The Trump Investigation(s) Thread

[Isgrimnur]

WaPo

A federal judge has demanded that Roger Stone explain why the conditions of his release and freedom to talk about the charges against him should not be changed after he posted an Instagram photo of that judge that included her name, a close-up of her face and what appeared to be the crosshairs of a gun sight near her head.
...
Jackson has scheduled a hearing for Thursday afternoon, saying Stone must “show cause . . . as to why the media contact order entered in this case and/or his conditions of release should not be modified or revoked.”

In a text message to The Washington Post on Tuesday, Stone wrote: “I will be present for the hearing as ordered.” He also offered another explanation for the image in the photo, writing that “it is evidentially more correctly a Celtic symbol.”
...
In a text message to The Washington Post on Monday, Stone said the photograph of Jackson had been posted by a “volunteer” who helps him with his social media accounts.

“The photo has been misinterpreted and in no way did I mean to threaten the judge or disrespect the court,” Stone wrote. “[It] is a random photo selected from the Internet and was posted at my direction. Because it was open to misinterpretation I have ordered it taken down."

In an appearance Monday on Infowars, the conspiracy-minded website, Stone described the image in the photo he posted as an “occult symbol.” But he did not explain what that supposed symbol might mean. “The fake news continues to make me a favorite target. This latest tempest is a perfect example about it,” he said.

“I took it down because it was open to misinterpretation and there’s a thousand stories now from the usual suspects saying Roger Stone posted a photo of Judge Jackson with a crosshairs on it," he said. “That is false. That was not my intention, and I apologize if anyone got that impression. That was not the intent of my posting."

He said he did not intend to threaten or disrespect the judge.

[ImLawBoy]

In other words, he can grandstand on Fox and on Twitter but not on the courthouse steps.

Sure, that covers the "dignity and serious nature" part, but how on earth does allowing him to spew crap on twitter not contravene the "pose a substantial likelihood of material prejudice" part?

Any gag order or restriction on speech is best to be done as narrowly as possible in order to stand Constitutional muster. She's restricting his First Amendment rights here, so the restriction needs to be narrowly tailored.

[GreenGoo]

Any gag order or restriction on speech is best to be done as narrowly as possible in order to stand Constitutional muster. She's restricting his First Amendment rights here, so the restriction needs to be narrowly tailored.

Sure, but context is important.

That argument sort of falls down when the goal is to prevent him from "pose a substantial likelihood of material prejudice". Would it be better to leave his first amendment rights in place but put him in a holding cell without internet access? Is that the right solution here, assuming that the reasoning above is sound?

Not to mention, the press is regularly gagged about court proceedings, but somehow restricting the press from reporting the truth passes muster all the time. I get that the context is different, but it's a *significantly* more substantial restriction on free speech as compared to keeping a defendant from shooting his mouth off about those same court proceedings. At the same time, the optics of keeping a defendant quiet while you attempt to prosecute him is not great for a free society.

It would help if people didn't suck so much.

[ImLawBoy]

Any gag order or restriction on speech is best to be done as narrowly as possible in order to stand Constitutional muster. She's restricting his First Amendment rights here, so the restriction needs to be narrowly tailored.

Sure, but context is important.

That argument sort of falls down when the goal is to prevent him from "pose a substantial likelihood of material prejudice". Would it be better to leave his first amendment rights in place but put him in a holding cell without internet access? Is that the right solution here, assuming that the reasoning above is sound?

The reality is, a broad ban on discussing the case at all is less likely to be upheld in court than a limited ban. If she issued the broad ban (including internet/Twitter) you seem to suggest, there's a substantial likelihood (but not a certainty) the ban is overturned in its entirety. If she narrowly tailors it (in this case, to the specific area where potential jurors are likely to hear things and get tainted), she gets something. It's a classic case of not letting the perfect be the enemy of the good. Leaving him in a holding cell without internet access is fraught with other Constitutional issues, FWIW.

