Editor’s Note: Elie Honig, a former federal and state prosecutor, is a CNN legal analyst and a Rutgers University scholar. The opinions expressed in this commentary belong to the author. View more opinions at CNN.
When Judge Amy Berman Jackson sentences Roger Stone on Thursday in federal court in Washington, DC, she likely will have little sympathy for him. A jury convicted Stone, based on powerful evidence, of all counts against him, including making false statements to Congress and witness tampering.
While I expect Judge Jackson to impose a serious sentence of several years behind bars, I also think she will come in below the approximately seven to nine years (87 to 108 months, specifically) originally recommended by the Justice Department prosecutors who tried Stone. Such a sentence, if and when imposed by Judge Jackson, should be seen not as a vindication of President Donald Trump or Attorney General Barr – who stunningly intervened in the case to reverse his own prosecutors, recommending “far less” time – but rather as a triumph for the independent, nonpartisan judiciary.
The prosecutors on the Stone case based their original sentencing recommendation on the federal sentencing guidelines, which provide instructions for calculating an advisory sentence. The guidelines calculation and sentencing recommendation by prosecutors is important and influential, but ultimately federal judges are not bound by the guidelines and can impose whatever sentence they deem just and appropriate.
I handled and supervised thousands of sentencing proceedings during my fourteen years as a federal and state prosecutor. Based on that experience, and the available data, I do not expect Judge Jackson to sentence Stone to the guidelines range of seven to nine years. While Stone’s criminal conduct was dishonest, dangerous to our system of government, and generally abhorrent, he has certain important factors in his favor at sentencing.
First, while Stone has a long history of sordid conduct – he proudly calls himself a “dirty trickster” – he is 67 years old and has no prior criminal convictions. He has now been convicted of serious crimes, but those crimes involve no violence or theft of money from victims. Given those circumstances, it is difficult to see the judge imposing a sentence of seven to nine years. Even in their original sentencing submission, the prosecutors cited factually similar (though arguably less serious) cases resulting in sentences ranging from only six to 35 months.
A sentence below the guidelines range is nothing unusual. In Fiscal Year 2018 (the most recent year for which data is available), federal judges imposed sentences below the guidelines in over 46% of all cases. And in the District Court for the District of Columbia, where Stone will be sentenced, judges sentenced below the guidelines in over 59% of all cases.
To be clear: I’m not arguing that Stone should be sentenced below seven to nine years. I’m arguing that he likely will be sentenced below those numbers.
If and when that happens, some may see the sentence as a vindication for Trump and Barr, who intervened in this case – Trump by tweeting that the Stone case is a “horrible and very unfair situation” and Barr by taking the extraordinarily unusual step of publicly overruling his own prosecutors.
But that would be a mistake. If anything, both Trump and Barr have undermined the independence of the Justice Department by injecting politics into criminal prosecution. Trump has been nakedly political in lobbying for leniency for his longtime political ally Stone, who, the trial evidence showed, lied to Congress to protect the Trump 2016 campaign from potentially damaging revelations about its efforts to communicate with WikiLeaks about hacked emails relating to the campaign of Hillary Clinton.
And while Barr has wrapped himself in the flag of righteousness, he took the extraordinary move of reversing his own prosecutors’ recommendation of a guidelines sentence – in a case that just happened to involve a longtime Trump ally, just after Trump tweeted angrily about the original prosecutors’ sentencing recommendation. Barr’s effort to protect Stone is just the latest in a long string of nakedly partisan moves throughout his tenure as Trump’s attorney general.
Whatever sentence Judge Jackson imposes, rest assured: she will base it only on the facts and circumstances of the case before her, United States v Roger Jason Stone, Jr. – and nothing else. The Framers of the Constitution strove for an independent judiciary, free of political influence; hence, lifetime appointments for all federal judges, who need not fear being removed or punished by any president for their rulings.
Indeed, Chief Judge Beryl Howell pointedly stated publicly last week that “[t]he Judges of this Court base their sentencing decisions on careful consideration of the actual record in the case before them…and their own judgment and experience. Public criticism or pressure is not a factor.”
