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Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio.

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Speaker 1: After a week of political turmoil that included the unprecedented

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Speaker 1: withdrawal of an entire team of federal prosecutors, extraordinary intervention

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Speaker 1: by the Attorney General, and presidential tweets, longtime Trump associate

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Speaker 1: Roger Stone was sentenced to three years and four months

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Speaker 1: in prison for lying to Congress and tampering with a

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Speaker 1: witness to protect the President, Trump, who issued some high

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Speaker 1: profile pardons earlier this week, said he was holding off

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Speaker 1: on a pardon for Stone. And I'm following this very closely,

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Speaker 1: and I want to see it play out to what's fullest,

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Speaker 1: because Roger has a very good chance of exoneration in

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Speaker 1: my opinion. Joining me as former federal prosecutor Robert Mints

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Speaker 1: a partner Mt. Carter in English, So, Bob, this was

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Speaker 1: less than the seven to nine years the original prosecutors

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Speaker 1: initially asked for. What's your reaction to the sentence? The

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Speaker 1: sentence that was handed down today by Judge Jackson is

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Speaker 1: pretty much in line with what most prosecutors expected in

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Speaker 1: this case. Prosecutors initially asked for a sentence in the

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Speaker 1: seven to nine year range. That was viewed by some

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Speaker 1: people as overly harsh, although it was clearly supported by

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Speaker 1: the guidelines. Controversy erupted when William Barr, the Attorney General,

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Speaker 1: stepped in, and ultimately there was a second sentencing memorandum

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Speaker 1: that was sent into the court which did not ask

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Speaker 1: for any particular sentence and in fact left the sentencing

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Speaker 1: up to the judge, but it did suggest that a

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Speaker 1: sentence in the three to four year range was more

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Speaker 1: reasonable and more in line with other cases like this.

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Speaker 1: That is exactly where Judge Jackson ultimately ended up here,

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Speaker 1: though I think the judge from the very beginning had

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Speaker 1: her own mind made up as to where this was

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Speaker 1: going to go, and did not necessarily pay close attention

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Speaker 1: to either of the sentencing memorandum that were submitted by

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Speaker 1: the Department of Justice. After the interference by Attorney General

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Speaker 1: bar and the tweets by the President, the sent dancing

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Speaker 1: is probably going to be picked Apart for any signs

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Speaker 1: that the judge was not independent. Do you see any

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Speaker 1: signs that the judge was not independent? I think the

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Speaker 1: judge here demonstrated her independence in a number of ways.

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Speaker 1: First of all, she addressed the politics of this sentencing,

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Speaker 1: which I found to be unusual. Generally judges will stay

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Speaker 1: away from the political winds that may swirl around. In particular,

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Speaker 1: sentence on this case was even more political than most

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Speaker 1: by Judge Jackson really took that issue head on, making

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Speaker 1: some statements that were pretty surprising and pretty direct, where

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Speaker 1: she said, for example, that Stone was not being prosecuted

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Speaker 1: for standing up for the president, he was being prosecuted

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Speaker 1: for covering up for the president. She also called out

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Speaker 1: the Attorney General William Barr in a sense in which

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Speaker 1: she mentioned that his intervention in this case was unprecedented.

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Speaker 1: So she took on those political issues, and then she

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Speaker 1: methodically went through all of the misconduct that was reuben

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Speaker 1: in her view by prosecutors during the trial, and I

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Speaker 1: think really laid out a very damning case of bad

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Speaker 1: conduct and illegal conduct by Roger Stone. Although ultimately she

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Speaker 1: sentenced him to a sentence that was less than the

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Speaker 1: harshest guideline sentence that prosecutors had originally requested, she said,

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Speaker 1: the truth still exists, the truth still matters. Roger Stone's

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Speaker 1: insistence that it doesn't, his belligerence, his pride in his

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Speaker 1: own lies are a threat to our most fundamental institutions

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Speaker 1: to the foundations of our democracy. Was that for roger

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Speaker 1: Stone or was that for President Trump? I think what

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Speaker 1: the judgment was really addressing there was the rule of law.

