Opinion | Judiciary

Defending the First Amendment, even for Roger Stone

The views expressed by contributors are their own and not the view of The Hill

Roger Stone can no longer criticize Judge Amy Berman Jackson, but I sure can. She should be removed from the Stone case without delay for her threats to jail him over mere speech and the extreme prejudice she has expressed against the defendant.

Of course Roger Stone makes ridiculous and often inane pronouncements. He's Roger Stone. But that's what the First Amendment is for - holding public officials (or anyone else, for that matter) accountable for their actions and calling them out boldly.

Of course using a picture of the judge with the logo from corruption central with "crosshairs" near her head was wrong and over the top. Stone quickly pulled it down and apologized. But the sentiment he was expressing, picture aside, that special counsel Robert Mueller has used a technicality to avoid random judge selection and get the same Obama appointee that denied bail to Paul Manafort in a highly unusual move, was core-protected political speech. It's criticism of the powerful by the powerless.

Judge Jackson's argument that Stone could prejudice the jury pool, given what's gone on in this case, is absurd. It's a lame excuse to insulate the judge from legitimate criticism. The special counsel arrested Roger Stone with guns drawn, amphibious units and bullet-proof vests, as though they were attacking a terrorist compound, not a Florida retirement home with a dog and a deaf wife. And the cameras from CNN were there, in advance, to capture the whole event. It was broadcast around the world. Now, that's what I would call prejudicial.

Perhaps there are some cases in which a defendant might actually taint the jury pool but, given the massive media coverage of this case and the general weight of media against Stone, it's not a serious argument that Stone will be the one affecting the jury pool by defending himself against an avalanche of criticism.

There are two reasons that Judge Jackson should be removed from the Stone case.

First, the defendant is correct that Mueller did use a technicality to draw this judge - claiming that the Stone and the Manafort cases were parts of the same case. It's obvious that they are not, and that there are absolutely no overlapping facts in the case of Manafort's unreported lobbying and the issues surrounding Stone's testimony to Congress.

The second reason is that, in slapping a gag order on Stone, the judge said point-blank and to the world that she did not find him or his apology "credible." She had no real basis for that conclusion about his state of mind, and her declaring it in open court does more to prejudice the jury pool than 100 photos of the judge posted online. She called him a liar in a case about lying. She convicted him right then and there.

This whole case and set of cases about process crimes generated by the Mueller investigation itself has troubled me from the beginning. To see judges behave like this only adds to my concern that politics seems to be at the root of who gets jailed and who gets a pass. One of Hillary's IT staffers "lied his ass off," according to the FBI, and then was granted immunity. Stone was not so lucky, as he rather boldly predicted many times on TV.

For the second time, Judge Jackson has made clear that she views it as her prerogative to jail people for what they say about her and her court. I didn't know we did that in America - Russia and China, definitely. If, through this case, I am learning about this power U.S. judges believe they have to immunize themselves from criticism under the guise of protecting the jury pool, then that's a good thing because this power has hidden in the shadows until now.

The Supreme Court just ruled unanimously that the constitutional ban on unreasonable asset forfeiture applies not just to federal officials but to the states as well. It was a ruling that curbed the arbitrary, selfish exercise of power by officials to seize property far beyond the crime in a case. I hope the court will rule that the First Amendment that says "Congress shall make no law abridging freedom of speech" applies equally to federal judges and that we don't gag and jail people for tasteless social media posts that bear legitimate criticism of the legal system.

Judge Jackson should step aside from this case, and Stone's constitutional right to criticize Mueller and Jackson as he sees fit should be restored. That's the America I know. 

Mark Penn is a managing partner of the Stagwell Group, a private equity firm specializing in marketing services companies, as well as chairman of the Harris Poll and author of "Microtrends Squared." He served as pollster and adviser to President Clinton from 1995 to 2000, including during Clinton's impeachment. You can follow him on Twitter @Mark_Penn.

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