DC Law

So many of this week’s top news stories involve legal matters in Washington, D.C. that I’m making it the focus of this week’s column.

There’s the Roger Stone case, the decision to close the investigation into Andrew McCabe over the Horowitz referral that indicated that he had lied to the FBI about the Clinton email leak, and Congressman Jerry Nadler’s calling Attorney General William Barr as a witness in an upcoming hearing. 

(a)  The Problem with DC juries

Washington, D.C. has a relatively small population from which jurors must be found for the federal and local grand juries, petit juries, and civil juries. People who serve on these juries must be citizens with no felony convictions, people with no connection to the attorneys or parties, and must have no bias respecting the matter tried. Since almost 80% of the city are Democratic voters, often employed by the government or are connected to law enforcement or have family members who are, the ability to expeditiously find panels in criminal cases is limited. Worse yet, the chance of an unbiased panel in a case involving Republican figures is minimal. If you think this puts Republican figures at far greater risk than Democrats, you are certainly not  wrong. Recall if you will the prosecutor who publicly stated the Starr special counsel’s office believed Hillary Clinton had lied to the grand jury, but because ethical prosecutors are not to bring cases they have no reasonable likelihood of winning and no D.C. jury would convict her, they were declining to prosecute her.

Potential jurors are given questionnaires to fill out under oath, on penalty of perjury, in an effort to determine any biases. After which they may be called still under oath in a process called voir dire to answer further questions from the judge and lawyers to determine if they should be excused or empaneled to sit on the jury. Prosecutors get to strike peremptorily six people from the jury and the defense gets to strike 10. In addition, on its own initiative, the court can strike any for cause.

The questionnaires in the Roger Stone case are still under seal, but the transcript of the voir dire is public. Juror names are not publicly disclosed to protect them and insulate them from outside influence. After trial they are free to self-disclose and speak about the trial publicly.

(b) The Roger Stone Sentence

As part of the Mueller Russian collusion investigation -- which found none -- Stone, a minor figure with no real connection to the Trump campaign, puffed up his connections to Wikileaks, connections he did not have, and then lied about them in congressional testimony. He also was accused of threatening a witness, a threat the witness said he never took seriously. When after conviction the prosecutor made a sentencing recommendation of six to nine years, the attorney general found that was excessive and had that recommendation withdrawn.

Here is the indictment of Roger Stone. The back story is here:

Democrats claimed Mr. Trump politically interfered with justice, bullying the department into going easy on a political crony. Senate Minority Leader Chuck Schumer proclaims “a crisis in the rule of law.” Rep. Adam Schiff (D., Impeachment) declared another “abuse of power.” The press is casting it as Example A of how a post acquittal Trump feels emboldened to ignore the law.

This has it entirely backward. Here’s what actually happened: Justice sources tell me that interim U.S. Attorney Tim Shea had told the department’s leadership that he and other career officials in the office felt the proposed sentence was excessive. As the deadline for the filing neared, the prosecutors on the case nonetheless threatened to withdraw from the case unless they got their demands for these stiffest of penalties. Mr. Shea -- new to the job -- suffered a moment of cowardice and submitted to this ultimatum. The filing took Justice Department leaders by surprise, and the decision to reverse was made well before Mr. Trump tweeted, and with no communication with the White House. The revised filing, meanwhile, had the signature of the acting supervisor of the office’s criminal division, who is a career civil servant, not a political appointee.

This is Mr. Barr getting rid of politics in justice -- as he promised. 

Is it unusual for the Department of Justice to oversee such conduct? No. Attorney General Barr explains:

BARR: No, this actually gets to a very important point about the Department, which is, you know, what other industry allows you know, life or death decisions to be made by the most junior level of the, of the business, so to speak. We at the department, we want people with a lot of energy and commitment. And so we express -- we hope for a lot of, of that energy and commitment.

At the same time, when people are working on one case, and devoting a lot to it, they can sometimes lose perspective. And that’s exactly why we have a, a system of checks and balances within the department with multiple level of reviews that fan out with people with broader and broader responsibility. And most cases don’t come up to the attorney general, because people are doing a great job in the department.

And, a lot of the work doesn’t involve much controversy. But every once in a while, there are disputes or arguments over cases and those are the ones that come up. And the AG has to make the decision. So, some people say, you know, the AG intervening in a case.

That’s preposterous, we have an escalation system that tries to get the difficult issues that are, you know, people are arguing about, to get them up for resolution and it’s the attorney general’s responsibility to resolve it.

(c) Jury Foreperson Tomeka Hart

Following the resignation of the prosecutors who were overruled, Tomeka Hart tweeted support for them and independent journalist Mike Cernovich searched her Twitter feeds, which revealed contrary to her statements at voir dire that she “didn’t pay that close attention” to the probe and that Stone’s connection to President Trump would “absolutely not” color her views of him, she had regularly commented on the collusion probe, demonstrated extreme bias against Trump and his supporters, all of whom she called racists, and immediately upon Stone’s conviction tweeted hearts and fist bumps. Here’s the transcript (She’s juror 1261).

The full range of all her tweets are found here and here.

