WEBVTT - Will Roger Stone Get a New Trial?

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<v Speaker 1>This is Bloomberg Law with June Grassoe from Bloomberg Radio.

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<v Speaker 1>The trial is over, but the controversy is not. The

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<v Speaker 1>Roger Stone case has been unprecedented in many respects interferenced

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<v Speaker 1>by the President and the Attorney General, the withdrawal of

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<v Speaker 1>the four prosecutors handling the case, and social media post

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<v Speaker 1>by the defendant against the judge, and now the federal

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<v Speaker 1>trial judge is harshly criticizing the president and false news

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<v Speaker 1>reports for promoting claims of bias that helped fuel threats

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<v Speaker 1>to the jury. Judge Amy Berman Jackson made the comments

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<v Speaker 1>during an unusual hearing on Stone's request for a new trial,

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<v Speaker 1>during which three of the jurors, including the four person

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<v Speaker 1>were questioned. Joining me is Brad Moss, a partner at

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<v Speaker 1>Mark Za. Have you ever heard comments like this coming

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<v Speaker 1>from a judge? So judges are known on occasion to

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<v Speaker 1>make rather pointed remarks where necessary. What is someone unusual here?

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<v Speaker 1>Is why became required given the political circus and the

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<v Speaker 1>circumstances of a US president, So repeatedly and brazenly, you know,

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<v Speaker 1>chiming in on the case talking about a bias judge,

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<v Speaker 1>talking about a biased jury for a person and arguably

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<v Speaker 1>saying that the entire prosecution should not have happened in

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<v Speaker 1>the first place. So that was kind of somewhat unprecedented situation,

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<v Speaker 1>I mean, and the judge made it clear and addressing

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<v Speaker 1>the merits of Roger Stone's motion for her to recuse

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<v Speaker 1>that it was arguably more designed just to you know,

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<v Speaker 1>put the words judge and biased into a media chiron

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<v Speaker 1>for Fox News, that it was based on any kind

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<v Speaker 1>of actual legal merit. And so that's what makes this

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<v Speaker 1>somewhat unusual. And it's what even you know, irritated the

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<v Speaker 1>Attorney General. Is it made clear about a week or

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<v Speaker 1>two ago Stone is asking for a new trial, and

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<v Speaker 1>his claim is that the jury was biased. Why does

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<v Speaker 1>he think he deserves a new trial. So before you

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<v Speaker 1>ever go to trial, you have to pick a jury,

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<v Speaker 1>and both parties, you know, the government lawyers and the

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<v Speaker 1>defense counsel's lawyers, gets you question or what's called guadire

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<v Speaker 1>each of the individual perspective jurors. You get to ask

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<v Speaker 1>them a whole bunch of questions. They fill out a

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<v Speaker 1>questionnaire addressing various issues, and you have the right to

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<v Speaker 1>challenge them as a prospective juror with this particular individual,

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<v Speaker 1>who we found out was later selected on unrelated reasons

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<v Speaker 1>to be the fourth person by the jury. She has

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<v Speaker 1>apparently had some public social media posts, and she was

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<v Speaker 1>very clearly not a fan of the president, not a

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<v Speaker 1>fan of Roger Stone necessarily. But what we found out

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<v Speaker 1>was she didn't evolve the entirety of that information in

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<v Speaker 1>her questionnaire. She simply said, I don't remember the extent

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<v Speaker 1>to which I may have, you know, read news on

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<v Speaker 1>this issue, were commented on it publicly. Now, a competent

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<v Speaker 1>defense team would have searched public records, would have searched

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<v Speaker 1>public social media posts, and would have seen what she

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<v Speaker 1>had their online, none of which was set the private,

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<v Speaker 1>and would have bounced her during guadir. They didn't do that.

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<v Speaker 1>That was just a complete fellure of criminal defense one

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<v Speaker 1>on one. So now they're trying to basically get a

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<v Speaker 1>second bite at the app both saying well, we missed

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<v Speaker 1>it up the first time, but her answer on the

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<v Speaker 1>questionnaire was, you know, somewhat misleading, and so we didn't

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<v Speaker 1>think to look. That is, to say the least, a

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<v Speaker 1>rather thin legal argument. I don't anticipate it will ultimately succeed.

