WASHINGTON — Roger Stone on Tuesday lost his challenge to a judge's order barring him from posting anything on Facebook, Twitter, and Instagram while his criminal case is pending.
A federal district judge in Washington, DC, at first allowed Stone to continue posting on social media, but limited what he could say about his case, after the longtime political operative and adviser to President Donald Trump posted a photo of her on Instagram with appeared to be a crosshairs symbol. The judge then made the gag order more restrictive in July after finding that he repeatedly violated the earlier order. Stone appealed to the US Court of Appeals for the DC Circuit.
A three-judge appeals panel dismissed Stone's appeal, finding that the way he'd brought his challenge was wrong. Stone petitioned for what's known as "mandamus" relief, which the judges noted was a "drastic" step reserved for "extraordinary situations" where parties such as Stone had no other options. The problem, DC Circuit Judge Robert Wilkins wrote, was that Stone did have other options to challenge the gag order, and he failed to take them.
Wilkins noted that Stone could have filed a regular appeal of US District Judge Amy Berman Jackson's social media restrictions within 14 days, for instance, or appealed under a federal law that lets criminal defendants challenge their pretrial release or detention conditions. Wilkins pointed out that former Trump campaign chair Paul Manafort, who was jailed pending his trial in the summer of 2018 after the government accused him of trying to interfere with witnesses, took the latter route (he later dropped that appeal).
"[D]espite Stone’s protestation that 'no adequate alternative remedy would suffice to expeditiously address the violation' he complains of ... this provision expressly requires expeditious review," Wilkins wrote.
The court found that because Stone failed to exhaust his "alternative adequate remedies," the judges couldn't hear the appeal — they didn't rule on the substance of Stone's argument that the gag order violated his First Amendment speech rights. The DC Circuit also rejected arguments by Stone's family members challenging a separate part of Jackson's order that limited what they could say about the case on Stone's behalf.
A lawyer for Stone and a spokesperson for the Justice Department did not immediately return requests for comment.
Stone's trial is set to begin on Nov. 5. He's charged with lying to Congress about his contacts with WikiLeaks and witness tampering. He was indicted by a grand jury in January as part of former special counsel Robert Mueller's office investigation into Russian interference in the 2016 election; the US attorney's office in Washington, DC, took over the case after Mueller ended his probe and the special counsel office disbanded.
Jackson had previously limited what Stone was allowed to say publicly about his case, on any platform, after he posted the crosshairs photo. Under the February order, he was allowed to declare his innocence and ask for donations to support his legal defense, but nothing else. He continued to post regularly on Instagram, and prosecutors in June accused him of going too far by putting up posts that highlighted arguments his lawyers were making in the case and questioning the lack of media coverage.
The judge agreed that Stone had violated her previous order, citing his Instagram posts and also noting that less than a week after her February order, Stone had given a comment via text message to BuzzFeed News accusing former Trump lawyer Michael Cohen of lying in his testimony before a congressional committee. Cohen had also been charged by Mueller's office and testified before Congress about Stone's communications with Trump.
In imposing the social media ban on Stone during a hearing in July, Jackson said that he was "determined to make himself the subject of the story."
"Your lawyer had to twist the facts, twist the plain meaning of the order and twist himself into a pretzel to argue these posts didn’t cross the line, and in the end it wasn’t persuasive," the judge said at the time.