Like most lawyers, I still recall the very first lawsuit I worked on. It was an insurance coverage case arising from a huge jury verdict. I remember going through the correspondence from the underlying case, mainly looking for evidence about why the insurance companies didn’t settle the case.
That’s thrilling stuff for one group: insurance coverage lawyers. For everyone else, not so much.
But here’s one thing I remember about that correspondence you might find interesting: there was not a single email or text message.
That was 1997. There were a lot of letters in that file, most of them by fax. We had email, of course, but I wasn’t surprised that the file had no emails. And very few people were texting then (certainly not about business or legal matters).
Fast forward two decades, and emails are ubiquitous in litigation. Of course this change has not gone unnoticed. I remember a few years ago a senior litigator lamenting how emails had ruined litigation (he was mainly referring to the time and expense of e-discovery battles). But the degree of the change really hit me when I read the Roger Stone indictment last week: 90% of it is about emails and text messages.
The Stone Indictment
I’m sure you’ve heard about the Roger Stone indictment, but if you haven’t read it, first you’ll need a players list:
“Organization 1”: WikiLeaks
“Head of Organization 1”: Julian Assange
“Person 1”: political commentator Jerome Corsi
“Person 2”: radio personality Randy Credico
“Senior Trump Campaign official”: Steve Bannon
“Supporter involved with the Trump Campaign”: I’m not sure who this is.
For better readability I’m just going to use the proper names in my references below.
The seven-count indictment accuses Stone of three things: obstructing a Congressional investigation (Count 1), false statements to Congress (Counts 2-6), and witness tampering (Count 7).
If you’ve paid any attention to the Mueller investigation, or if you’ve just watched Law and Order, you’re familiar with Mueller’s “flipping” strategy. It’s the same approach prosecutors take to organized crime. You start by charging the lower-level people and getting them to flip on the people above them. You work your way up the ladder until you get the boss.
But the striking thing about the Stone indictment is that Mueller doesn’t need anyone to flip on Stone. Why not? Because he can prove his case against Stone with Stone’s own emails and text messages. Let’s break it down.
Count 1: The Special Counsel alleges that Stone obstructed the Congressional investigation by giving false testimony, failing to turn over responsive documents, submitting a false letter to Congress, and attempting to have Credico testify falsely to Congress. (¶ 41)
This count can be proven simply by the existence of emails and text messages that Stone either failed to produce or falsely stated did not exist. That’s before we even get to the substance of what they said.
Count 2: “STONE testified falsely that he did not have emails with third parties about Assange, and that he did not have any documents, emails, or text messages that refer to Assange.”
The emails show that Stone had communications with Jerome Corsi and Randy Credico about Assange. For example:
7/25/16 Email from Stone to Corsi: “Get to Assange [a]t Ecuadorian Embassy in London and get the pending WikiLeaks emails.” (¶ 13a)
8/2/16 Email Corsi to Stone: “Word is friend in embassy plans 2 more dumps.” (¶ 13c)
Count 3: “STONE testified falsely that his August 2016 references to being in contact with Assange were references to communications with a single ‘go-between,’ ‘mutual friend,’ and ‘intermediary,’ who STONE identified as Randy Credico.”
The emails between Stone and Corsi show that Credico was not the only intermediary. See the examples under Count 1 above.
Count 4: “STONE testified falsely that he did not ask the person he referred to as his ‘go-between,’ ‘mutual friend,’ and ‘intermediary,’ to communicate anything to Assange and did not ask the intermediary to do anything on STONE’s behalf.”
In fact Stone sent text messages and emails to Credico asking him to communicate specific requests to Assange. For example:
9/18/16 text message from Stone to Credico: “I am e-mailing u a request to pass on to Assange.”
9/18/16 email from Stone to Credico: “Please ask Assange for any State or HRC e-mail from August 10 to August 30 . . .”
Count 5: “STONE testified falsely that he and the person he referred to as his ‘go-between,’ ‘mutual friend,’ and ‘intermediary’ did not communicate via text message or email about WikiLeaks.”
Stone and Credico did communicate via text message and email about WikiLeaks, as shown by the examples above.
Count 6: “STONE testified falsely that he had never discussed his conversations with the person he referred to as his ‘go-between,’ ‘mutual friend,’ and ‘intermediary’ with anyone involved in the Trump Campaign.”
