Is there a Stone Jury Scandal? Not So Fast ...

Also, Trump is abusing his power, again.

Today I’m going to wade into two controversies that are swirling around the Trump presidency—the Roger Stone trial and sentencing and the president’s treatment of former National Security Council aide Alexander Vindman. First, a fair warning. The facts are in a state of flux, so don’t look for absolute certainty on all counts. Indeed, one of my conclusions about Stone is a strong “maybe.” Let’s do this newsletter question-and-answer style.

Question: Did a biased juror deprive Roger Stone of a fair trial?
Answer: It doesn’t look like it. At least not yet. 

Explanation: Earlier this morning, Trump supporters on Twitter exploded with allegations of jury bias in Roger Stone’s case. One of the jurors, a woman named Tomeka Hart, wrote a Facebook post defending the four prosecutors who withdrew from the case in protest after their superiors at the Department of Justice reversed their sentencing recommendation (more on that below). 

The instant Hart outed herself, conservative journalists combed through her social media history and found that she’s not just a Democrat, she’s a former Democratic congressional candidate, a frequent donor to Democratic campaigns, and before the trial tweeted multiple times not just against Trump but also about the Mueller investigation. President Trump immediately weighed in:

So, there we have it—proof the trial was tainted, correct?

Not so fast. Neither the law nor the known facts support the claim. At least not yet. 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.

Moreover, the jury selection process (called voir dire) provides attorneys with a limited number of peremptory challenges—which permit attorneys to strike jurors without showing cause—and ample opportunity to challenge jurors for cause. In the Stone case, the trial court struck at least 40 jurors for cause (38 in response to the defense team’s initial requests and two more after a request for reconsideration). 

The voir dire process is vitally important. If the prospective juror discloses all relevant material facts in response to questions from the judge and/or opposing counsel, and the judge is still satisfied that the juror can set aside any political bias to render a fair verdict, their decision will rarely be reversed. If, however, the juror is deceptive in voir dire, then the defendant may well be denied a fair trial. In a 1984 case called McDonough Power Equipment v. Greenwood, the Supreme Court succinctly explained the standard:

We hold that to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial.

Did Hart truthfully answer every material question on voir dire? If so, then these “revelations” aren’t revelations at all, and the likelihood that they could form the foundation of a new trial are slim to none. Fortunately, there’s a transcript of the oral voir dire, and the transcript does not help Roger Stone. 

Hart (identified only as Juror 1261, but identifiable by her statement that she ran for Congress and other biographical details) was questioned by the trial judge and by defense counsel. After first asking questions about Hart’s prior service on a grand jury, the judge asked a series of key questions:

THE COURT: You've also indicated a fair amount of paying attention to news and social media including about political things?

PROSPECTIVE JUROR: Yes.

THE COURT: And when we asked what you read or heard about the defendant, you do understand that he was involved in Mr. Trump's campaign in some way?

PROSPECTIVE JUROR: Yes.

THE COURT: Is there anything about that that affects your ability to judge him fairly and impartially sitting here right now in this courtroom?

PROSPECTIVE JUROR: Absolutely not.

THE COURT: What is it that you have read or heard about him?

PROSPECTIVE JUROR: So 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 COURT: Can you kind of wipe the slate clean and learn what you need to learn in this case from the evidence presented in the courtroom and no other source?

PROSPECTIVE JUROR: Yes.

THE COURT: You actually have had some interest in Congress yourself?

PROSPECTIVE JUROR: Yes.

THE COURT: Does the fact that this case involves allegations of not being truthful to Congress, is that something that you think that the nature of the allegations

alone would make it hard for you to be fair?

PROSPECTIVE JUROR: No.

The prosecution declined to ask Hart any questions. Then, defense counsel had its turn:

MR. BUSCHEL: Did you ever work for anyone in Congress?

PROSPECTIVE JUROR: No.

MR. BUSCHEL: You've worked on campaigns for Congress people running for Congress?

PROSPECTIVE JUROR: I ran for Congress.

MR. BUSCHEL: You ran for Congress?

PROSPECTIVE JUROR: I worked on my own campaign.

MR. BUSCHEL: And you have friends who worked for other congressmen?

PROSPECTIVE JUROR: Yes.

