In defense of Roger Stone

Defending the Indefensible

I hate having to defend Roger Stone, but I have to. Sometimes you have to defend the seemingly indefensible for a good reason. Recently, four federal prosecutors resigned after the Department of Justice overrode their filed sentencing recommendation for the sentencing phase of Roger Stone’s trial. For those unacquainted with Mr. Stone, he is a political operative that rose to fame (or infamy depending on who you ask) working for President Nixon. Stone even has a tattoo of a smiling Richard Nixon on his back. Stone was convicted last November of seven counts of lying to Congress, obstructing Congress in an investigation, and witness tampering.

But what did he really lie about? Well, he claimed to have access and a conduit to Wikileaks which he claimed was in possession of some 19,000 emails purloined from the server of the Democratic Party. Stone’s lie was to say he had such access and then lie to Congress to conceal the fact that he had no such access. He compounded this by then trying to get a friend and witness to back his account about how much he really didn’t know about what he had claimed to know.

And for the crime of being a blowhard who didn’t want anyone to find out he was a blowhard, the prosecutors trying Stone want to put him away for the rest of his life. Stone is 67 years old and the sentencing recommendation by the government was to lock him up between 87 and 108 months. Stone is a first offender and there are violent felonies like armed robbery that won’t get you 7-9 years in “The Clink.” When Stone was found guilty the prosecutors wanted the judge to put him in jail pending sentencing, which is generally only done in the case of violent offenders or those who pose a serious flight risk. Clearly, the prosecutors did not like Roger Stone.

Touching the Desk

The Department of Justice then intervened informing the sentencing judge that it was shocked by what the prosecutors had recommended, believing the sentence to be, “excessive and grossly disproportionate to Mr. Stone’s offenses.” This is basically a public rebuke and repudiation of the prosecutors in charge of the case, four of whom responded by resigning from the DOJ in protest. The media covered it as an example of the President trampling the hard work of the dedicated rank and file prosecutors who keep our streets safe.

Except these four prosecutors may have quit because they did something that would get them all fired. A story by Fox News reporter, Jake Gibson, states that the prosecutors had briefed the DOJ that their sentencing recommendation was that Stone gets probation. Prosecutors don’t get to just do what they want, they have to “Touch the Desk” on sentencing with their superiors and get it signed off by AG Barr. This they did, but then they changed their sentence recommendation to a 7-9 year sentence and filed it with the judge.

To put it as nicely as I can, they lied to their boss.

And these prosecutors were part of the Mueller team as well, which failed to find any evidence that anyone on the Trump campaign colluded with any Russian government official to affect the outcome of the 2016 election. They were also on the team which convicted General Flynn, who is trying to withdraw a guilty plea he claims was extorted from him by a prosecution threat to go after his wife and son if he refused to plead guilty.

Fruit of the Poison Tree

There is a concept in the law called “The Fruit of the Poisonous Tree,” whereby the government cannot pursue an illegal means to obtain a legal end. This is why evidence obtained illegally is inadmissible in a court. This is a Supreme Court precedent that goes back to and has been affirmed since 1920. The idea of the poisoned fruit may well apply to Roger Stone’s conviction too. We now know that two of the four FISA warrants that are the predicating documents that led to charges being filed against Stone in the first place were illegally obtained; the disposition of the other two is still pending.

If these remaining two are also found to have been illegally obtained, it means that the organization that convicted people like Paul Manafort, George Papadopoulos and Roger Stone obtained warrants using a fraudulent and illegal means. We may not like these people or agree with their politics, but an entity that can put you in prison for the rest of your life can’t operate like that. It puts every one of us at great peril.

I don’t like having to defend Roger Stone at all, but no one deserves to be railroaded like this. A Harvard Law professor on Twitter asked today what to call a system where the AG intervenes in a criminal case because the defendant is a friend of the President.  He said that word was “corrupt.” I would ask a similar question: “What do you call a system that lies and cheats to hammer and old man into the dust because he’s a friend of the President?” I think, “corrupt” describes a system that works like that too.