Not to mention, the press is regularly gagged about court proceedings, but somehow restricting the press from reporting the truth passes muster all the time. I get that the context is different, but it's a *significantly* more substantial restriction on free speech as compared to keeping a defendant from shooting his mouth off about those same court proceedings. At the same time, the optics of keeping a defendant quiet while you attempt to prosecute him is not great for a free society.

I'm willing to be proven wrong on this, but the press is rarely gagged about court proceedings. Such a prior restraint might occur on occasion, but I doubt it's very frequent. It's more likely that a judge would try to bar parties from speaking to the press. (Such a bar attempt would have its own potential Constitutional issues, of course, but could be upheld.) I found an interesting (and relatively brief) article on gag orders. While I can't vouch for everything it says, it generally lines up with my understanding of the subject. With respect to gag orders on the media, it says:

No question exists about the high standard that must be satisfied before a gag order can be imposed on the news media. Before a judge can prohibit the press from publishing information lawfully obtained, he or she must conduct a hearing and consider the nature and extent of the pretrial news coverage, whether other measures less restrictive than a gag order would mitigate the effects of unrestrained pretrial publicity, and whether a gag order would be effective in preventing the threatened danger.

This test, first announced in Nebraska Press Association v. Stuart, is designed to be almost impossible to satisfy and is consistent with the heavy burden the government must meet in other prior-restraint cases (see separate topic section). A gag order on the media, courts have held, is a last resort that can be considered only after other measures available to ensure a fair trial — such as a change of venue, sequestration of the jury, extensive questioning of potential jurors, postponement of the trial, emphatic jury instructions and gag orders on trial participants — are found inadequate to protect the parties’ rights.

It would help if people didn't suck so much.

That's pretty much an evergreen sentiment.

[malchior]

NY Times

As federal prosecutors in Manhattan gathered evidence late last year about President Trump’s role in silencing women with hush payments during the 2016 campaign, Mr. Trump called Matthew G. Whitaker, his newly installed attorney general, with a question. He asked whether Geoffrey S. Berman, the United States attorney for the Southern District of New York and a Trump ally, could be put in charge of the widening investigation, according to several American officials with direct knowledge of the call.

Mr. Whitaker, who had privately told associates that part of his role at the Justice Department was to “jump on a grenade” for the president, knew he could not put Mr. Berman in charge, since Mr. Berman had already recused himself from the investigation. The president soon soured on Mr. Whitaker, as he often does with his aides, and complained about his inability to pull levers at the Justice Department that could make the president’s many legal problems go away.

[stessier]

Not to mention, the press is regularly gagged about court proceedings, but somehow restricting the press from reporting the truth passes muster all the time.

I don't know that I've ever heard of the American press being gagged on a trial. They may be excluded from a court room, but they can still report on whatever they find out.

[Zaxxon]

NY Times

As federal prosecutors in Manhattan gathered evidence late last year about President Trump’s role in silencing women with hush payments during the 2016 campaign, Mr. Trump called Matthew G. Whitaker, his newly installed attorney general, with a question. He asked whether Geoffrey S. Berman, the United States attorney for the Southern District of New York and a Trump ally, could be put in charge of the widening investigation, according to several American officials with direct knowledge of the call.

Mr. Whitaker, who had privately told associates that part of his role at the Justice Department was to “jump on a grenade” for the president, knew he could not put Mr. Berman in charge, since Mr. Berman had already recused himself from the investigation. The president soon soured on Mr. Whitaker, as he often does with his aides, and complained about his inability to pull levers at the Justice Department that could make the president’s many legal problems go away.

None of that article's details are at all surprising to anyone paying attention, but yegads--what a disaster our country is enduring.

[LawBeefaroni]

Mr. Whitaker, who had privately told associates that part of his role at the Justice Department was to “jump on a grenade” for the president, knew he could not put Mr. Berman in charge, since Mr. Berman had already recused himself from the investigation.

There jumping on a grenade and then there's pretending not to notice while he sticks a grenade under your body and pulls the pin. Whittaker isn't willing to do the latter, it seems.

