Roger Stone "threat" on Judge Jackson

Federal criminal defendants are not, as a rule, famed for self-control. But Stone’s attack on the judge presiding over his case is reckless even by his standards. Some have speculated that Stone, always fumbling for an angle, may have wanted to force Jackson to withdraw from the case. That won’t work. Federal courts have long held that a party can’t insult or antagonize a judge and then demand her recusal on the theory that the insults have biased her.

[...]

Though foolhardy, Stone’s attack on Jackson is not, as some have suggested, a violation of Jackson’s recent gag order. Jackson ordered the lawyers in the case not to make statements “that pose a substantial likelihood of material prejudice to this case.” With respect to Stone and the witnesses in the case, Jackson only prohibited misbehavior on the courthouse steps and in the immediate vicinity—thus taking advantage of judges’ power to control their immediate surroundings to assure orderly litigation. Stone’s Instagram post doesn’t qualify.

[...]

Rhetoric like Stone’s is protected by the First Amendment unless it is designed, and likely, to cause imminent lawless action, such as a speaker urging a crowd to attack nearby protesters. Even if you take Stone’s Instagram post as an attempt to incite, it almost certainly doesn’t urge sufficiently immediate action.

  Ken White (@Popehat) @ The Atlantic

Which I suppose is why Trump gets away with his tweets calling reporters the enemy of the people. On the other hand, I think one as specific as the one this morning is skating awfully close to the line, especially in light of the fact that one of his supporters recently attacked a cameraman at a rally.

Similarly, it’s questionable whether Stone’s post is a “true threat”—the sort of threat outside First Amendment protection. A true threat is a threat that a reasonable person would interpret as a sincere expression of intent to do harm, and that the speaker knew would be taken that way. Stone, who has a history of pushing questionable content from erratic sources, apparently cut and pasted the picture from a conspiracy website. This has led to trouble before, such as the time that Stone—accidentally, he says—republished a photo with swastikas. [...] “I’m sorry, Your Honor, but my client only intended to insult you and didn’t even notice the crosshairs” is not the defense I’d choose, but we go to court with the clients we have, not the clients we want.

He might not get charged for a threat, but he will most certainly not get any sympathetic deals from Judge Jackson.  He's going to have to rely on a presidential pardon.  And Trump is a notoriously unreliable friend.



...but hey, do what you want...you will anyway.