Criminal Justice & the Rule of Law Executive Branch

What Really Happened at the Roger Stone Sentencing

Mikhaila Fogel
Friday, February 21, 2020, 4:48 PM

Judge Amy Berman Jackson had a particularly difficult job on Thursday.

Outside the E. Barrett Prettyman Courthouse before the sentencing hearing of Roger Stone (Victoria Pickering,; CC BY-NC-ND 2.0,

Published by The Lawfare Institute
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Ninety minutes before the sentencing hearing of Roger Stone was set to begin, there was a line extending down the hall from Judge Amy Berman Jackson’s chambers at the E. Barrett Prettyman Courthouse. The gathering was a kind of reunion for the strange cast of characters that attended Stone’s trial in November—the same panoply of courtroom reporters, far-right and white nationalist media agitators, and avid spectators. There were the same pair of sisters from Northern Virginia who gathered for all of the Mueller trials; the same attendees with distinctive hand tattoos; the same people the U.S. Marshals knew were likely to interrupt the proceedings with ardent protest, some of whom the officiers now know by name; and the same inflatable rat designed to be a caricature of President Trump circling outside the courthouse.

But there was something in the mood of this proceeding that differed sharply from the trial in November. Prior to the opening of the criminal trial, back when Stone’s fate had been in doubt, the hall had been almost silent. People spoke to their friends and colleagues, and the only people in attendance were the “usual suspects” described above. Back then fewer than ten people were milling about in that hall before the opening of that proceeding.

This time, however, there was a kind of carnival atmosphere. Stone, his family and his allies were in good spirits. In line, people were jokingly musing how many hours in the proceedings the president would issue a pardon. “It’s not a question of if,” a senior administration official told Politico, “it’s when.”

People had come to see a show and seemed convinced they knew the ending.

The bizarre atmosphere was just a tiny portion of what made Judge Jackson’s job on Thursday a particularly difficult one.

In a normal sentencing, a judge must carefully consider the complex federal sentencing guidelines, the arguments of the defense and the recommendations of the government before deciding how to punish an individual. In cases in which incarceration is warranted, a judge must accept personally and professionally what that sentence will do the convict’s family, and what message the sentence will send to others who might commit similar offenses. The sentence must be defensible and fit reasonably within the bounds of “fair and just” as defined by statute and precedent. It’s not an easy job ever.

On Thursday, however, Judge Jackson had to hand down a just and fair sentence to a close ally of President Trump for crimes committed in connection with efforts to obstruct Congress’s investigation into Russian interference in a presidential election. As many would guess, this did not endear her to Trump or his supporters. She therefore had to sentence Stone in the face of a massive campaign to impugn the trial as biased, deem the prosecution a “witch hunt” and convince the president to pardon Stone before the sentencing was completed. Judge Jackson has also faced personal threats. And Stone’s supporters have also engaged in a campaign against the jury foreperson, who made it through the voir dire process freely admitting to having run for Congress as a Democrat during her selection interview.

What’s more, in most cases, the government submits only one recommendation for sentencing, based on guidelines. For this case, Judge Jackson had two recommendations from the government. The first was submitted by the line prosecutors and signed by the interim U.S. attorney for the District of Columbia in line with almost every other federal sentencing procedure. The second was an almost unheard-of do-over effort, submitted a day later by the same interim U.S. attorney, but signed by the acting head of the Criminal Division of that office. Between the first filing and the second, President Trump said on Twitter that the recommendation was “horrible and unfair,” the Justice Department then announced they were dialing back the sentences and all four line prosecutors resigned from the case and one from the Justice Department altogether. The second filing stated the previous day’s sentencing recommendation “would not be appropriate or serve the interests of justice in this case” and that the government would defer “to the Court as to what specific sentence is appropriate under the facts and circumstances of this case.” The entire episode was rife with the appearance of political influence and the second time since the beginning of 2020 that the Department of Justice has walked back a sentencing recommendation for a Trump ally charged in connection with the Mueller investigation—the first being Michael Flynn. The president also openly advocated for Judge Jackson to call for a new trial based on information about the jury foreperson’s political affiliations—which were known to both the defense and government when she was selected.

In other words, Judge Jackson had to deliver a sentence to a man in front of his family and close friends. To appear just and fair, that sentence had to be “sufficient but not greater than necessary” to punish Stone for the crimes for which he has been convicted and deter others from committing similar crimes. If too close to the original Justice Department recommendation, Judge Jackson could unintentionally stoke right-wing concerns that she is a biased participant in a “witch hunt” against the president and his allies. If her sentence were too lenient, by contrast, it could appear that President Trump, with the help of Attorney General Bill Barr, had succeeded in pressuring the American judicial system to give favorable treatment to the president’s friends. And she had to do this in a courtroom with a cast of highly colorful characters.

