Sentencing

Stone Cold Justice

The problems with federal sentencing guidelines are real and troubling, even in cases that do not involve the president’s pals.

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"Roger Stone Did Nothing Wrong!" proclaimed the T-shirts worn by his supporters. Federal prosecutors, by contrast, argued that Stone deserved at least seven years in prison.

U.S. District Judge Amy Berman Jackson split the difference last week, sentencing the longtime Donald Trump crony to three years and four months in prison—a penalty that still seems excessive given the nature and consequences of his crimes. In addition to the perils of presidential pronouncements about ongoing criminal cases, the case highlights the dubious wisdom and fairness of federal sentencing guidelines.

When Attorney General William Barr overrode the original sentencing recommendation for Stone, which called for a prison term of seven to nine years, the resulting controversy focused on the appearance that he was acting at his boss's behest. But whatever the motivation for the amended sentencing memorandum, which recommended "a sentence of incarceration far less" than the one originally proposed, it raised legitimate concerns that should figure in the penalties imposed on all federal defendants.

Stone was convicted of lying to a congressional committee about his attempts to help elect Trump by contacting WikiLeaks, which had obtained emails that Russian hackers stole from the Democratic National Committee and Hillary Clinton's campaign chairman. He was also convicted of witness tampering because he persistently pressured his erstwhile friend Randy Credico, one of his WikiLeaks intermediaries, to refrain from contradicting those lies.

Contrary to the claims made by some of Stone's defenders, he did not stumble into a "perjury trap" set by the president's enemies. When he voluntarily testified before the House Intelligence Committee, which was investigating Russian attempts to influence the 2016 election, the panel was controlled by Republicans and chaired by Rep. Devin Nunes (R–Calif.), a Trump ally.

Stone easily could have avoided his legal troubles by declining to testify or by telling the truth. Instead he lied, repeatedly and flagrantly, about his contacts with people he thought could relay messages to WikiLeaks, about his communications with Trump campaign officials, and about the emails and text messages that documented those interactions.

Having lied, Stone persistently pressured Credico to back up his story or avoid testifying. When Credico received a subpoena, he invoked the Fifth Amendment, as Stone had suggested.

Judge Jackson indignantly rejected the idea that none of this was a big deal, and she had a point. Unless you think Congress has no business holding hearings on issues such as foreign meddling in U.S. elections, it seems clear that witnesses at those hearings cannot be allowed to lie with impunity.

Yet the actions Stone tried to conceal, while potentially embarrassing to the president, were neither criminal nor consequential, and the facts eventually emerged despite his dishonesty. And while the assistant U.S. attorneys who prosecuted Stone argued that he deserved a hefty sentencing enhancement for threatening Credico with violence, Credico himself implored Jackson not to impose a prison sentence, emphasizing that he never took the defendant's bluster seriously.

In addition to making that point, the amended sentencing memorandum questioned "the two-level enhancement for obstruction of justice," which was based mainly on Stone's public statements about his case. While conceding that the enhancements recommended by Stone's prosecutors were "arguably" consistent with the guidelines and "perhaps technically applicable," the second memorandum argued that the resulting sentencing range was disproportionate for nonviolent crimes.

The memorandum noted that prosecutors have a duty to pursue justice, not simply to clobber defendants with the heaviest penalties the law allows. It thereby called attention to the disjunction between just punishment and the sentences recommended by the guidelines, which have long been criticized as excessively harsh, mechanical, and complicated yet blind to relevant moral differences.

"Many defense attorneys and judges have been making that point for a very long time," Jackson noted last week, "but we usually don't succeed in getting the government to agree." The problems with the guidelines are real and troubling, even in cases that do not involve the president's pals.

© Copyright 2020 by Creators Syndicate Inc.

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  1. Principles usually save a lot of time and trouble, and reduce most problems to nothing burgers.

    For instance, if victims were the only ones who could prosecute, all the problems with this impeachment and its fallout would disappear. Same thing with the contraband wars, kidnapping kids because their parents let them play in the front yard, and a zillion other crimes.

