The Roger Stone Affair: An Examination of the Legal, Normative, and Ethical Restraints on Presidential Interference in Prosecutorial Decisions

• Author: Jace Jenican
• Position: J.D., Georgetown University Law Center (expected May 2022); B.A., Chapman University (2019)
• Pages: 1057-1072

The Roger Stone Affair: An Examination of the

Legal, Normative, and Ethical Restraints on

Presidential Interference in Prosecutorial Decisions

JACE JENICAN*

INTRODUCTION

The Trump administration has undoubtedly been a disruptive force in

American politics and law. And for many of his voters, that was the point.

1

But in

the area of criminal justice, President Trump’s tendency to violate traditional

restraints on presidential power has revealed just how susceptible to improper po-

litical influence federal prosecutions are. The President, recently through

Attorney General Bill Barr, has repeatedly meddled in prosecutions against his

political and personal allies.

2

One of the most egregious examples of this conduct

was the Roger Stone affair. Stone was convicted for lying to Congress about his

relationship with those involved in the Russian government’s hack-and-leak

operation that was designed to disrupt the 2016 presidential election.

3

During

Stone’s sentencing, the President and his political appointees interfered with the

sentencing recommendation of the career prosecutors in an attempt to reduce

Stone’s sentence.

4

President Trump eventually commuted Stone’s sentence and

then pardoned him during his final days in office.

5

Traditionally, the Department of Justice has been at least partially independent

from the President, largely out of policy concerns regarding political influence in

* J.D., Georgetown University Law Center (expected May 2022); B.A., Chapman University (2019).

© 2021, Jace Jenican.

1. See Luciana Lopez & Michelle Conlin, Fed up with Washington, Trump’s ‘deplorables’ shake up the elite,

REUTERS (Nov. 9, 2016, 3:51 A.M.), https://www.reuters.com/article/us-usa-election-voters/fed-up-with-

washington-trumps-deplorables-shake-up-the-elite-idUSKBN1341AB [https://perma.cc/9PCS-DNZP] (quoting

Trump voters who claim their support for him is at least in part due to his promises to “shake up” Washington).

2. See, e.g., Sarah N. Lynch, Democrats accuse ‘president’s fixer’ Barr of political meddling in U.S. justice

system, REUTERS (June 24, 2020, 12:49 P.M.), https://www.reuters.com/article/us-usa-congress-justice/

democrats-accuse-presidents-fixer-barr-of-political-meddling-in-u-s-justice-system-idUSKBN23V2KT [https://

perma.cc/3LK6-AYHV].

3. Verdict Form, United States v. Stone, No. 19-0018 (ABJ) (D.D.C. Nov. 15, 2019), 2019 WL 6117547.

4. See Mikhalia Fogel, What Really Happened at the Roger Stone Sentencing, LAWFARE (Feb. 21, 2020,

4:48 P.M.), https://www.lawfareblog.com/what-really-happened-roger-stone-sentencing [https://perma.cc/

NG2V-FZXT].

5. Amita Kelly, Ryan Lucas & Vanessa Romo, Trump Pardons Roger Stone, Paul Manafort And Charles

Kushner, NPR (Dec. 23, 2020, 7:38 P.M.), https://www.npr.org/2020/12/23/949820820/trump-pardons-roger-

stone-paul-manafort-and-charles-kushner [https://perma.cc/FS6E-XH8V].

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federal prosecutions.

6

The ostensibly political interference in Stone’s sentencing

recommendation undermines this principle, but does not seem to obviously con-

travene any statutory or constitutional mandate.

7

What it does seem to contravene

are the norms and ethical practices that have established the tradition of prosecu-

torial independence.

This Note will begin by detailing the Special Counsel investigation that

spawned the case against Roger Stone, the indictment against Stone, and his trial

in Part I. It will also detail the twists and turns following the government’s initial

sentencing memorandum that culminated in the eventual commutation of Stone’s

sentence. Part II will continue by examining the legal, normative, and ethical

framework underpinning the relationship between the President, Attorney

General, and career prosecutors. In light of these principles, the Note will con-

clude with Part III by examining the effectiveness of these safeguards in the con-

text of the Stone affair and evaluate the behavior of each of the actors in this

scandal.

I. THE ROGER STONE AFFAIR

A. THE SPECIAL COUNSEL INVESTIGATION

The Russian government’s efforts to interfere in the United States presidential

election began to surface in the summer of 2016.

8

The Democratic National

Committee (DNC) announced that it had been hacked in June, and hacked docu-

ments were released later that month.

9

In July, October, and November of that

year, Russian government actors using the pseudonym “Guccifer 2.0” worked

with Wikileaks to strategically leak documents obtained through the DNC hack

and from a later hack of Hillary Clinton campaign chairman John Podesta.

10

The

hacking operations were quickly attributed to the Russian government by public

reporting which was then confirmed by multiple federal agencies in the fall.

11

Meanwhile, the FBI was notified in July by a foreign government that Trump

campaign official George Papadopoulos had suggested to a representative of that

country that the Russian government had assisted the campaign in gathering dam-

aging information on Hillary Clinton.

12

The FBI quickly opened an investigation

into whether any Trump campaign officials were conspiring with the Russian

government in its efforts to interfere in the 2016 election.

13

6. See Bruce A. Green & Rebecca Roiphe, Can The President Control The Department of Justice?, 70 ALA.

L. REV. 1, 13 (2018).

7. See id. at 2.

8. ROBERT S. MUELLER, III, REPORT ON THE INVESTIGATION INTO RUSSIAN INTERFERENCE IN THE 2016

PRESIDENTIAL ELECTION, VOLUME I, at 1 (U.S. Dep’t of Justice, 2019) [hereinafter THE MUELLER REPORT I].

9. THE MUELLER REPORT I, supra note 8, at 1.

10. Id. at 175–76.

11. Id. at 1.

12. Id.

13. Id.

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