Court rejects Roger Stone challenge to gag order

An effort by longtime Trump adviser Roger Stone and his family to overturn a gag order in his criminal case failed Tuesday at a federal appeals court, but the judges left the door open to resurrecting the challenge.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit turned down the petition on technical grounds, holding that Stone missed a deadline to appeal the gag order imposed by District Judge Amy Berman Jackson, who is overseeing the case against Stone, who faces charges of lying to Congress and witness tampering.

In a 16-page opinion, Judge Robert Wilkins wrote Stone’s family should have taken their objections to Jackson in the first instance, then pursued an appeal if unsatisfied with her ruling.

Jackson issued a limited gag order on Stone, limiting his statements in the vicinity of the courthouse about the high-profile case filed by then-special counsel Robert Mueller and being pursued by prosecutors from the U.S. attorney’s office in Washington.

However, after Stone posted an image that appeared to include crosshairs next to a picture of Jackson on Instagram a few days later, the judge tightened the order to prohibit any public statements by Stone about the case against him or Mueller’s office.

The judge’s order also barred him from making such comments indirectly, through family members or others.

After prosecutors accused Stone of repeatedly violating that order, Jackson strengthened it again, barring Stone from all commentary on Instagram, Twitter and Facebook “on any subject.”

In its ruling, the panel of judges, which included Patricia Millett and Nina Pillard, sounded skeptical about complaints from Stone’s family members that their commentary on the case was being chilled because he or they might wind up in trouble over suspicion that he was behind their statements. Wilkins, Millett, Pillard and Jackson were all appointed by President Barack Obama.

“To the extent Stone’s family members assert a right to make statements about the case completely independent from Stone, and not on his behalf, their complaints about the District Court’s order appear somewhat exaggerated,” Wilkins wrote. “Stone cannot be automatically punished anytime one of his family members speaks about his criminal proceedings. Rather, the government would have the burden to establish such surrogacy by clear and convincing evidence.”

Wilkins also said legal precedents require that the family members first approach Jackson for relief, unless it would be “futile” for them to do so.

“Stone’s family members give us no reason to believe that the District Court would not fairly consider their objections,” he wrote.

Wilkins said Stone’s family members could still go to Jackson with their objections to the gag order, then appeal if unsatisfied with her ruling. The court's decision did not explicitly say whether Stone could obtain review in the same fashion.

Stone attorney Bruce Rogow said he was disappointed in the ruling but did not elaborate on any plans to further challenge the gag order.

Stone’s trial is set to begin Nov. 5.

CORRECTION: An earlier version of this story misstated Judge Robert Wilkins' first name.