On January 24th, a federal grand jury in Washington, D.C. convened by Special Counsel Robert Mueller returned an indictment of Roger Stone for false statements, obstruction of justice, and witness tampering. The indictment alleged that a very senior person in the Trump campaign — perhaps Donald Trump himself — directed subordinates in the summer of 2016 to contact Stone for information about Wikileaks’ plans for additional dumps of emails damaging to Hillary Clinton that had been stolen by Russian hackers. The public has an acute interest in knowing who that unidentified person is, especially if it is the man who is now president. However, for reasons I set out here, neither a guilty plea nor a contested trial in Stone’s criminal case will likely reveal that information. That lack of transparency further raises the stakes for public testimony and disclosure of Mueller’s findings.

Intrigue in Stone’s Indictment

On page four of Stone’s indictment, Mueller unexpectedly shifted into the passive voice for one key sentence: “After the July 22, 2016 release of stolen DNC emails by Organization 1, a senior Trump Campaign official was directed to contact STONE about any additional releases and what other damaging information Organization 1 had regarding the Clinton Campaign.”

It’s clear from the context that “Organization 1” refers to Wikileaks. What is less clear is what is meant by the curious use of “was directed,” as in, “a senior Trump Campaign official was directed to contact Stone.” There are, of course, only a limited number of people who could have “directed” a senior Trump Campaign official, so there was immediate speculation that prosecutors had shifted to the passive voice to avoid having to say “President 1 directed” or some other phrasing that would have clearly identified Donald Trump.

That speculation will not die down any time soon.

The question is, will the public get a clean answer about the identity of the person who did the directing at some point, as the prosecution of Roger Stone works its way through the courts. The public is certainly curious. But are they, are we, entitled to have that curiosity satisfied? Are we a stakeholder that is entitled, in some way, to have its interests vindicated in this regard?

The Grand Jury Knows but Secrecy Reigns

The public is not entitled to information about what goes on in front of a grand jury. That process is explicitly cloaked in secrecy by the Federal Rules of Criminal Procedure, which provide that no one, other than a witness in the proceedings, may disclose what takes place. Prosecutors, grand jurors, court reporters –- anyone else permitted in the room while the grand jury is investigating or considering an indictment is not permitted to discuss what happens, with limited exceptions for law enforcement to share information with colleagues who need the information to further their work. Public disclosure is forbidden.

There are three rationales for grand jury secrecy. First, it is an effort to preserve the reputation of an individual who may fall under investigation, but ultimately not be charged. This rationale says they should not be subjected to reputational damage unless and until a grand jury finds that probable cause exists to charge them. Although this is an imperfect protection – word of investigation can leak out through the use of other investigative techniques or from witnesses, it is deeply engrained. Nonetheless, belief that those who are not charged deserve protection runs so deep that the Justice Manual (formerly the US Attorneys’ Manual) prohibits disclosure in an indictment of the name or identifying information about an unindicted co-conspirator absent “significant justification” and encourages that filing a Bill of Particulars, which the defense could ask for to provide such details, be under seal so that the identity of the individual does not become public.

Second, grand jury secrecy protects the integrity of ongoing investigations, cloaking them in secrecy so that those under investigation do not receive warning that causes them to curtail their conduct, destroy evidence, flee or tamper with witnesses.

Third, secrecy protects witnesses and ensures they feel free to testify truthfully before the grand jury even while the person they testify against remains free. As a result of the rules against public disclosure of grand jury material, details regarding the individual who directed a senior Trump campaign official to make inquiries of Stone regarding Wikileaks will not come to light in the form of grand jury transcripts or other disclosures by non-witnesses.

The Transparency of Guilty Pleas and Public Trial, Compared

Given the absence of information learned in the grand jury, will the prosecution of Stone, as it proceeds, offer the public a better opportunity to learn the details?

To answer that question, we need to contemplate the two most likely outcomes of the case. First, Stone, like Cohen and other defendants in the Mueller probe before him, might decide his interests are best served by a plea of guilt, which can be entered with or without a cooperation agreement with the government. Second, Stone can maintain his plea of not guilty and proceed to trial.

