I agreed with the prosecution of Roger Stone and found it “righteous”



Via Mediaite, I missed this bit from his interview with ABC last night. It’s circumstantial evidence that I and others are wrong to doubt his good faith in how he’s handled the matter of Stone’s resentencing. Certainly he didn’t need to antagonize Trump and MAGA fans like Tucker Carlson who regard Stone’s freedom as a cause celebre by calling his conviction “righteous.” Maybe that really is his honest opinion. And of course he’s right that the case went to trial while he was AG, a wrinkle in the theory that he’s trying to cut Stone a break for political reasons.

But in that case, let’s also remember that the Stone investigation was foisted upon Barr by Mueller. If Barr had quashed Stone’s prosecution, that would have stunk of politicization even more than the recent revised sentencing recommendation did. (Instead he ordered the Durham probe, an attempt to “balance” the Russiagate probe by investigating the investigators.) We still don’t have a good explanation for why Stone and Mike Flynn received such unusual mercy from the DOJ in their new recommended sentences when federal prosecutors routinely recommend stiff sentences for defendants all over the country that go unrevised. And of course, if Barr’s worried about his own employees suspecting him of illicit motives in interfering in the Stone matter — and he is, or else he wouldn’t have done this interview — then praising Stone’s conviction is a reasonable thing for him to say whether he means it or not. This was a PR effort. Calling Stone’s prosecution “righteous” is good PR towards the intended audience even though it was destined to annoy the president and his supporters.

Nine Senate Democrats called on him to resign today, which is futile but a cheap and easy way to virtue-signal to their base. Watch a minute or so here, then read on:

As I write this, news is breaking that Stone has filed a sealed motion with the court requesting a new trial, probably related to the claims amplified by Trump on Twitter that one of Stone’s jurors was biased. This Daily Caller article sums up the evidence; she tweeted nastily about Trump and his fans a few times, accusing them of racism, and also linked a few times to articles about Trump and Russia. David French is a lawyer and went through the arguments for a mistrial at the last link. (He’s not a criminal defense lawyer but Ken White is and says French’s analysis of the issues is entirely right.) If Stone can show that the juror was deceptive about something important during voir dire, i.e. the pretrial hearing at which jurors are questioned and selected, then maybe he has a case. But if all he can show is that she had a bias, no dice. Especially if the defense had reason to know that:

The law does not require judges to sideline potential jurors who have strong political beliefs. Democrats can sit in judgment on Republicans, and Republicans can sit in judgment on Democrats. The key question isn’t whether a person is partisan but rather whether they’re capable of setting aside political bias to decide questions of fact fairly and impartially. And, believe it or not, this happens all the time in the United States of America. It’s happened in my own cases.

French reprints a lengthy part of the transcript in which the juror was questioned. She admits she once ran for Congress, and asked about what she knows of Stone and the Russia probe she says, “nothing that I can recall specifically. I do watch sometimes paying attention but sometimes in the background CNN. So I recall just hearing about him being part of the campaign and some belief or reporting around interaction with the Russian probe and interaction with him and people in the country, but I don’t have a whole lot of details. I don’t pay that close attention or watch C-SPAN.”

The DOJ’s going to flag that and say that Stone’s lawyers knew the juror was into politics and also knew that she was following the Russia thing casually and had heard Stone mentioned. They could have asked for her to be removed from the jury pool at that point, whether for cause (“she’s too biased to be fair”) or by using one of their peremptory challenges (just because they got a bad vibe from her), but they didn’t. If they ended up with a biased juror because they fell asleep at the switch, that’s their problem. Team Stone will have to show that the juror told a material lie — and if that lie is related to bias, then I assume they’ll also have to show that she was somehow incapable of setting it aside, as she assured the judge she could and would. That’s the key point in French’s analysis, that the court won’t strike a juror for bias automatically. So long as the parties are satisfied that the juror will make a good-faith effort not to let her bias affect her judgment of guilt or innocence, she’s good to go. Would her tweets about Trump fans being racist fatally damage her ability to fairly judge Stone? I don’t know.

French notes that there was also a written jury questionnaire that each juror filled out and that the public hasn’t seen. Maybe there’s something in there that they’re honing in on.

Exit question: The Durham probe is about exposing corruption, not about benefiting the president politically, right? I ask because I got a Ukraine vibe from this bit in a WaPo story last night: “After learning that the Huber investigation [of Hillary Clinton] is not likely to produce charges, Trump has become more insistent that Durham finish his work soon, according to people familiar with the discussions. Trump, these people said, wants to be able to use whatever Durham finds as a cudgel in his reelection campaign.”





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