02:33 - Source: CNN
Stone: When you don't have evidence, you use theatrics

Editor’s Note: Joey Jackson is a criminal defense attorney, partner at Watford Jackson, PLLC, and a legal analyst for CNN and HLN. The views expressed here are solely his. View more opinion articles on CNN.

CNN —  

After being a person of interest to special counsel Robert Mueller for quite some time, Trump’s longtime confidant and informal political adviser Roger Stone has been indicted. In the legal community, we call this a “speaking indictment,” given the detailed story it tells of Stone’s alleged criminality. This specific indictment, however, doesn’t just speak – it sings.

After a dramatic FBI raid on Friday morning, Stone was arrested. Hours later, he was brought before a magistrate, released on $250,000 bond and addressed a crowd outside the federal courthouse. He said, “I believe this is a politically motivated investigation. … I look forward to being fully and completely vindicated.”

This can only be described as wishful thinking. To be clear, everyone in our legal system is deemed innocent until proven guilty. Stone is entitled to that same presumption. And should he go to trial, any federal judge will go out of his or her way to ensure that Stone gets a fair and impartial jury. That said, if the evidence outlined in the indictment is accurate, Stone is facing almost certain conviction.

An indictment itself is not evidence of wrongdoing – it’s the allegations contained in the court document that matter. And the ones in Stone’s indictment are compelling. By charging Stone with one count of obstruction of an official proceeding, five counts of false statements, and one count of witness tampering, prosecutors get seven bites at the apple. If any one of the seven counts is proven, he will be yet another convicted felon who once provided service to President Trump.

The indictment claims Stone was communicating with intermediaries about WikiLeaks and had information concerning the release of hacked emails. It also states that a senior Trump campaign official was directed to contact Stone about additional releases and potentially damaging information about the Clinton campaign.

The evidence to support Stone’s alleged obstruction, false statements and witness tampering appears solid. As far as obstruction goes, prosecutors allege that between May 2017 to at least December 2017, Stone engaged in obstruction in a variety of ways. One example includes his failing to turn over requested documents to the House Permanent Select Committee on Intelligence (HPSCI). It doesn’t help that Stone submitted a letter and asserted during his testimony before the congressional committee that he had no additional and relevant documents, emails or text messages to show. Prosecutors say they are now in possession of the very documents Stone claimed did not exist.

As for the next five counts in the indictment, all prosecutors must do is establish that Stone lied in his testimony before the committee. According to the indictment, Stone falsely stated that he had only one “go-between” he contacted about WikiLeaks (there appear to be two), and that he never asked the intermediary to communicate anything to WikiLeaks founder Julian Assange. Since prosecutors now allege they have documentary evidence showing otherwise, that presents a major problem.

So, too, does Stone’s claim that he never discussed his conversations with the intermediary with the Trump campaign. Prosecutors say they have records that belie this assertion.

For the possible final nail in Stone’s coffin, prosecutors have evidence supporting allegations that he tried to sway radio personality Randy Credico, referred to in the indictment as “Person 2.” In one text message, in response to Credico saying his lawyer wanted to see him, Stone told him, “‘Stonewall it. Plead the fifth. Anything to save the plan’ … Richard Nixon.” According to prosecutors, a few weeks later Stone wrote, “And if you turned over anything to the FBI you’re a fool.” Months later he called him a “rat,” threatened to take away his therapy dog, and said, “Prepare to die (expletive).”

To make matters worse for the self-proclaimed “dirty trickster,” prosecutors also have plenty of other evidence in the form of public statements Stone has made on television, radio shows and other platforms. And to say that his story has shifted and evolved over time would be generous.

Stone, however is not without defenses. For starters, he can certainly claim that he gave his answers to the congressional committee based on the best of his recollection at that time. He can also say that he misunderstood questions that he was being asked. A faulty recollection and misunderstandings are certainly not criminal.

Further, he can assert that his inconsistent public statements, his congressional testimony and his text messages were all being taken out of context. In this regard, he had no intent to commit crimes.

Stone can also argue that any misrepresentations he made, which were accidental or incidental, did not concern the central issue of collusion between the Trump campaign and Russia. By using this defense, Stone can claim they were not relevant or material to the matters at the core of the investigation and thus, his testimony cannot be deemed unlawful.

As a legal matter, however, this argument is not sustainable. People called before a congressional committee are required to tell the truth. Further, the questions asked of Stone go to the core of the collusion issue, and are therefore highly relevant and probative.

After posting bond Friday, Stone already said, “Any error I made in my testimony would be both immaterial and without intent.” Although these defense arguments are creative, they are unlikely to carry the day. Nonetheless, Stone will likely continue to assert that political motives are behind his indictment, and rail against the special counsel. But for Stone to suggest that he will be “fully and completely vindicated,” would be more deception on his part.

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    As of now, Stone remains defiant. But when the realities of his near-certain conviction sets in, the time will be ripe for him to cut a deal with prosecutors. He said yesterday on the courthouse steps that he will not testify against Trump. But I recall another person from Trump’s inner circle saying he would “take a bullet” for the President. How long ago that seems now, as Michael Cohen has since pleaded guilty and told all.

    Could Stone be next? The indictment he’s facing is singing. How long will it be before he joins the chorus?