Thread by @ZoeTillman

Hello on this fast-warming day from the DC federal courthouse, where Roger Stone just arrived for a motions hearing at 10am. He's wearing a dark gray double breasted suit, light gray or white shirt, silver and black tie, and a gray and white patterned pocket square

Judge Amy Berman Jackson has taken the bench for Roger Stone's motions hearing — Stone has multiple pending motions, several challenging the prosecution based on Mueller-related objections. Stay tuned.

(Stone's motion to suppress evidence, which is still being briefed, is for another day, Jackson notes)

The judge starts with Stone's arg that there's a separation of powers problem b/c Congress didn't make a formal referral re: allegations that he lied. Jackson presses Stone's atty Robert Buschel for legal authority for that. Buschel acknowledges he couldn't find a specific case.

Buschel says there's a distinction between lying to Congress v. lying to Mueller. Jackson says she doesn't understand how sep of powers is implicated when Congress didn't include a requirement of a criminal referral to prosecute someone for lying to Congress.

Jackson notes that former House Intel chair Devin Nunes gave Mueller's office the entire Stone transcript and told them he was doing so with "no restrictions." Buschel says that doesn't mean they could indict for perjury. Jackson: "They gave it to a prosecutor."

As for Stone's arg that prosecutors couldn't roam Congress looking for violations (absent a referral), prosecutor Aaron Zelinsky noted Stone was the one who held a press conference drawing attention to the fact that he was testifying and that some people might not believe him

Another Stone lawyer, Bruce Rogow, is up, arguing that Mueller was operating without lawful funding — that the statute he was being funded under was for "independent" counsels, and, as courts have held, Mueller was an inferior officer in DOJ

Jackson Qs Rogow's narrower reading of "independent" in the context of the permanent congressional appropriation for independent counsels. She notes Congress kept approving it even after the old "independent counsel" law expired. Rogow says Congress can't assent through silence.

Jackson says she realizes the reference to "independent counsel" in the funding law isn't "super clear" but questions why Rogow's interpretation makes sense when it also references that such a counsel could be appointed by "other law" besides the expired IC statute

Prosecutor Adam Jed (who, like Zelinsky, is formerly of Mueller's office) argues the use of "an independent counsel" is meant to be generic in the funding law, noting that it is lower case, whereas references to independent counsels specifically under the old law are upper case

Jed says even if the appropriation wasn't okay, DOJ has flexiblity in funding investigations and could simply say, okay, we're actually going to fund the special counsel's expenses this year against a different source. Stone's lawyer, unsurprisingly, argues that would't be okay

This is a great example of what covering courts is like: Two sides arguing over whether "independent" is different from "Independent" and whether one type of independence is similar enough to another type of independence

Re: Stone's sep of powers argument, Jackson challenges Stone's reliance on a Scalia dissent criticizing invesitigations into presidents. Jackson questions why she should apply a dissent, no matter how well it's written — didn't US v. Nixon end it? Rogow admits she's bound by that

US v. Nixon est'd that presidents weren't immune from investigation. Jackson then Q'd what any of this has to do with Stone - even if Scalia's dissent re: investigations into presidents applied, what did that have to do with a campaign, esp. someone who didn't join the admin?

Rogow acknowledges Jackson is bound by Nixon, but ends by basically saying that the judge could still write in her opinion that she thinks it's wrong while still adhering to it (so, basically, conceding that they can't win that argument)

Next getting into substance of the indictment — Stone atty argued under case law (Safavian), couldn't be charged with obstruction for withholding docs. Jackson Qs the govt about this, Zelinsky argues that it's two-part — he didn't turn over docs AND lied about their existence

But Zelinsky argues that regardless, that's an issue that could be dealt with in jury instructions, and isn't something that would knock out counts in an indictment

The judge is now taking a break before getting into Stone's arguments of selective prosecution and for discovery, back at 11:40am