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Speaker 1: She wanted to make it clear that this decision, this

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Speaker 1: sentence that she was heading down today, was being done

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Speaker 1: on objective facts. That she believes that, as she said,

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Speaker 1: the truth still matters, and that our institutions and the

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Speaker 1: foundations of our democracy in fact depend upon truth telling.

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Speaker 1: And she viewed roger Stone as somebody who played fast

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Speaker 1: and loose with the facts and in some cases, in

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Speaker 1: her view, lied directly to the court when certain issues

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Speaker 1: came up during the trial. So I think she was

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Speaker 1: trying to deliver a message not only to rodger Stone,

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Speaker 1: but to the general public that, in her view, this

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Speaker 1: was a case very much about telling the truth and

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Speaker 1: if you lie, if you lie in court, if you

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Speaker 1: lie to mislead Congress, they're going to be serious consequences.

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Speaker 1: What I found interesting is that she applied enhancements based

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Speaker 1: on things such as Stone's obstruction of the case, including

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Speaker 1: his use of social media to post a photo of

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Speaker 1: the judge where the cross hairs and the prosecutors didn't object.

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Speaker 1: These are the new prosecutors coming in on a new

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Speaker 1: sentencing memo, and yet they supported the enhancements. Everybody was

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Speaker 1: watching very closely the new team of prosecutors who came

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Speaker 1: in to handle the sentencing after the four original p

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Speaker 1: secutors all resigned from the case in protest over the

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Speaker 1: changing of the sentencing recommendation. Really, at the end of

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Speaker 1: the day, the new prosecutors came in and didn't do

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Speaker 1: much very differently than what the original prosecutors had endorsed.

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Speaker 1: In fact, the prosecutor who was handling the sentencing hearing

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Speaker 1: endorsed the same technical logic that the prior prosecutors had

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Speaker 1: used in generating their recommendation of the first sentencing memorandum,

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Speaker 1: and all of the enhancements that the original prosecutors had

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Speaker 1: originally requested were also supported by the second team of prosecutors.

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Speaker 1: The most critical of those enhancements was the one where

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Speaker 1: the original team of prosecutors had suggested that Roger Stone

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Speaker 1: had threatened a key witness in the case. Uh This

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Speaker 1: was an individual named Randy Cretico, who was a New

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Speaker 1: York radio host who had critical information to bolster the

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Speaker 1: government's case against Stone and prosecutors argue that there was

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Speaker 1: an enhancement that moved to sentencing recommendation from three to

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Speaker 1: four years all up to seven to nine years based

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Speaker 1: upon the belief that he had physically threatened to witness.

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Speaker 1: Prosecutors interestingly did not back off from that enhancement, and

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Speaker 1: in fact, the judge made a finding that that threat

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Speaker 1: was real, despite the fact that Critico had actually written

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Speaker 1: a letter to the court saying that although he had

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Speaker 1: been the target of that threat, he never, in fact

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Speaker 1: actually felt threatened by Stone, that he knew Stone to

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Speaker 1: be somebody who would make those kind of comments but

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Speaker 1: never follow through. The sentencing of long time Republican operative

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Speaker 1: and Trump associate Roger Stone was one of the most

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Speaker 1: high profile sentencings in quite a while, capping a week

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Speaker 1: of legal drama and political turmoil. My guest as former

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Speaker 1: federal prosecutor Robert Mint's a partner McCarter in English, So Bob,

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Speaker 1: we were discussing the new prosecutors who had to come

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Speaker 1: into court for the first time on the day of

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Speaker 1: sentencing and face the judge after the initial team of

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Speaker 1: prosecutors Withdrew and the judge did say to assistant U. S.

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Speaker 1: Attorney John Crabbe, I fear that you know less about

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Speaker 1: this case than possibly anybody else in the courtroom, and

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Speaker 1: she asked them to explain what happened here, basically, did

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Speaker 1: you buy their explanation? Well, that was another example I

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Speaker 1: think of the judge really taking these issues head on,

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Speaker 1: not wanting to dance around what had been the big

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Speaker 1: build up to this sentence in this case. And so

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Speaker 1: she did ask the prosecutor, what is your position today?

