Mueller targets Stone in final push

With special counsel Robert Mueller reportedly working on his final report, his staff continues to call witnesses and gather evidence before a grand jury. Mueller clearly is still trying to build a case, and the most obvious target is Roger Stone, longtime Republican activist and Trump supporter.

Indeed, Mueller seems to have given his staff a Bob Dylanesque order that “everybody must get Stone.” He has called in more than a dozen witnesses connected to Stone over the course of at least 16 months. One Stone associate, Jerome Corsi, said this week that he expects to be indicted. Mueller reportedly is pressing them on Stone’s communications with Julian Assange, the head of Wikileaks, and his possible prior knowledge of the hacked Democratic emails during the 2016 presidential campaign.

Andrew Miller, who Stone described as his “wing man,” is in court this week fighting a subpoena by challenging the legality of Mueller’s appointment. Miller, who now paints homes for a living, is refusing to testify before the grand jury. A house painter is hardly the cover up that Mueller was seeking. He is clearly after Stone. Yet, Stone would not seem a prize worth the powder being expended by Mueller. He is a provocateur and braggart who relishes media attention and once declared, “Politics with me isn’t theater. It’s performance art sometimes for its own sake.”

{mosads}Stone’s performance on Wikileaks may be one improv that he soon will regret. Yet, for Mueller, it may end up as impressive as shooting an annoying mime in Central Park. Stone often appears rambling on television and regularly attacks his former associates. Nevertheless, his value may be to give Mueller a tangential, if comical, Trump figure connected to the actual hacking. Despite more than 100 criminal charges against 32 individuals, Mueller has largely charged American defendants with collateral or wholly unrelated crimes from his original mandate. The exceptions are Russian hackers who are unlikely ever to see the inside of an American court. While Stone suggests that he had advanced notice of the Wikileaks material and direct contact with Assange, he now insists that he simply relied on published accounts.

The best case for Mueller would be to show that Stone was the intermediary to the Russians or Wikileaks in a hacking conspiracy. Given his erratic behavior and penchant for hyperbole, Stone would not seem to be an ideal conspirator but we do not know the full extent of evidence acquired from all of these witnesses. In the end, Stone could prove to be the only game left in town. For all of these deals, Mueller has no core collusion or obstruction charge to show for his efforts. He handed out plea bargains to an array of defendants, including a couple of the high profile duds. He cut a deal with Trump campaign adviser George Papadopoulos, only to later demand the harshest possible sentence under the deal because of a lack of meaningful evidence. While Mueller demanded six months, Papadopoulos was sentenced to a mere 14 days.

Mueller may have another dud with Paul Manafort. Mueller reportedly is threatening to scuttle the sentencing deal because Manafort has not supplied particularly useful evidence. For Stone and other possible targets, those duds only make their positions all the more precarious. Few key figures remain and, with all of the plea agreements, it is like playing musical chairs with all of the seats occupied. While Stone has cooperated and turned over evidence, he may be the best available target.

Stone is not the only one without a chair, however. Two other figures are potential targets. The first, obviously, is Trump himself. The Wall Street Journal reported that an indictment on campaign finance violations was drawn up against Trump “fixer” Michael Cohen before Cohen took a plea bargain. It also revealed evidence that Trump was directly involved in the arrangement of the hush money payments despite his later public denials. Yet, even assuming that Mueller has enough evidence to charge President Trump with a campaign finance violation, he is unlikely to do so. While some of us have long maintained that a sitting president can be indicted, the Justice Department has a policy against such indictments.

{mossecondads}Moreover, the alleged violation involving payments of hush money to a former porn star and a Playboy bunny would be both hard to prosecute and far removed from Mueller’s original mandate. To spend two years investigating Russian collusion only to prosecute Trump for a marginal campaign finance violation would be a glaring shortfall. The more likely target might actually be Donald Trump Jr. who, in contrast to President Trump, has given extensive statements under oath and to investigators. That presents the maximum exposure for the type of false statement charges that Mueller has used against former national security adviser Michael Flynn and other Trump associates. Indicting Trump Jr. last would also make strategic sense. It is anyone’s guess how President Trump would react to his son’s indictment, but it likely would not be subtle. He could move against Mueller or issue a rash of pardons.

If Mueller ends up with Stone as the only person charged with collusion, he would need to show more than Stone’s described “performance art” on emails and social media. Otherwise, it looks less like Watergate special prosecutor Leon Jaworski going after Attorney General John Mitchell but indicting Martha Mitchell. Of course, Stone could prove to be Mueller’s criminal genius as opposed to Trump’s court jester. That, however, would require a departure from Mueller’s prior filings saying that he had no evidence of anyone knowingly assisting or interacting with Russians behind the hacking efforts. If Stone was not in the conspiracy with the Russians, he would be accused of seeking hacked emails after the fact, which could raise free speech and associational defenses.

None of this has slowed the line of Stone witnesses heading into the grand jury as Mueller makes his final push in the investigation. Stone once said, “If you’re not controversial, you’ll never break through the din of all the commentary.” The next few weeks will determine if he succeeded in breaking through the din, only to land himself in a federal dock.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.