There are demands that the judge who heard the case, Amy Berman Jackson (an Obama appointee whom many have contended displayed bias in the Manafort and other matters), now release all the questionnaires of the entire jury panel. Stone has filed a motion for a new trial (which Berman, who has a penchant for requiring secrecy in this proceeding) demanded be filed under seal.( Berman not only forbade Stone from publicly speaking out during the trial, she even filed a sealed contempt motion against a Gateway Pundit reporter for his work on the Stone jury selection process. He noted that the judge and prosecutors laughed off defense objections of potential jurors with Democratic party connections while she agreed with prosecutors to remove a potential juror who three decades earlier had a small role in the Reagan for President campaign.)

Jonathan Turley explains why Hart’s tweets are so troublesome for the judicial process: 

U.S. District Judge Amy Berman Jackson refused to bar witnesses due to their past political associations or viewpoints. This included a former Obama-era press secretary for the Office of Management and Budget who admitted to having negative views of Trump and whose husband worked at the Justice Department division. [snip]

However, the social media postings of Hart raise troubling questions as to whether these views were known or disclosed. What is clear is that no defendant associated with Trump would want such a juror sitting in judgment. This included a posting about the Stone case where she retweeted mocking dismissals of objections to Stone’s treatment in a dawn raid. I was one of those raising such concerns. There is of course nothing wrong with holding the opposing view of that issue and Hart did nothing wrong in sitting on the jury absent some allegations of hiding or misrepresenting information.

Hart is a [D]emocratic activist who ran for Congress and referred to the President with a hashtag as “klanpresident.” More worrisome is her references directly to Stone, including a retweeted post, in January 2019, Bakari Sellers again raising racist associations and stating “Roger Stone has y’all talking about reviewing use of force guidelines.” She also called Trump supporters like Stone racists and Putin cronies. When profanities were projected on the Trump hotel, she exclaimed on Jan. 13, 2018, “Gotta love it.”

She also, on March 24, 2019, shared a Facebook post calling attention to “the numerous indictments, guilty pleas, and convictions of people in 45’s inner-circle.” [snip]

What would be the response if an Obama associate was convicted on a jury with a foreperson who was a Republican activist with a long social media record criticizing not just Obama but supporting the prosecution of that associate?

This goes beyond political opposition and raises serious questions of bias, particularly the references to this defendant and his prosecution... What concerns me is that a high-profile case of this kind comes with the added burden for the court to assure both sides of a divided nation that the trial was conducted without even the hint of bias or animus from either the court or the jury. The selection of this juror clearly does not meet that burden.

In other cases, jurors who lied to hide bias have been successfully prosecuted for perjury. The bias of a juror can, among other things, taint by influencing the rest of the jury, especially where, as here, it is the bias of a foreman and the foreman is a lawyer to whom they might well defer on any questions. Hart also might face disbarment for her conduct, and one wonders if the Bill and Melinda Gates Foundation might not find that her conduct requires her dismissal. In any event, it’s hard to see how the court can avoid requiring a new trial and the cost to the defendant and the court. Hart’s disingenuous responses in voir dire reveal why such conduct requires punishment.

(d) Trump Tweets

The press made a to-do of Attorney General Barr’s statement that he wished the President would stop tweeting about ongoing cases. The media might have been born yesterday, but all were not.  In contrast to Trump’s tweet, which was made only after conviction and concerned the length of the proposed sentence, here are some reminders of President Barack Obama commenting on criminal cases which were then ongoing:

  • President Obama told CBS news that Hillary Clinton’s use of a private email service might have been “a mistake” and not a “national security problem.”
  • He defended then-CIA Director David Petraeus while Petraeus was under investigation.
  • He accused a Boston police officer of racial profiling.
  • He stirred the pot in the Trayvon Martin case as it was ongoing and his attorney general Eric Holder actually sent DoJ personnel to Florida to add to further demands for a trial of George Zimmerman.
  • And let’s not forget that tarmac meeting between then Attorney General Loretta Lynch and Bill Clinton while her department was investigating Hillary.

Barr is cognizant of the problems of having Democrat prosecutors handling sensitive political cases and has now installed “a team of outside prosecutors from St. Louis“ to review the work of the D.C. office line attorneys “handling political sensitive cases,” including Michael Flynn’s, tweets Adam Goldman of the NYT. 

(e) McCabe Case Closed

The Justice Department announced this week that it was closing the case against Andrew McCabe, former FBI deputy director, for lying. As you can imagine, this created a storm on the right, after the outrageously tough sentence being asked for the hapless Roger Stone, not to speak of the handling of Hillary’s numerous lies under oath. There have been various explanations given for this, including -- you guessed it -- the unlikelihood of a D.C. jury convicting him of a process crime.  Is he off the hook entirely? Maybe not -- that case involves only his lying about the Clinton email leak noted in the Horowitz report. There’s still U.S. Attorney John Durham’s criminal investigation of the entire Barack Obama team.

(f) Barr to Testify

Jerry Nadler, Chair of the House Judiciary Committee, has asked Barr to testify about a number of things, including the decision to propose a reduction in Stone’s sentence, now probably moot as a mistrial is almost a certainty. Barr has agreed and will testify on March 31.

In my opinion, Barr and Justice Neil Gorsuch are probably two of the smartest, most able lawyers in the entire vast  sea of D.C. lawyers. I predict Nadler will end up as a 300-pound lump of melting suet.

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