Roger Stone’s Arrest Was Appropriate, Not Heavy-Handed

A Lawfare post from Friday—“Get Me Roger Stone”—well and thoroughly explained the most recent indictment from the Mueller team. The authors also defended the decision to arrest Stone rather than to issue to him a summons compelling his voluntary appearance in court:

The special counsel’s office made this [rationale] very clear in its motion to seal the indictment and related warrants and motions, filed the day before Stone’s arrest:

Law enforcement believes that publicity resulting from disclosure of the Indictment and related materials on the public record prior to arrest will increase the risk of the defendant fleeing and destroying (or tampering with) evidence. It is therefore essential that any information concerning the pending indictment in this district be kept sealed prior to the defendant’s arrest.

In such circumstances, the treatment of Stone is quite normal: arrests are often made by the FBI, and warrants are generally executed, in early-morning hours as a matter of standard operating procedures.

True enough, but there continues to be much discussion about the propriety of arresting Stone. I have heard the tactics described as heavy-handed and rogue. This is nonsense. And I think there is a far stronger and more compelling justification for arresting Stone than the one articulated in Friday’s post.

At least to my knowledge, Stone has no criminal record and is charged primarily with a white collar-ish sort of crime—lying to Congress. Those two factors might suggest that prosecutors forego an arrest and hand him a summons to turn himself in, as is typical in white-collar cases.

Stone was also charged with witness tampering, a crime that strikes at the heart of the judicial process. There are numerous allegations in the indictment of Stone urging others to lie. Those urgings clearly run afoul of the witness tampering statute. And, if that’s all there was to it, a summons might be the way to go.

But there is a more compelling reason to arrest him. The devil is in the details. Read, for instance, page 20 of the indictment, where prosecutors note that Stone emailed one witness and called him a “rat” and a “stoolie” and threatened to take that witness’s dog away from him. In another email that same day to that same witness, according to the indictment, Stone wrote “I am so ready. Let’s get it on. Prepare to die [expletive].”

Law enforcement simply does not hand a summons to someone who threatens to kill a witness and trust that person to act responsibly with it. No conscientious prosecutor would think a summons appropriate there, or think that a threat to kill a witness is simply what targets of grand jury investigations routinely do.

The witness tampering alleged here is more than just someone asking another, “pretty please,” to lie. Rather, it includes a death threat against a witness: “Prepare to die [expletive].”

Was Stone kidding? Maybe. Was it hyperbole? Perhaps. He can explain that after his arrest.

Arresting Stone was lawful, appropriate and fully justified by his own words and conduct.