Legal Analysis

Here’s Why the Wall Street Journal‘s Latest Report Means Roger Stone Is Probably Screwed

Roger Stone Robert Mueller nothing to say

Special counsel Robert Mueller has long had his sights set on President Donald Trump‘s longtime advisor (and Richard Nixon-era aficionado) Roger Stone. Now, Mueller is looking into whether Stone attempted to tamper with a witness who contradicted him regarding Stone’s contacts with WikiLeaks.

According to the Wall Street Journal:

In grand jury sessions and interviews, prosecutors have repeatedly asked about emails, text messages and online posts involving Mr. Stone and his former friend, New York radio personality Randy Credico, the people said. Mr. Stone has asserted that Mr. Credico was his backchannel to WikiLeaks, a controversial transparency group, an assertion Mr. Credico denies.

The report continues and singles out several different attacks on Credico by Stone–bolstered by several different witnesses.

“Filmmaker David Lugo, who knows both men, said in an interview he has testified before Mr. Mueller’s grand jury about a blog post Mr. Stone helped him draft that was harshly critical of Mr. Credico,” the story notes. “Another witness, businessman Bill Samuels, said he was questioned by Mr. Mueller’s team about Mr. Credico’s reaction to allegedly threatening messages sent by Mr. Stone.”

So, what does this mean for Stone in terms of potential liability? Mueller has at least a couple of options and none of them look good for the man who pioneered ratfucking.

The law on point here is largely contained at 18 USC § 1512(b). Section 1512(b) is considered the heart of the federal witness tampering statute–as well as the most famous section and one of the more difficult criminal statutes to satisfy at the federal level because of how the Rehnquist Supreme Court rewrote the law.

Section 1512(b) reads, in relevant part:

Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to—
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding…shall be fined under this title or imprisoned not more than 20 years, or both.

Now let’s apply that to what Stone’s been saying to and about Credico.

Again, the Wall Street Journal:

In emails sent to Mr. Credico and reviewed by the Journal, Mr. Stone threatened to “sue the [fuck]” out of him, called him “a loser a liar and a rat” and told him to “prepare to die [cock] sucker.”

Mr. Stone was also involved in drafting a May blog post harshly criticizing Mr. Credico, which he gave to Mr. Lugo, the filmmaker.

Mr. Lugo published a version of the article for ArtVoice, a website Mr. Stone writes for, with the headline “Phony Russia Gate, Roger Stone & the lies of Randy Credico.”

Under Section 1512(b), Mueller would need to show that Stone used intimidation or threats–or attempted to use intimidation or threats–in order to “corruptly persuade” Credico.

Stone’s name-calling likely wouldn’t rise to the level of intimidation or threats and the ArtVoice article–while certainly disparaging of Credico–doesn’t really seem to rise to the level of threats or intimidation either. But note the two explicit threats listed above: (1) “prepare to die;” and (2) “sue.” Those are arguably all the ammunition Mueller might need to show that Stone attempted to intimidate and/or threaten Credico into changing his story about WikiLeaks.

The one thing that could possibly trip Mueller up here is the statute’s fairly stringent knowledge requirements after the conservative Supreme Court’s aforementioned evisceration of the statute. After Arthur Andersen LLP v. United States was handed down, a prosecutor has to prove that a would-be tamperer intended to use intimidation, threats, corrupt persuasion or misleading conduct in order to be found liable–and this is an occasionally tough task.

Much to Stone’s potential chagrin, however, there’s an out for Mueller yet on the exacting knowledge requirement.

The federal witness tampering statute also contains a catch-all section. Located at 18 USC § 1512(c), this section reads, in full:

Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

Under this statute, all Mueller has to show is that Stone acted “corruptly” and either had an obstructive, influential or impeding impact on the Russia probe or attempted to have an obstructive, influential or impeding impact on the Russia probe. But isn’t “corruptly” also a knowledge requirement? It is–but much less strenuous.

A nearby federal statute helpfully provides a broad and self-referential fount of government power over the meaning of words. 18 USC § 1515(b) reads, in relevant part: “[T]he term ‘corruptly’ means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.”

In effect, this definition combined with the catch-all statute means the special counsel’s office could convincingly argue Stone’s repeat public admonitions and private–though admitted–threats against Credico amount to an improper attempt to influence his former friend. Influence that, unfortunately for Stone, happened in the middle of one of the largest and most important federal investigations in the country’s history.

In summary, the traditional witness tampering statute has been so watered down by the Supreme Court that it’s potentially a rough draw for Mueller’s army of attorneys–but the clouds haven’t cleared for Roger Stone quite yet. The combined grant of powers conferred on federal prosecutors in Sections 1515(b) and 1515(c) offer Mueller something approaching carte blanche if he decides to go the witness tampering route. And, if Credico has testified or testifies that he felt threatened or otherwise strong-armed by Stone’s invective and threats, well…

[image via Mark Wilson/Getty Images]

Follow Colin Kalmbacher on Twitter: @colinkalmbacher

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