[GreenGoo]

I don't know that I've ever heard of the American press being gagged on a trial. They may be excluded from a court room, but they can still report on whatever they find out.

Meh. That's what I meant. At least it's included in what I meant.

Article here talking about gag orders. Discussed gag orders on specific information, among other things.

Gag orders typically forbid individuals from talking about, publishing, or disseminating specified information. They can be imposed on parties to litigation to stop them from talking to the press, or on the press itself to stop it from publishing certain information.

.

[Pyperkub]

Ordered back to court to answer for post, apparently:

A federal judge on Tuesday ordered Roger Stone to appear in court to consider whether to revoke his bail after the longtime Donald Trump confidant posted a photo on Instagram of the judge with what appeared to be crosshairs of a gun.

U.S. District Judge Amy Berman Jackson said Stone must show for a hearing Thursday afternoon and prove why she shouldn’t modify or revoke his bail or implement a full gag order in his case.

[stessier]

I don't know that I've ever heard of the American press being gagged on a trial. They may be excluded from a court room, but they can still report on whatever they find out.

Meh. That's what I meant. At least it's included in what I meant.

From a first amendment perspective, being excluded from a court room and being prohibited from publishing something you know are very different things.

[ImLawBoy]

I don't know that I've ever heard of the American press being gagged on a trial. They may be excluded from a court room, but they can still report on whatever they find out.

Meh. That's what I meant. At least it's included in what I meant.

From a first amendment perspective, being excluded from a court room and being prohibited from publishing something you know are very different things.

Even exclusion from the courtroom is not common. From the article GG linked:

A courtroom is a presumptively open space. In the 1980s, over a series of cases, the Supreme Court declared a First Amendment-based right of access to the courtroom—Americans have a right to know what is going on in their courts.

[GreenGoo]

And yet the same article refuted the idea that it's not normal for gag orders to, you know, order gags, as opposed to gagging locations, which is where this all started.

[ImLawBoy]

And yet the same article refuted the idea that it's not normal for gag orders to, you know, order gags, as opposed to gagging locations, which is where this all started.

The article starts out talking about the types of gag orders that we were initially discussing - orders form a judge restricting the speech of the parties.

Beyond this right to judicial openness, however, gag orders also function as prior restraints on speech. Prior restraints—judicial orders that proactively prohibit people from talking, rather than allowing for after-the-fact litigation over what was said—are presumptively unconstitutional. Not allowing a broad swath of speech is antithetical to the First Amendment—and further, such an approach is generally overbroad, because speech at the edges of the gag order might be chilled.

It then talks about the court's duty to try to maintain a fair trial for a defendant.

The occasionally competing First Amendment and fair-trial interests have to be weighed against one other when it comes to gag orders. Balancing the considerations requires conducting a fact-specific inquiry, depending on the exact gag order—what it’s protecting, who it restricts, and what the realities of the trial are.

It then goes into the balancing act I referenced in my cited article. It doesn't really say how frequently such judge initiated gag orders are entered into or upheld. Rather, it changes the focus a bit.

When a judge takes these considerations into account and properly weighs all the rights at stake in that particular instance, gag orders can be useful tools in courtroom management. However, it’s often the parties who agree on a gag order.

In other words, the parties on each side can voluntarily enter into a gag order. This is wholly different from a scenario like the Roger Stone case where the judge declared a gag order against Stone's will. Stone isn't going to challenge a gag order he agreed upon - he might want to challenge a gag order that's been imposed upon him, however.

The article also notes the important distinction between a gag order/prior restraint on the media and one imposed on the parties.

the test in Nebraska Press Association was constructed with prior restraints on the media itself in mind, but a number of gag orders are on parties to the litigation, not the media, and forbid lawyers, parties, or witnesses from talking to the press. Because a gag order on the parties does not affect the media’s right of access, and is narrower than a blanket gag order on all the media, it’s considered a less restrictive means of protecting fair trial rights.