Scenario 1: Stone Pleads Guilty

Stone entered a plea of not guilty, but he could change his mind over the coming weeks. As the gravity of the charges and weight of the evidence against him come into focus, he and his lawyers may come to the conclusion that there are not sufficient facts in doubt to justify the expense of a trial. Or, he might have something to offer Mueller in return for a charge reduction or a favorable sentencing mitigation. Thus, it is worth considering the transparency effects should Stone decide to switch course and enter a plea of guilty.

When a defendant pleads guilty, he or she must agree to what is often called a “statement of the offense” — a recitation of some of the evidence against the defendant, which is sufficient to establish guilt on all elements of the charge. The prosecution is not required to include all of the evidence against a defendant, and usually does not, for both practical, and sometimes for strategic reasons in an ongoing investigation. The August 2018 plea proceedings for Trump’s former lawyer Michael Cohen on charges brought by federal prosecutors in the Southern District of New York took an interesting turn in this regard. Cohen pleaded guilty to charges involving payments to women Trump allegedly had affairs with and identified Individual 1 — Donald Trump — as the person who directed his criminal conduct. He did this not because it was essential to establishing his guilt, but rather, in an apparent effort to establish his bona fides with prosecutors, with whom he had not reached a cooperation agreement. Cohen no longer wanted to be the man who would “take a bullet” for Trump.

It’s less likely we’ll see a repeat of this type of revelation in Stone’s proceedings. Should he, like Cohen, abandon his resolve and attempt to change his plea to guilty, the Judge will have to be convinced Stone made false statements, obstructed justice, and tried to tamper with a witness in order to accept the plea. But the identity of the individual who urged a senior staffer to reach out to Stone for more information on Wikileaks doesn’t appear essential to proving any of those charges. Strictly speaking, there is no reason this information has to become public during a guilty plea.

That is not to say it couldn’t come out, but there is no reason to suspect it will or that Stone, even if he decided to plead guilty, would enter into a cooperation agreement with prosecutors that might encourage him to divulge this type of information in the manner Cohen did. In sum, it’s unlikely that the public will learn much in this regard from a guilty plea.

Scenario 2: Stone Goes to Trial

In trial, the posture of the parties is very different than it is when a defendant enters a plea. Stone’s lawyers’ strategy would be to minimize or exclude evidence that — even if not direct evidence of guilt — would make it easier for the jury to believe their client had engaged in wrongdoing. If the defense is to deny that Stone coordinated with Wikileaks, it seems unlikely that their strategy would involve revealing who in the Trump campaign encouraged Stone to do so.

That said, there can be “trial chaos” where witnesses make unexpected utterances or facts not previously believed to be in issue suddenly become germane.

But, on the face of this indictment, it seems likely Stone’s lawyers would move in limineto exclude any mention of the identity of the “director” at trial or even seek to strike this language from the indictment as surplusage.

Striking the language as surplusage would mean removing it from the indictment and, essentially, from the jury’s consideration. It would make it extraordinarily unlikely for further information to emerge at trial in this regard. But the standard for striking language from an indictment under Federal Rule of Criminal Procedure 7(b) is rigorous, requiring proof the language is not relevant to the charges and also that is inflammatory and prejudicial to the defendant. Even if the language isn’t relevant to the charges, judges only exclude it where it is so prejudicial to a jury that even a jury instruction cannot cure it. It’s difficult to see how the language here could be prejudicial to Stone, and particularly given courts’ hesitance to strike language from indictments, it seems likely it would be permitted to remain.

But the mere presence of the language in the indictment doesn’t make it probable or even likely that a court would permit testimony in this regard.

