The Mueller Team’s Unconscionable Conflict of Interests in the Roger Stone Case

This is a special column to SaraACarter.com. David Schoen is a civil rights and criminal defense lawyer, who has served as trial counsel in the past for the Democratic Party and has been outspoken against the Democrats push for an impeachment against President Donald Trump. He is now representing Roger Stone, a close friend of President Donald Trump, who has been sentenced to over three years in prison for seven counts felony counts, which prosecutors said included lying to authorities. Stone is fighting back and has claimed that he was unjustly targeted by DOJ prosecutors. 

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It is a fundamental tenet of our justice system that a defendant in a criminal case is entitled to an impartial, conflict-free prosecutor. A prosecutor, as a representative of the sovereign, has a higher duty than other lawyers. His or her duty is to the American people and the duty is to seek justice, not to win at all costs. These core principles were torn to shreds in the prosecution against Roger Stone.

At Roger Stone’s sentencing, the judge clearly stated that Mr. Stone was not prosecuted for anything to do with Russian collusion. Rather, the judge explained, Mr. Stone’s prosecution arose from his interest in obtaining Hillary Clinton’s emails from Julian Assange’s Wikileaks collection, as well as emails Assange purportedly had obtained that revealed Clinton Foundation misconduct. According to the judge, Mr. Stone wanted to obtain dirt on Ms. Clinton and the Clinton Foundation – a/k/a “opposition research” – that could be used to expose wrongdoing by Ms. Clinton and the Clinton Foundation and thereby hurt her chances of becoming President.

Ms. Clinton, of course, had been the subject of a serious investigation into whether she broke the law in her handling of emails. Allegations also had been made about illegal conduct involving the Clinton Foundation.

The team that prosecuted Roger Stone was led by Jeannie Rhee, a member of Mueller’s Special Counsel team. Indeed, the website of the law firm Ms. Rhee joined after leaving the Mueller team boasts of her prosecution of Roger Stone.

Hillary Clinton had a law firm representing her in the email scandal investigation against her, and the Clinton Foundation had a law firm representing it in a lawsuit alleging racketeering conduct.  Justin Cooper, Ms. Clinton’s IT aide who reportedly set up her email server and then destroyed two mobile devices through which the emails were conveyed, also was represented by a law firm in the matter. The law firm that represented all three of these clients was the prominent DC law firm WilmerHale.

The WilmerHale partner assigned to represent Ms. Clinton and the Clinton Foundation? None other than Jeannie Rhee, the prosecutor who led the team that obtained the indictment against Roger Stone and then prosecuted him in connection with his alleged efforts to obtain emails and information about Ms. Clinton and the Clinton Foundation, her clients.

Mr. Stone and the American people were entitled to an impartial, conflict-free prosecutor, consistent with Mr. Stone’s constitutional rights and the ethical considerations that apply to such  circumstances.  With continuing duties of loyalty and confidentiality to her clients, Ms. Clinton and the Clinton Foundation, and a continuing obligation to act in their best interests to the exclusion of others, there is no possible way Ms. Rhee could serve as that conflict-free prosecutor; nor, for that matter, could Mr. Mueller, at whose direction Ms. Rhee acted.  Ms. Rhee’s relationship went further than just serving as Ms. Clinton’s attorney.  She also reportedly contributed $5400 to Ms. Clinton’s PAC.

Months before the Stone trial, during the Congressional hearing at which Special Counsel Mueller presented the findings from his final report into Russian collusion, one member of Congress raised a concern about this conflict.  Mr. Mueller was asked directly whether he knew  that Ms. Rhee had been Hillary Clinton’s attorney.  He answered that he was not aware at the time he selected Ms. Rhee for the Special Counsel team but that he later became aware of it.  The question actually should have been broader.  Mr. Mueller should have been asked if he were aware that his law firm represented Ms. Clinton, the Clinton Foundation, and Mr. Cooper.

Mr. Mueller, you see, was a senior partner at the same WilmerHale law firm when he accepted his appointment as Special Counsel. In addition to Ms. Rhee, at least two other members of the Special Counsel team that Mr. Mueller put together were lawyers from WilmerHale.  One of those WilmerHale lawyers, Aaron Zebley, represented Mr. Cooper, the Clinton aide who reportedly destroyed the devices associated with Ms. Clinton’s email investigation.  Mr. Zebley served as Mr. Mueller’s chief of staff on the Special Counsel team and was sitting next to Mr. Mueller at that Congressional hearing.  Both Mr. Mueller and Mr. Zebley have returned to WilmerHale.  WilmerHale’s website reports that another of the firm’s partners, Nicole Rabner, served as First Lady Clinton’s Special Advisor and in her husband’s office of Domestic Policy.

Does it seem likely, or even possible, that Mr. Mueller, a prominent senior partner at WilmerHale, was not aware that his law firm represented the former First Lady of the United States in the widely reported email scandal investigation or that he was not aware that his law firm represented the Clinton Foundation?

More to the point, under the ethical rules that govern the legal profession, a conflict of interests arising from one lawyer in a firm’s representation of a client is imputed to the firm itself and to the other partners in the firm.  This is especially the case with respect to a substantially related matter like the Stone prosecution, given the underlying allegations.  Ms. Rhee, as Hillary Clinton’s lawyer and as lawyer for the Clinton Foundation, clearly should have been disqualified as a matter of law and ethics from prosecuting Roger Stone.  Indeed, Mr. Mueller and the entire team he directed should have been disqualified from prosecuting Roger Stone for these same reasons.

It is bad enough that Ms. Rhee and the Mueller team were permitted to prosecute Roger Stone, notwithstanding the clear conflict of interests.  Two orders the judge in the case entered greatly exacerbated the constitutional and ethical violations.

First, the judge entered Draconian gag orders against Mr. Stone and his entire legal team, as well as his family and friends, prohibiting any comment, social media post, or even re-post that in any way attacked the basis for the investigation against him or anything about the Mueller team.  In other words, Stone and his lawyers and supporters were absolutely prohibited from publicly exposing and complaining about the conflict of interests and the Mueller teams agenda and heavy-handed tactics.

Secondly, and even more disabling for Mr. Stone’s defense, prior to the trial, the judge entered an order prohibiting Mr. Stone from raising any defense at trial that challenged the integrity of the investigation and prosecution against him or that attacked the Mueller team and its agenda.

These kinds of orders would be troubling in any criminal prosecution.  The Supreme Court long ago held that the integrity of the investigation and the investigators against a defendant in a criminal case are always at issue and a defendant must always be able to challenge them as part of his or her defense.  In the context of this case, these orders are unconscionable.

There are many other troubling factors surrounding the politicization of the prosecution in the Roger Stone case and I believe many more damning facts about the prosecution will surface.   But whatever else comes to light, it is clear that the investigation and prosecution of Roger Stone were irretrievably tainted by a conflict of interests that undermines the core values of our criminal justice system and the ethical dictates of the legal profession.

Whatever one’s political stripe, each and every one of us must speak out against what happened, call for Mr. Stone’s conviction to be overturned at once, demand an independent investigation into how this could have happened, and commit to ensuring that this kind of thing never happens again in our criminal justice system.  Indeed, the fundamental failure of the system in the Roger Stone case cries out for Mr. Stone’s pardon as an assurance that there is some check against the kind of legal and ethical transgressions that attended the case against him from the start.

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