It further notes that these gag orders are subject to the media's First Amendment rights, but that challenging them can be difficult due to practicalities rather than due to the Constitutional merits of the gag order.

And after the gag order is in place, it becomes very difficult for third parties to challenge the order. Mechanically, such a challenge is possible. As a judicial order, the gag order can be overturned by the courts. And media reporters have standing to challenge an order, with the ‘injury in fact’ being the harm to their newsgathering.[13] They can thus intervene and collaterally appeal, or in the alternative, ask for a writ of mandamus.[14] However, in practice, challenging party-agreement gag orders on constitutional grounds becomes much more difficult. While parties to the litigation are aware of the gag order and can appeal the order or ask for mandamus, by the very nature of the gag order it is difficult for a third party to learn about it if they were not already following the case—the parties cannot tell the prospective intervenor about it.

The article concludes with what I read as a negative take on gag orders.

None of these concerns stop gag orders from being issued. But simply because information is hidden behind a gag order does not mean that a trial court has fully considered the stringent, fact-specific test to make that gag order constitutional, or that the information is not accessible under the First Amendment. That is the difficult challenge for third party intervenors in such cases—to find where the public’s First Amendment rights have lapsed, and to bring that failure to light.

tl;dr

The article does not address issues like how one would limit gag orders to narrowly tailor them, such as whether by location. It does, however, note the various Constitutional challenges associated with gag orders. Such challenges are precisely why a judge would want to narrowly tailor a gag order.

[GreenGoo]

I read the thing. I'm the guy who linked it.

[ImLawBoy]

Right. So did you want to discuss the article you linked or not?

[GreenGoo]

Right. So did you want to discuss the article you linked or not?

Well not really, but if I did, you've quoted most of it.

I suggested that I found it odd that a gag order applied to the courthouse. It was suggested to me that's typical of gag orders. It was also strongly implied that gagging people is unconstitutional. The article talks in great detail about all aspects of gag orders which was interesting. What was relevant to me in particular is that gag orders often gag people, and not just locations.

That's it.

If you want to discuss details of gag orders including their constitutionality have at it. Other than confusion over how gagging a location actually prevented "pose a substantial likelihood of material prejudice" which was a claimed goal of the gag order, and now a cursory understanding of how they work, that's pretty close to the limit of my interest. I did not push back against the idea that limited the scope of a gag order was in the best interests of all parties involved, including the public.

It's not that I don't appreciate the effort you put into your post, it's just that it is beyond my interest level. I don't and never did want to debate the nature of gag orders beyond the superficial.

I know that's not a very satisfying response. This is clearly something that you're interested in. Maybe someone else will pick up the conversation with you.

[ImLawBoy]

Fair enough. I overestimated your interest in the topic.

FWIW, I quoted as much of the text as I did because I didn't just want to say, "I disagree with your conclusions from the article." That wouldn't have been very productive, so I decided to try to show how I got there. I ended up going longer than anticipated because it was an interesting article.

[Smoove_B]

If you haven't seen the McCabe interview from Colbert, definitely watch it.

Part 1:


Part 2:

[pr0ner]

[GreenGoo]

*trepidation*

[Holman]

Smells very fishy.

[hepcat]

Since it's already ended at least 17 times over the last 6 months according to various reporters/insiders/guy with a beer and a megaphone, why not now too?

[Dogstar]

If it winds up being true, I've seen two possible analyses/reactions. The first is that Barr, as soon as he got on the job, shut down the Mueller probe. That's not great. I find it odd with the grand jury extensions and with what's going on with Stone that things would be cleanly wrapped up by next week. However, the flip side potential is that Mueller waited until a professional was in place with Barr (whom he knows), as opposed to what might have happened to his report if he submitted during the tenure of the interim AG Whitaker.

[Holman]

[...] However, the flip side potential is that Mueller waited until a professional was in place with Barr (whom he knows), as opposed to what might have happened to his report if he submitted during the tenure of the interim AG Whitaker.

