Roger Stone Lawyer Claims Mueller Probe Was Illegally Funded Like Trump’s Wall

(Bloomberg) -- Robert Mueller's probe and President Donald Trump's border wall construction have something in common, according to Roger Stone's lawyer. They're both illegal because Congress never agreed to fund them, attorney Bruce Rogow said.

Rogow made the argument Thursday during a hearing of almost three hours in which he tried to persuade a Washington judge to throw out charges that Stone -- a long-time Republican -- lied to Congress, obstructed justice and tampered with witnesses.

Less than a week ago a U.S. judge in Oakland, California, ordered a halt to construction of some parts of the president’s long-sought U.S-Mexico border wall while he considers whether the government lawfully repurposed federal money after Congress denied Trump’s prior funding request. Rogow said he agreed with that ruling.

Lawyers in both cases say the executive branch can only spend money in the manner for which it’s appropriated by Congress and that to do otherwise violates the Constitution’s separation of powers among the three branches of the government. That's known as the appropriations clause.

Mueller’s probe was paid for under a perpetual allocation created by Congress in 1987 for independent -- not special -- counsels, a under a statutory scheme Congress let lapse in 1999, Rogow said. Lawmakers never amended the funding provision.

Mueller’s Low-Key Rebuttal (Radio)

“What appropriation has been made by Congress to pay a special counsel?” the lawyer asked, sparking a debate with U.S. District Judge Amy Berman Jackson over whether the perpetual funding provision covered only people who hold the title of Independent Counsel or if it includes counsel empowered to operate with a degree of independence from the Justice Department.

Jackson asked what principle should guide her if the funding statute language is ambiguous.

The appropriations clause, Rogow replied.

Prosecutor Adam Jed said Rogow’s argument ignores how the perpetual funding has been used since the independent counsel provision expired. He said that's how Special Counsel Patrick Fitzgerald’s inquiry into the disclosure of Valerie Plame’s position as a Central Intelligence Agency operative was funded. John Danforth’s investigation of the FBI’s 1993 raid on a religious cult’s compound in Waco, Texas, was also paid that way, Jed said.

The Justice Department also had access to other sources of money that could have paid for the Mueller probe, Jed said. But Rogow countered that cut to the heart of Congress’s appropriation power.

The judge didn't immediately rule on the issue.

Probe Closed

Mueller closed his probe into Russia's interference in the 2016 election in March and officially resigned from the Justice Department on Wednesday.

Stone’s attorneys have also asked the judge to order prosecutors to give them an unredacted version of the special counsel’s 448-page report, arguing it contains information essential to their defense.

Jackson, who previously directed prosecutors to show her unredacted portions of the report pertaining to Stone, said Thursday that she’s considering letting the defense see some portions that correspond with evidence already being turned over by the prosecution.

She’s also weighing dismissal arguments based on the notion that Stone -- an occasional adviser to Trump -- was singled out by Mueller’s team because he worked on the president’s campaign.

Stone’s indictment, the last obtained by special counsel’s office, is being prosecuted by Washington U.S. Attorney Jessie K. Liu.

Stone is accused of lying to Congress about his communications with WikiLeaks, which the government asserts received and published information stolen from Democratic Party computers by Russian military intelligence agents during the 2016 presidential election.

The judge has set his trial for Nov. 5.

The case is U.S. v. Stone, 19-cr-18, U.S. District Court, District of Columbia (Washington).

To contact the reporter on this story: Andrew Harris in Washington at aharris16@bloomberg.net

To contact the editors responsible for this story: David Glovin at dglovin@bloomberg.net, Joe Schneider, Peter Blumberg

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