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United States v. Stone

United States District Court, District of Columbia

August 1, 2019

UNITED STATES OF AMERICA,
v.
ROGER J. STONE, JR., Defendant.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON, UNITED STATES DISTRICT JUDGE

         Defendant Roger J. Stone, Jr. has filed a number of motions attacking the validity of the indictment pending against him. He asks the Court to dismiss the indictment, to enjoin the prosecution, and to order the government to provide discovery related to the decision to bring this case in the first place. While the Court will require the government to provide the defendant with the bulk of the material redacted from the Report of the Special Counsel that relates to him, it concludes that the defense has not identified any legal grounds that would support dismissing or enjoining this action or authorizing discovery into the prosecutors' internal deliberations. Indeed, the defendant acknowledged at oral argument that many of his theories for why the indictment is invalid are foreclosed by Supreme Court and D.C. Circuit precedent that this Court is required to follow. Thus, with the limited exception of the motion to compel the production of the Report of the Special Counsel, which will be granted in part, the motions will be denied. This opinion does not assess, and it should not be interpreted as expressing any point of view about, the strength of the government's case. Defendant is presumed to be innocent unless and until the government proves his guilt beyond a reasonable doubt.

         BACKGROUND

         This case arises out of the investigation conducted by Special Counsel Robert S. Mueller III. On May 17, 2017, pursuant to 28 U.S.C. §§ 509, 510, and 515, Acting Attorney General Rod J. Rosenstein appointed Mueller to serve as Special Counsel for the United States Department of Justice. Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters, Order No. 3915-2017, https://www.justice.gov/opa/press-release/file/967231/download (“Appointment Order”). The Appointment Order authorized the Special Counsel to investigate

(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and
(ii) any matters that arose or may arise directly from the investigation; and
(iii) any other matters within the scope of 28 C.F.R. § 600.4(a)[1]

         and to prosecute federal crimes arising out of them. Id. ¶¶ (b)-(c).

         On January 24, 2019, a grand jury returned a seven-count indictment against defendant Roger Stone for obstructing a congressional proceeding, lying to Congress, and tampering with a witness to that proceeding. See Indictment [Dkt. # 1]. According to the indictment, defendant is a political consultant who served as an official on Donald Trump's presidential campaign until approximately August 2015. Id. ¶ 4.

         The indictment alleges that in mid-2016, the Democratic National Committee (“DNC”) learned that its computer systems had been hacked, id. ¶¶ 1-2, and that from approximately July through November of 2016, an entity identified as “Organization 1” released tens of thousands of documents stolen from the DNC and from the personal email account of the campaign chairman of then-presidential candidate Hillary Clinton. Id. ¶ 3. During this time period, defendant made public and private statements that he had been in communication with the head of Organization 1 about its releases of information that would be damaging to the Clinton campaign. Id. ¶¶ 5, 6, 13, 14.

         After the November 2016 election, the U.S. House of Representatives Permanent Select Committee on Intelligence (“HPSCI”) was one of the congressional committees that undertook to investigate Russian interference in the 2016 presidential election. Id. ¶¶ 7, 18. As part of its investigation, the Committee asked defendant to appear before it and to produce certain documents. Id. ¶ 19. Defendant testified under oath before the Committee on September 26, 2017, and the indictment alleges that he made false statements to the Committee, lied about whether he possessed the documents requested by the Committee, id. ¶¶ 20-35, and attempted to prevent another person from contradicting the allegedly false account he had provided to the Committee. Id. ¶¶ 36-39. Stone is charged with one count of obstruction of a proceeding of the House Committee (Count One), id. ¶¶ 40-41; five counts of making false statements to the Committee (Counts Two through Six), id. ¶¶ 42-43; and one count of witness tampering (Count Seven). Id. ¶¶ 44-45.

         STANDARD OF REVIEW

         A criminal defendant may move to dismiss an indictment before trial based on a “defect in the indictment, ” Fed. R. Crim. P. 12(b)(3)(B), including constitutional challenges. See United States v. Eshetu, 863 F.3d 946, 952 (D.C. Cir. 2017), vacated in part on reh'g on other grounds, 898 F.3d 36 (D.C. Cir. 2018); United States v. Seuss, 474 F.2d 385, 387 n.2 (1st Cir. 1973). “When considering a motion to dismiss an indictment, a court assumes the truth of [the indictment's] factual allegations.” United States v. Ballestas, 795 F.3d 138, 149 (D.C. Cir. 2015).

