The brief appearance provided some of the most high-profile comments Stone had delivered in months.
It took constant verbal warnings and the very real threat of sending the longtime Donald Trump adviser to jail, but U.S. District Court judge Amy Berman Jackson has somehow managed to keep Stone off the internet and out of the direct media spotlight over the last four months.
People who know Stone say adhering to Jackson’s gag order hasn’t been easy. Before his legal troubles hit, Stone was in high demand, playing the role of unofficial Trump defender as his former lobbying client rode a populist wave to the White House.
But much of that has been shelved — for now.
“He’s a social being. This is his life. And when you can’t speak you can’t give your defense,” said Randy Short, a Washington, D.C., activist and Stone supporter who attended the first day of the trial.
Indeed, something has changed for Stone since the summer when federal prosecutors brought to Jackson’s attention several of his Instagram posts criticizing the media coverage of the criminal charges he’s fighting that he lied to Congress and obstructed lawmakers’ 2016 Russia investigation.
Since then, the 67-year-old conservative provocateur has effectively gone dark online while maintaining a careful balance when he does speak publicly to limit his comments to raw politics or topics well outside the arena central to his legal fate.
All along, Jackson’s stated goal has been to ensure she can give Stone a fair trial in a case that was bound to generate significant media coverage. It’s her job to seat an impartial jury pulled from a city that has been saturated by the news of Robert Mueller, WikiLeaks and Hillary Clinton’s hacked 2016 presidential campaign.
During Tuesday’s proceedings, Jackson’s struggle in trying to at least limit Stone’s penchant for publicity was apparent. She peppered dozens of potential jurors with questions about their professions and media consumption, and many of the people replied that they had indeed formed hardened — and negative — opinions about Trump and the current administration. Several said they had consumed the news about the Mueller probe and Stone’s case — though that was before they got their first notice earlier this summer that they could get tapped to serve on the jury and should start tuning out all things tied to the upcoming trial.
Jackson largely ruled that people who said they could remain impartial if seated on the Stone jury could be eligible for the job. And she rejected several objections from Stone’s lawyers that some of the D.C. residents wouldn’t be fair to their client.
Some of Jackson’s concerns about Stone’s combative social media persona seemed to be vindicated Tuesday.
One potential juror said he’d followed some of Stone’s antics on Twitter and was aware of his reputation as a “dirty trickster,” as well as his Richard Nixon back tattoo. Jackson released the man, saying his description of Stone suggested a bias that might be hard to overcome. “I just think that’s not a good place to start,” the judge said.
For his part, Stone on Tuesday looked to be at his lowest. He was unusually subdued as he arrived, and excused himself from the courtroom not long after Jackson began jury selection, asking the judge for permission to depart for the rest of the day.
But even that brief appearance was far more than Stone has been saying since Jackson’s decision in June to ban him from social media through the duration of his trial.
“There is no doubt that it has been torturous for Roger to be under a gag order,” said Morgan Pehme, a co-producer and co-director of the 2017 Netflix documentary, “Get Me Roger Stone.”
Pehme recalled how Stone told him that “his value as a political operative is his gift in talking to the media and that depriving him of that ability is tantamount to denying him food and air.”
Stone’s attorneys fought back as Jackson tried to clamp down on their client. At one point, they even made the risky move of allowing him to take the witness stand to offer an apology to the judge for an Instagram post in February that appeared to show a gun crosshairs above a picture of Jackson’s head.
More recently, they made an unusual plea to a federal appeals court to try to ease aspects of Jackson’s most recent gag order. The court turned them down.
People who know Stone said there was a practical reason for the fight to maintain his freedom to speak up.
“I suspect that Roger’s opposition to the gag order was less how it would affect the fairness of his trial than it was about trying to earn a living at a time when his astronomical lawyer fees have devastated his financial situation,” Pehme said. “His legal woes have likely made him radioactive to any would-be consulting clients, so the main source of income he has had since he was arrested is his book sales. Making a spectacle of himself online and in the media draws buyers to his books.”
Stone hasn’t exactly dropped off the face of the earth — though his every move has come with more caution than before.
