394 F.Supp.3d 1
D.D.C.2019Background
- Special Counsel Robert S. Mueller III was appointed (Acting AG Rosenstein) to investigate Russian interference and related matters; a grand jury indicted Roger J. Stone, Jr. on counts of obstruction of a congressional proceeding, false statements to Congress, and witness tampering (seven counts).
- The indictment alleges Stone communicated with Organization 1 (entity that released DNC materials) and made false statements and concealed documents in testimony before the House Permanent Select Committee on Intelligence (HPSCI) in September 2017.
- Stone filed multiple pretrial motions: to dismiss or enjoin prosecution based on separation of powers, Appropriations Clause, Appointments Clause, Vesting/Take-Care Clauses, and defects in the indictment (including that voluntary failure to produce documents cannot support obstruction); and motions seeking discovery and an unredacted Mueller Report asserting selective prosecution.
- The Court assumed the indictment’s allegations true for Rule 12 purposes and reviewed legal challenges to prosecutorial authority, funding, appointment procedures, and selective-prosecution discovery standards.
- The Court conducted in camera review of redacted portions of the Mueller Report and directed limited disclosure to defense counsel while denying broader access where national security, grand-jury secrecy, or privacy interests applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Separation of powers / need for congressional referral | Exec. may prosecute without congressional referral; prosecution proper | Stone: prosecution invalid absent referral from Congress | Denied — Executive has exclusive prerogative to prosecute; statutes do not require congressional referral |
| Appropriations Clause / funding of Special Counsel | Prosecutor sought only dismissal (no injunction) via Rule 12 | Stone: permanent appropriation did not authorize funding of Special Counsel under 28 U.S.C. §§509/510/515; funding violated Appropriations Clause | Denied — permanent appropriation covers independent or "other law" counsel; GAO and statutory text support funding; injunction inappropriate (abstention) |
| Appointments Clause & Vesting/Take-Care Clauses | N/A | Stone: Special Counsel was a principal officer who needed Presidential appointment/consent; investigation of President unconstitutional | Denied — D.C. Circuit precedent (In re Grand Jury Investigation) and Nixon precedent permit appointment under §§509/510/515 and Special Counsel Regulation; investigation does not violate Vesting/Take-Care |
| Sufficiency / defect in indictment (failure to subpoena documents / materiality) | N/A | Stone: cannot be charged for failing to produce voluntary documents; materiality not established without congressional referral or specific testimony | Denied — indictment pleads multiple means of obstruction; materiality is for jury (Gaudin); Safavian on §1001 concealment differs and, if relevant, is for trial/jury instructions, not dismissal now |
| Selective prosecution / discovery of Mueller Report | N/A | Stone: sought discovery and unredacted Mueller Report to show selective prosecution based on political support for Trump | Limited grant/mostly denied — defendant failed to show similarly situated comparators or discriminatory purpose (Armstrong); Rule 16/discovery standards do not reach deliberative prosecutorial materials; limited portions of the Report relating to Stone and dissemination of hacked materials must be produced under protective order |
Key Cases Cited
- United States v. Nixon, 418 U.S. 683 (Sup. Ct.) (Executive has discretion to prosecute and Attorney General may delegate to special prosecutors)
- United States v. Armstrong, 517 U.S. 456 (Sup. Ct.) (standard for selective-prosecution claim; demanding two-part showing and discovery limited)
- United States v. Gaudin, 515 U.S. 506 (Sup. Ct.) (materiality means capable of influencing decisionmaking body)
- Kaley v. United States, 571 U.S. 320 (Sup. Ct.) (indictment returned by a grand jury conclusively determines probable cause; courts generally won’t review grand jury’s evidence)
- United States v. Safavian, 528 F.3d 957 (D.C. Cir.) (construes §1001 concealment liability and duty-to-disclose principles)
- United States v. Verrusio, 762 F.3d 1 (D.C. Cir.) (materiality can be inferred by jury; government need not present testimony solely to establish materiality)
- United States v. Fokker Servs. B.V., 818 F.3d 733 (D.C. Cir.) (prosecutorial charging discretion and limits)
- Deaver v. Seymour, 822 F.2d 66 (D.C. Cir.) (equitable relief to enjoin federal criminal prosecutions is disfavored; Rule 12 appropriate vehicle)
- Jarkesy v. SEC, 803 F.3d 9 (D.C. Cir.) (abstention and limits on judicial interference with enforcement proceedings)
- In re Grand Jury Investigation, 916 F.3d 1047 (D.C. Cir.) (special counsel appointment under Department authority does not violate Appointments Clause)
- Morrison v. Olson, 487 U.S. 654 (Sup. Ct.) (upheld constitutionality of independent counsel statute; context for separation-of-powers analysis)