         ANALYSIS

         In the set of overlapping dispositive and discovery motions to be addressed in this opinion, the defendant raises the following issues:

• In his motion to dismiss, defendant argues that his indictment for making false statements to a Congressional committee violates the principle of separation of powers enshrined in the Constitution because the legislative branch did not specifically refer the matter to the executive branch for prosecution. See Def's Mot. to Dismiss [Dkt. # 69] and Mem. of P. & A. in Supp. of his Motion to Dismiss (“Def's Mem.”) at 2-4.[2] Defendant's motion to dismiss due to defects in the indictment also contends that the indictment is invalid on this basis. Def's Mot. to Dismiss Pursuant to Fed. R. Crim. Proc. 12(b)(3)(B) [Dkt. # 72] (“Defect Mot”) at 1-4.
• Defendant argues that his indictment was unlawfully obtained and should be dismissed because the appointment and funding of the Special Counsel violated the Appropriations Clause of the Constitution. Def's Mem. at 4-16. He also seeks to enjoin the prosecution on this basis. Mot. to Enjoin the Prosecution [Dkt. # 71] (“Mot. to Enjoin”).
• Defendant argues that the Vesting Clause and the Take Care Clause of the Constitution prohibit any investigation of a President by the executive branch, and that since his indictment grew out of such an unlawful investigation, it must be dismissed. Def's Mem. at 16-30.
• Defendant submits that his indictment was obtained in violation of the Appointments Clause of the Constitution because the Special Counsel was not appointed or commissioned by the President, and therefore, the charges must be dismissed. Def's Mem. at 30-31.
• Under Rule 12(b)(3)(B) and United States v. Safavian, 528 F.3d 957, 964 (D.C. Cir. 2008, the defendant seeks the dismissal of that portion of Count One - charging obstruction of a congressional investigation - that alleges he failed to turn over documents to the Committee. Defect Mot. at 5-6. He argues that a failure to produce documents voluntarily in the absence of a subpoena cannot be the basis for a criminal charge. Id.
• Finally, defendant posits that he has been targeted for prosecution due to his support of the President's candidacy and his other First Amendment activities, and he asks the Court to compel the prosecution to provide him with an unredacted copy of the Special Counsel's report and to authorize him to conduct other discovery to uncover evidence related to his claim of selective prosecution. Mot. to Compel Complete Report of the Special Counsel [Dkt. # 70] (“Mot. to Compel”); Mot. for Disc. Regarding Selective Prosecution [Dkt. # 73] (“Disc. Mot.”).

         As will be set forth in more detail below, none of these theories warrants dismissal of the indictment or an order enjoining the prosecution, and beyond receiving portions of the Mueller Report, the defendant may not embark on discovery concerning the prosecutors' charging decisions.

         I. The Lack of a Congressional Referral Does Not Require Dismissal of the Case.

         Defendant Stone has moved to dismiss Count One, which charges him with obstructing the investigation conducted by the House Permanent Select Committee on Intelligence, and Counts Two through Six, which charge him with falsifying or concealing material facts in his testimony before the Committee, on the grounds that the matter was not referred to the Special Counsel by Congress.[3] Def's Mem. at 2-4; see also Defect Mot. at 1-4 (making the same argument). He proclaims, without citing any legal authority, that the Executive “may only act upon alleged criminal activity impacting the Legislative Branch upon the receipt of a ‘referral' from Congress.” Def's Mem. at 2. The motion to dismiss on this basis will be denied.

         Defendant contends first that it would violate the separation of powers principles embodied in the Constitution if the Court were to permit this case to proceed. Def's Mem. at 2-4. “To do so would allow the Executive Branch to invade and impede Congress' right to conduct inquires, ” in violation of the separation of powers doctrine. Id. at 3; see also Id. at 4 (stating that “[t]o allow the Executive Branch to roam the Halls of Congress to look for prosecutable offenses sans a referral from the Legislative Branch would violate the separation of powers doctrine”). But the defendant misapprehends the fundamental allocation of authority established in the Constitution and ignores clear precedent that recognizes the Executive's unfettered responsibility for law enforcement.