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Speaker 1: She emphasized, noting that it had changed from the prior recommendation,

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Speaker 1: and she asked for an explanation as to why the

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Speaker 1: recommendation had changed. And I thought it was very interesting

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Speaker 1: that the prosecutor in the case they did that the

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Speaker 1: prior prosecutors had in fact received approval from the U. S.

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Speaker 1: Attorney Tim Shay to make the recommendation of seven to

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Speaker 1: nine years that they did, and that that filing was

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Speaker 1: in good faith. So he actually stood up for the

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Speaker 1: prior team of prosecutors and then gave a somewhat vague

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Speaker 1: explanation which he described as a miscommunication between the Attorney General,

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Speaker 1: William Barr and the new U. S. Attorney in the

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Speaker 1: District of Columbia Tim Shay that there was some miscommunication

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Speaker 1: here as to what the expectations were from the Attorney

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Speaker 1: General and that that's why the original sentencing memorandum recommending

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Speaker 1: seven to nine years is ultimately withdrawn in favor of

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Speaker 1: the more lenient recommendation of approximately three to four years.

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Speaker 1: It's unclear whether the court necessarily bought that complete explanation,

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Speaker 1: but I think it's interesting that she asked the prosecutor

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Speaker 1: to take her through what essentially went on behind the

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Speaker 1: scenes in the Department of Justice leading up to the sentencing.

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Speaker 1: At every sentencing, the defendant has an opportunity to address

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Speaker 1: the court before the sentence is handed down. In this case,

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Speaker 1: Roger Stone decided not to say anything. Why not take

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Speaker 1: this opportunity to put something on the record or make

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Speaker 1: a final appeal to the judge. That's an interesting question, uh,

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Speaker 1: As you said, defendants always have the opportunity to address

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Speaker 1: the court prior to sentencing. That is almost always the

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Speaker 1: very last stage of the sentence thing proceeding. After prosecutors

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Speaker 1: make their arguments for what the appropriate sentence should be,

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Speaker 1: the defense team gets to make their other arguments as

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Speaker 1: to what the sentencing should be, and the last thing

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Speaker 1: the judge hears prior to actually handing down the sentence

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Speaker 1: is from the defendant him or herself. In this case,

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Speaker 1: Roger Stone chose not to address the court. Most of

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Speaker 1: the time, defendants take that opportunity because it's their chance

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Speaker 1: to humanize themselves once again in front of the court,

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Speaker 1: remind the court that they are fathers and mothers and

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Speaker 1: husbands and wives, and to try, essentially and last amitted

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Speaker 1: effort to sway the judge into perhaps a more lenient sentence.

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Speaker 1: In this case, Roger Stone did not take that opportunity.

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Speaker 1: It's unclear as to why President Trump was tweeting during

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Speaker 1: the sentencing. The speculation is high that Hill pardon Stone,

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Speaker 1: especially since that slate of high profile clemencies this week.

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Speaker 1: What's your take on that. Is it likely that Stone

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Speaker 1: will never serve a day in prison? Well, there's a

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Speaker 1: couple of issues here. The judge did agree to leave

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Speaker 1: Mr Stone out of jail pending a motion for a

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Speaker 1: new trial. There's been some allegation that the jury for

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Speaker 1: women in this case was in some way biased. That's

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Speaker 1: going to be a motion that's going to be made

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Speaker 1: by the defense team, and that the judge said she

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Speaker 1: will agree to hear before he were to ask Mr

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Speaker 1: Stone to surrender. The other issue is that undoubtedly if

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Speaker 1: they don't get a new trial, there will be an

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Speaker 1: appeal in this case, and she may also decide to

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Speaker 1: leave him out of jail pending the appeal. So it's

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Speaker 1: unclear when or if Mr Stone will ever spend a

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Speaker 1: day in jail. Now, let's talk about his appeal for

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Speaker 1: a moment. His earlier requests for a new trial alleging

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Speaker 1: bias by a different juror who is an employee of

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Speaker 1: the I R S was denied by the judge. This

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Speaker 1: one is under seal, but the indications are that they're

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Speaker 1: going to claim the jury four person was biased. If

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Speaker 1: they have proof that the very four person was not

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Speaker 1: forthcoming in her jury questionnaire, is that enough for a reversal.

