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Fox News Senior Judicial Analyst Judge Andrew P. Napolitano

From the Freedom Files

The Curious Case of Roger Stone

Roger Stone is a gifted political consultant known for going the distance for his clients. He has worked for such marquee names as Richard Nixon, Ronald Reagan, Tom Kean and Donald Trump. His expertise is the lawful destruction of the opposition candidacy — what is known in the trade as opposition research. In that process, he has made enemies, some of whom have sought to destroy him.

That process of destruction began a year ago, when he was ordered out of the bedroom that he shared with his wife, and out of their home at 5:30 in the morning by no less than 23 federal agents carrying assault weapons. Behind his home on a Fort Lauderdale canal was a government boat filled with federal agents. Above his home was a government helicopter also filled with feds. All of this was captured in real time by CNN, which the feds had unlawfully tipped off about the coming raid.

Notwithstanding the armada the government sent to fetch Stone, a Florida federal judge, who noted that a phone call to Stone's lawyers would have produced him, released Stone without the obligation of posting bail. He was soon indicted for lying to Congress, intimidating a witness and obstruction of justice. Last fall, he was convicted on all counts, and the trial judge unconstitutionally prevented him from speaking publicly. The prosecutors recommended a 7- to 9-year sentence to the trial judge. In Stone's case, he faces a maximum of 50 years in a federal prison.

From where did the prosecutors get their numbers? Congress has enacted guidelines, which produce mathematical calculations as guides for federal judges. There was a time when these guidelines were mandatory, but a long-simmering uproar from the judicial and legal communities resulted in the guidelines becoming advisory. The statute achieving that goal was signed into law by Trump.

When Trump learned that the feds were seeking 7 to 9 years from Stone, he tweeted harsh criticism of the system and personnel that produced that recommendation.

The prosecution's numbers were the product of numerous subjective evaluations of the facts in Stone's case and in his personal background. In my career as a state judge in New Jersey, I sentenced more than 1,000 persons using a system similar to the current federal one. The guidelines give the judge a range, and the judge can deviate, upward or downward, based on the facts in the case. Facts, not bias.

Some of the questions that justify deviations are: Is the defendant remorseful? Does he consider his criminal behavior the cost of doing business? Is the defendant a danger to society? Was his threat to kill a witness's cat real or fanciful? Did he even have the present apparent ability to kill the cat?

If you love Stone, you will have one set of answers. If you hate him, you will have another. If you are truly neutral — as judges, but not prosecutors, must be — you will base your answers only on the evidence in the case.

When Attorney General William Barr learned of Trump's displeasure with the recommendation from the prosecutors, he made it known that he would offer to the trial judge a different recommendation. Upon learning that, the four prosecutors in the case resigned.

Then, on the same day that the prosecutors resigned, the foreperson of the jury — herself a lawyer — outed herself as a stalwart opponent of all things Trump and a supporter of the now-resigned prosecution team.

Barr's intervention in the case set off a firestorm in the Department of Justice, as long-standing DOJ procedures give federal prosecutors the discretion to suggest punishments for defendants whom they have prosecuted — with little input from their superiors. When Barr bigfooted his prosecutors and they resigned, all hell broke loose among the thousands of prosecutors across the country employed by the DOJ.

Then Barr went on national television and, with his tongue firmly planted in his cheek, criticized Trump for his tweets, which he described as a "running commentary... that make it impossible for me to do my job." At first, those of us who monitor these things could not believe our eyes or ears. Was Barr publicly challenging Trump to cease a process that has brought the president unimaginable success? Of course not. This was a political effort to quell the uprising among his troops, and a dog whistle to Trump that the DOJ gets his messages.

All this has created a monstrous headache for the trial judge, but the judiciary has the tools with which to address this. The judge needs to call Stone's lawyers and the resigned prosecutors into her courtroom, along with the jury foreperson. She should interrogate the foreperson. Why didn't you tell us of your antipathy to Trump? Don't you know as a lawyer that even an accurate answer can be misleading and thus frustrate a criminal trial? Are you, were you, a truly neutral juror?

And to the resigned prosecutors: Why did you resign from the case? Did you know of the foreperson's prejudices? Would you want a juror who felt about the prosecution the same way this juror felt about Trump and his supporters?

Stone continues to maintain his innocence — now more so knowing he was tried unfairly. And he is entitled to a new trial, no matter what his jury found. Why? Because it is better that a thousand guilty persons go free than one unfairly be punished. Because the history of human freedom is the history of paying careful attention to procedure. Because in America we only punish those who were fairly convicted. Because politics and bias have no moral or lawful place in American criminal prosecutions.

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