    Of course, people should be able to hire private lawyers to do the actual prosecution, private police to investigate, etc; and should be able to sell their cases. Even if you want governments to redistribute wealth so the poor can sue the rich, you can do that with loser pays instead of tax redistribution.

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  3. Bunch of crap. If you are investigating a crime that never happened then what is said is irrelevant NEVER TRUMPER ELITIST FUCKHOLES.

    1. But two crimes happened, lying to Congress and witness tampering.

      Stone could have avoided that by just telling the truth to Congress.

      1. Why should you have to tell the truth to Congress ? Congress is not a court. Still less why should Congress be allowed to demand that you attend to answer their questions ? (Not Stone’s position, as noted above.)

        Unless you think Congress has no business holding hearings on issues such as foreign meddling in U.S. elections, it seems clear that witnesses at those hearings cannot be allowed to lie with impunity.

        Not clear to me at all. If the Congressmen themselves can lie with impunity – as the Constitution provides – there’s no reason at all why witnesses should not be premitted to lie with impunity also.

        Congress has the constitutional task of legislation, and of impeachment. That’s all folks. If they want to have a hearing to help them decide how to legislate, fine. But there’s no reason at all why anyone should be dragged before them to answer their questions. Nor is there any reason why people appearing before them should forfeit their 1st Amendment rights to say whatever they please.

        The punishment for lying to a Congressional committee should be identical to the punishment that a Congressman faces for lying in a Committee hearing, or on the floor of the House. Nothing, except the adverse opinion of the public.

        Unless you think Congress has no business holding hearings on issues such as foreign meddling in U.S. elections, it seems clear that witnesses at those hearings cannot be allowed to lie with impunity.

        1. Yes, it sucks that politicians lie so much without punishment. But your solution (to let people lie all the time without punishment) will just debase politics further, and guarantees that laws will be passed with even less basis in fact/reality than at present. Why would you want that?
          According to your logic we should also legalise lying to the FBI since they are not a court and they’re allowed to tell lies. That too would have unintended negative consequences.

          1. Lying to the FBI is lying in the course of a proceeding that leads to the criminal courts, and so it could be analogised to lying in court. But IMHO it’s still pretty marginal, especially now we see that the FBI is happy to question people about non criminal conduct and then indict them for lying. There’s an argument that making lying to the FBI non criminal might actually help law enforcement, as currently only an idiot answers FBI questions. Maybe voluntary cooperation should be encouraged.

            But as to Congress, the notion that being able to subpoena witnesses contributes to better legislation is absurd. Without compulsion and without the threat of punishment, voluntary witnesses can step forward as they please. But at present compelled witnesses are just there to be hectored by grandstanders for political profit. It has nothing to do with legislation. And non idiots (ie non Roger Stones) have to spend thousands of dollars to hire lawyers to help them avoid pernury traps while the hectoring is going on.

      2. IIUC you have no problem with Comey, Brennan, et. al. being convicted of lying to Congress?

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  5. > and the facts eventually emerged despite his dishonesty.

    Are you really considering this to be a mitigating factor? It’s not chargeable unless the facts emerge…

  6. Roger Stone lied under oath to Congress. I don’t think that is in dispute. For this, he deserves sanction. You can plead the fifth, you can refuse to answer; but you do not lie to Congress. Sorry, but that is a line you cannot cross and it doesn’t matter whether you are Team D or Team R or Team Libertarian.

    I would suggest that in lieu of incarceration, levy a fine. And then commute any portion of the sentence calling to serve time in prison. At this stage, I don’t think our Republic is well-served by prolonging the agony.

    1. That’s the rational answer. Yes, Stone was clearly guilty. However, his arrest and trial were also clearly partisan to the point of being actual political prosecution. His true crime was supporting the president.

      Since when do we arrest white collar criminals whose only crime is perjury with a SWAT team on live television? Since when does perjury, something that multiple high level elites have clearly engaged in yet received no punishment, merit a 9 year prison sentence? Even three years seems high.