I have no doubt Judge Jackson will shut out all the political noise and simply sentence Stone based on the facts and the law. That is what federal judges do every day across the country. And that is precisely what the Framers had in mind when they created an independent judiciary, above the fray of politics.
Now, your questions:
Danny (Tennessee): Who, if anyone, can investigate or do anything about Attorney General Barr’s handling of the Justice Department? Is he accountable to anyone?
As Attorney General, Barr is in charge of the entire Justice Department, and has extraordinarily broad power and discretion. There are, however, some checks on his power.
First, the attorney general serves at the pleasure of the president. So the president can fire the attorney general, or request his resignation, as Trump did to former Attorney General Jeff Sessions. Trump generally seems quite pleased with Barr’s performance thus far, often praising him publicly. Barr’s recent public comments – that Trump’s tweeting makes it “impossible to do my job” and that he will not be “bullied or influenced by anybody” – could change that dynamic, as Trump did fire back with a tweet reasserting his purported right to ask the attorney general to “do anything in a criminal case.”
Second, Congress holds the power to impeach (by majority vote of the House) and remove (by ⅔ vote of the Senate) federal officials, including the attorney general. But no attorney general has ever been impeached, and there is close to zero chance this Congress will impeach and remove Barr.
Third, Congress has broad authority to conduct oversight of the Executive Branch, including the Justice Department, by holding public hearings. Indeed, Barr has agreed to testify in the House Judiciary Committee on March 31. Count on Democratic members of the Committee to grill Barr over his handling of the Roger Stone case (more on this below) and other Justice Department matters. Congress cannot force the attorney general to do anything (short of impeaching and removing him), but public exposure of impropriety is crucial, as we saw this week with the uproar following Barr’s intervention in the Stone case – which ultimately led to Barr’s public statement pushing back against Trump.
Of course, the free media also plays a vital role here in exposing misconduct by any attorney general (or any public official at all). The media broke the story that the Justice Department likely would intervene in the Stone case shortly before it did so. And ongoing coverage undoubtedly intensified pressure on Barr to stand up publicly for the Justice Department’s independence. Whether Barr truly meant what he said, and whether Trump will change his own conduct, remains to be seen.
Mo (Texas): If the judge in the Roger Stone case gives him the original recommended sentence of seven to nine years, can President Trump or the Justice Department challenge it?
Trump certainly could pardon Stone, at any time. Article II of the Constitution gives the President broad “power to grant reprieves and pardons for offenses against the United States.” If Trump does pardon Stone – and Trump has signaled that he might, at some point – then the case is over and Stone would not have to serve his sentence (or any that remains at the time of a pardon). Trump likely would face political blowback, which could be why he has not pardoned Stone already.
But short of a pardon, there is nothing the president can do to un-do or challenge a sentence imposed by a judge, in the Stone case or any case. There also is very little the Justice Department can do to change a sentence after its imposition by a judge. Technically, the Justice Department could make a motion to re-sentence Stone, but such motions are rare, and almost never succeed, largely because the moving party must show not merely that the sentence was too high but that the judge made an “arithmetical, technical, or other clear error.”
Stone himself, as the defendant, can challenge his sentence on appeal. But the bar is high. Like any defendant, he would need to establish that the judge committed an “abuse of discretion” in setting the sentence. Accordingly, federal courts of appeals uphold original sentences imposed by the trial judge in over 90% of all cases. Whatever sentence Judge Jackson imposes on Stone this week is likely to stand.
Carol (France): President Trump publicly criticized the judge in the Stone case. Does the president have the power to remove or discipline judges?
No. The president has the power to nominate all federal judges – at the district court, court of appeals, and Supreme Court levels – and then the Senate confirms the nominees.
Once confirmed, federal judges serve lifetime terms. Article III of the Constitution provides that federal judges “shall hold their offices during good behaviour,” meaning a federal judge’s term can end only upon (1) death, (2) voluntary resignation, or (3) in cases of misconduct, impeachment. But Congress – not the president – holds the “sole power” to impeach and remove, and no federal judge has been impeached since Judge Thomas Porteus in 2010.
Three questions to watch:
1. What sentence will Judge Berman Jackson impose on Roger Stone?
2. Will President Trump continue to tweet about Justice Department cases?
3. If so, how will Attorney General Barr respond?