         The Supreme Court has stated unequivocally: “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” United States v. Nixon, 418 U.S. 683, 693 (1974). This long-settled authority to initiate charges “lies at the core of the Executive's duty to see to the faithful execution of the laws.” Cmty. for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986); see also United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 2016) (same). The Attorney General and his designees are authorized to discharge this duty by statute and under the authority of Article II of the Constitution. Nixon, 418 U.S. at 694; see also 28 U.S.C. § 516 (“Except as otherwise authorized by law, the conduct of litigation in which the United States . . . is interested . . . is reserved to officers of the Department of Justice, under the direction of the Attorney General.”); 28 U.S.C. §§ 503, 509, 510, 515, 519, 547. Consequently, “[t]he Attorney General and United States Attorneys retain ‘broad discretion' to enforce the Nation's criminal laws.” United States v. Armstrong, 517 U.S. 456, 464 (1996), citing Wayte v. United States, 470 U.S. 598, 607 (1985).

         Defendant's argument is also inconsistent with the plain text of the charging statutes, which do not specify the need for a congressional referral as an element of the offense or a prerequisite for prosecution. The false statements statute imposes sanctions on:

whoever, in any matter within the jurisdiction of the . . . legislative . . . branch of the Government of the United States, knowingly and willfully . . . makes any materially false, fictitious, or fraudulent statement or representation . . . .

18 U.S.C. § 1001(a)(2) (emphasis added). Subsection (c) identifies the particular legislative matters covered by the provision, including: “any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress.” 18 U.S.C. § 1001(c)(2). The repetition of the word “any” reflects the intention to give the provision broad scope, and when Congress enacted the provision, it did not include any requirement that the matter be referred for prosecution by the legislative body involved. This is telling because Congress has spoken clearly when it did intend to impose such a requirement: the statutory provisions governing prosecution for contempt of Congress expressly provide for a certification by Congress to the United States Attorney for prosecution. See 2 U.S.C. §§ 192, 194

         Similarly, the obstruction statute does not require a congressional referral to prosecute. It covers:

[w]hoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede . . . the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress.

18 U.S.C. § 1505. So there is nothing in the charging statutes curtailing the Attorney General's independent power to investigate and prosecute these crimes.

         In the absence of constitutional or statutory support for his position, defendant points the Court to the Rules of Procedure for the Permanent Select Committee on Intelligence. He speculates that the Special Counsel learned about the substance of his testimony through some improper means, and assumes that the then-minority members of the Committee must have violated its internal Rule 12(a)(1)(D), which prohibits Committee members from disclosing “the substance of any hearing that was closed to the public.” Defect Mot. at 2.[4] He posits that “[w]hatever made the Special Counsel's Office aware of Stone's testimony to Congress, or more precisely, characterized it as false and drew attention to it, amounts to a violation of the House rules because it was not formally and explicitly authorized by the Committee.” Id.

         There is no precedent that would authorize the dismissal of an indictment based on pure conjecture; nor has the defendant pointed to any authority that holds that an alleged violation of internal House Committee rules could invalidate an indictment returned by a grand jury. Moreover, defendant's motion fails to mention the fact that the defendant brought attention to the substance of his HPSCI testimony himself, by publicly releasing his written remarks in advance of the hearing and by holding a press conference - while still on Capitol Hill - immediately afterwards. Gov't Opp. to Defect Mot. [Dkt. # 93] (“Defect Opp.”) at 10-11, citing Interview with Roger Stone (Sept. 26, 2017), http://www.cnn.com/TRANSCRIPTS/1709/26/ip.02.html. Indeed, Stone publicly mused that some of the legislators present doubted his credibility: “I don't think that members of the committee buy some of my claims, but they have no evidence to the contrary.” Id. at 11, quoting Interview with Roger Stone (Sept. 26, 2017). Defendant did not deny these facts in his reply brief or at the hearing. See Def.'s Reply to Defect Opp. [Dkt. # 112] (“Defect Reply”); Tr. at 18.

         The Court also rejects any suggestion that the HPSCI hearing transcript was improperly disclosed to the Department of Justice. The record shows that the Department's Office of Legislative Affairs formally requested that the Committee provide the hearing transcript and other materials concerning defendant to the Department of Justice. Tr. at 18:20-25; Ex. A, Defect Opp. [Dkt. # 93-1] (“HPSCI Letter”). On December 20, 2018, the then-Chair of the Committee, Devin Nunes, transmitted the information to the Department “[p]ursuant to a Committee vote” and “with no restrictions on use by the [Special Counsel's Office] or other components of the Department of Justice.” HPSCI Letter at 1-2; see also Tr. at 8:21-9:4. At the hearing, the defense conceded that there was nothing improper about that exchange:

THE COURT: The committee transmitted the transcript to the Office of Legislative Affairs at the Department of Justice . . . . So, reading the transcript didn't violate any House rule, if the chair of the committee - not some minority member - passed it on; is that correct?
MR. BUSCHEL: I think that - that they certainly can share the transcript, sure.