MR. BUSCHEL: Do you have any political aspirations now?

PROSPECTIVE JUROR: I don't know, not federal.

MR. BUSCHEL: What might they be?

PROSPECTIVE JUROR: My home state in Tennessee. No local.

MR. BUSCHEL: Just recognize that there might be some media— What are your aspirations?

PROSPECTIVE JUROR: I served, can I just say I served in political office in Memphis in a local office on the school board. So I, one day I wake up and say I run for, you know, office again in Memphis to impact education. One day I wake up and say no way in the world would I do that. So I don't have an immediate plan to run for office.

MR. BUSCHEL: The fact that you run for an office, you're affiliated with a political party. Roger Stone is affiliated with the Republican party, Donald Trump. You understand what I'm saying and getting at?

PROSPECTIVE JUROR: I do.

MR. BUSCHEL: How do you feel about that?

MR. KRAVIS: Objection.

THE COURT: Can you make that question a little bit more crisp? Is there anything about his affiliation with the Trump campaign and the Republican party in general that gives you any reason to pause or hesitate or think that you couldn't fairly evaluate the evidence against him?

PROSPECTIVE JUROR: No.

MR. BUSCHEL: Thank you, ma'am.

THE COURT: All right, you can step out.

R. BUSCHEL: Thank you, ma'am.

THE COURT: All right, you can step out.

(Prospective juror leaves courtroom.)

THE COURT: Mr. Buschel, you have a motion?

MR. BUSCHEL: No.

THE COURT: Okay, let's bring in the next juror.

So let’s recap. Stone’s lawyers knew that she was generally familiar with Stone, they knew she ran for Congress, they specifically asked about political bias, and then refused to seek her removal

Trump’s defenders online are pointing to the fact that she tweeted a few times about the Mueller investigation and even at least once about CSPAN, but that’s thin gruel for claiming a material omission (especially when they’re pointing to only a few tweets out of more than 13,000 she’s tweeted).

Let me add an important caveat. I’ve not seen her responses to the jury questionnaire, and the Stone jury questionnaire was far more comprehensive than in most federal cases:

Thus, it’s possible that there were material omissions in her written answers, but again—Stone’s lawyers knew she ran for Congress and they still didn’t initially seek to strike her. 

The trial judge has already rejected Stone’s request for a new trial on the basis of alleged bias of a different unnamed juror, and unless Hart lied in response to written voir dire, it’s unlikely Stone would be awarded a new trial based on Hart’s alleged bias. Time will tell, however. In the meantime, don’t believe any Twitter lawyer who claims that partisans must be disqualified from serving on juries. The question isn’t whether Hart is a Democrat, it’s whether she hid facts that would have provided a valid basis to challenge her presence on the jury.

Question: Did prosecutors seek an excessive prison sentence for Roger Stone?
Answer: Maybe.

Explanation: Earlier this week Donald Trump exploded in Twitter rage when he learned that prosecutors in Stone’s case were seeking a nine-year prison sentence. 

After Trump erupted on Twitter, the DoJ overruled the prosecutor’s recommendation, and four of the prosecutors withdrew from the case in protest (one resigned from the DoJ entirely). Putting aside for the moment the propriety of Trump’s outburst and the propriety of the attorney general’s intervention in the case, is it true that the prosecutors were unduly harsh on Stone?

Honestly, given the context, it’s far from clear. The core of the prosecutors’ case for a substantial sentence rested on the claim that Stone threatened a potential witness, Randy Credico. The alleged threats included the following (taken from the indictment in the case):

On or about April 9, 2018, STONE wrote in an email to Person 2 [Credico], “You are a rat. A stoolie. You backstab your friends-run your mouth my lawyers are dying Rip you to shreds.” STONE also said he would “take that dog away from you,” referring to Person 2’s dog. On or about the same day, STONE wrote to Person 2, “I am so ready. Let’s get it on. Prepare to die [expletive].”

If those threats were serious, then the sentencing enhancement is entirely appropriate. If they were mere bluster and puffery, then the enhancement is excessive. And, as defense lawyer Caroline Court notes in a thoughtful piece about the recommendation, Credico testified at the trial that he did not feel physically threatened by Stone. 

