Roger Stone, just sentenced to 40 months in prison for impeding a congressional investigation of Russian election interference, is seeking the removal of the federal judge who convicted him, in the latest turn of a bizarre legal odyssey.
The case has been fraught with political overtones as President Donald Trump and conservative commentators have leveled broadsides against U.S. District Judge Amy Berman Jackson and the jury’s forewoman, saying political bias has tainted the proceedings.
And that, former federal prosecutors say, is why Stone’s defense team may have thrown a Hail Mary in their motion for Jackson to recuse herself — not to win a new trial, but to win political intervention in the future.
“There is zero chance she recuses herself. This is a ridiculous motion,” said Randall D. Eliason, an adjunct professor of white collar crime law at George Washington University and a former assistant U.S. attorney.
“This has been a political case from start to finish, and this motion gives anyone who wants it ammunition to argue the judge was unfair,” he told The Washington Post on Saturday.
Stone’s legal team has zeroed in on Jackson’s remarks during sentencing Thursday to bolster its argument of bias. They noted in a motion late Friday that Jackson said, “The jurors who served with integrity under difficult circumstances cared,” among other comments to demonstrate the seriousness of the proceedings.
That framing, Stone’s team argued, suggests Jackson has already determined one juror in particular had no bias, which is central to their demand for a new trial. Grant Smith, one of Stone’s attorneys, declined to provide any additional evidence or name the juror, saying the remainder of the motion is under seal. But Tomeka Hart, a former Democratic candidate for Congress, revealed herself as the jury forewoman in a Facebook post, leading to attacks from Trump and others.
Jurors were asked whether they posted public comments about Stone, the House or the special counsel investigations into Russian interference in the 2016 election. While it is unclear what Hart disclosed, she said in public jury selection that she had not formed an opinion about Stone and was seated after both sides had a chance to press her.
A representative for the prosecutor’s office declined to comment.
Stone’s four-page motion relies on parsing a few words of Jackson’s statement and not much else, said Eliason, a former section chief for federal white-collar prosecution in District of Columbia district court. “This says nothing at all about the merits of any particular juror,” he said.
The comments were a generic recognition of institutions, he said, and even if Jackson had to defend her words, she could argue she did not identify any jurors in particular and did not say every single one served with integrity.
But the real value of the strategy appears to be groundwork to bolster a pardon or commutation from Trump, Eliason said. The president has already suggested on Twitter that he may pardon Stone, and this could be more kindling for Trump to heap onto his grievances.
“There is some synergy there between Trump’s impertinent tweets about the justice system and Roger Stone’s defense strategy,” said Glenn Kirschner, a former assistant U.S. attorney. It is also helpful to raise any legal challenge to preserve for an appeals court, he said.
While the motion could be designed to delay Stone’s transfer to a prison, it appears Trump may pardon him as soon as he gets a chance.
“I think Trump has an itchy pardon finger,” Kirschner said. “Trump is unrestrained, and Congress has allowed it, and I don’t think Roger Stone will spend one day behind bars.”
Deborah Sines, a retired assistant U.S. attorney in D.C. district court, agreed that the request to recuse has little chance of being granted.
“The motion contains absolutely no case law, not one case that says under these circumstances, a judge should recuse herself,” she said Saturday. “That to me speaks volumes. That means they’re going to lose their motion.”
While a motion to remove a judge could be one strategy to help their client in the future, Sines said it appears to be a last-ditch effort many attorneys would make, even with little hope of success.
But even if Jackson were to recuse herself and Stone were granted a new trial, he might get another judge who is no more lenient.
“Sometimes when you get what you ask for, it’s not what you want,” she said.
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The Washington Post’s Spencer S. Hsu, John Wagner and Matt Zapotosky contributed to this report.