Updated at 12:00 pm E.T. on February 19, 2019.
Roger Stone, the trash-talking, Richard Nixon–tattooed Donald Trump adviser recently indicted for lying to Congress and threatening a witness, had an eventful Presidents’ Day. In the space of time you or I might enjoy a leisurely brunch, Stone posted an online attack on United States District Judge Amy Berman Jackson, who is presiding in his case, then altered the post, deleted the post, offered a defense for the post, and finally had his lawyers file a “notice of apology” for the post in federal court. None of this is normal, not even in 2019.
This surreal chain of events began—as many do—on Stone’s Instagram page, where he has been relentlessly decrying his prosecution and soliciting defense funds. “Through legal trickery Deep State hitman Robert Mueller has guaranteed that my upcoming show trial is before Judge Amy Berman Jackson, an Obama appointed Judge who dismissed the Benghazi charges against Hillary Clinton and incarcerated Paul Manafort prior to his conviction for any crime,” Stone proclaimed. He added a picture of Jackson with a small symbol in the upper-left-hand corner—a cross in a circle, or, according to some, crosshairs.
Stone’s gripe is nonsense. Jackson caught Stone’s case because she was previously assigned a related case, an utterly routine practice in federal court. She revoked Paul Manafort’s bond and jailed him before trial because he tampered with witnesses, which will get you detained by any judge no matter who appointed her. Jackson didn’t “dismiss the Benghazi charges against Hillary Clinton,” because Clinton was never charged with a crime. Rather, she dismissed a civil lawsuit against Clinton on the rather mundane grounds that it was barred by the Federal Employees Liability Reform and Tort Compensation Act of 1988, which makes suing federal employees for things they did in the course of their job very difficult. Stone’s post was more of his customary legal fabulism.
Federal criminal defendants are not, as a rule, famed for self-control. But Stone’s attack on the judge presiding over his case is reckless even by his standards. Some have speculated that Stone, always fumbling for an angle, may have wanted to force Jackson to withdraw from the case. That won’t work. Federal courts have long held that a party can’t insult or antagonize a judge and then demand her recusal on the theory that the insults have biased her. That’s why President Trump couldn’t force United States District Judge Gonzalo Curiel off his case with his bigoted and boorish claims that Curiel’s ethnic background disqualified him from hearing the Trump University case. In fact, a party can’t even force a judge off a case by threatening her—and some have tried. The reason is obvious: If a litigant could force a judge to drop a case with deliberate misbehavior, then insults and threats would fly and dockets would descend into chaos.
Though foolhardy, Stone’s attack on Jackson is not, as some have suggested, a violation of Jackson’s recent gag order. Jackson ordered the lawyers in the case not to make statements “that pose a substantial likelihood of material prejudice to this case.” With respect to Stone and the witnesses in the case, Jackson only prohibited misbehavior on the courthouse steps and in the immediate vicinity—thus taking advantage of judges’ power to control their immediate surroundings to assure orderly litigation. Stone’s Instagram post doesn’t qualify.
Other critics quickly proclaimed that Stone had committed a criminal threat or unlawful incitement by posting the picture with a symbol they interpreted as crosshairs. That’s possible, but unlikely. Rhetoric like Stone’s is protected by the First Amendment unless it is designed, and likely, to cause imminent lawless action, such as a speaker urging a crowd to attack nearby protesters. Even if you take Stone’s Instagram post as an attempt to incite, it almost certainly doesn’t urge sufficiently immediate action.
Similarly, it’s questionable whether Stone’s post is a “true threat”—the sort of threat outside First Amendment protection. A true threat is a threat that a reasonable person would interpret as a sincere expression of intent to do harm, and that the speaker knew would be taken that way. Stone, who has a history of pushing questionable content from erratic sources, apparently cut and pasted the picture from a conspiracy website. This has led to trouble before, such as the time that Stone—accidentally, he says—republished a photo with swastikas. It would be difficult, given Stone’s established history of careening from one reckless utterance to another, to show that he meant this one as a sincere threat. “I’m sorry, Your Honor, but my client only intended to insult you and didn’t even notice the crosshairs” is not the defense I’d choose, but we go to court with the clients we have, not the clients we want.
Stone’s lawyers submitted a startlingly quick and unprecedented apology to the court, e-filing a statement that Stone “recognizes the impropriety” and attaching Stone’s dubious claim that he had “no intention of disrespecting the court.” The apology’s real message is from the lawyers: We’re sorry, Your Honor, that we can’t control our client. Will it be enough to spare Stone from consequences? Probably. Jackson has shown that, like many wise federal judges, she prefers to avoid drama and unnecessary confrontations. Stone has apologized and deleted the post, and any sanction against Stone would only feed into his thirst for spectacle.
Jackson won’t forget what happened, though, and one day she could be tasked with sentencing Stone. Never gratuitously annoy the person who is deciding how long you’ll spend in federal prison. I shouldn’t have to tell people these things, but here we are.
(Minutes after this article posted, Judge Amy Berman Jackson issued an Order to Show Cause directing Roger Stone to appear at a hearing on February 21, 2019 to determine whether the gag order should be broadened or his bail should be modified or revoked in light of his Instagram post. This is an excellent lesson in humility for pundits like me who speculate on what judges might do. At the hearing, Judge Jackson might broaden the gag order to prohibit Stone from a broader range of speech and might revoke Stone’s bail or modify the terms of his release based on his post. All of those acts would have significant First Amendment implications. She may also simply chastise Stone and tell him to behave. I’ll refrain from a prediction.)