Stone, a Trump ally known for his flare for the dramatic, appeared in D.C. federal court Thursday morning to challenge Mueller’s authority and seek dismissal of the case against him. Yet the hearing was bogged down by intricate legal arguments and long-shot attempts on the part of Stone’s attorneys.
U.S. District Judge Amy Berman Jackson heard arguments from Stone on motions seeking to dismiss the case, to obtain injunctive relief, and to obtain additional discovery.
The only hint of fireworks came when one of Stone’s lawyers, Bruce Rogow, used the late Supreme Court Justice Antonin Scalia’s dissent in a case to argue that the special counsel office did not have the authority to investigate President Trump.
“Is there any reason why… I’m supposed to apply the law of a dissent?” Berman Jackson asked Rogow.
“Wouldn’t U.S. v Nixon kind of end your argument before it starts?” she added, citing the ruling that forced Nixon to hand over his tapes during the Watergate scandal.
Rogow conceded that Berman Jackson is indeed bound by that ruling, but later argued that she could still voice concerns in an opinion ruling against Stone. Rogow also argued that if the special counsel lacked the authority to investigate a president, any indictment against Stone is invalid because the probe should never have been started. Berman Jackson remained skeptical.
Most of Stone’s team’s arguments for dismissal appeared to hinge on obscure technical points.
Attorney Robert Buschel, for example, claimed that Stone’s charges for lying to Congress and obstructing justice in the Russia probe should be thrown out because Congress did not explicitly refer Stone to Mueller for prosecution.
Berman Jackson appeared unswayed, noting that the House Intelligence Committee sent the transcript of Stone’s testimony to the special counsel’s office.
Stone attorney Rogow also argued that the indictment should be dismissed because the special counsel office was not funded by appropriations approved by Congress, and instead used funds designated for an independent counsel. Funds for an independent counsel cannot be used for a special counsel, Rogow insisted, as the two bodies have different powers.
Again, Berman Jackson didn’t bite.
In a small moment of irony, Rogow also cited a recent ruling blocking the Trump administration from using a national emergency declaration to repurpose funds to for his border wall to argue that the special counsel probe was not properly funded.
Prosecutor Adam Jed contended that Rogow’s arguments on funding contradicted themselves at times.
“It’s literally impossible for all of them to be correct at the same time,” Jed said.
Despite Berman Jackson’s skepticism throughout most of the hearing, she did throw Stone’s legal team one small bone.
Stone is asking to review certain redacted portions of the Mueller report pertaining to his case, claiming that they could help him argue that he was selectively prosecuted.
Berman Jackson, who has reviewed certain portions of the unredacted report, noted that in the portion in question, most of the redactions were made in order to protect ongoing prosecutions. She said she was “troubled” that much information about Stone’s case was made public, while some of it has been redacted.
The judge asked the prosecutors to submit a filing under seal making a case for why Stone’s team should not be allowed to view those specific portions.
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