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Speaker 1: That's an interesting question because you have to remember first

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Speaker 1: here that if a defendant is going to be convicted,

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Speaker 1: there has to be unanimous agreement among all the jurors

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Speaker 1: as to each count that the defendant is in fact guilty.

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Speaker 1: So the jury four person is only one vote. But

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Speaker 1: on the other hand, if the juror lies during what's

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Speaker 1: called boarder, the questioning of jurors when they are selected

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Speaker 1: to sit in the jury, and the judge finds that

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Speaker 1: it's a material misstatement, it is quite possible that Mr

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Speaker 1: Stone could wind up getting a new trial. The interference

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Speaker 1: by William Barr seems unnecessary. You know that a judge

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Speaker 1: doesn't just buy the prosecution's recommendation, especially a judge who

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Speaker 1: sat through a trial and who seems to know this

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Speaker 1: defendant pretty well. So why did Barr even feel the

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Speaker 1: need to intervene. That's a great question because every federal

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Speaker 1: set in federal court for criminal cases governed by something

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Speaker 1: called the Federal Sentencing Guidelines, which is a large book

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Speaker 1: that gives weighted factors to all kinds of issues that

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Speaker 1: ultimately will increase the potential for a prison term. For example,

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Speaker 1: the amount of money that's been stolen, or whether witnesses

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Speaker 1: have used obstructive tactics during the trial, or whether witness

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Speaker 1: lies during the trial. All of these are ways that

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Speaker 1: a defendant sentence can be enhanced. In every single case,

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Speaker 1: you have prosecutors going through their sentencing guidelines and then

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Speaker 1: making a recommendation based on the facts of each case,

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Speaker 1: which of course are always unique, and trying to argue

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Speaker 1: to the court which enhancements apply in order to get

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Speaker 1: a higher sentence. The defense, not surprisingly is going to

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Speaker 1: ask for the most lenient sentence. In this case, they

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Speaker 1: ask for probation. At the end of the day, the

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Speaker 1: judge has to first make decisions about which enhancement apply

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Speaker 1: and where the guideline sentence will come out, but they

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Speaker 1: no longer have to follow those guideline sentences. In other words,

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Speaker 1: the judge can ultimately make a conclusion that the seven

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Speaker 1: to nine year range for a sentence is what the

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Speaker 1: guidelines will say, but still sentence a defendant to whatever

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Speaker 1: term he or she believes is fair. So in this case,

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Speaker 1: the judge handed down a sentence set was below the

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Speaker 1: guideline range. And I think really all of this chaos

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Speaker 1: that went on leading up to the trial, the initial

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Speaker 1: sentencing memo, the second sentencing memo, all of the suggestions

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Speaker 1: that there was political influence ultimately played no role at

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Speaker 1: all in the sentence that judged Jackson handed down here.

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Speaker 1: I think she had a very clear view in her

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Speaker 1: mind of what roder Stone did, of how he conducted

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Speaker 1: himself both before and during the trial, and she knew

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Speaker 1: exactly where she was going to come out in this sentencing,

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Speaker 1: regardless of the position that the government took or that

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Speaker 1: the defense took in this case. Thanks for being on

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Speaker 1: Bloomberg Law. Bob. That's Robert Mant's a partner M Carter

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Speaker 1: in English. Remember you can always listen to the latest

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Speaker 1: legal news anytime on our Bloomberg Law podcast. Just go

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Speaker 1: to iTunes, so cloud, or Bloomberg dot com slash podcast

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Speaker 1: Slash Law. I'm John Russo and this is Bloomberg than