Roger Stone Judge Strikes Blow For Judicial Independence

Posted February 20th, 2020.

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By Jody Godoy

Law360 (February 20, 2020, 10:29 PM EST) — The judge who sentenced Roger Stone for obstruction called President Donald Trump’s remarks on the case inappropriate, a rebuke that former judges said served to underscore the importance of an independent judiciary in a distrustful era.

U.S. District Judge Amy Berman Jackson sentenced Stone to three years and four months in prison on Thursday for obstructing investigations by Congress and the FBI into Russian interference in the 2016 election.

Trump had called a proposed seven-to-nine-year sentence “very unfair,” after which the U.S. Department of Justice revised its position to call for less time. While handing down the sentence, the judge implicitly called Trump’s comments on the case “inappropriate” and said they hadn’t affected her decision in any way.

“The court cannot be influenced by those comments,” Judge Jackson said. “They were entirely inappropriate.”

Acknowledging that the judge’s comments were unusual, former federal judges applauded them on Thursday, telling Law360 that the remarks highlighted the importance of judicial independence.

Former U.S. District Judge Shira A. Scheindlin was on the bench in Manhattan for 22 years. Now practicing at Stroock & Stroock & Lavan LLP, she said the commentary was unusual but that Trump had made it increasingly necessary to protect the judiciary.

“I think she was saying, ‘Don’t push the judiciary around,'” Scheindlin said. “The judiciary is an independent branch. The legislative and executive should not interfere with our work. We don’t interfere with theirs, and they shouldn’t interfere with ours.”

Richard Holwell, a founder of Holwell Shuster & Goldberg LLP and former U.S. district judge in Manhattan who presided over high-profile insider trading trials, said the Stone case was unique for drawing presidential commentary that was rebutted in court.

However, Holwell said Judge Jackson was stating the obvious when she called the president’s tweets inappropriate. Attorney General William Barr himself recently criticized the president’s tweeting habits in an interview with ABC News.

“The executive branch is obviously entitled to speak on criminal cases, but they should speak in court. That has been the golden rule forever,” Holwell said.

Judge Jackson isn’t the first to call out the president. Scheindlin and other former judges have spoken publicly on judicial independence, and Trump’s comments about other judges have drawn fire from law groups and U.S. Chief Justice John Roberts.

None of that has stopped Trump from commenting. But by putting down her thoughts for the record, Judge Jackson was sending a broader message, said Timothy K. Lewis of Schnader Harrison Segal & Lewis LLP. Lewis sat on the Third Circuit bench as well as in district court in Pennsylvania before entering private practice.

“All of this offers us the opportunity to understand the critical importance of the separation of powers and the integrity of the judiciary that must be maintained against all attacks, all outside efforts to influence judges, and anything else that might undermine that integrity,” Lewis said. “That is obviously what she has exemplified in how she handled the sentencing today.”

If the implied bench-slap for Trump was unusual, ex-judges said the sentence itself was not, given the facts of the case, Stone’s age and his status as a first-time offender.

Scheindlin, the longtime New York judge, said that both the government’s initial guidelines recommendation and the lower sentence ultimately imposed were within the norm.

According to data compiled by the U.S. Sentencing Commission, fewer than half of all sentences handed down in 2017 were within the range called for by the federal guidelines. That figure is down from 60% in 2006.

“It’s typical for the government to ask for a guidelines sentence. There was nothing inappropriate about asking. However, I never thought she would give it,” Scheindlin said.

While former judges said Judge Jackson herself would not have been influenced by outside opinions, whether from the president or otherwise, they agreed that public opinion is crucial to the legitimacy of the judiciary.

“It only works in the sense that people trust it,” said Kevin Sharp, a managing partner at Sanford Heisler Sharp LLP who was on the federal bench for six years in Tennessee. “Any time you erode people’s trust in that system, it is bad for the judiciary. It is bad for society.”

Judge Jackson made a similar appeal when rejecting Stone’s argument that his obstructive conduct didn’t affect the investigations. If he were to go unpunished for “covering up for the president,” the judge said, “everyone loses.”

“The truth still exists. The truth still matters. Roger Stone’s insistence that it doesn’t, his belligerence, his pride in his own lies, are a threat to our fundamental institutions, to the very foundation of our democracy,” the judge said.

–Additional reporting by Khorri Atkinson. Editing by Brian Baresch.

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