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<v Speaker 1>But again, this isn't about legal merits. This is about

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<v Speaker 1>setting up a part in down the line. The defense

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<v Speaker 1>actually had a jury consultant working with them. Yeah, you know,

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<v Speaker 1>it's one of those things where this is Alex said

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<v Speaker 1>this Literally all you had to do was google the

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<v Speaker 1>person's name and pull up their social media posts. This

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<v Speaker 1>is not exactly a glowing endorsement for that jury consultant

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<v Speaker 1>and his or her work prowess and professionalism. What's the standard?

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<v Speaker 1>Because the jury four person, she might have omitted certain things.

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<v Speaker 1>So basically what the judge has to assess it was

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<v Speaker 1>a couple of different things. One if the person's uh

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<v Speaker 1>statements on the questionnaire were deliberately or knowingly misleading or false.

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<v Speaker 1>Given the way it was couched. And we heard some

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<v Speaker 1>of the testimony from the fourth person herself during the

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<v Speaker 1>hearing yesterday, it's thin it best the argument that she

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<v Speaker 1>was deliberately misleading them. She didn't say I haven't read

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<v Speaker 1>anything on this. She says, I don't remember the full

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<v Speaker 1>details of what I've seen, so you know, you can imagine.

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<v Speaker 1>She also said, I post all other kinds of things

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<v Speaker 1>on Twitter, but all kinds of other manners of topics,

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<v Speaker 1>so it could be understandable and reasonable that she might

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<v Speaker 1>not remember those specific posts, but everything else they probed into,

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<v Speaker 1>you know, discussions with other jurors. Jurors all denied that

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<v Speaker 1>this person had tried to push them a particular way.

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<v Speaker 1>They all denied that she had tried to, you know,

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<v Speaker 1>impose her political views than any of them, and they

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<v Speaker 1>actually said she was the one, the four person was

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<v Speaker 1>the one who made clear that everybody need to be

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<v Speaker 1>very careful and review everything very in depth when looking

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<v Speaker 1>over some of these charges. It certainly didn't provide any

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<v Speaker 1>real substantiating evidence of bias or impermissible behavior by the

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<v Speaker 1>fourth person in terms of how this jury ultimately deliberated

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<v Speaker 1>and found Roger Stone guilty. And again, this is all

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<v Speaker 1>just them setting up apart, and if this were any

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<v Speaker 1>other case would be a hail mary that everybody would

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<v Speaker 1>be rejecting. A matter of course, the only reason it

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<v Speaker 1>has legs is because it's the president's old friend, Roger Stone,

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<v Speaker 1>and the president's media allies are hyping it. The judge

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<v Speaker 1>said that the filing was somewhat hyperbolic, like the motion

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<v Speaker 1>for recusal, It's marked by a tone that I haven't

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<v Speaker 1>seen previously in pleadings in this case and was particularly

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<v Speaker 1>reliant on adjectives. That's according to the judge. When the

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<v Speaker 1>facts on his side, you argue law. When the law

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<v Speaker 1>is not on your side, you pound on the desk

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<v Speaker 1>and yell. And that's what Roger stones lawyers were doing here.

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<v Speaker 1>The government had him nailed to write. It was very

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<v Speaker 1>clear that what he had done was had crossed the

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<v Speaker 1>line into criminal liability and that's what happened at the trial.

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<v Speaker 1>He was convicted properly and even the Attorney General agrees

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<v Speaker 1>with it that it was a righteous prosecution. This was

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<v Speaker 1>all meant for media consumption. Those motions were drafted to

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<v Speaker 1>hype up media awareness and particularly the president's views that

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<v Speaker 1>he and his friends have been unjustly persecuted. It was

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<v Speaker 1>not necessarily meant to win before the judge. I've been

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<v Speaker 1>talking to Brad Moss of Mark Sade about Roger Stone's

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<v Speaker 1>motion for a new trial. The judge denied a previous

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<v Speaker 1>request for a new trial based on claims that a

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<v Speaker 1>different juror was biased against Stone over the weekend. As

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<v Speaker 1>you referred to, she rejected Stone's claim that she herself

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<v Speaker 1>was biased. So does it seem like we can make

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<v Speaker 1>an educated guess where this motion is going to end up.

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<v Speaker 1>I think it's highly unlikely, but I can obviously rule

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<v Speaker 1>it out, but highly unlikely that the judge will be

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<v Speaker 1>granting the motion for a new trial here. I'm sure

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<v Speaker 1>roger Stone will appeal that will put any sentencing the

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<v Speaker 1>forty months, that will put that on hold pending appellate review.

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<v Speaker 1>Probably of that appeal of the motion for a new trial.

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<v Speaker 1>I don't have any reason to believe that roger Stone

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<v Speaker 1>will actually spend a single day in jail. Even if

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<v Speaker 1>the President is defeated in November for reelection, he will

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<v Speaker 1>almost certainly issue a pardon then during the lane duck

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<v Speaker 1>prior to departing office. Roger Stone is just stalling for time.

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<v Speaker 1>Speaking of stalling for time, can he drag this out

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<v Speaker 1>until after the election where he will not have to

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<v Speaker 1>report to jail, because if Trump wants to give him

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<v Speaker 1>a pardon, I assume he would want to wait till

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<v Speaker 1>after the election so he can. But it's ultimately somewhat

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<v Speaker 1>subject to the whims and discretion of the judge. So

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<v Speaker 1>assuming the judge the next week or two denies the

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<v Speaker 1>motion for a new trial, she could if she wanted

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<v Speaker 1>order Roger Stone to surrender within two weeks and start

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<v Speaker 1>his prison sentence while any appeals are ongoing. It is

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<v Speaker 1>more than likely, though, given the notoriety of the case

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<v Speaker 1>and given the non violent circumstances of the charges, that

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<v Speaker 1>she will permit him to remain out on bond pending

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<v Speaker 1>the appellate review of her rulings on a motion for

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<v Speaker 1>a new trial is if only to avoid, you know,

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<v Speaker 1>possibly getting smacked down by the d C Circuit later

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<v Speaker 1>on for having put him in jail. President Trump ramped

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<v Speaker 1>up his unorthodox battle with the judiciary and continued his

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<v Speaker 1>assault on judges by demanding that Supreme Court Justices Sonya

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<v Speaker 1>Soto Mayor and Ruth Bader Ginsburg recused themselves from future

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<v Speaker 1>cases involving him or his administration. Let's begin with the

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<v Speaker 1>dissenting opinion by Soto Mayor that led to President Trump's comments.

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<v Speaker 1>So to Mayor, in a case in which, in a

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<v Speaker 1>five to four vote, conservative justices are allowing the administration

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<v Speaker 1>to start enforcing its new immigrant wealth test in Illinois

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<v Speaker 1>before the case is heard in the lower courts, explain

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<v Speaker 1>her dissent. Basically, what justice so to Mayora's complaint was

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<v Speaker 1>was that the courts were abdicating their responsibility and essentially

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<v Speaker 1>giving the executive branch too much leeway here on something

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<v Speaker 1>that could have a monumental impact going forward on how

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<v Speaker 1>we handle immigration in this country and allowing it to

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<v Speaker 1>occur while the litigation was still ongoing. But what was

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<v Speaker 1>caught up in what Fox There's an all the conservative

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<v Speaker 1>media was the very hyperbolic nature of some of her

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<v Speaker 1>language in the descent. It was a very fiery descent.

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<v Speaker 1>And there's a long history of justices on the Supreme

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<v Speaker 1>Court and lower courts, you know, issuing occasional fiery descents,

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<v Speaker 1>and she was, as far as I can recall, she

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<v Speaker 1>was largely on her own in this particular descent, And

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<v Speaker 1>so it caught Win and some of the individual and

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<v Speaker 1>conservative media had a whole bunch of issue with the

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<v Speaker 1>nature of the verbiage and the language and saying it

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<v Speaker 1>was suggesting it was reflecting of her particular ideological bias

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<v Speaker 1>against the president, and that of course, for Donald Trump,

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<v Speaker 1>he thinks any judge who said something bad about him

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<v Speaker 1>is inherently biased and has to accuse, which of course

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<v Speaker 1>is not the standard. Well, the numbers are on Sodo

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<v Speaker 1>mayors side. I've done many segments on the Trump administration

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<v Speaker 1>taking this step of bypassing the appellate courts and running

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<v Speaker 1>to the Supreme Court claiming it's an emergency. Also, recently

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<v Speaker 1>the Supreme Court allowed him to take money from the

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<v Speaker 1>Defense and the Pentagon to start building his wall, when

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<v Speaker 1>that case isn't at the Supreme Court yet. Well, and

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<v Speaker 1>so what she's speaking to, and it's partially arguably in

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<v Speaker 1>the end really commenting on the breakdown and political order,

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<v Speaker 1>is that the reason this has become so necessary for

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<v Speaker 1>the Trump administration is because the nature of these controversial policies,