It’s quite a lot of baggage to bring into work on a Thursday morning.

So, what did Judge Jackson do with all of this?

She conducted a by-the-book sentencing hearing while occasionally “breaking the fourth wall,” so to speak, to acknowledge the extraordinary circumstances of the case—and to rebuke the Department of Justice. But just as when a Shakespearen character breaks the fourth wall and talks directly to the audience or provides commentary on his or her story, Judge Jackson’s comments on the bizarre circumstances of the case did not seem ultimately to affect her handling of Stone himself.

In her first hint that this wasn’t an entirely routine hearing, Jackson noted that for those who were “new” to the inner workings of the criminal justice system or who “woke up last week” to discover that federal sentencing guidelines were harsh, “many defense attorneys and judges have been making that point for a very long time, but we usually don’t succeed in getting the government to agree.”

After that pointed comment, Jackson engaged in a routine step-by-step analysis of the sentencing guidelines, and the government’s recommendation as set forth in its initial recommendation. Jackson pointed out that the government never formally rescinded that sentencing memo, so it still applied as the government’s analysis in the case.

Her presentation was not without color. For example, when the defense noted that Randy Credico, the witness with whom Stone stands convicted of tampering, submitted a letter to the court asserting that the texts were, “Just Stone being Stone. . . All bark and no bite,” Jackson countered that, according to the guidelines, it was the presence of a threat, not the likelihood that the threat would be carried out, that triggered the increased level. Jackson then read out Stone’s text message, sending a barely-concealed wave of shock through the audience as she said, ”Prepare to die, cocksucker.”

Judge Jackson was unpersuaded that this did not constitute a threat. And while she noted that Credico had said he forgave Stone and didn’t think he would carry out his threat, she pointed to grand jury testimony given by Credico closer to the event in question, in which he expressed more concern for his safety.

She then called John Crabb, the newest head prosecutor who had taken over for the four prosecutors who had withdrawn in response to the new sentencing recommendation, to the lectern. She asked him the question on the minds of many in the audience: “Why are you the one standing here today?” Crabb apologized for any confusion the government caused, and said the two memos were the result of a “miscommunication” between the U.S. attorney’s office in D.C. and main Justice. When the judge asked who wrote the second memo and who directed it to be written, Crabb said he could not comment on internal department deliberations. The set of circumstances that led to this exchange was, Jackson pointed out, unprecedented.

But Crabb, a long-time federal prosecutor, then threw everyone a curveball: he ardently defended the prior team. He called the prosecution “righteous” and said that a “substantial period of incarceration” was appropriate. He said the first memo was filed “in good faith,” and that the prosecution would not withdraw it. While not going so far as to argue for the 7-to-9 year sentence recommendation in the first memorandum, Crabb concluded that, given the unique set of circumstances it was “particularly appropriate to defer to the court” in this case, rather, it seemed, than relying on either recommendation.

For those expecting the new prosecution team to walk in and toe Trump’s line on Stone, this was a welcome, if confusing, attempt to return to normalcy in an utterly abnormal situation.

Stone’s attorney Seth Ginsberg then addressed the court; he discussed Stone’s advocacy work on behalf of animal rights and veterans. He also highlighted the sheer breadth of letters sent in support of Stone: his spiritual advisors; the wife of a former NFL player, who talked about Stone’s advocacy for football players with traumatic brain injury; members of the public; and those whom Stone has supervised and mentored. Ginsberg concluded that Stone was different from the “larger than life person he plays on TV” and that his family would suffer should the sentence involve incarceration.

After hearing from Stone’s lawyer and taking a break, the judge announced: “unsurprisingly, I have a lot to say.”

