Roger Stone’s November trial was already shaping up to be a true Washington spectacle, with President Donald Trump’s longtime ally defending himself in federal court against charges he lied to Congress and obstructed the House Intelligence Committee’s Russia probe.
On Wednesday, it got even more interesting.
During a pre-trial conference held exactly eight months to the day after special counsel Robert Mueller unsealed Stone’s indictment and FBI agents arrested him in Fort Lauderdale, a defense lawyer for the Republican political consultant signaled there could be a big showdown on the witness stand with former Trump campaign manager Steve Bannon.
Bruce Rogow, the Stone lawyer, didn’t provide details about why exactly Bannon would be called in the trial, which is scheduled to start Nov. 5 in Washington. But he dropped Bannon’s name, along with three others who were already known as potential witnesses — former Trump campaign deputy Rick Gates, radio host Randy Credico and conservative author Jerome Corsi — during an argument with Justice Department prosecutors over what can be said in front of the jury.
U.S. District Court Judge Amy Berman Jackson, an appointee of President Barack Obama, ultimately sided against Stone on the issue of whether his attorneys would have the right during the trial to take issue when talking to the potential witnesses about the conduct of Mueller’s team, the FBI, intelligence officials and members of Congress.
“We’re not going to try the investigators or the investigation,” she said.
Even so, Jackson said she would give Stone’s defense team some leeway when witnesses are on the stand to pose questions about whether the government had made any promises in exchange for their testimony.
On Corsi, for example, Rogow said he was interested in asking about a plea agreement the government dangled in front of the conservative commentator but then pulled back. Corsi, identified in the Mueller indictment as “Person 1,” exchanged multiple emails with Stone in 2016 about WikiLeaks, the online platform responsible for publishing stolen Democratic emails during the 2016 presidential campaign.
Stone’s trial is expected to last at least two weeks and now appears on track to coincide with formal House impeachment investigations against Trump, the businessman-turned-president whose career he’s been a central part of promoting dating back to the early 1980s.
Wednesday’s pre-trial hearing won’t be the last before the trial. Jackson set another session for Nov. 4, the day before jury selection begins, to deal with a range of still unresolved issues over what evidence can be presented at the trial.
For now, Jackson has decided to hold off on making a decision about whether prosecutors can show jurors a clip from “The Godfather, Part II” during the trial.
DOJ prosecutors who inherited the case from Mueller earlier this summer had asked to show the four-minute scene from the 1974 film because it adds “important context” to the witness tampering allegations against Stone.
The clip involves a character named Frank Pentangeli — in a moment of levity during Wednesday’s hearing Jackson struggled to pronounce the name — backtracks from giving Congress damning testimony about the Corleone crime family. Stone had mentioned the scene in text messages to Credico, a key Mueller probe witness questioned in the investigation about his contacts with both Stone and WikiLeaks.
In the Stone indictment, Mueller accuses Stone of threatening Credico and his pet dog and urges the witness to “do a Frank Pentangeli.”
“To see that film clip is the best evidence, and in some sense, the only evidence, of what that image is,” Adam Jed, a former Mueller lawyer who remains at DOJ and is part of the Stone prosecution team, said in court on Wednesday.
Stone’s attorneys countered the film clip would prejudice the jury into making connections between their client and the Mafia. Jackson acknowledged that point in urging both sides to try to find a way to resolve the matter short of showing the actual movie scene. She suggested, for example, showing the jury a transcript of the scene.
“I get you’re pointing that a picture is worth a thousand words but that also gives this evidence more weight than other evidence,” she told Jed. “All of it could tend to give it undue importance in the trial when really the point was clearly made in a perfectly vanilla paragraph in the indictment.”
Jackson did take DOJ’s side in blocking discussion at the trial about the underlying Russian interference in the 2016 campaign.
Stone’s lawyers said they’d been planning to bring up expert witnesses on the topic but Jackson cut that line of argument off by noting that the charges against him center around whether he misled the House panel’s investigation.
Mueller directly charged Russian hackers in a separate case in the same D.C. federal courthouse, Jackson noted. But those defendants are the ones who have the right to question the special counsel’s allegations. “That forum is not this courtroom,” the judge said.
The judge also rejected Stone’s motion to see a report conducted by Crowdstrike, the private cybersecurity firm deployed by the Democratic National Committee to look into what happened in Russia’s 2016 hack attack on its servers. Stone had asked to get the document from the government but that was moot, Jackson ruled, since DOJ said it didn’t have a copy.
The DNC did deliver the report to the court under seal, and Jackson said after reviewing it that it should remain under wraps because it wasn’t relevant to the false statement allegations Stone faces. In addition, it also contained materials related to the DNC’s ongoing efforts to secure its servers. “For obvious reasons, that should not be made public,” she said.
Jackson’s decision on the Crowdstrike report came just minutes after the White House released a summary of a July phone call where Trump asked the president of Ukraine for a “favor” to investigate the cybersecurity firm over its role in 2016 hacking. The call, which is now at the center of the Democrats’ impeachment effort, reflects Trump’s erroneous claim that the company is based in Ukraine when it actually was founded by a Russian-American and headquartered in California’s Silicon Valley.
Separately, Jackson also held off in ruling on Stone’s bid to block DOJ from talking about other allegedly false statements he made before the House committee during the September 2017 testimony that led Mueller to press charges.
During Wednesday’s hearing, she fretted that raising Stone’s statements could prolong the trial and confuse jurors over allegations that the government didn’t choose to prosecute.
DOJ attorney Michael Marando argued that the government’s allegations need to be heard in the context of Stone’s overall motivations.
“He went in with a calculated plan to lie, to separate himself from the campaign in order to shield the lie about his connections to WikiLeaks. He had to create that space,” Marando said.
The DOJ prosecutor added that Stone misled the House panel about his contacts with “literally the highest levels of the campaign other than the candidate himself.”
The government could make its case about Stone’s alleged lies with two witnesses “at most.” One of them likely would be an FBI agent who could walk jurors through all the evidence. He didn’t name the other witness but offered to share it privately with Jackson.
Stone’s attorneys countered that the jurors would be swayed by unnecessary exhibits.
“If they indicted him,” Rogow argued, “it’d be relevant.”