Roger Stone is an outspoken political consultant who passionately supported Donald Trump in the 2016 election. He was a prime target for the special counsel investigation led by Robert Mueller. They made their move with a pre-dawn raid by dozens of federal agents on his Fort Lauderdale home.
It was an operation appropriate for an international terrorist. Stone was suspected of seeking opposition research against Hillary Clinton from foreigners. Stone was ultimately indicted for allegedly obstructing a congressional committee’s investigation and tampering with a witness. None of it has anything to do with Russian collusion.
Members of Congress have called for an investigation into the pre-dawn raid. Fair-minded Americans should be more outraged by what has happened since.
As a condition of Stone’s pre-trial freedom, his judge issued a Draconian gag order prohibiting Stone from making any public statement about the Mueller team, their investigation or his case. The prohibition includes any comment on any form of social media or even re-tweeting, re-posting or forwarding anyone else’s comment.
The gag order does not just bar Stone. It also bars any public comment by any family member or volunteer who supports Stone.
There are fundamentally important Constitution-based reasons that we recognize an independent public interest in the free, open and robust discussion of cases that come before our courts, the prosecutors who bring them and the basis for the prosecution. The integrity of our system and the ability to defend a case depend on free speech.
Such gag orders — true prior restraints on speech, are presumptively unconstitutional in the absence of absolutely compelling, proven governmental interests, and even then, only when written in the least restrictive way possible to meet those interests.
Nothing Stone has said or done justifies this unconstitutional prior restraint.
With Stone suspected by the Mueller team of seeking opposition research against Clinton, it is relevant, for instance, that a lead prosecutor who obtained the indictment was Clinton’s personal lawyer. Another has proclaimed in his public writing, “I am a Democrat.”
But neither Stone nor his supporters can mention this or he will be jailed. This is irreconcilable with fundamental principles of fairness in the criminal justice system.
A respected constitutional law professor, Bruce Rogow, is challenging the judge’s gag order on appeal. He invokes the important First Amendment rights the gag order tears to shreds.
But even if he succeeds, it will be too little too late. Stone’s trial is set for early November.
According to Rogow, there have been tens of thousands of pieces in the media hostile to Stone, in addition to the media broadcasts of the arrest that made him look like Public Enemy No. 1. Prospective jurors and others have seen only that point of view. Stone has been prohibited from responding.
Which is to say, this gag order not only violates basic speech rights; it also jeopardizes a fair trial.
Every criminal defense lawyer today understands the importance of social media in defending against criminal charges. Often only through social media are material facts learned.
By prohibiting Stone or any supporter from publicly discussing the prosecution, its agenda or methods, or any fact relevant to the case or any witness through social media, this gag order effectively denies Stone any meaningful opportunity to obtain information others might have that his lawyers could use to find favorable witnesses, confront evidence against him or challenge the integrity of the investigation — all firmly established constitutionally guaranteed rights in the defense of a criminal case.
In short, the prosecutors in the Stone case, with the support of an otherwise distinguished federal judge, are determined to deny a defendant the fundamental rights guaranteed to him and every American under the First, Fifth and Sixth Amendments to the United States Constitution.
The fact that the defendant happens to be named Roger Stone should not mitigate our outrage. Rather, every American who cares about the integrity of the system and the free and open discussion of matters of public interest should demand the removal of this un-American and unconstitutional prior restraint on public speech.
Schoen is a criminal defense attorney.