His travels around the country while awaiting trial have required court permission, and each one has usually come with an explanation that he was seeking “business opportunities.” One such opportunity was an “uncensored” speaking gig in Buffalo in September where he signed books and t-shirts for $30. A note attached to the Eventbrite invitation included an explainer that “uncensored refers to Roger Stone’s views on the 2020 Presidential campaign and no other topic.” A write-up in the local newspaper made it clear the guest wasn’t there to talk about his case.
Jackson’s decision to rein in Stone’s speech wasn’t her first such foray. While overseeing the trial of Paul Manafort — who was also ensnared in Mueller’s probe — Jackson ordered the former Trump campaign chairman to rein in his statements to the press.
Jackson’s use of gag orders has drawn the attention of legal experts, who see the gag order concept as increasingly on its last legs. Victims increasingly don’t respect gag orders, social media makes them almost impossible to enforce and, in prominent cases, the president has displayed an unrivaled penchant for offering pointed public commentary.
Some First Amendment experts say gag orders are becoming outmoded because it’s no longer clear what it means to ban someone from talking to the press or even from speaking publicly.
“The whole idea of a distinction is incoherent because we’re all the media now,” said Rodney Smolla, dean of the Widener University Delaware Law School. “It’s an example of the law not being able to keep up with digital culture.”
Especially amid the sea of publicity around the Mueller probe, gag orders can seem like an exercise in futility and irrelevance.
In Manafort’s case, the gag order Jackson imposed faced a particular, unusual challenge: the defendant was also facing trial on related charges in nearby Alexandria, Va. The judge in that case, T.S. Ellis III, did not enter a gag order.
The result was that Manafort’s lawyers often talked to reporters at the Alexandria courthouse, sometimes making press statements before the phalanx of TV cameras there.
It also emerged earlier this year that Manafort was in regular contact with Fox News prime time host Sean Hannity via text messages both before and after Jackson imposed the gag order.
“They are still f’ing with me on bail,” Manafort wrote to Hannity soon after the gag was put in place. “Getting close. Once [done] then we need to sit and build the plan.”
An even higher-profile figure than Hannity helped demonstrate the impotence of gag orders in controlling publicity around Manafort’s prosecution: President Donald Trump.
“So many lives have been ruined over nothing — McCarthyism at its WORST!” Trump wrote while jurors in the case were home for the weekend, blasting Mueller’s investigation as a “Rigged and Disgusting Witch Hunt.”
While jurors were in their second day of deliberations, Manafort’s lead attorney welcomed Trump’s remarks. “Mr. Manafort appreciates the support of President Trump,” Downing declared at microphones set up just outside the Virginia courthouse.
The situation revealed the potential imbalance of gag orders, several lawyers argued.
“Why are you gagging the little guys, when the guy with the biggest microphone on earth gets to say whatever he wants?” asked former federal prosecutor Laurie Levenson, a professor at Loyola Law School.
The Stone and Manafort gag orders are clearly being tracked by other prosecutors working on high-profile, politically-sensitive cases.
Over the summer, federal prosecutors in San Diego targeting Rep. Duncan Hunter (R-Calif.) directly cited those orders as support for the notion that Hunter crossed the line with his repeated public statements about his case being a politically-motivated persecution.
Prosecutors then asked the judge to give the congressman a warning to rein in his talk about being the subject of a witch hunt.
Modern law on gag orders is almost all derived from what is now a half-century-old Supreme Court precedent stemming from the sensational and chaotic murder trial of an Ohio physician, Sam Sheppard, who was accused and convicted of killing his pregnant wife.
In a 1966 decision, the high court overturned Sheppard’s conviction, decrying a “carnival atmosphere” that pervaded the trial, where reporters were permitted to handle actual exhibits introduced in the case. Hostile news stories about the case were saturated with salacious details about Sheppard’s refusal to take a lie detector test, his relationship with another woman and leaked claims about incriminating witnesses, many of whom never actually testified.
The Supreme Court faulted the trial judge for essentially losing control of the process, arguing that the judge could have limited out-of-court statements about the trial.
But in the current era, finding jurors who know absolutely nothing about a case like Stone’s can be a challenge — unless people have intentionally chosen to opt out. One potential Stone juror who said she works in tax policy told Jackson on Tuesday she only reads news related to her work and recently stopped consuming what she called an “omnipresent” onslaught of political stories.
“I want to be able to have my life back,” she told the judge.
“I don’t know if you should be embarrassed or not,” Jackson replied. “But it might make you perfectly well qualified for jury service.”