Break is over and the Stone motion hearing is back on

Jackson asks about Stone's separate motion to enjoin the prosecution given the Appropriations Clause issue, since he's also arguing for dismissal of the indictment for the same reasons. Rogow says they're arguing that in case the judge didn't agree re: dismissal

Jackson says that doesn't make sense - the criminal rules provide for a legal remedy (motion to dismiss), and precedent says that courts should not restrain a prosecution if a remedy exists

Moving on to Stone's motion for discovery re: his selective prosecution claim. Jackson asks what they want. Stone's atty Buschel says they think there might be more about who else Mueller considered for prosecution beyond the report, but isn't sure

Buschel starts to talk about how they need to see unredacted reports from CrowdStrike, the cybersecurity company that worked with the DNC. Jackson puts her head in her hands and says that's a motion she already said she isn't addressing today because it hasn't been briefed

Jackson asks what ev. they have of others in similar situations who weren't charged. Buschel says Jerome Corsi and Randy Credico. Jackson asks if there's ev. they did everything Stone is accused of - lying to Congress, tampering, etc. Buschel says not sure, but ev. they lied

Jackson questions how Stone's argument holds up when you look at all the people that Mueller charged, and she rattles off all the greatest hits: Manafort, Gates, Kilimnik, Papadopoulos, van der Zwaan, etc.

Jackson asks, if she does find Corsi and Credico were similar, what ev. Stone was prosecuted for improper reasons (Stone argues it was b/c of support for the president) — hasn't Corsi also been supportive of Trump? Buschel says yes, but Stone more closely associated w/ campaign

Re: Jerome Corsi saying he was offered a plea deal, Buschel argues it would be helpful to know what happened there. Jackson said even if something was going on, it's not clear it was an unconstitutional thing. Buschel said they'd need to see to know.

Jackson asks the govt if they aren't pressing a very high standard for what constitutes "similarly situated" conduct re: discovery for selective prosecution. AUSA replies that it has to involve roughly the same crime (not exactly), but committed in the same manner

Jackson presses the AUSA re: difference between Stone and Corsi re: lying. AUSA gets cautious here, saying that based on the record before the court (suggesting there are things not in the record), they're arguing the difference is Stone is also accused of a bunch of other things

But the AUSA says that doesn't mean that's the only reason for the decisions the government made about not charging Corsi and Credico, notwithstanding evidence that they, too, allegedly lied — those just aren't part of the record here

Re: Stone's bid to see unredacted parts of Mueller's report about his case, the AUSA argues that there's no legal authority for him to see that work product — the govt is obligated to turn over evidence and fact materials under rules/SCOTUS precedent like Brady, which don't apply

Recall that Jackson got to see the redacted parts of the report that relate to Stone. She says that in sections withheld for privacy/natsec/grand jury reasons, there's nothing that comes close to what Stone is looking for. But...

But the judge presses the govt about sections withheld b/c they relate to ongoing matters — the AUSA says they're akin to the background section of a prosecutorial memo, explaining how the govt would tell the story of the evidence gathered, which defendants aren't entitled to

Jackson says she is troubled by the idea of keeping at least some of the info out of Stone's hands when so much else was made public. She may file something under seal asking the govt to explain why specific parts shouldn't be turned over (Stone's lawyers wouldn't see it for now)

Stone also argued he needs to see redacted info to argue the govt had to prove a conspiracy between the campaign and Russia in order to charge him with obstruction. Jackson Qs what cases support that argument. Buschel points to a memo AG Bill Barr wrote in the past, no cases

Jackson presses him on this, saying the statute contemplates someone being prosecuted for obstructing a congressional investigation. Buschel says that the special counsel still had an obligation to prove there was a conspiracy per the scope of their investigation

And that's a wrap. Jackson did not appear to be swayed by any of Stone's arguments to dismiss the indictment against him, and repeatedly questioned the soundness of those arguments as his lawyers argued before her.