Some interesting points that have come out:

1) Mueller has been shrinking his team, and staffers were seen moving files out the offices last week, before Barr was AG.
2) Even today, Barr has not yet had his formal ethics review for the role, so it seems that Rosenstein is once again (though temporarily) overseeing Mueller.
3) Mueller and Barr are known to be long-time colleagues and friends (for what that's worth).

Of course we all know that Barr has participated in cover-ups before, and he famously oversaw the last-minute pardons of Iran-Contra figures under GHWB. But it might be a stretch to assume that an old-school GOP Cold Warrior willing to countenance CIA scheming will turn around and happily cover for an outsider who took over the party and despises everything Barr has worked for, especially if Barr's friend Mueller shows that the KGB's Putin is pulling the strings.

I cling to hope.

[El Guapo]

I'm a little baffled that I'm not seeing discussion of the closing report beyond CNN. Makes me wonder whether other outlets are having trouble verifying it, which raises the odds that it turns out not to be true.

If it is, I'm finding the benign explanation a little less convincing than the worrisome / cynical explanation. Although I assume that Mueller has spent some time planning for a scenario where a new AG tries to shut him down prematurely, so I assume that he'll do *something*.

[El Guapo]

[...] However, the flip side potential is that Mueller waited until a professional was in place with Barr (whom he knows), as opposed to what might have happened to his report if he submitted during the tenure of the interim AG Whitaker.

Some interesting points that have come out:

1) Mueller has been shrinking his team, and staffers were seen moving files out the offices last week, before Barr was AG.
2) Even today, Barr has not yet had his formal ethics review for the role, so it seems that Rosenstein is once again (though temporarily) overseeing Mueller.
3) Mueller and Barr are known to be long-time colleagues and friends (for what that's worth).

Of course we all know that Barr has participated in cover-ups before, and he famously oversaw the last-minute pardons of Iran-Contra figures under GHWB. But it might be a stretch to assume that an old-school GOP Cold Warrior willing to countenance CIA scheming will turn around and happily cover for an outsider who took over the party and despises everything Barr has worked for, especially if Barr's friend Mueller shows that the KGB's Putin is pulling the strings.

I cling to hope.

There have been pretty convincing reports that the main reason Barr got the job was that he wrote an unsolicited memo to DOJ attacking the Mueller investigation. The idea that Mueller and Barr will immediately be chummy and on the same page is less than convincing (although that doesn't necessarily mean that Barr wouldn't be wary about going right in and shutting Mueller down.

[Holman]

There have been pretty convincing reports that the main reason Barr got the job was that he wrote an unsolicited memo to DOJ attacking the Mueller investigation. The idea that Mueller and Barr will immediately be chummy and on the same page is less than convincing (although that doesn't necessarily mean that Barr wouldn't be wary about going right in and shutting Mueller down.

Yeah, that's tough to wish away.

(In my imaginary novel of the Trump era, the Bush-loyal Barr played Trump like a fiddle in order to get into the AG's office and save the country from a treasonous fool. But I know that's ridiculous.)

[Pyperkub]

This should be interesting:

A former Trump campaign staffer filed a class action Wednesday seeking to invalidate all of the nondisclosure and nondisparagement agreements that the Trump campaign required all staffers to sign....

...Denson’s lawyers argue the campaign’s standard NDA is unlawful because it penalizes employees for exercising their right to sue for things like workplace discrimination and harassment, unpaid wages, and violations of workplace safety laws, and for claiming violations of campaign finance laws, corruption, or fraud.

“The Form NDAs effectively strip employees, contractors, and volunteers of their ability to pursue any of their rights to redress workplace misconduct,” Denson’s lawyers wrote in the arbitration filing. “Anything and everything they could do will of necessity contain some information that a Trump Person could find disparaging or a disclosure of confidential information.”

Her lawyers are also arguing that the language of the NDA is too vague — it gives Trump himself discretion to decide what is “private” and “confidential” — doesn’t have any time or geographic limits, “lacks a legitimate purpose,” and is void because it allows a government actor — in this case, the president — to restrain a person’s free speech rights under the First Amendment.