The standard for admitting evidence involves balancing its probative value against the risk of undue prejudice. Here, Stone might argue that given the crimes with which he is charged, the issue of who directed a senior staffer to reach out to him has attenuated relevance but could run the risk of unfairly prejudicing him in the eyes of the jury. Prosecutors frequently point out that all good evidence is prejudicial against a defendant – in fact, that is, the point of presenting evidence at trial: establishing that a defendant engaged in criminal conduct. So the issue here would be one of balancing the relevance of the evidence against its potential for unfair prejudice, and that determination is left to the discretion of the trial judge. Should the issue come up at trial, she will determine what evidence the government may present to the jury, and by extension the public.

Should Stone be convicted through a plea or at trial, a sentencing hearing will take place. In a sentencing hearing, the judge is required to consider factors set forth at 18 U.S.C. § 3553(a), including the “nature and circumstances of the offense.” It is possible that the government could offer more description at this stage, but in the absence of further developments, it’s unlikely the government would provide more information about unnamed participants in Stone’s crimes than what had previously come into the public record.

In short, the public doesn’t have an explicit right to know details that don’t become public during a criminal proceeding. And in a typical criminal case, that makes sense. Rules and longstanding practice set a balance designed to preserve the rights of the innocent, the guilty, and witnesses to crimes. Even in a corruption case involving a mayor, a senator or a governor, the rules against disclosure make sense, even if they are temporarily frustrating to people who want to know the details regarding their elected officials’ behavior. In those cases, the truth usually comes out at some point, because the public official is subject to prosecution.

The question here is whether it’s different when a president is involved.

We know that longstanding DOJ policy counsels against indictment of a president. Assuming, for the moment, that evidence would support charging the President, it is nonetheless unlikely an indictment would be sought from the grand jury. That policy has never been tested in court and it’s unlikely that it will be here. We would only see a challenge to the policy if a president were indicted despite it and challenged the “violation” of the policy in defending himself. If, as widely expected, Mueller decides against or is denied permission to indict Trump, there will be no vehicle, that is, no one with legal standing, to challenge that decision. There will not, in the context of the criminal justice system, be a trial where President Trump’s actions are the subject of the inquiry and actions committed directly by or on behalf of him are publicly dissected.

There has been much concern that this leads to a situation where, contrary to the rule of law, one man in our country –- the president –- is above the law. Concerns about DOJ’s policy may well be valid. We see the issue in focus here: a public indictment alleges someone high up enough in the Trump campaign to direct its senior officials to make an inquiry of now-defendant, then long time Trump pal, Roger Stone regarding a foreign entity that received information from Russia for use against Hillary Clinton in the 2016 presidential campaign. The public is interested in this detail and it has a right to know the identity of this person. DOJ’s policy against naming those who are not being charged in an indictment presumably prevented Mueller from naming this person. And there is no guarantee, perhaps a weak possibility at best, that the public will learn more as the Stone prosecution proceeds.

So Where Does that Leave Us?

Does the public ever get to know the details, and if so, how and when? The answer, as with many details of the Mueller investigation, seems to hinge on Mueller’s final report and whether it will become public. There is a compelling argument for public release of Mueller’s findings, particularly where many details are already public through the auspices of the press or prior indictments and they involve the one person in our system of justice who cannot be indicted. Presumably, by the time Mueller releases his report, it will be clear who is being indicted, who he has concluded should not be, and that any risks to the integrity of the investigation will be muted. As Justice Brandeis once noted, “sunlight is said to be the best of disinfectants.” We need that here.

A final note. It is unlikely that Mueller buried such a bombshell detail within his latest indictment without intending that the identity of the individual identified through the passive voice, as “he directed,” should become public. Otherwise, why tantalize? The hint suggests that Mueller believes this is important information for the public to have. If Mueller is not ultimately in a position to provide it, he has signaled that others — whether on the Hill or in the public — should ensure it is revealed. This is not a typical case. Although normally the public is not a stakeholder with an established right to learn information that does not become public during court proceedings in criminal cases, here, it is the only acceptable outcome.

Image: Roger Stone, a longtime adviser to President Donald Trump, arrives at the courthouse to face charges from Special Counsel Robert Mueller that he lied to Congress and engaged in witness tampering January 29, 2019 in Washington, DC. (Photo by Chip Somodevilla/Getty Images).