         Tr. at 18:20-19:5.

         Therefore, defendant's argument that the prosecution is founded upon an improper disclosure of information is unavailing, and he can hardly claim that the Special Counsel reached out and grabbed this issue without congressional participation or assent.[5]

         Finally, defendant argues that in the absence of a congressional referral, the government failed to establish the element of materiality that is necessary to establish a violation of the false statements statute. See 18 U.S.C. § 1001(a)(2); Defect Reply at 2. In Stone's view, the indictment fails to state an offense since there was “no allegation that Stone's voluntary testimonies were deemed by the Committee to be ‘material, '” Defect Reply at 3, and he insists that the lack of a congressional referral proves his point because “had the [HPSCI's] functions been impeded, a referral would have been called for.” Id. at 2. Additionally, he argues that the grand jury lacked a basis to find materiality “[a]bsent grand jury testimony representing the Committee's views and an allegation that the Committee communicated to the grand jury that Stone impeded its work.” Id.; see also Defect Mot. at 3 (“Without a referral and without a presentation of any witness in the Committee room when Stone testified, no one testified before the Grand Jury that Stone's testimony was material to the House Committee's investigation.”).

         Defendant misunderstands the law of materiality and the fundamental nature of a motion to dismiss an indictment. First, the Supreme Court has held that a statement is materially false if it has “a natural tendency to influence, or [is] capable of influencing, the decision of the decisionmaking body to which it was addressed.” United States v. Gaudin, 515 U.S. 506, 509 (1995). “A statement ‘need not actually influence an agency in order to be material.'” United States v. Verrusio, 762 F.3d 1, 20 (D.C. Cir. 2014), quoting United States v. Moore, 612 F.3d 698, 701 (D.C. Cir. 2010). So defendant is incorrect as matter of law when he insists that the government must prove that the alleged false statements actually “impeded” the HPSCI's investigation. And there is also no requirement that the government rely on direct evidence to prove this element; it can be inferred by the jury. As the D.C. Circuit explained in Verrusio, the government is not obligated to “‘present any testimony or other evidence specifically for the purpose of establishing the materiality of [the defendant's] false statement.' Rather, the jury can infer from other evidence that the false statement ‘was capable of affecting' the agency's functions.” 762 F.3d at 20-21, quoting Moore, 612 F.3d. at 702; see also Gaudin, 515 U.S. at 512.[6] In any event, defendant's complaints about the sufficiency of the evidence are premature given the allegations in the indictment.

         At this stage of the proceedings, the Court “assumes the truth of [the indictment's] factual allegations.” Ballestas, 795 F.3d at 149. Dismissal “is granted only in unusual circumstances” since it “directly encroaches upon the fundamental role of the grand jury.” Id. at 148. Importantly, an indictment “need only contain ‘a plain, concise, and definite written statement of the essential facts constituting the offense charged.'” Id. at 149, quoting Fed. R. Crim. P. 7(c).

         Here the indictment plainly alleges that defendant's false statements to the HPSCI were material. See Indictment ¶ 43 (“[T]he defendant ROGER JASON STONE, JR., knowingly and willfully made and caused to be made materially false, fictious, and fraudulent statements and representations.”). So the indictment satisfies Rule 7(c).

         Moreover, it is not up to the Court to question whether the grand jury had an adequate basis to come to this conclusion. See Defect Reply at 2 (arguing that the grand jury lacked evidence of materiality in the absence of a congressional referral or witness). It is well established that courts lack the authority to assess the sufficiency of the evidence underlying a finding of probable cause. The Supreme Court has emphasized:

“[A]n indictment ‘fair upon its face,' and returned by a ‘properly constituted grand jury, '” . . . “conclusively determines the existence of probable cause” to believe the defendant perpetrated the offense alleged. And “conclusively” has meant, case in and case out, just that. We have found no “authority for looking into and revising the judgment of the grand jury upon the evidence, for the purpose of determining whether or not the finding was founded upon sufficient proof.” To the contrary, “the whole history of the grand jury institution” demonstrates that “a challenge to the reliability or competence of the evidence” supporting a grand jury's finding of probable cause “will not be heard.” The grand jury gets to say - without any review, oversight, or second-guessing - whether probable cause exists to think that a person committed a crime.

Kaley v. United States, 571 U.S. 320, 328 (2014) (internal citations omitted).

