DOJ attorneys defend Mueller’s ability to investigate Trump

The Justice Department attorneys prosecuting Roger Stone — who no longer work under special counsel Robert Mueller — defended the special counsel’s investigation of President Donald Trump Friday, saying it inherently did not hamper his ability to lead the country.

The argument came amid a series of filings Friday night in Stone’s case, in which prosecutors pushed back on the longtime Trump ally’s legal attacks on Mueller and the criminal charges he faces. Stone has pleaded not guilty to the charges against him and asked the court to dismiss them.

“While the Department of Justice’s position is that ‘the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions,’ it also takes the position that a criminal investigation during the President’s term is permissible,” the prosecutors wrote.

If the Constitution “prevented any investigation of a President or his campaign while he was in office, the government could not preserve evidence while memories are fresh and documentary materials are available. Nor, it would seem, could the government conduct an investigation that may clear the President of alleged wrongdoing.”

Collecting evidence while memories were fresh echoes reasoning Mueller wrote into his report regarding the obstruction of justice investigation into the President. The idea of continuing that investigation was one that Attorney General William Barr criticized this week during his Senate testimony.

In another court filing Friday, Justice Department lawyers argued that Mueller didn’t need to bring an underlying conspiracy case in order to prosecute Stone for lying to Congress and obstruction. This has been an argument that the White House and Barr have also latched on to regarding whether an obstruction case could be brought against the President.

Mueller collected evidence for possible obstruction of justice cases against the President from several moments during his time in office, yet did not make a decision whether to charge him. Instead, Barr and Deputy Attorney General Rod Rosenstein decided not to bring a case against Trump, originally citing, among other things, a lack of an underlying conspiracy crime between Trump’s campaign and the Russian government in 2016, which Stone has echoed.

Stone also argued that his criminal charges should be before a different judge because they had little to do with a case Mueller brought against several Russians who allegedly hacked the Democratic National Committee. Those Russians, who are military intelligence officers, have not appeared in court in the US or been apprehended.

His case is currently before federal Judge Amy Berman Jackson in Washington, who also handled the criminal proceedings against former Trump campaign chairman Paul Manafort, who is now in prison.

The Washington-based Justice Department prosecutors — who have taken over from Mueller on Stone’s case — say that Stone’s charges arose out of a common investigation that used similar search warrants, and he allegedly lied to Congress.

“The defendant’s false statements were made before a congressional committee investigating, among other things, the criminal conduct alleged in Netyksho,” the prosecutors argued, referring to a case against Viktor Borisovich Netyksho, the Russian intelligence officer alleged to be in charge of the hacking operation.

“Moreover, the defendant’s false statements to the committee concerned matters discussed in the Netyksho indictment,” prosecutors wrote on Friday. “The defendant’s contention that this case should now be reassigned (to another judge) based on the Special Counsel’s report is inconsistent with the plain text of the rule, which does not require that the overlapping activities themselves be criminal or that defendants be charged with the related activities.”

In yet another filing, the Justice Department argued to a federal court why Stone shouldn’t have access to the unredacted Mueller report as he prepares for trial.

The Department of Justice previously told the judge at a hearing they would take this position.

Prosecutors argued the unredacted report isn’t evidence in Stone’s case — and they’re already giving his legal team all the evidence he needs.

“Stone is no more entitled to the unredacted report than he would be to a prosecution or declination memorandum, which are exempt from discovery,” prosecutors wrote in a new court filing.

Stone’s attempt to get the unredacted Mueller report is one of many requests the federal courts are now considering.

CNN’s Sara Murray contributed to this report.