“Indeed, any person who has ever signed the Form NDA, whether or not he or she has entered into government service, subjects himself or herself to grievous financial penalty for the mere act of engaging in constitutionally protected criticism of the sitting President of the United States,” Denson’s lawyers wrote.

[YellowKing]

I don't know why there's reason to immediately suspect Barr shut down the probe when we've heard for at least a month now that Mueller was wrapping things up.

[GreenGoo]

I don't know why there's reason to immediately suspect Barr shut down the probe when we've heard for at least a month now that Mueller was wrapping things up.

As Hepcat pointed out, it's been on the verge of finishing up for over 2 years now. I'm pretty sure it was just about completed when Drumpf announced his run for office. That said, it has to end sometime and at some point, someone, somewhere is going to be right that's about to wrap up. Is that CNN and this time? We'll find out I guess.

[Holman]

Presumably the end of the Mueller probe doesn't mean the end of ongoing investigations. It simply means that (if this is Mueller's choice) he has produced findings of which he is confident and can report these to Congress. This was his assignment.

It's notable that all those files being moved out of Mueller's office weren't headed for the shredder or a bonfire. They were being sent to other offices. It's known that Mueller (perhaps as a defense against sudden shutdown) has been offloading at least some his investigatory work for some time, right?

[Octavious]

The only way we're getting this dumpster file out of office is for him to lose the election. The guy is untouchable and no matter what the report says they will just blow it off and the GOP will go along. So disgusted with the supporters and the GOP.

[Zarathud]

That's the real problem that Trump exposed -- the Republican Party has no shame in its power grab.

On the other hand, the Democrats are willing to turn on their own over blackface, sexual assault, single-payer health care, etc.

[GungHo]

That's the real problem that Trump exposed -- the Republican Party has no shame in its power grab.

On the other hand, the Democrats are willing to turn on their own over blackface, sexual assault, single-payer health care, etc.

Just need the Dems to quit 'winning the news cycle' as they've done lately. trump wants it so badly, let him have it; last thing in the world we need is him flying under the radar.

[Daehawk]

Is there some kind of old men cult that paints their faces orange and their hair pale as part of being in the cult?? I mean Im almost surprised Trump hasn't sued him for wearing orange face.

[Holman]

Ok, now it's a gag order.

U.S. District Judge Amy Berman Jackson banned Roger Stone from making any public comments about his case Thursday, after holding an off-the-rails hearing about a threatening Instagram post he published bashing the judge. Berman Jackson indicated that if he violated her order, he could be thrown in jail before trial.

[...]

When announcing her decision, Berman Jackson said Stone had chosen to use his public platform in a way that could “incite others” and noted her duty to protect court employees, prosecutors, witnesses and judges themselves.

She called Stone’s testimony “evolving and contradicting” and said that his apology rang “hollow.”

“You apparently need clear boundaries so there they are,” Berman Jackson said, before rattling off an extensive list of places he’s banned from making public commentary about the case. She said he is only allowed to promote his legal defense fund and state that he was pleading not guilty.

[GreenGoo]

What're the odds on filing a 1st amendment lawsuit in the next day or 2? Maybe Monday?

We can discuss the odds of winning it after it's filled.

[stessier]

Ken covered this in this week's All The President's Lawyers. He didn't think she'd issue a full gag as it would immediately be appealed. Apparently the only issues well settled in the DC circuit are gagging the lawyers and prohibiting speech around the courthouse... her original order. He thought something like this would have little chance of being upheld. He also thought proving incitement had little chance of succeeding based on the platform of the speech (no immediacy) and Stone's previous poor use of cut and paste photos.

[Pyperkub]

What're the odds on filing a 1st amendment lawsuit in the next day or 2? Maybe Monday?

We can discuss the odds of winning it after it's filled.

What's the over/under on days until he breaks the gag order and gets room and board paid for by the State (he's apparently having trouble putting food on the table while making $47,000/month consulting)?