Judge T.S. Ellis (right), who presided over the first Manafort trial, observed that flipped witnesses sometimes have an inducement not only to “sing” but to “compose” — that is, to embellish. (Image source: Fox News video screenshot)
The reasons given thus far for Roger Stone’s pre-dawn arrest by armed FBI agents are utterly unconvincing. He was not a flight risk, as evidenced by the low bail and easy conditions of release set by the judge without objection from the government. Stone knew he was going to be indicted and if he wanted to flee, he had plenty of time to do so. The same is true of destroying evidence, wiping his electronics or doing anything else that would warrant an arrest rather than a notice to his lawyer to appear in court at a specified time. A search was conducted of various residences pursuant to a search warrant. No arrest was necessary to conduct these searches.
So, if there was no legitimate reason for the arrest and handcuffing of this presumed innocent defendant, what was the illegitimate reason? To paraphrase the indictment against Stone, the illegitimate purpose of the arrest was to intimidate the potential witness — namely Stone — into not invoking his constitutional right to remain silent, rather than to testify as a government witness.
The arrest was nothing more than a show of toughness — a foretaste of what Stone could expect if he did not cooperate with Mueller. Police do this all the time: “Look, we can do this the easy way or the hard way.” The tough arrest with handcuffs and shackles was a demonstration of the hard way.
Prosecutors have enormous power and discretion whether and how to use it. All too often they use it the way Mueller has been using it during this investigation: to pressure witnesses to testify against Trump. As Judge T.S. Ellis, III, who presided over the Manafort trial, observed: “You don’t really care about Mr. Manafort’s bank fraud — what you really care about is what information Mr. Manafort could give you that would reflect on Mr. Trump or lead to his prosecution or impeachment.”
Judge Ellis also pointed out the dangers of this tactic: “This vernacular to ‘sing’ is what prosecutors use. What you got to be careful of is that they may not only sing, they may compose.”
If Hillary Clinton had been elected president and if a special prosecutor had arrested one of her associates in the rough and demeaning manner by which Stone was arrested, civil libertarians would be up in arms. They would correctly argue that to marshal dozens of armed FBI agents to arrest an elderly man accused of non-violent crimes is an abuse of authority and a waste of FBI resources. They would complain that it constitutes intimidation and violates the spirit, if not the letter, of the Fourth and Fifth Amendments. But because the arrest is of a Trump associate and the purpose is to get evidence against President Trump, we have not heard from fair-weather civil libertarians who use civil liberties and constitutional rights as tactics to serve their partisan political agendas.
The ACLU has been absolutely silent in regard to the questionable tactics employed by Mueller. They, too, would have been up in arms had these tactics been employed against their favorite candidate and mine, Hillary Clinton. They would have demanded an explanation as to why the extraordinary power of arrest, which is supposed to be reserved only for cases warranting this use of force, was employed in this case. Their silence speaks volumes about their partisanship and lack of neutral standards of civil liberties.
The American public is entitled to an honest explanation of why Stone was arrested. We have not received the truth. Congress should hold a hearing and call as witnesses those who ordered the arrest and demand they explain and justify it. It is unlikely that a plausible and credible explanation will be offered, but Mueller and his FBI agents should at least have an opportunity to set the record straight. Maybe there is a good reason for why the arrest was necessary, but if so, we have not heard it and it is unlikely that the reason involves national security or other secrets. These hearings should lead to legislation setting enforceable standards for when the kind of arrest to which Stone was subjected should be permissible. The power to arrest, using armed FBI agents, handcuffs and shackles must not become a tactic to be used by law enforcement for impermissible reasons. Nor should it become routine. Congress must act to prevent these abuses from recurring.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of The Case against the Democratic House Impeaching Trump, Hot Books, January 2, 2019, and a Distinguished Senior Fellow of Gatestone Institute.