         Therefore, the Court finds that that the lack of a congressional referral has no bearing on the materiality element, the indictment satisfies Rule 7(c), and there is no basis for dismissing the false statements counts for failure to state an offense under Rule 12(b)(3)(B)(v). Since the defendant's contention that a congressional referral was necessary is contrary to both the charging statutes and “long-settled understandings about the independence of the Executive with regard to charging decisions, ” Fokker Servs., 818 F.3d at 738, and the lack of a referral does not undermine the validity of the indictment, the Court will deny defendant's motion to dismiss Counts One through Six on those grounds.

         II. The Case Will Not Be Dismissed and the Prosecution Will Not Be Enjoined Because the Special Counsel's Investigation Does Not Violate the Appropriations Clause of the Constitution.

         Defendant next seeks both the dismissal of the indictment and an injunction halting the proceedings against him on the ground that his prosecution violates the Appropriations Clause of the Constitution. Def.'s Mem. at 4-16; Mot. to Enjoin. The Appropriations Clause provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. It gives Congress “exclusive power over the federal purse . . . ‘mean[ing] simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.'” Rochester Pure Waters Dist. v. EPA, 960 F.2d 180, 185 (D.C. Cir. 1992), quoting Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937). Defendant argues that because funding for the Special Counsel's investigation was not authorized by Congress, the Court must dismiss the indictment obtained in contravention of the Constitution, Def.'s Mem. at 4-16, and issue a permanent injunction against his prosecution. Mot. to Enjoin.

         A. Defendant's request for equitable relief is misplaced.

         At the outset, the Court notes that the proper avenue for defendant to mount a legal challenge to the prosecution is through a motion to dismiss under Federal Rule of Criminal Procedure 12. Thus, the motion for an injunction will be denied in light of traditional abstention principles, the lack of a showing of irreparable harm, and the availability of an adequate remedy at law.

         The abstention doctrine was developed in the context of requests to enjoin state criminal proceedings, but it has been applied to attempts to enjoin ongoing federal prosecutions as well. Deaver v. Seymour, 822 F.2d 66 (D.C. Cir. 1987); Jarkesy v. SEC, 803 F.3d 9 (D.C. Cir. 2015). In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court held that a defendant was not entitled to federal equitable relief against a state court prosecution where the injury he faces was “solely that incidental to every criminal proceeding brought lawfully and in good faith.” Id. at 49 (internal quotation marks omitted). According to the Court, this was not the sort of “irreparable” harm needed to justify extraordinary equitable relief: “[c]ertain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered ‘irreparable' in the special legal sense of that term.” Id. at 46. Unless the “irreparable injury” was “both great and immediate, ” and involved a “threat to the plaintiff's federally protected rights . . . that [could not] be eliminated by his defense against a single criminal prosecution, ” the Court found that federal courts should abstain from interference with state criminal proceedings. Id. Thereafter, the Supreme Court has generally “upheld federal injunctions to restrain state criminal proceedings only where the threatened prosecution chilled exercise of First Amendment rights.” Deaver, 822 F.2d at 69, citing Wooley v. Maynard, 430 U.S. 705 (1977) (holding that a federal court was not precluded from granting equitable relief to enjoin prosecution where a state statute made it a crime to obscure the words “Live Free or Die” on a car license plate).[7] And here, defendant is not being prosecuted for violating a law that specifically restricts free expression.

         While it is true that the Supreme Court also premised the Younger decision, in part, on principles of federalism, Younger, 401 U.S. at 44 (“[T]he National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.”), the D.C. Circuit found abstention to be appropriate when it rejected an attempt to use a civil action to stave off a federal criminal prosecution as well. In Deaver v. Seymour, a former White House official who was the subject of an investigation being pursued by an independent counsel appointed under the Ethics in Government Act was informed that the independent counsel was about to ask the grand jury to return an indictment. 822 F.2d at 67. The next day, he brought a civil action for declaratory and injunctive relief that would stay the prosecution while he challenged the constitutionality of the independent counsel's authority. Id. at 67-68.[8]The trial court denied the motion for a preliminary injunction, and the D.C. Circuit affirmed, citing Younger. Id. at 68-69, citing 401 U.S. at 46.

         The Deaver opinion explained: “[e]ven were we disposed to agree entirely with appellant's constitutional argument, we think he has no right to an injunction restraining a pending indictment in a federal court, ” id. at 68, and it made it clear that “defendants cannot, by bringing ancillary equitable proceedings, circumvent federal criminal procedure.” Id. at 71.

         In reaching its decision in Deaver, the D.C. Circuit addressed its previous opinion in Juluke v. Hodel, 811 F.2d 1553 (D.C. Cir. 1987), in which it had refused to dismiss a federal civil action seeking an injunction to enjoin future prosecutions under allegedly unconstitutional federal regulations.[9] The Juluke Court stated that the Younger doctrine does not necessarily control a federal civil proceeding to enjoin a federal criminal prosecution because the same federalism concerns are not present. Juluke, 811 F.2d at 1556-57. But the Court also observed that a federal court may refuse to consider a claim for injunctive relief if it would be “inefficient to do so, because the same issues - the validity and applicability of the regulations - would be decided in the criminal action.” Id. at 1557. And the Court emphasized the fact that the Juluke plaintiffs were not seeking to enjoin any existing prosecutions; they sued to enjoin future arrests for violations of the federal regulations at issue, and therefore, the adjudication of their criminal cases would not afford them the relief they sought. Id.

         The Deaver Court did not view Juluke as an impediment to dismissing Deaver's case. The opinion reported that the Court could find no prior case in which a federal court had enjoined a federal prosecutor's investigation or presentment of an indictment. Deaver, 822 F.2d at 69. More important, the Court observed that when a prosecutor brings a case in federal court, after indictment, defendants have “a federal forum in which to assert their defenses - including those based on the Constitution.” Id. The Court recognized that a federal defendant would be afforded an opportunity under Federal Rule of Criminal Procedure 12(b) to move to dismiss an indictment based on defects in the prosecution. Id. at 70. And the Court held that because “[t]hese rules provide adequate, although limited, opportunities for defendants to challenge shortcomings in prosecutorial authority, ” it is through these procedures, not equitable remedies, that a criminal defendant should raise the alleged shortcomings and constitutional concerns regarding his prosecution. Id. at 71.

         Twenty-eight years after Deaver, in Jarkesy v. SEC, a case involving an action against the Securities and Exchange Commission by an investment adviser and manager seeking to terminate administrative enforcement proceedings charging them with securities fraud, the D.C. Circuit underscored that the presence of federalism concerns was not a prerequisite for abstaining from interfering in criminal proceedings:

True, Younger abstention is grounded in considerations of federalism not implicated here. But the rule derives from “the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury.”

Jarkesy, 803 F.3d at 26, quoting Younger, 401 U.S. at 43-44.

         Stone's motion to enjoin the prosecution falls squarely within the scope of the Deaver and Jarkesy decisions and the well-established limits on the invocation of equitable remedies. Stone does not seek to enjoin any future prosecution, see Stone's Reply to Corrected Response to Motion to Dismiss and Enjoin [Dkt. # 110] (“Def.'s Reply to Mot. to Dismiss”) at 14-15, and the issue he raises in his request for an injunction - that the appointment of the Special Counsel violated the Appropriations Clause - is an issue that not only can be, but has been, raised in a motion to dismiss filed under Rule 12(b). See Def.'s Mem. at 4-16. Stone identifies no constitutional deprivation that he will suffer as a result of the pendency of this case; while defendant states that the “prosecution will drain Mr. Stone's resources and damage his reputation, ” Def.'s Reply to Mot. to Dismiss at 15, the Supreme Court has expressly rejected the contention that this type of harm warrants federal intervention. Younger, 401 U.S. at 46. Thus, an injunction enjoining the prosecution or other equitable remedies would be inappropriate, and the motion will be denied.[10] The motion would have been denied in any event since, as set forth below, it fails on legal grounds as well.

         B. The 1987 permanent appropriation funds investigations by special counsel appointed pursuant to 28 U.S.C. §§ 509, 510, and 515, including those subject to the 1999 Special Counsel Regulation.

         To analyze the defendant's argument, it is necessary to review the statute that authorizes the appointment of special counsel, the Department of Justice regulations governing the attorneys after they are appointed, and the history of the now-expired Ethics in Government Act.

         In a statute enacted in 1966, Congress vested “[a]ll functions” of the Department of Justice, and its officers, agencies, and employees, in the Attorney General of the United States. 28 U.S.C. § 509. The nation's chief law enforcement officer is empowered by this law to delegate any of those functions: “[t]he Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer [or] employee, ” id. § 510, and the statute expressly permits him to appoint and retain an attorney from outside of the Department to act as “special assistant to the Attorney General or special attorney.” Id. § 515(a), (b). “[A]ny attorney specially appointed by the Attorney General under law, may, when ...


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