DOJ's Roger Stone Debacle Puts New Focus on Judge Amy Berman Jackson
Former federal judges said Jackson would be within her rights to question DOJ about how to weigh its conflicting sentencing recommendations for the Trump ally.
February 12, 2020 at 05:31 PM
7 minute read
U.S. District Judge Amy Berman Jackson is facing a new kind of test with the sentencing of Roger Stone, as allegations of political bias hang over the Department of Justice's jarring decision to overhaul its recommendation on how long the Trump ally should be sent to prison.
Jackson is now presented with two different DOJ recommendations ahead of Stone's scheduled sentencing next week, after every prosecutor from the U.S. Attorney's Office for D.C. who helped secure a guilty verdict in Stone's November trial dropped off the case. Those withdrawals, as well as the resignation of one career prosecutor, were in protest of Main Justice's decision to quash their initial proposal that Stone be sentenced to up to nine years in prison.
Some are calling for Jackson to call in top DOJ officials, including Attorney General William Barr, to answer questions about the different recommendations and whether political motivations are playing a role in DOJ's sentencing recommendation for President Donald Trump's longtime associate. The new recommendation came after Trump criticized the initial suggestion, but DOJ has denied any communication between Main Justice and the White House on the issue.
"One person can get to the bottom of this quickly: Judge Jackson at the sentencing next week. She should order the 4 prosecutors, the DC US Attorney, and AG Barr to show up and explain," former DOJ inspector general and current Steptoe & Johnson LLP of counsel Michael Bromwich tweeted Wednesday.
Former federal judges said in interviews Wednesday that Jackson would be well within her rights to question DOJ about how to weigh the two sentencing recommendations from two different prosecutorial teams as she decides on Stone's sentence, set to be handed down next Thursday.
"I think it would be a legitimate question for her to ask of the prosecution in this case, that there seems to be some inconsistencies in the two recommendations," Lawrence Stengel, the former chief judge for the U.S. District Court for the Eastern District of Pennsylvania, said. "What am I supposed to take as the government's official position?"
However, the former judges were wary of the prospect of Jackson delving much further into how DOJ handled the sentencing recommendation. They said that's a matter for others to handle, presumably, in this case, the DOJ's inspector general or Congress.
"Two wrongs don't make a right," Joe Kendall, a former judge for the U.S. District Court for the Northern District of Texas, said of the prospect of Jackson starting to investigate DOJ's efforts in the Stone case.
Former U.S. District Judge for the Southern District of New York Shira Scheindlin was also dismissive of the thought that Jackson would start investigating DOJ's actions, beyond how to handle the disparate sentencing recommendations.
"I would definitely not do that," Scheindlin said. "I think that the judiciary has to be careful not to become an actor in itself, but to remain in the judicial role."
However, she acknowledged Jackson "could take a completely different view" and feel that she is the appropriate figure to start looking into the Justice Department's conduct.
The former district judges said Jackson has several factors to consider in determining Stone's sentencing. She has the line prosecutors' first recommendation and the newer filing from Main Justice, which says Stone should go to prison, but the first proposal "could be considered excessive and unwarranted."
Stone's defense team has also filed its own recommendation, which asks the judge to sentence the longtime GOP political operative to probation. Stone is represented by a team of Fort Lauderdale lawyers, including Bruce Rogow and Robert Buschel.
Letters have also been submitted to Jackson from both Stone's supporters and those believing he should be sent to prison on the charges of lying to Congress, impeding a congressional investigation and witness tampering.
One key letter is from trial witness Randy Credico, who asked Jackson to spare Stone from any prison time. Stone was found guilty of trying to interfere with Credico's requested testimony with congressional committees. Credico did not interview with Congress, but did speak with other investigators, including Special Counsel Robert Mueller's probe.
Credico also said, both on the stand and in his letter to Jackson last month, that he didn't think Stone would actually follow through on threats made against him and his dog. "All bark and no bite!" he wrote.
Probation officials have also privately given Jackson a presentencing report, which includes a calculation of what Stone's sentence could be under the sentencing guidelines.
Jackson has the ultimate discretion on Stone's sentence, including whether she deviates from the guidelines.
"None of these recommendations are binding, and it's just a question of how persuasive they are," said Stengel, now chairman of the Pennsylvania-based firm Saxton & Stump's internal investigations practice.
He added that Jackson, like all trial judges setting sentences, would have to publicly give her reasons for deviating from the guidelines. Part of that decision-making process can be based on conduct from Stone she witnessed in her courtroom.
Shortly before the sentencing memos were due, the judge issued an order saying both parties could address whether Stone violated media contact orders she implemented in his case. Jackson blocked Stone from discussing the case entirely after he posted an image on Instagram depicting her with a crosshairs in the corner, and later said he couldn't use Instagram, Twitter or Facebook after he posted about court filings in his case.
In the initial sentencing recommendation, the line prosecutors recounted those violations, as well as Stone allegedly passing along a proxy message to InfoWars host Alex Jones at the end of his trial, saying it shows "the low regard in which he held these proceedings."
The debacle over DOJ changing its stance on Stone's sentence has once again placed the federal judge who oversaw several Mueller-tied cases in the national spotlight. Jackson is no stranger to media attention, after handling the sentencings of former top Trump campaign officials Paul Manafort and Richard Gates.
Trump also recently targeted her on Twitter, questioning whether she had ordered that Manafort be placed in solitary confinement. She did not.
At Gates' sentencing in December, Jackson reflected on the sentences she handed down for others who pleaded guilty to charges from Mueller's probe and the importance of the investigations into those who tried to deliberately mislead federal officials.
"This deliberate effort to obscure the facts, to mislead, undermines our policymaking. If people don't have the facts, democracy doesn't work," Jackson said at the time, in line with comments she also made at Manafort's sentencing.
The former federal judges on Wednesday said that while sentencing is often the most difficult part of a criminal case for any judge, they didn't believe the outside pressures would influence Jackson as she decides on a sentence for Stone.
"I think judges know that their actions will put them, and their actions, in the limelight and expose them to criticism from one side or the other on high-profile cases," said Scheindlin, now an of counsel with Stroock & Stroock & Lavan.
"I think she's been in this position before," Scheindlin added. "I think she can take it."
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