My own view is that reasonable minds can disagree about Stone’s threats, and it’s hardly absurd for prosecutors to take the words seriously—especially given the oddly specific threat on Credico’s therapy dog. That’s hardly the stuff of normal bluster and puffery. 

In addition, it’s worth noting that prosecutors do not decide the sentence. Stone’s lawyers have the opportunity to contest the sentencing recommendation, and the judge makes the ultimate decision. Trump was angry at a potential injustice, not an actual injustice, and his Twitter explosion created the impression that he was treating Stone to a “friends and family” criminal justice discount.

And that brings us to the next question.

Question: Is Donald Trump abusing his power with his public tirades against his enemies?
Answer: Certainly.

If we zoom out from the narrow specifics of the Stone case and look more broadly at Trump’s actions, it’s quite clear that the world’s most powerful man is sending a message—it’s time to punish his enemies and reward his friends, norms and law be damned. Yes, he’s entitled to the advisers he wants on the National Security Council, but his public attacks against Lt. Col. Alexander Vindman go far beyond the bounds of decency, propriety, and possibly even the law. 

Tweeting vicious insults against Vindman is dishonorable enough, but Trump went further, suggesting that Vindman should face military discipline

"We sent him on his way to a much different location and the military can handle him any way they want," Trump said.

Asked if he was suggesting that Vindman face disciplinary action, Trump said that would be up to the military.

If you look at what happened ... they're going to certainly, I would imagine, take a look at that," Trump said.

Federal law prohibits military commanders from engaging in unlawful command influence. Specifically, the law states, “No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.”

In plain English, it means that commanders cannot direct the outcome of military judicial proceedings, and even if Trump himself can’t be held legally responsible for unlawful command influence, his subordinates can, and unlawful command influence would be a defense in any proceeding brought against Vindman. 

And what about Trump’s intervention in Stone’s case? I agree with Jack Goldsmith’s analysis on our home page this morning:

This brings us to the Trump-Stone matter. Obama understood and supported the norm against White House non-comment on ongoing investigations but broke it a few times. That was bad. Donald Trump’s behavior here is much, much worse. It took him a long time to discover the norm, and when he did, he famously said that it was “the saddest thing.” He also attacked the norm and broke it very often in his tweet-attacks of, to take only the most prominent example, the Mueller investigation and its various trials and sentences, including its investigation into the president himself. Trump’s latest comments and criticisms about the Stone sentencing recommendation are but the latest of hundreds of violations by Trump of the norm.

Until the Stone episode, however, one could make a plausible case that the Justice Department had ignored or deflected the president's norm-violating attempts at influence. But soon after Trump’s tweet attack on the prosecutors and the judge involved in the Stone case, the Justice Department announced it was course, overruled the sentencing recommendation of career prosecutors, and recommended a lighter sentence. The Justice Department denied that political considerations went into the reversal. But that was very hard to believe since the reversal was announced in light of Trump’s comments and pressure. It became harder to believe when the president tweeted: “Congratulations to Attorney General Bill Barr for taking charge of a case that was totally out of control and perhaps should not have even been brought.” No matter what went into the reversal, it now invariably seems to be a cave to the president.

Yes indeed. The president is rewarding his (criminal) friend with special attention and advocacy and targeting his (law-abiding) enemy with threats of criminal reprisal. This is yet another abuse of presidential power, and the abuses will no doubt continue until the moment his presidency ends. 

A late addition ... 

Just as I was finishing my newsletter, Attorney General William Barr signaled that he’d had enough of Trump’s tweets. In an ABC News interview, Barr made his displeasure crystal clear: 

I’d urge you to watch the entire clip. It’s an extraordinarily blunt statement of opposition to the president’s conduct. We shall see how Trump responds.

One last thing ... 

I’ve stopped paying much attention to the political pronouncements of athletes and celebrities. I truly don’t care. I do pay attention, however, to their acts of charity and generosity. That’s where they leave a legacy, and this—from the GOAT—is outstanding. Back in 2015, he announced that graduates from his I PROMISE network would receive full-tuition scholarships to Akron University. The oldest students are now high school juniors, and he’s been able to add Kent State University to the list of schools they can attend. This is how you create opportunity and rebuild a sense of hope in America’s most vulnerable communities: