Richard Nixon aficionado Roger Stone wants a federal court to do something extraordinary. He wants a judge to declare that his in-progress prosecution be stopped. In a nine-page filing submitted with the U.S. District Court for the District of Columbia, Stone’s legal team relied on the U.S. Constitution in a bid to have the case against him enjoined by the court.
“Defendant, Roger J. Stone, Jr., moves for an injunction to end the prosecution against him,” the Friday filing begins. “The Appropriations Clause of the United States Constitution has been violated by a prosecution imitated by a public official whose function was not funded by Congress. Such a violation requires that Stone’s prosecution be enjoined.”
The motion continues with a brief history lesson:
Robert Mueller was an appointed Special Counsel. His Special Counsel’s Office was not funded by monies approved by Congress; rather, the Department of Justice has been funding the investigation from an unlimited account established in 1987 to fund independent counsels. In 1999 Congress, and the Department of Justice, specifically replaced the installing and empowering of independent counsels, with special counsels, in order for the Attorney General to have greater control over the investigations and to provide fiscal oversight of the budget by Congress.
“Special Counsels are materially different from Independent Counsels, and the Independent Counsel fund is not available to Special Counsels,” the filing continues. “This is not a technical detail. The Constitution grants Congress spending power for a reason. By forcing Special Counsel to seek congressional approval for its funding, Congress ensures that their investigations are necessary, limited, and fair.”
Stone’s motion is unlikely to gain any traction.
Special counsel Patrick Fitzgerald–who investigated the George W. Bush administration over leaking the identity of Central Intelligence Agency special operations officer Valerie Plame–was also, and non-controversially, funded by way of the Independent Counsel appropriation.
Why? Because a curious bit of legislative handiwork resulted in the 1978 law authorizing the creation of “independent counsels” to lapse; while the 1988 funding mechanism was left intact in perpetuity.
“The Special Counsel is funded by the Independent Counsel appropriation, a permanent indefinite appropriation established in the Department’s 1988 Appropriations Act,” an anonymous Department of Justice (DOJ) source told wire service Reuters when questioned about Mueller’s funding.
In fact, the DOJ has long relied on what it calls “other law” in order to appoint the equivalent of an independent counsel–and there isn’t actually any definition whatsoever for “independent counsel” in the permanent indefinite independent appropriation relied upon to fund what are now called “special counsels.”
In other words, the DOJ apparently does consider the hair-splitting about the difference between an independent counsel and a special counsel to be, as Stone’s attorneys say, “a technical detail.”
But Stone’s legal Hail Mary continues:
The Special Counsel’s Office that indicted Stone did not operate with congressionally approved budget and funding.Therefore, its funding was in violation of Article I, §9, cl. 7. Since the Special Counsel’s investigation of Roger Stone violated a fundamental clause of the Constitution, the Special Counsel’s office lacked authority to investigate and prosecute Roger Stone. The case against Stone should be enjoined…the Indictment against him should be dismissed.
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