Quinta Jurecic: A confederacy of grift

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. That’s why President Trump couldn’t force United States District Judge Gonzalo Curiel off his case with his bigoted and boorish claims that Curiel’s ethnic background disqualified him from hearing the Trump University case. In fact, a party can’t even force a judge off a case by threatening her—and some have tried. The reason is obvious: If a litigant could force a judge to drop a case with deliberate misbehavior, then insults and threats would fly and dockets would descend into chaos.

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.

Other critics quickly proclaimed that Stone had committed a criminal threat or unlawful incitement by posting the picture with a symbol they interpreted as crosshairs. That’s possible, but unlikely. 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.

David Frum: Roger Stone’s arrest is the signal for Congress to act

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. It would be difficult, given Stone’s established history of careening from one reckless utterance to another, to show that he meant this one as a sincere threat. “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.