Legal Expert on Roger Stone: ‘Nothing Trump Can Do’ Affects Judge’s ‘Complete Discretion’ on Sentencing

Roger Stone, longtime friend and confidant of US President Donald Trump, speaks to the pre
Andrew Caballero-Reynolds/AFP/Getty
Robert Kraychik

Judge Amy Berman Jackson, who is presiding over Roger Stone’s trial, has complete discretion in sentencing and is fully independent of President Donald Trump, explained John Malcolm, senior legal fellow at the Heritage Foundation, vice president of the Institute for Constitutional Government, and director of the Meese Center for Legal & Judicial Studies.

Malcolm joined Wednesday’s edition on SiriusXM’s Breitbart News Tonight with host Rebecca Mansour and special guest host Ed Martin.

Mansour invited Malcolm to express Democrats’ grievances with Trump’s tweets regarding Judge Jackson and Roger Stone.

Malcolm replied, “Ever since the Watergate era, there has been a sort of understanding that the White House is supposed to be hands-off with respect to what the Department of Justice does, particularly in politically sensitive investigations.”

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On Tuesday, four Justice Department (DOJ) attorneys — described as “leftover Mueller prosecutors” by Malcolm — who tried Roger Stone, resigned their positions in protest against a DOJ recommendation to reduce their original sentencing recommendations.

Sen. Chuck Schumer (D-NY) and other Democrats are accusing Trump of inappropriately “interfering with career prosecutors in a politically sensitive case,” added Malcolm, noting Schumer’s call for an investigation to be launched by the DOJ’s inspector general following the aforementioned prosecutors’ resignations.

“Bill Barr has said — or the Department of Justice has said — ‘Hey, we made the decision and had filed this memorandum’ revising — sort of taking away the original recommendation — suggesting a far lesser sentence before Donald Trump said anything. And Donald Trump has not spoken to anyone at the Department of Justice, and Donald Trump has said he didn’t speak to anybody at the Department of Justice, but he’s left himself open to that charge.”

Despite the DOJ’s statement that Trump had not directed it towards any action regarding Roger Stone, “[Donald Trump] has left himself open to that charge,” determined Malcolm, highlighting Trump’s recent tweets.

Malcolm remarked, “I don’t think at the end of the day, that any of this is going to make much difference in terms of the sentence that Roger Stone receives, and, in fact, if anything, I’m not sure that President Trump did Roger Stone any favors today because in addition to this perception that perhaps he interfered, one of the tweets he sent out took a direct swipe at the judge who was going to be sentencing Roger Stone of February 20th for actions she took in the Paul Manafort case where she was also the presiding judge.”

Malcolm continued, “Judge Amy Berman Jackson sat through this entire trial. She heard all the evidence. She had warned Roger Stone several times that she was going to revoke his bond because he wouldn’t stay off social media. So the original prosecutors can recommend seven-to-nine years. The Department of Justice can revise that down to three-to-four years. Stone’s attorney filed something that says a year to two years is more appropriate.”

Malcolm emphasized judges’ independence from the president given the constitutional separation of powers.

“Judge Jackson is going to do what Judge Jackson is going to do, and she’s familiar with the facts of this case. For what it’s worth, I think the initial recommendation was overwrought.”

Malcolm estimated, “I don’t think the president did anything wrong,” adding, “I don’t think, particularly, he did Roger Stone any favors. Of course, if he ultimately pardons him, and he’s left open that possibility, then he’ll do him a real favor, but these tweets, I don’t think, particularly help Roger Stone.”

On Thursday, Attorney General William Barr said Trump’s tweeting about the DOJ was making it “impossible for me to do my job.”

Judge Jackson “has complete discretion as to what the sentence will be,” explained Malcolm.  “The sentencing guidelines — and that’s what everybody’s fighting about, what’s the appropriate guideline range — are all advisory. They are not mandatory, and the judge has complete discretion. She could give him a one-year sentence. She could give him probation. She could give him a nine-year sentence. She could give him anything in between or even a sentence above nine years. She has a statutory maximum, which is well above nine years. He was convicted of seven different felony counts for obstruction and witness tampering and making false statements to Congress. So these are all just recommendations.”

Malcolm added, “Judge Jackson will give the sentence she feels is appropriate on February 20th, and then President Trump will do whatever President Trump wants to do. He could commute the sentence. He could leave it alone. He could pardon Roger Stone. He has that authority under the Constitution.”

“She has life tenure, subject to good behavior,” noted Malcolm of Judge Jackson’s position. “That’s why she has life tenure so that she will be separated and above all these political considerations. [Donald Trump] can decide to pardon Roger Stone or commute his sentence after she does what she does, but she is completely independent from President Trump. Whether she will pay any attention to his tweets, or whether that will stiffen her spine and make her want to sentence Roger Stone to something higher, that is completely up to Judge Jackson.”

Breitbart News Tonight broadcasts live on SiriusXM Patriot channel 125 weeknights from 9:00 p.m. to midnight Eastern or 6:00 p.m. to 9:00 p.m. Pacific.

Follow Robert Kraychik on Twitter @rkraychik.

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