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Case 1:19-cr-00018-ABJ Document 72 Filed 04/12/19 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

Case No.: 1:19-CR-00018-ABJ

UNITED STATES OF AMERICA,

Plaintiff,

v.

ROGER J. STONE, JR.,

Defendant.
______________________________/

ROGER STONE’S MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF


CRIMINAL PROCEDUE 12(b)(3)(B)

Defendant, Roger J. Stone, Jr., moves to dismiss the Indictment against him, pursuant to

Federal Rule of Criminal Procedure 12(b)(3)(B). Roger Stone has been charged with obstruction,

lying to Congress, and witness tampering under 18 U.S.C. §§ 1505, 1001, and 1512(b)(1), 2.

I. CONGRESS DID NOT MAKE A REFERRAL TO THE DEPARTMENT


OF JUSTICE.

The Department of Justice does not proactively patrol for obstruction and perjury cases

around the halls of Congress. Federal agents do not surf channels or watch television and say,

“we ought to investigate that, Joe Smith said this – in front of that committee,” as stated by then-

Director of the FBI James Comey 1. Instead, Director Comey testified that Congress needed to

refer cases to the FBI in order for them to investigate. The alleged offenses committed by Roger

Stone occurred nearly two years ago and there was no referral from the Committee before which

1
Oversight of the State Dep't, Hearing Before the Comm. on Oversight and Reform,
114th Congress (2016) (statement of James B. Comey, Dir. Federal Bureau of Investigation).

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Case 1:19-cr-00018-ABJ Document 72 Filed 04/12/19 Page 2 of 8

the alleged false statements were made. Near the end of its investigation, with no findings of

collusion, the Special Counsel proactively analyzed the testimony of Roger Stone before the

House Permanent Committee on Intelligence, without a referral. It would appear that certain

Minority members of the Committee told agents in the Department to request the testimony of

Stone and investigate - yet this was not a formal request or allowed by the Committee rules. See

STAFF OF H. COMM. ON ETHICS, 116TH CONG., RULES 12(a)(1) & (D) (Adopted Feb. 27, 2019)

(entitled “Limit on Discussion of Classified Work of the Committee”) (disclosure of substance of

HPSCI hearing prohibited); Yellin v. United States, 374 U.S. 109, 114, 83 S.Ct. 1828, 1832

(1963) (the rules of Congress and its committees are judicially cognizable) (citations omitted).

Whatever 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. See Rule

12(a)(1) & (D), supra. The Minority members' numerous public statements alone, claiming that

Stone lied to or obstructed the Committee, would constitute prima facie evidence of a violation

of the Committee’s rules. 2 This is what the rules were promulgated to prevent. But since no one

2
See Morning Joe, Adam Schiff Discusses What House Intel Committee Learned from
Roger Stone, YOUTUBE (Sept. 27, 2017),
https://www.youtube.com/watch?v=1y62cb8SyD0&feature=youtu.be&t=49; Congressman Eric
Swalwell, Rep. Swalwell on MSNBC discussing House Intelligence Committe’s [sic] Interview of
Roger Stone, YOUTUBE (Sept. 26, 2017), https://www.youtube.com/watch?v=6lUEGgLfuX0;
Congressman Eric Swalwell, Rep. Swalwell on CNN discussing House Intelligence Committee’s
interview of Roger Stone, YOUTUBE (Sept. 26, 2017),
https://www.youtube.com/watch?v=TfOMMniTC0s; Adam Schiff, Rep. Schiff Discusses
Russian Ads on Facebook and Roger Stone’s Interview on CNN, YOUTUBE (Sept. 27, 2017),
https://www.youtube.com/watch?v=KvFkuM-lnr0; Jackie Speier, Rep Speier talks to CNN about
Roger Stone’s House Intelligence Interview, YOUTUBE (Sept. 26, 2017),
https://www.youtube.com/watch?v=r3rCyq_D5Z4; Jackie Speier, Rep Speier talks to Stephanie
Ruhle, Ali Velshi about Roger Stone, YOUTUBE (Sept. 27, 2017),
2
Case 1:19-cr-00018-ABJ Document 72 Filed 04/12/19 Page 3 of 8

on the Committee admitted to it, the element of materiality and proof of obstruction become a

legal issue.

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. Indeed, the Special Counsel would have to prove at trial that a

conspiracy to interfere with the 2016 presidential election involving the Russian government

before Stone could be charged with lying about or obstructing an investigation into that Russian

conspiracy. Indeed, the Attorney General stated as much in a memo in which he wrote: "As

things stand, obstruction laws do not criminalize just any act that can influence a 'proceeding.’

See Memorandum from Bill Barr on Mueller’s “Obstruction” Theory to Deputy Att’y Gen. Rod

Rosenstein and Assistant Att’y Gen. Steve Engel (June 8 2018), at 1 (Exhibit 1). Barr critiques

Special Counsel's interpretation of Section 1512(c)(2), as "exclusively confined to acts of

evidence of impairment, a new unbounded interpretation." (Id. at 2). Furthermore, “. . . the

President’s motive . . . could not have been ‘corrupt’ unless the President and his campaign were

actually guilty of illegal collusion.” Id. at 3. The entire theory on obstruction is “entirely

dependent on first finding collusion. . .” Id.

The Government turned over nine tera-bytes of data to the defense; none of the FBI’s 302

https://www.youtube.com/watch?v=kVyGCv2cbEE; MSNBC, Dem: I Expect Roger Stone To Be


Indicted For Lying To Congress, YOUTUBE (Dec. 6, 2018),
https://www.youtube.com/watch?v=gq2RpJG5cic&feature=youtu.be&t=84; Carol D. Leoning,
Ellen Nakashima, Rosalind S. Helderman, and Manuel Roig-Franzia, Mueller seeks Roger
Stone’s testimony to House intelligence panel, suggesting special counsel is near end of probe of
Trump advisor, THE WASHINGTON POST (Dec. 19, 2018),
https://www.washingtonpost.com/politics/mueller-seeks-roger-stones-testimony-to-house-
intelligence-panel-suggesting-special-counsel-is-near-end-of-probe-of-trump-
adviser/2018/12/19/ac5c3ee6-0226-11e9-b5df-
5d3874f1ac36_story.html?noredirect=on&utm_term=.550b5cb37cc4.
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interviews were with any member of Congress. The Government turned over transcripts of

witnesses' grand jury testimony; none was a witness who offered evidence about Stone testifying,

or about the materiality of the investigation in Congress. The Department might have imagined

what the House committee's investigative goals were, but the House Committee published a

report, and Roger Stone committing perjury or obstruction was not one of the findings or stated

goals. No one testified how Stone obstructed the Committee's goals.

The Special Counsel who presented the case to the Grand Jury had limited investigative

and prosecutorial goals outlined in the Special Counsel’s Appointment Order. 3 The investigation

did not reveal a conspiracy between the Russian government and any American.

Stone's testimony was not material to the link between Russian government actors and

the presidential election because no conspiracy was proven. Stone's testimony was brought to

the attention of the Department in violation of congressional rules because there was no proper

vote and referral to the Department. The Special Counsel did not have the authority to investigate

perjury or obstruction of another branch's investigation only its own. See 28 C.F.R. § 600.4(a).

The Government in this case is interpreting the obstruction statute too broadly because it is

assuming acts that did not destroy or alter evidence are included as a "catch all" provision. See

Barr Memo at 5-6 (citing United States v. Volpendesto, 746 F.3d 273 (7th Cir. 2014) (soliciting

tips from corrupt cops to evade surveillance); (United States v. Phillips, 583 F.3d 1261 (10th Cir.

2009) (disclosing identity of undercover agent to subject of grand jury drug investigation). It is

too broad of an interpretation and cannot support the charge of obstruction. Stone cannot be

charged with obstruction because he did not destroy or alter any evidence.

3
Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with
the 2016 Presidential Election and Related Matters. Exhibit 2.
4
Case 1:19-cr-00018-ABJ Document 72 Filed 04/12/19 Page 5 of 8

II. STONE CANNOT BE CHARGED WITH OBSTRUCTION FOR FAILING


TO TURN OVER DOCUMENTS.

This motion attacks one allegation embedded in a clause of Count One – obstruction of

Congress. In Count One, Stone is accused, among several clauses, of obstructing Congress for

failing to “turn over” documents the House Permanent Committee on Intelligence (“HPSCI”)

requested. Stone was not subpoenaed by Congress to appear – he was invited. Since there was no

pending enforcement or compulsion process in place at the time Stone appeared and responded

to the House Permanent Committee on Intelligence, he could not obstruct by failing to provide

documents that were voluntarily requested.

“In ruling on a motion to dismiss for failure to state an offense, a district court is limited

to reviewing the face of the indictment and, more specifically, the language used to charge the

crimes.” United States v. Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 2009) (quoting United States v.

Sharpe, 438 F.3d 1257, 1263 (11th Cir.2006)). See 18 U.S.C. §1505.

Section 1505 contemplates the “due and proper exercise of the power of inquiry.” The

statute contemplates a duty to disclose material facts on the basis of “specific requirements for

disclosure of specific information.” United States v. Safavian, 528 F.3d 957, 964 (D.C. Cir. 2008)

(citations omitted). The reason for demanding specificity relates to the due process provided in

the Fifth Amendment. Id. A defendant is required to have fair notice of what conduct is

forbidden and what a criminal statute clearly requires. Id. (citations omitted). In United States v.

White Eagle, the Ninth Circuit underscored how proof of a violation of a specific legal duty to

disclose equates criminal liability for non-disclosure with the fair notice requirement of Due

5
Case 1:19-cr-00018-ABJ Document 72 Filed 04/12/19 Page 6 of 8

Process. 721 F.3d 1108 (9th Cir. 2013) (discussing § 1001 violation). The House Committee did

not compel production of documents. Because it did not exercise the due and proper power of

inquiry, and no law, rule, or policy subjected Stone to produce documents, he cannot be

convicted of obstruction under the statute. See Id.

In Safavian, the concealment of information was related to failure to disclose testimony.

528 F.3d at 964-65. The clause in Stone’s indictment which claims he failed to disclose

documents cannot stand, for the same reason – he was not compelled to turn over any documents.

If Stone was not compelled, he did not obstruct by failing to turn over the documents. The

analogy of failing to testify and failing to produce all documents in the context of a voluntary

appearance is exact. The act of producing documents can be considered testimonial because it

suggests a person possessed and controlled the documents. United States v. Hubbell, 530 U.S.

27, 43, 120 S.Ct. 2037, 2047 (2000). The HPSCI did not subpoena Stone. Nor did it define the

scope of its investigation or the production of documents in any meaningful way. See Exhibit 3,

HPSCI Letter Re: Transmission of Sept. 26, 2017 Testimony Transcript to the DOJ. The

language requesting voluntary compliance is imprecise and vague, and not legally specific

enough to support an Indictment against Stone. The count regarding obstruction by way of

failure to disclose documents is wholly unsupported by law and must be dismissed from the

Indictment.

6
Case 1:19-cr-00018-ABJ Document 72 Filed 04/12/19 Page 7 of 8

Respectfully submitted,

By: /s/ __________________

BRUCE S. ROGOW
L. PETER FARKAS FL Bar No.: 067999
HALLORAN FARKAS & KITTILA, LLP TARA A. CAMPION
DDC Bar No.: 99673 FL Bar: 90944
1101 30th Street, NW BRUCE S. ROGOW, P.A.
Suite 500 100 N.E. Third Avenue, Ste. 1000
Washington, DC 20007 Fort Lauderdale, FL 33301
Telephone: (202) 559-1700 Telephone: (954) 767-8909
Fax: (202) 257-2019 Fax: (954) 764-1530
pf@hfk.law brogow@rogowlaw.com
tcampion@rogowlaw.com
Admitted pro hac vice

ROBERT C. BUSCHEL GRANT J. SMITH


BUSCHEL GIBBONS, P.A. STRATEGYSMITH, PA
FL Bar No.: 006436 DCC Bar No.: 00036
One Financial Plaza, Suite 1300 FL Bar No.: 935212
100 S.E. Third Avenue 401 East Las Olas Boulevard
Fort Lauderdale, FL 33394 Suite 130-120
Telephone: (954) 530-5301 Fort Lauderdale, FL 33301
Fax: (954) 320-6932 Telephone: (954) 328-9064
Buschel@BGlaw-pa.com gsmith@strategysmith.com
Admitted pro hac vice

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on April 12, 2019, I electronically filed the foregoing with the

Clerk of Court using CM/ECF. I also certify that the foregoing is being served this day on all

counsel of record or pro se parties, via transmission of Notices of Electronic Filing generated by

CM/ECF.

By: /s/ Robert Buschel


Robert C. Buschel

7
Case 1:19-cr-00018-ABJ Document 72 Filed 04/12/19 Page 8 of 8

United States Attorney’s Office for the United States Depart of Justice
District of Columbia Special Counsel’s Office

MICHAEL JOHN MARANDO AARON SIMCHA JON ZELINSKY


JONATHAN IAN KRAVIS JEANNIE SCLAFANI RHEE
U.S. ATTORNEY'S OFFICE FOR THE ANDREW DANIEL GOLDSTEIN
DISTRICT OF COLUMBIA LAWRENCE RUSH ATKINSON
555 Fourth Street, NW U.S. DEPARTMENT OF JUSTICE
Washington, DC 20530 SPECIAL COUNSEL’S OFFICE
Telephone: (202) 252-6886 950 Pennsylvania Avenue, NW
Fax: (202) 651-3393 Washington, DC 20530
michael.marando@usdoj.gov Telephone: (202) 616-0800
jonathan.kravis3@usdoj.gov Fax: (202) 651-3393
asjz@usdoj.gov
jsr@usdoj.gov
adg@usdoj.gov
lra@usdoj.gov

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(©ffice of tqe g}cput J\tiortte}:J ®eneral


l!lu.sl1ington, .<!!. 20530

ORDER NO. 3915-2017


APPOINTMENT OF SPECIAL COUNSEL
TO INVESTIGATE RUSSIAN INTERFERENCE WITH THE
2016 PRESIDENTIAL ELECTION AND RELATED MATTERS

By virtue of the authority vested in me as Acting Attorney General, including 28 U.S.C.


§§ 509, 510, and 515, in order to discharge my responsibility to provide supervision and
management of the Department of Justice, and to ensure a full and thorough investigation of the
Russian govemmenfs efforts to interfere in the 2016 presidential election, I hereby order as
follows:

(a) Robert S. Mueller III is appointed t() serve as Specia] Counsel for the United States
Department of Justice.

(b) The Special Counsel is authorized to conduct the investigation confinned by then-FBI
Director James 8. Corney in testimony before the House Permanent Select Committee on
Intelligence on March 20, 2017, including:

(i) any links and/or coordination bet ween 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).

(c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is
authorized to prosecute federal crimes arising from the investigation of these matters.

(d) Sections 600.4 through 600. l 0 of Title 28 of the Code of Federal Regulations are
applicable to the Special Counsel.

Date '
1
Case 1:19-cr-00018-ABJ Document 72-3 Filed 04/12/19 Page 1 of 2

Devin Nunes, California, Chairman

K. Michael Conaway, Texas


Peter T. King, New York
UNCLASSIFIED//COMMITTEE SENSITIVE
Frank A. LoBiondo, New Jersey
Thomas J. Rooney, Florida HVC-304, The Capitol
lleana Ros-Lehtinen, Florida
Michael R. Turner, Ohio
Brad R. Wenstmp, Ohio
U.S. HOUSE OF REPRESENTATIVES Washington, DC 20515
(202)225-4121
Chris Stewart, Utah
Rick Crawford, Arkansas Permanent Select Committee Damon Nelson
Trey Gowdy, South Carolina
Elise M. Stefanik, New York on Intelligence Staff Director
Will Hurd, Texas Timothy S. Bergreen
Minority Staff Director
Adam B. Schiff, California,
Ranking Member

James A. Himes, Connecticut


Terri A. Sewell, Alabama
Andre Carson, Indiana
Jackie Speier, California
Mike Quigley, Illinois
Eric Swalwell, California
Joaquin Castro, Texas
Denny Heck, Washington

Paul D. Ryan, Speaker of the House


Nancy Pelosi, Democratic Leader

December 20, 2018


VIA HAND DELIVERY
The Honorable Stephen E. Boyd
Assistant Attorney General
Office of Legislative Affairs
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001
Dear Mr. Boyd:

The House Permanent Select Committee on Intelligence (“the Committee”) has received
your letter, dated December 14, 2018, requesting the Committee provide to the Special Counsel’s
Office (SCO) a transcript of the Committee’s September 26, 2017 interview with Roger Stone;
as well as any other written submissions and/or correspondence from Mr. Stone or his attorneys
before and after his interview.

Pursuant to a Committee vote this morning authorizing release of the material to the
Department of Justice and its components, enclosed are the following documents:

1. The transcript of the September 26, 2017, Executive Session Committee interview of
Roger Stone;
2. A letter from Roger Stone’s counsel. Grant J. Smith, to Rep. K. Michael Conaway,
dated September 22, 2017;
3. Mr. Stone’s complete original opening statement, which was submitted to the
Committee by Mr. Stone’s counsel. Grant J. Smith, on September 26, 2017, and
included counsel’s request to include the statement as part of the record;
4. Mr. Stone’s abridged opening statement for the Committee, which was submitted to
the Committee by Mr. Stone’s counsel. Grant J. Smith, on September 26, 2017, and
included counsel’s request to include the statement as part of the record;
5. A letter from Roger Stone’s counsel, Robert C. Buschel, to Rep. K. Michael
Conaway, dated October 13, 2017, including all attachments; and
6. A letter from Roger Stone’s counsel. Grant J. Smith, to Chairman Devin Nunes, dated
June 15, 2018.

UNCLASSIFIED//COMMITTEE SENSITIVE

DOJ01-HPSCI-000001
Case 1:19-cr-00018-ABJ Document 72-3 Filed 04/12/19 Page 2 of 2

UNCLASSIFIED//COMMITTEE SENSITIVE

Please be advised that production of these documents does not constitute a waiver of any
applicable privileges and, specifically, does not waive the privilege conferred by the Speech or
Debate Clause, U.S. Const, art. I, § 6, cl. 1.
The Committee provides these materials to the Department of Justice with no restrictions
on use by the SCO or other components of the Department of Justice.
Should you have any questions, please do not hesitate to contact Cordell Hull from the
Republican staff at (202) 226-1770 and Maher Bitar from the Democratic staff at (202) 226-
0564.

Sincerely,

Devin Nunes
Chairman Ranking Member

Enclosures

UNCLASSIFIED//COMMITTEE SENSITIVE

DOJ01-HPSCI-000002