      Since when do we allow political partisans who have repeatedly called for the defendant’s head to serve as forewoman of his jury?

      I can dislike Stone immensely and think he’s guilty as sin while still seeing the transparent travesty of justice in this case.

      1. Yes Ben, I agree that the prosecution was misguided and partisan. That is why I think commutation is appropriate.

      2. Regarding the SWAT team – clearly you have missed the extensive coverage at Reason (and elsewhere) on the militarization of the FBI and local and state police forces. This is cop culture: overwhelming force, because grandma might have a pistol in her nightstand.

        Tomeka Hart, while clearly partisan, did not “call for the defendant’s head”. In fact I think there was only one mention of Stone in all her posts (until after he was convicted).

    2. It’s not the lying to Congress that is the problem. It’s the lying under oath. Perjury should be the only means to charge someone with lying. The person has to swear to under oath to tell the truth and then get caught lying to a material fact.

      A contract to tell the truth, if you will.

      Politicians can lie to the public and no charges are forthcoming.
      Police can lie to the public and no charges are forthcoming.
      Bureaucrats can lie to the public and no charges are forthcoming.
      If YOU lie to these government people, sometimes you can be charged with a crime even when you’re not under oath.

      1. Roger Stone was stupid to testify as he was a political target. It’s almost like he wanted to get caught up in some political prosecution.

        Then the FBI did that raid like Roger Stone was some violent criminal.

        Then the DOJ was going to take its pound of flesh from Stone if they could not take down Donald Trump.

        Then the judge makes little comments at sentencing that showed clear bias to drag in President Trump.

      2. The First Amendment protects all speech including perjury. If the founders had wanted perjury to be a crime they would have excluded it from the Amendment.

        Every perjury conviction since 1790 is therefore invalid.

        1. I suspect that’s wrong. 1A prohibits Congress from making a law infringing the freedom of speech. I imagine perjury was already criminal under the common law. The notion that federal crimes required a statute only occured to the judiciary later.

          1. Statues replace common law. When they start making statues in an area they replace the common law. When the statute is ruled unconstitutional shortly after Congress may not then create a law saying to return to the common law, because that is now a new law, and hence blocked by the First Amendment.

            1. Dont think so. Codifying a common law offense into statute does indeed eliminate the common law offense. Such that if a later law eliminates the statutory offense, then nothing is left of the offense, statutory or common law.

              But obviously if the statute is unconstitutional then it’s void ab initio and has no effect on anything. including the common law offense

    3. He should be held to the same standard as the director of the NSA (or was it the CIA?). If public officials lying to their oversight committees about unconstitutional actions is no big deal then so is lying about a non-crime.

    4. but you do not lie to Congress. Sorry, but that is a line you cannot cross and it doesn’t matter whether you are Team D or Team R or Team Libertarian.

      Why? What’s inherently wrong about lying to congress?

      1. Dude, if I have to explain why lying is wrong….c’mon now.

        1. Well, you do have to explain why it’s wrong enough to justify prison when Congress lying to the rest of us earns a penalty of … nothing.

          Lying to your barber is wrong. Lying to your bartender is not illegal. Lying to your doctor is wrong and probably self-destructive but not illegal. Lying to a court is wrong and illegal because your lie directly puts another person’s life and/or liberty in jeopardy. What, precisely, makes Congress like the court and not like your barber and doctor?

        2. Dude, if I have to explain why lying is wrong….c’mon now.

          I didn’t ask you to explain the relative morality of lying. I specifically asked you to explain why lying to congress is wrong.

        3. Please, explain why its CRIMINAL (not unethical or unsustainable) for a witness to lie to Congress, but not for Congressional members, the President, SCOTUS, Law Enforcement, the mailman, (name your government agent) to lie to the public, witnesses, defendants, etc, in the course of their official business.

    5. I disagree with your premise. Sorry, but if Congress can lie to us with impunity then we can lie to Congress!!! You can’t have it both ways whether you’re team D, R or L.

      But I agree that no prison time is warranted for this nonsense.