The emails and text messages show that, in fact, Stone discussed what he was learning from his intermediary with a “high-ranking Trump Campaign official” (Bannon) and a “supporter involved with the Trump Campaign”:
10/4/16 email from Bannon asking about the status of future releases by Organization 1. Stone replied that Assange had a “[s]erious security concern” but that WikiLeaks would release “a load every week going forward.” (¶ 16c)
10/4/16 text message from the supporter involved with the Trump Campaign to Stone, asking “hear anymore from London”? Stone replied, “Yes – want to talk on a secure line – got Whatsapp?” (¶ 16d)
Count 7: Stone “knowingly and intentionally corruptly persuaded and attempted to corruptly persuade another person, to wit: Randy Credico, with intent to influence, delay, and prevent the testimony of any person in an official proceeding.” (¶ 45)
You’d think this count would depend on the testimony of Credico. In that case, Stone’s strategy would be to deny pressuring Credico and to attack Credico’s credibility. But the problem for Stone is that he pressured Credico in his own text messages.
And this is where it gets juicy. Not only does Mueller have text messages where Stone leans on Credico, he has text messages with flavor. Here are some highlights:
Stone texts Credico: “‘Stonewall it. Plead the fifth. Anything to save the plan’ . . . Richard Nixon.” (¶ 37a)
Stone texts Credico to do a “Frank Pentangeli,” the character in The Godfather: Part II who testifies to a congressional committee that he doesn’t know anything. (¶ 37e)
More texts from Stone to Credico: “And if you turned over anything to the FBI you’re a fool.” “If you testify you’re a fool. Because of tromp I could never get away with a certain [sic] my Fifth Amendment rights but you can. I guarantee you you are the one who gets indicted for perjury if you’re stupid enough to testify.” (¶ 37f)
“I’m not talking to the FBI and if your smart you won’t either.” (¶ 39a)
My personal favorites: “You are a rat. A stoolie. You backstab your friends-run your moth my lawyers are dying Rip you to shreds.” I’m going to “take that dog away from you” (referring to Credico’s therapy dog Bianca). “I am so ready. Let’s get it on. Prepare to die [expletive].” (¶ 39b)
“You are so full of [expletive]. You got nothing. Keep running your mouth and I’ll file a bar complaint against your friend” (¶ 39c)
Dang! If you’re a civil litigator like me, can you imagine finding dynamite emails like this? Not only do they prove Stone pressured Credico to stonewall Congress, they are the kind of zingers that a jury is going to remember. In the words of Bob Schneider, “the flavor’s too strong.”
There is also a sober lesson here. As the senior litigator lamented, fighting over discovery of emails may have taken the fun out of litigation. But the emails themselves—as well as the text messages—may have saved litigation.
The Emails Will Set You Free
Imagine a world where Roger Stone didn’t have email or text capability. Would he have written letters saying all that stuff to Corsi, Credico, and Bannon? Highly unlikely. And then it would come down to testimony from Corsi and Credico, with Stone claiming they made the whole thing up.
But no, Stone can’t reasonably dispute the emails and text messages. That’s why he and his lawyer have already signaled a different strategy. They will have to concede the false statements but argue that the statements were immaterial and unintentional. I’m no criminal law expert, but those arguments sound pretty weak to me. So the big lesson of the Stone indictment is the importance of the defendant’s emails and text messages.
But does such a strange case really tell us anything about ordinary litigation? The defendants in most cases are not so brazen, right?
Yes, we could dismiss Stone as an oddball. I mean, the dude has a tattoo of Nixon’s face on his back and dresses like a villain from an M. Night Shyamalan movie.
Still, let’s not be too quick to treat the Stone indictment as a special case. I admit I’ve never seen an email in a business lawsuit where a guy threatens to take you’re little dog too (!) But I have seen some doozies. You’d be surprised the things people will put in an email. See, for example, the case featured in How Not to Handle “Bad” Emails in Litigation.
And with text messages it’s even worse. Just as people feel comfortable saying things in an email they would never say in a letter, they will put stuff in a text message they would never say in an email.
On the other hand, someone who never uses email or text messages doesn’t have to worry.
Zach Wolfe (email@example.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.
These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.
photo credit: Eric Yi-Jun Wolfe