She began by contextualizing Stone’s obstructive conduct within the wider investigation into Russian interference in the 2016 election. She emphasized that Stone’s crimes were not about Russian collusion nor about political activities. Walking through the documentary evidence, she first analyzed the false statements charge—noting that, at the time the House Intelligence Committee referred Stone’s statements to the Department of Justice, the committee was led by Republican Rep. Devin Nunes (Calif.). Stone said he had no record of communications with his intermediary with Wikileaks, but there were “at least 1,500 texts or emails with Credico alone.” Jackson noted that Stone’s false statements were so blatant that they could not be chalked up to “equivocation” or “confusion.” As charged in Count Six of the indictment, Jackson noted, Stone said he never discussed his “intermediary” with WikiLeaks with anyone on the Trump campaign, but sworn testimony from former campaign officials Steve Bannon and Rick Gates told a different story. As to the witness tampering charge, the judge noted that she appreciated Credico’s letter on behalf of Stone, in which he indicated that he did not believe Stone would follow through on his threat. She repeated the concerns about Credico’s prior testimony, in which he indicated concern, and said that Credico’s thoughts on the matter now didn’t change the persistent nature of Stone’s “corrupt, unlawful campaign” to interfere with the testimony of another witness. In discussing the first charge, obstructing an official proceeding, Jackson discussed the seriousness of the investigation that Stone obstructed, quoting a joint statement from Nunes and then-ranking member Adam Schiff that described the investigation as a “national security necessity.”

She also spoke of Roger Stone outside the scope of his indictment, mentioning the touching letter she’d received from his granddaughter and his history of political advocacy. She said, "I am not passing judgment on Roger Stone as a man; that falls to a higher authority." It was instead her duty to judge Stone for the conduct for which he was found guilty. Of the suffering his sentence might cause his family, she noted that “every day” judges incarcerate or deport people whose families depend on them.

Moving back to Stone, she defended the gag order imposed on Stone after he posted a photo on his Instagram of her in crosshairs, saying Stone’s own First Amendment lawyer had recommended it. He was still welcome, she noted, to speak about everything and anything besides the case—”and I suspect,” she said, “that he will keep talking.” And again emphasized that he was not convicted for his political activity: "He was not prosecuted for standing up for the president,” the judge said pointedly, “he was prosecuted for covering up for the president."

And then Judge Jackson once again broke the fourth wall. She said the responsibility to decide Stone’s sentence based on the facts did not fall to those who were his long-time friends, those who benefited from his political activities or those who were involved in the case. Any comments to the contrary were “entirely inappropriate.”

Returning to the trial, she emphasized that Stone’s sentence would have nothing to do with “who his friends are or who his enemies are." But would rest solely on the seriousness and significance of his conduct. Stone’s conduct, said the judge, was “not a joke.” It had direct bearing on Congress’s ability to investigate election interference. And, she noted, "Witnesses do not get to decide for themselves whether Congress is entitled to the facts." She added, “there was nothing unfair, phony or disgraceful about the investigation or the prosecution.”

“Truth still matters,” said the judge. “Everyone loses if Stone’s activities go unpunished.” The “dismay and disgust” at Stone’s dishonesty and obstruction should “transcend party,” she said. Truth mattered not only to her, but to Congress, the Department of Justice, the jurors who “served with integrity under difficult circumstances,” and the American people.

And with that, she handed down a sentence that totaled three years and four months in prison, a $20,000 fine and two years of supervised release. This sentence was less than half of what the Justice Department had initially recommended, and in line with her reputation for relatively lenient sentencing. The average prison sentence she handed down in the five years ending with 2017, as the New York Times reported, was 14 months below the D.C. average and 15 months beneath the national average.

As the crowd exited the courtroom, all semblance of a normal criminal sentencing disappeared. In the hallway conversations amongst Stone’s allies, one could hear the same word over and over: “sham.” Outside the courthouse, mobs of cameras waited. As Stone exited, some protestors chanted “lock him up,” while others chanted “pardon Roger Stone.” Meanwhile, the inflatable rat was joined by a truck blaring music and sporting a billboard saying “Jeffrey Epstein didn’t kill himself.” As Josh Gerstein of Politico described, Stone walked past this circus, donned his black bowler hat and got into a waiting SUV.

Predictably, what actually happened in that courtroom has little to do with how some are reacting to it. Tucker Carlson called the sentence a “horrifying precedent,” urged President Trump to pardon Roger Stone immediately and called for the judge’s impeachment. Alex Jones called Judge Jackson a “slug” and a “witch.” Jeanine Pirro called for a retrial, alleging jury bias, and called as well for Jackson to recuse herself from future proceedings—Jackson is still considering the motion for a new trial. Meanwhile, President Trump has said Stone has a “very good chance at exoneration” and that he would “see it play out,” suggesting that a pardon may be on the horizon.

Stone’s sentencing is complete. But the drama isn’t over.

Mikhaila Fogel was an associate editor at Lawfare and a research analyst at the Brookings Institution. She previously worked as a legislative correspondent for national security and foreign affairs issues in the Office of Sen. Susan Collins. She holds a bachelor’s degree from Harvard College, where she majored in history and literature and minored in government and Arabic.

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