U.S. District Judge Amy Berman Jackson said she was concerned about keeping under wraps sections detailing the activities of Mr. Stone, a longtime adviser to President Trump, when so much of the report is already public.
During the roughly three-hour hearing in a Washington, D.C., federal courtroom, Judge Jackson said some of the Stone material was blacked-out because the Justice Department feared making it public could harm the criminal case against him. She noted Mr. Stone’s attorneys already have some of that information.
“An awful lot of it seemed — given the nature of discovery you are providing — duplicative and therefore, largely harmless,” she told federal prosecutors with the U.S. Attorney’s Office in D.C.
Judge Jackson said if there is anything in the redacted portions that needs to remain under seal, she could mark it with a color-coded box signaling the reason why it cannot be made public. The process would be similar to how Attorney General William P. Barr categorized redacted information in the public version of the report.
“It seems at the end of the day that might be preferable than a finding by me saying, ‘I read it and there was nothing in there that supports a selective prosecution claim,’ ” she said. “I may do something like that.”
Mr. Stone has pleaded not guilty to making false statements to Congress, obstruction of justice and witness tampering. The charges were brought by Mr. Mueller as part of his probe into Russian meddling in the 2016 election. A trial is scheduled for Nov. 5.
Federal prosecutors say he lied to congressional investigators about his contacts with WikiLeaks, who released a trove of emails hacked from the Democratic National Committee and Hillary Clinton’s presidential campaign.
Mr. Stone’s attorneys requested the redactions to bolster a potential selective prosecution defense. They say others in Mr. Stone’s orbit, including writer Jerome Corsi and conservative talk show host Randy Credico, may have also lied to investigators but escaped charges.
But Stone attorney Robert Buschel appeared to concede he was grasping at straws by pointing fingers at Mr. Corsi and Mr. Credico.
“Do I have anything the special counsel has said or put in writing? No, I do not. I’m not sure that unreacted portions related to Corsi or Credico would shed light on that. Maybe they do say something,” he told Judge Jackson.
When pressed by Judge Jackson if redactions don’t support his theory, Mr. Buschel responded, “Then we don’t file the motion.”
Prosecutor Jonathan Kravis bristled at the idea of turning over the redactions. He argued that it is similar to an internal prosecution memo explaining why charges were brought or declined in a specific case.
Mr. Kravis also insisted there was no legal justification to hand over the redactions.
“There is no legal principle that requires us to produce it,” he said.
Another defense lawyer Bruce Rogow attempted to argue that the special counsel did not have the authority to investigate President Trump, thereby invalidating the charges against his client. He cited the late Supreme Court Justice Antonin Scalia’s dissent to make his point.
“Is there any reason why … I’m supposed to apply the law of a dissent?” she asked Mr. Rogow.
Other arguments also failed to gain traction. For example, Mr. Buschel demanded Mr. Stone’s charges for lying to Congress and obstruction of justice be thrown out because Congress did not explicitly refer him for prosecution.
Later, Mr. Rogow again pushed for dismissal by arguing Mr. Mueller’s investigation was not funded by appropriations approved by Congress but rather funds set aside for an independent counsel.
Funds for an independent counsel cannot be used for a special counsel, Mr. Rogow said pointing to each position’s different powers.
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