NRPLUS MEMBER ARTICLE W ell, it wouldn’t be the Trump era — indeed, an election year in the Trump era — if a federal judge simply accepted a lawful presidential action that Trump critics found upsetting.
So it is that, Monday morning, Judge Amy Berman Jackson of the federal district court in Washington, D.C., the Obama appointee who presided over Roger Stone’s trial and imposed the 40-month sentence that President Trump commuted Friday night, has demanded that the president clarify the extent of his clemency order.
Specifically, Judge Jackson has ordered the Justice Department and Stone’s counsel to provide the court with a copy of the executive order commuting the sentence, and to address its “scope,” meaning, “whether it involves the sentence of incarceration alone or also the period of supervised release.”
Supervised release is a term of years during which the probation office monitors a convict after the incarceration phase of a sentence is completed.
With a few important exceptions not relevant to this discussion, a trial judge’s role in the defendant’s imprisonment ends when she imposes sentence. The execution of a sentence is mainly an executive function, overseen by the Justice Department’s Bureau of Prisons. That’s why, when a judge pronounces a prison sentence, it is customary to say the defendant is “committed to the custody of the attorney general” for some term of months or years.
So why is Judge Jackson inquiring about Stone? Not for herself, you understand. No, no, no. She says it’s the Probation Office that has raised questions. The U.S. Probation Office is an arm of the judiciary, run by the Administrative Office of the U.S. Courts. Supervision of prisoners post-release used to be a Justice Department responsibility, but Congress transferred it to the judiciary’s administrative arm in 1940.
So what’s going on here?
As we’ve detailed (see my column and our editorial from this weekend), the president has merely commuted Stone’s sentence, not pardoned him. Technically, this means he still stands convicted — in fact, he is appealing his convictions.
As a convict for whom a sentence of imprisonment was ordered, Stone’s sentence included a term of supervised release — two years in his case. In this status, the released convict is monitored by the Probation Office and must comply with certain conditions. If he fails to comply, the Probation Office notifies the court and the Justice Department, and the convict may be sent back to prison for the supervised release term.
A federal guide to supervised release outlines the mandatory conditions provided by federal law. These conditions include that
a defendant not commit another offense and not possess a controlled substance while on supervision; refrain from unlawful use of controlled substances and, in most cases, submit to drug testing; make restitution to the victim of the offense; submit to the collection of a DNA sample when authorized; and pay any fines and assessments imposed, among others.
In addition, the court may, in its discretion, impose other conditions. The only limitation is such conditions must be reasonably related to the statutory purposes of federal sentencing. They should be what the court deems “appropriate” in light of the defendant’s history, characteristics, offense conduct, and particular needs (education, training, etc.), as well as limitations deemed necessary to protect the public.
I assume that, in commuting Stone’s sentence, it was the president’s intention to relieve Stone of any limitations attendant to federal sentencing, including supervised release. Trump, after all, has said he doesn’t believe Stone should have been prosecuted in the first place. The president had added that he did not issue a full pardon only because he is encouraging Stone to challenge his convictions on appeal.
Stone, very publicly, has taken the position that his trial was unfair not only because the Mueller probe prosecutors were engaged in a political vendetta but because Judge Jackson, too, had it in for him. If this did not irritate Judge Jackson, she would not be human.
In point of fact, while the Mueller investigation was a farce, and there was no evidence that Stone or President Trump criminally conspired with Russia, the proof that Stone misled investigators and sought to obstruct them (however moronically and ineffectually) was overwhelming. And though Stone could have been sentenced to nine years’ imprisonment under the federal guidelines (and even more if Jackson had factored in his public shenanigans to undermine the proceedings), the judge imposed just a 40-month sentence for his seven felony convictions, reasoning that it would be unduly harsh to impose the guidelines-recommended sentence under the circumstances.
So Jackson is no doubt disturbed by the commutation. Legally, she cannot do anything about it, but politically, she is not letting it go. Transparently, she seeks to force the president to state publicly that he is sparing Stone from any supervised release, which is sure to intensify the already unhinged coverage that Trump’s clemency is the most corrupt act in the history of America, the world, the universe, etc. Or, perhaps she is trying to pressure Trump to pardon Stone outright, just as Judge Emmet Sullivan is trying to pressure Trump to pardon Michael Flynn outright (rather than honor the Justice Department’s lawful dismissal of the case). Pardons, of course, would add to the Democrats’ narrative that Trump is corrupt and unfit for the nation’s highest office.
I expect the president will make clear that he intended to commute both the sentence of imprisonment and all attendant limitations arising out of it, including any term of supervised release. He will also take the opportunity to reiterate his contentions that the Mueller investigation was an Obama-driven witch hunt, aided and abetted by Obama-appointed judges. How it helps the court to become embroiled in cat-fighting over such pettifoggery as whether Roger Stone should be under supervised release is beyond me.
I do wonder, though, whether any federal judges have intervened to make sure that the terrorists whose sentences were commuted by Presidents Clinton and Obama are reporting to their probation officers.