Roger Stone departs federal court after attending his arraignment hearing on Jan. 29, 2019. Credit: Diego M. Radzinschi / NLJ

The federal judge overseeing the criminal case against Roger Stone, a longtime ally to President Donald Trump, appeared skeptical of his effort to get the charges tossed out.

The Republican operative and his legal team were in a Washington, D.C., federal courtroom on Thursday morning, offering up a menu of creative constitutional arguments to challenge the indictment. Stone was indicted in January on charges that he lied to a congressional committee and attempted to obstruct its investigation into Russian interference in the 2016 U.S. election.

But Stone's arguments did not appear to sway Judge Amy Berman Jackson during the nearly three-hour hearing.

First up, lawyer Robert Buschel of Buschel & Gibbons contended the obstruction charges should be tossed because Congress never referred Stone's alleged false statements to Special Counsel Robert Mueller III. Instead, Buschel suggested, lawmakers encouraged the Justice Department to bring charges when they spoke publicly about his testimony in television appearances.

Jackson asked whether any court has adopted Buschel's argument, and the lawyer acknowledged he did not have any examples. But in all the cases he did review, Buschel said, Congress had indeed first made false statements referrals before prosecutors brought charges.

“That's the typical way the Justice Department would find out,” Buschel said.

Jackson noted the U.S. House Intelligence Committee provided Stone's testimony to Mueller with no restrictions on use. She questioned why lawmakers—if indeed they believed they had to first refer false statements for prosecution—wouldn't have included a referral requirement in laws related to false statements.

Next up was defense attorney Bruce Rogow, who challenged the indictment by alleging Mueller's work was improperly funded in violation of the Constitution's appropriations clause. Rogow said the probe was funded by a pot of money that Congress had reserved for independent counsels, not for Mueller, who instead serves as an inferior officer under the U.S. Constitution.

Stone's team of Fort Lauderdale, Florida, attorneys also includes Grant Smith of StrategySmith, and Tara Campion.

Again, Jackson appeared skeptical of the claim, noting Congress had funded other similar special prosecutors even after the Independent Counsel Act expired. She asked what distinction he drew between Mueller and former U.S. Attorney Patrick Fitzgerald, for example, who led the leak investigation in the Valerie Plame affair. Rogow argued Fitzgerald, unlike Mueller, had more expansive and “plenary” powers and was thus truly independent.

Rogow also argued the Constitution's Vesting Clause meant the executive branch could not prosecute the president. But his argument largely relied on Justice Antonin Scalia's dissent in Morrison v. Olson, prompting Jackson to ask Rogow if there was any reason why she as a district judge should apply the law based on a dissent.

She also noted the Supreme Court in United States v. Nixon recognized the investigation of a president, which would end Rogow's argument.

Jackson did not issue any rulings at the end of Thursday's hearing, which also featured arguments over discovery in connection with Stone's claim that he is being selectively prosecuted. Stone's lawyers said in court Thursday they were seeking information about whether other individuals who have lied to Congress were similarly prosecuted.

“That's just not how this works,” said Jonathan Kravis, a federal prosecutor from the U.S. Attorney's Office in D.C. He argued that defendants have to meet a higher threshold of evidence before they're entitled to the type of discovery Stone is seeking.

The hearing was held a day after another federal judge in D.C. ordered Andrew Miller, an associate of Stone, to testify on Friday before the grand jury convened by Mueller.

The order came after a long legal saga in which Miller and his attorney, Paul Kamenar, mounted a legal campaign to challenge a subpoena issued to Miller, and challenged the validity of Mueller's appointment. The U.S. Court of Appeals for the D.C. Circuit rejected that argument in February.

Stone's jury trial is set to take place in early November.

Read more:

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