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<v Speaker 1>much of which are being done strictly out of the

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<v Speaker 1>executive branch, such as redirecting a funds appropriated by Congress

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<v Speaker 1>to build the walls, such as stuff like the travel bands,

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<v Speaker 1>such as stuff like this immigration welfare review. It's being

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<v Speaker 1>done without proper oversight by Congress and arguably without any

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<v Speaker 1>scrutiny by Congress. And so her complaint is ultimately that

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<v Speaker 1>the courts are not supposed to be used as a

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<v Speaker 1>way to circumvent the other political branch and the Trump administration. Nonetheless,

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<v Speaker 1>it's making rather you know, novel and effective use of

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<v Speaker 1>this emergency stay ordered from the from the Supreme Court

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<v Speaker 1>like they did in the other case that you mentioned,

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<v Speaker 1>to basically allow them to start implementing the procedures, start

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<v Speaker 1>implementing the policy while the legal fight within the branches

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<v Speaker 1>and amongst the Executive Branch and relevant third parties remains ongoing.

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<v Speaker 1>And it's it's a dissent and her view of how

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<v Speaker 1>this is an abuse of the process, although not necessarily

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<v Speaker 1>one that the Supreme Court obviously at the moment, is

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<v Speaker 1>willing to address. There are no rules for when the

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<v Speaker 1>jocision should recuse themselves. They're sort of on their own,

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<v Speaker 1>and there has been some critique that there should be

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<v Speaker 1>some rules. Yeah, and so the problem with imposing rules

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<v Speaker 1>there is because the Supreme Court is basically the only

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<v Speaker 1>piece created by the Constitution, and the qualifications are established

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<v Speaker 1>by the Constitution. It's the one situation where Congress doesn't

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<v Speaker 1>necessarily have the ability to impose requirements or change any

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<v Speaker 1>of those qualifications, or impose recusal requirements absent a constitutional amendment.

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<v Speaker 1>Unlike you know, lower court judges and unlike you know

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<v Speaker 1>a pelic court judges, a lot of which is derived

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<v Speaker 1>from Congressional creation Supreme courts somewhat different there, So these

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<v Speaker 1>in court justices take it upon themselves to decide if

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<v Speaker 1>they have to recoose him. You think of Justice Thomas,

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<v Speaker 1>His wife is a very prominent political operative, has been

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<v Speaker 1>extensively involved in any number of campaign of political operations

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<v Speaker 1>over the years, including during the Obama administration, was very

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<v Speaker 1>you know, active and very involved in expressing her views.

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<v Speaker 1>And Justice Thomason was never required or you know, forced

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<v Speaker 1>to recuse himself from any number of issues legal issues

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<v Speaker 1>that came before the court that obviously implicated his wife's interests.

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<v Speaker 1>And that was just the reality the situation. There's nothing

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<v Speaker 1>in Justice Ginsburg's comments or in Justice so of Myers

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<v Speaker 1>comments that require them to accuse from Trump related matters.

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<v Speaker 1>This is the President hyping a political argument that has

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<v Speaker 1>no base in reality. Does this complicate in any way

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<v Speaker 1>the administration's legal fights on his behalf? You know, it'll

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<v Speaker 1>certainly annoy someone like Justice Roberts, but I don't anticipate

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<v Speaker 1>that in the end the legal merits will be impacted

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<v Speaker 1>by this plitical circus. By enlarge, these justices are well

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<v Speaker 1>situa wells situated enough in their their confidence their self

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<v Speaker 1>esteem and their egos to not be swayed by whatever

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<v Speaker 1>Donald J. Trump says about them. They've been and gone

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<v Speaker 1>through worse. Uh, this is not the first one of

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<v Speaker 1>the last time they're gonna have to deal with, you know,

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<v Speaker 1>an executive branch they dislike. There are a lot of

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<v Speaker 1>conservative justices who disliked them of what the Obama administration

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<v Speaker 1>to President Obama in particular said about them. You know this,

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<v Speaker 1>This isn't going to sway the legal merits. Ultimately, those

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<v Speaker 1>cases will be dependent of some rather narrow issues, especially

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<v Speaker 1>on stuff like the president's tax returns and its financial records.

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<v Speaker 1>Thanks for being on Bloomberg Law, Brad. That's Brad Moss

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<v Speaker 1>apartment in Mark. Say. I'm June Grosso and this is Bloomberg.

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<v Speaker 1>Ye