It seemed like a silly response, from the perspective of actually accomplishing anything, that a thousand, now over two thousand, “alumni of the United States Department of Justice” called for the resignation of Attorney General Bill Barr, and condemned his sticking his nose into, and overruling, the position taken by the four assigned prosecutors in the Roger Stone prosecution. But even though it wouldn’t force Barr to resign, how else could they register their outrage at this flagrant politicization of their former office, and best brand marketing machine?
Put aside the secondary rationalization that the Guidelines Sentence against Stone was ridiculously harsh, because there’s no serious belief that the AG was motivated by his inner angel of fairness and proportionality, even if that would be nice. This was a crony move, and that made it dirty even if it wasn’t otherwise wrong.
But let’s not kid ourselves, beyond virtue signaling, particularly if you know some of the names on that ex-prosecutor letter and how happy they were to roll in the dirt when they had any authority (Hi Mary Lee Warren), it was going nowhere. And ironically, if it had, what makes the signatories believe the next AG named by Trump would be the paragon of DoJ virtue to “restore” faith in its integrity?
Then a new player entered the game, prompting the Greta Thunberg Chair Professor of Constitutional Law at Harvard Law School to put down his wine glass and twit.
This is rolling thunder. One stuffed goose named Barr is cooked. 2000 DOJ alumni he can ignore. 1000 federal judges? That’s an altogether different kettle of fish.https://t.co/BcQA2hKTbG
— Laurence Tribe (@tribelaw) February 17, 2020
Philadelphia U.S. District Judge Cynthia Rufe, who heads the independent Federal Judges Association, said the group “could not wait” until its spring conference to weigh in on a deepening crisis that has enveloped the Justice Department and Attorney General William Barr.
“There are plenty of issues that we are concerned about,” Rufe told USA TODAY. “We’ll talk all of this through.”
According to the mission statement of this group, it exists to support judicial independence, which explains why it’s been so critical of Linda Greenhouse’s New York Times op-eds.
The Federal Judges Association (FJA) is a national voluntary organization of United States federal judges, appointed pursuant to Article III of the Constitution, whose mission is to support and enhance the role of its members within a fair, impartial and independent judiciary; to actively build a community of interest among its members; and to sustain our system of justice through civics education and public outreach.
After all, life tenure isn’t enough to protect their Article III feelings.
Inevitably, from time to time, some judicial decisions are unpopular. The FJA, as an independent organization, can speak in one voice to protect the independence of the judiciary and to explain its significance to a free society. The Association expresses the collective view of Article III judges to other branches of government and the public on issues related to fair and impartial courts.
The Article III judge who will impose sentence on Roger Stone is Amy Berman Jackson, appointed to the D.C. district court bench in 2011 by President Obama. She was confirmed 97-0. She knows her job.
While Trump has attacked judges with the vigor of a wayward three-year-old,* even if lacking the child’s depth of understanding law, Constitution and civics, it’s amounted to nothing. No judge has been removed because Trump called the judge a “Mexican.” While it’s been unhelpful for public understanding of the role of the judiciary and the separation of powers, there hasn’t been a lot of support from either tribe for judicial independence.
Judge Jackson will ultimately sentence the defendant before her, Roger Stone. The ugliness of the government’s initial demand for seven to nine years, compounded by its almost immediately modification for release plus a cupcake at the behest of Main Justice, is not particularly critical. For reasons that can’t quite be explained, many people seem to believe that Barr’s crony discount applies, even though he’s not the proprietor of the judge shop.
Judge Jackson will read the Pre-Sentence Investigation Report, prepared by a United State Probation Officer, which will include the PO’s calculations under the United States Sentencing Guidelines. She will read the government’s submission. She will read the defendant’s submission. She will listen to argument at sentence. She will then sentence Roger Stone in accordance with her reading of the facts, law and parsimony clause.
In other words, Barr’s interference is ugly and wrong, even if you agree that the proposed sentence was Draconian, but it does not dictate what Judge Jackson will do. In the courtroom, the position taken by the prosecution, whether the unduly harsh prosecutors who were assigned and tried the case or the unduly harsh prosecutors for anyone other than Stone at Main Justice, is just one side’s opinion.
Judge Jackson doesn’t take orders from Barr. Judge Jackson doesn’t have to follow Barr’s recommendation. Judge Jackson can impose whatever sentence she believes the law requires, and indeed, that’s her job, and it’s a job she will hold for as long as she wants. Trump likely knows this, as his sister, Mary Anne Trump Barry (known to the inner circle as “the smart Trump”) was a Third Circuit judge before her retirement.
If Judge Jackson knows her job, and Article III shields her from the viciousness of presidential twitter, and the judicial branch of government has no role in the functioning of the executive branch of government, or the attorney general’s management of the Department of Justice, what does the FJA has to do with anything?
[Judge] Rufe said the judges’ association is “not inclined to get involved with an ongoing case,” but she voiced strong support for Jackson.
“I am not concerned with how a particular judge will rule,” Rufe said, praising Jackson’s reputation. “We are supportive of any federal judge who does what is required.”
Being supportive of Judge Jackson seems an okay thing to do, but then, did Judge Jackson ask for anybody’s support? Why insert the judiciary into this tempest now? Why give an interview to a newspaper about a bunch of upset ex-prosecutors who believe in the efficacy of a Change dot Org petition? And most importantly, why whip Larry Tribe into a frenzy and disrupt his candlelit dinner with Louise Mensch at Tasty Burger?
- In Stone’s case, the president of the United States of America had this to offer:
“Is this the judge that put Paul Manafort in SOLITARY CONFINEMENT, something not even mobster Al Capone had to endure?” Trump tweeted last week, referring to U.S. District Judge Amy Berman Jackson. “How did she treat Crooked Hillary Clinton? Just asking!”
Remarkably, all the words were spelled correctly.