Roger Stone, a longtime political icon, has notified the press that he will be “taking the fifth” and not testifying before the congressional committee on the activities of January 6th.
In response to the recently served subpoena from the Select Committee, Mr. Stone has directed me to advise you that, as further discussed below, pursuant to the rights afforded him by the Fifth Amendment to the Constitution, he declines to be deposed or to produce documents.
There is, of course, no question that the Fifth Amendment provides Mr. Stone the constitutional right to decline to respond to questions. As applied to the Congress, in Watkins v. United States, 354 U.S. 178, 187–188 (1957), Chief Justice Warren pointedly instructed that, “the constitutional rights of witnesses will be respected by the Congress as they are in a court of justice... Witnesses cannot be compelled to give evidence against themselves.” Id. Notably, as the Supreme Court emphasized in Ohio v. Reiner, 532 U.S. 17, 21 (2001), the Fifth Amendment protects “innocent men ... ‘who otherwise might be ensnared by ambiguous circumstances. Id. (quoting Guenwald v. United States, 353 U.S. 391 (1957) (elision in original)).
Here, given the current leaks from the Select Committee regarding Mr. Stone surfacing in the press, in Congress, and, according to news reports, within the Department of Justice‘s officest, Mr. Stone certainly has a reasonable basis to protect himself from the “ambiguous circumstances” that clearly exist and that many have embraced.
Furthermore, the Fifth Amendment affords Mr. Stone the right to decline to produce documents where the act of production would be testimonial. United States v. Hubbell, 530 U.S. 27 (2000); United States v. Ponds, 454 F.3d 313 (D.C. Cir. 2006).
1 “The Justice Department and the FBI are investigating whether high–profile right–wing figures – including Roger Stone and Alex Jones – may have played a role in the Jan. 6 Capitol breach...” https://www.washingtonpost.com/local/legal–issues/stone–iones–capitol–riot–investigation radicalization/2021/02/19/97d6e6ee–6cad–11eb–9ead–673168d5b874 story.html (Last viewed November 30, 2021); “The roles that the high–profile right–wing figures played in the Jan. 6 Capitol breach – and their potential ties to those who committed violence in the riot – are also being investigated by the Justice Department and the FBI. The investigation is ongoing.” https://www.washingtonpost.com/politics/roger–stone–and–alex–jones–subpoenaed–by–house–committee investigating–jan–6–attack–on–capitol-by–pro–trump–mob/2021/11/22/ed11e440–4bc5–11ec–a1b9 9f12bd39487a story.html (Last viewed November 30, 2021).
Grant J. Smith Attorney–at–Law 401 East Las Olas Blvd. Suite 130–120 Fort Lauderdale, Florida (33301954.328.9064
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Given that the Select Committee‘s demand for documents is overbroad, overreaching, and far too wide ranging to be deemed anything other than a fishing expedition, Mr. Stone has a constitutional right to decline to respond. Indeed, the Select Committee seeks an imprecise and undefined category of “documents and communications concerning” a broad range of constitutionally protected political activity. Moreover, responding to the extensive requests requires the preparation of a detailed index and log describing the contents of the production, which in and of itself would be protected from disclosure by the U.S. Constitution. Thus, given that Mr. Stone has been characterized in the press as under investigation by the DOJ and the FBI, responding to the document demand, which is plainly designed to elicit information about the existence of potentially incriminating evidence, would amount to a testimonial act, defeating the privilege being asserted.2
Additionally, the subpoena specifically states the Select Committee‘s purpose is to examine the events “leading up to” January 6th. This falsely implies that the exercise of the First Amendment rights of freedom of speech and association and the right to petition the government for redress of grievances caused the illegal acts of January 6.
All of Mr. Stone‘s foregoing concerns are heightened by his prior experience. As you are undoubtedly aware, in 2017, Mr. Stone testified before the House Permanent Select Committee on Intelligence (HPSCI). In the weeks, months, and years following his appearance, Mr. Stone was subjected to a torrent of leaks regarding his classified testimony in violation of House Rules. Furthermore, HPSCI members, at least one of whom sits on this Select Committee, relentlessly misrepresented the evidence regarding Mr. Stone, including by perpetuating wholly unsubstantiated allegations regarding alleged Russian collusion, activities that not even the Mueller team could substantiate.
Mr. Stone is concerned about the politicization of this Select Committee, as evidenced by, among other things, the suit originally filed by you, against former President Trump and others regarding the same events that the Select Committee is now investigating. Furthermore, there is not one member of the Select Committee appointed by the minority. In fact, the members proposed by the minority were rejected by Speaker Pelosi simply because they held contrary viewpoints to those in the majority and were supportive of former President Trump. This has led to a situation where there is no check on the activities of the majority, allowing the majority unrestrained power. Power which is further exacerbated by it being wielded behind closed doors.
Consequently, for all of these reasons, pursuant to his rights under the Fifth Amendment, Mr. Stone respectfully declines to answer any questions or to produce any documents.
If you have any questions or comments, please feel free to contact me.
Grant J. Smith, Esq.
2 This letter neither confirms nor denies the existence of any documents responsive to the subpoena.
The Law Offices of Grant J. Smith 401 East Las Olas Blvd. Suite 130–120 Fort Lauderdale, Florida 33301 954.328.9064
Though federal officials have arrested more than 570 alleged participants, the FBI at this point believes the violence was not centrally coordinated by far-right groups or prominent supporters of then-President Donald Trump, according to the sources, who have been either directly involved in or briefed regularly on the wide-ranging investigations.
“Ninety to ninety-five percent of these are one-off cases,” said a former senior law enforcement official with knowledge of the investigation. “Then you have five percent, maybe, of these militia groups that were more closely organized. But there was no grand scheme with Roger Stone and Alex Jones and all of these people to storm the Capitol and take hostages.”
See full response from Stone’s attorney:
The January 6th Committee needs to be investigated.
Kari is an ex-Community Organizer who writes about Cultural Marxism, grassroots activism, music, IndyCar racing and political campaigns. @Saorsa1776