  7. Meanwhile

    The heads of multiple US spy agencies have repeatedly lied to Congress about the existence of, and scope of illegal intelligence operations against American citizens. These lies concealed crimes committed by the agencies, and thwarted Congress ability to conduct oversight.

    These former agency heads are routinely invited on cable news and to give lectures, and their actual crimes are public knowledge.

    1. This is the real issue.

      Stone apparently is a creature entirely built of B.S. His lies were of no actual consequence in the grand scheme of things – yet the government went after him as if he were spying for the Nazis during WWII.

      Meanwhile, government officials who were actually subverting the election and subverting the peaceful transfer of power were actively lying about it to congress and the American people, some under oath, some not, and they have yet to face even a decent public shaming. Their actions had real consequences for the government and the rule of law.

      The fact that our priorities are so entirely backward that we treat a political gadfly and B.S. artist who managed to do exactly nothing as if he were a great threat to democracy while ignoring the actions of our highest ranking officials in attempting to alter the election and then subvert the results of the election is stunning.

      1. Lefties in the DOJ and FBI were trying to use Roger Stone to go after Trump.

        They already knew that Roger Stone was a liar, so they hoped to perjury trap him and then the threat of real prison time would get him to lie about Trump, so the Lefties had some Trump associate AH-HA moment.

      2. Yes, you have shown why this entire episode is so appalling. The double standard we see plainly is breathtaking. It is tearing us apart.

  8. “the two-level enhancement for obstruction of justice,” which was based mainly on Stone’s public statements about his case –

    Gee, I thought the two level enhancement was based on Stone’s extreme risk of violence due to deadly threats.
    He really said in one conversation “prepare to die, cocksucker!”. And the victim of that “deadly threat” (or bad Princess Bride quote) stated on the record it did not intimidate him at all.

    1. Meanwhile, threats of prosecution, bankruptcy and years in prison for entirely subjective process crimes if you do not provide the testimony they’d like is not considered witness tampering.

  9. This would all be making a pretty good point, if it weren’t for the fact that we have witnessed a parade of extremely high ranking government officials lying to congress about matters that are of much greater consequence than some political gadfly’s failed attempts to coordinate with Julian Assange.

    We have top law enforcement and intelligence officials lying to congress on things that actually matter to US governance, and they didn’t even face a significant rebuke, let alone a decade in prison.

    And that’s without even going in to the differential treatment of actual crimes committed by the candidate for the other party that were not investigated with the “get people on process crimes and prosecute them into bankruptcy to get them to flip” fervor of the Trump “investigation.”

    You put all of this into context and it is really hard to avoid concluding that there is a great deal of political bias at work in the application of justice.

  10. Don’t ever, for any reason, do anything to anyone for any reason ever, no matter what, no matter where, or who, or who you are with, or where you are going, or where you’ve been… ever, for any reason whatsoever…

  11. Stone is an asshole. He lied. He lied to Congress when he had no good reason to do so. What he lied about was not, in itself, a crime, but he lied anyway.
    Brennan lied to Congress. Clapper lied (I want to play poker with him; he has a bad tell). Comey lied to Congress. McCabe lied to Congress. None of them are even being considered for prosecution, even though some of them lied about something which was at least a violation of department standards, if not an actual crime.
    Just as the trial judge said, he was guilty of trying to cover for Trump. Unforgivable.

    1. That quote was fairly unforgivable. There was nothing of Trump in this.. nothing to cover for. Talk about having a tell.

  12. Seems to me that simply telling the truth would have been a lot more damning to the DNC. Something along the lines of ‘ Yes we did receive emails from WikiLeaks stolen from the DNC by Russian hackers. If the DNC is so lax in their security that they can’t even protect their own emails, how will they be with our national security?’

  13. […] the second memorandum argued that the resulting sentencing range was disproportionate for nonviolent crimes.

    In light of the DoJ’s arguments in front of the SCOTUS this week in United States v. Sineneng-Smith, this is hilarious.

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  15. It would be interesting to see a list of people who have been indicted and convicted of lying to Congress in the last, say, 30 years. I cant believe it’s a long list.

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