To Roger Stone: Witness Intimidation Is Not Protected Speech

Roger Stone, arraigned today, is not accepting the Mueller indictment passively. He is, not surprisingly, loudly and publicly attacking the charges — decrying the “inquisition,” the “Gestapo” tactics, and the “war” on his “free speech.” In so doing, Stone is exercising his free speech rights. But in so doing, he also exemplifies a deep misunderstanding of the nation’s First Amendment.

Let’s take a quick look at the indictment.

Start with the witness intimidation charges. According to the indictment, Stone repeatedly demanded Person 2 – widely known to be radio host Randy Credico — to refuse Congressional efforts to have him testify and lie about what he knew.

Not just once, but on “multiple occasions,” Stone told Credico to do a “Frank Pentangeli” before the House Intelligence Committee. Pentangeli is, of course, the character in Godfather II who lies before a congressional committee, claiming not to know information in order to protect his mafia boss.

But Credico is not Pentangali, and Stone was not happy about that. When Stone learned that Credico continued to talk to investigators, he took it a step further.

“Prepare to die,” Stone tells Credico, according to the indictment. Stone allegedly warns Credico that his lawyers were “dying [sic] RIP you to shreds” and that they would take Credico’s therapy dog as well.

Note to Stone #1: Threats to a witness with intent to influence or prevent testimony is not protected speech.

Of course, these are just allegations at this point. Prosecutors may not convincingly establish that these statements were made — although presumably they have them in print or on tape since they include specific quotations. And Stone might convince the jury that they were just made in jest.

But if the facts are as they are appear, Stone threated Credico in attempt to convince Credico not to testify or talk.  This is witness tampering, a crime that carries a maximum 20 years prison term. It is not protected speech.

Other parts of the indictment are rife with damning details about lies made to Congress in testimony before the House and Senate intelligence committees. Stone states that he had no relevant “documents, records, or electronically stored information,” when it fact it later turned out that he possessed a range of responsive texts and emails. He said he hadn’t sent or received any texts or emails about Wikileaks, when in fact he sent and received many. He reportedly lied about just about every aspect of the communications, including the timing, mode, and content of his contact with both Wikileaks and the Trump campaign.

Note to Stone #2: Lying in testimony to and concealing documentary evidence from congressional committees is not protected speech.

Rather, it constitutes the crime of making making false statements to Congress — a crime that carries a maximum of five years for each of the five counts charged. Collectively, the lying to, concealment of documents, and alleged intimidation of Credico provide strong support for an obstruction of justice charge, also carrying a maximum of five years.

Stone is free to exercise his free speech rights in as much as he wants to decry attacks on his free speech. But he would benefit from a lesson on the First Amendment before he does so.

 

Image: Roger Stone, a longtime adviser to President Donald Trump, leaves the Prettyman United States Courthouse after pleading not guilty to charges from Special Counsel Robert Mueller that he lied to Congress and engaged in witness tampering January 29, 2019 in Washington, DC. (Photo by Chip Somodevilla/Getty Images).

 

About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law. Member of the editorial board of Just Security. Follow her on Twitter (@jendaskal).