UPDATED: Free Roger Stone!

That's the title of a brilliant article by former Clinton pollster and adviser Mark Penn. I've expressed strong misgivings about two of AG Bill Barr's recent statements: 1) That President Trump has made his (Barr's) job "impossible", and 2) that the Roger Stone prosecution was "righteous." Both statements are essentially indefensible--despite what even some conservatives have said about the Stone prosecution. Penn gets right to the heart of both of Barr's statements.

Attorney General William Barr is right that presidential tweets on Department of Justice (DOJ) cases make his job difficult in today’s super-charged political environment. But President Trump is also right that the case of his associate, Roger Stone, is nothing but a political prosecution that, until the president tweeted about it, got little attention or examination.

Ask yourself: Is it part of the Chief Executive's duty to point out to the American people when justice is being perverted by blatantly political prosecutions? I think it is. I think a core responsibility of any president is to speak truth to the American people about matters of great public importance. Why would Bill Barr disagree with a president performing his core responsibilities with integrity? To distance himself from a president who is attacked and smeared by the same media and left wing organizations who support political prosecutions? Such distancing acts will gain Barr no reprieve from those who are after his scalp. The honest and honorable course is to forthrightly agree with the president and explain why the president is right--not try to deflect attention from himself toward the president, which is the effect of complaining of the "impossibility" of working for an honest president.

For all the hullabaloo about Trump’s tweets, which are nothing more than an expression of opinion, remember that in five of the last six special or independent counsel investigations, such interventions were not at all unusual. ...

Again, ask yourself: Does Barr regard President Trump as an exception among presidents? What would be Barr's problem with defending the president's true statements, with which Barr himself agreed, except a clumsy attempt to imply that he's not what he is: a political appointee of that president who serves at that president's pleasure? Barr has the same recourse that every political appointee who disagrees with any president has.

Is Barr's displeasure because he thinks Trump was wrong about the political nature of the Stone prosecution? Well, Penn--a Democrat and recovering Clintonista--has a lot to say about that. Here Penn gets to the heart of the absurd and unjust use of "false statements" (1001) prosecutions:

Just untangling what the Stone case is about can be a mindbender. ... there was nothing illegal about any of these communications, so concealing them had no point. ...

I think we can all agree, in general, that criminal charges should not be "mindbenders." And if someone lies about something that isn't a crime in the first place, without causing public harm, hey--let it go! That's not worth the time and expense of a criminal prosecution. Everyone who wants to virtue signal about the virtue of honesty needs to get a real life. Really.

Penn hits hard. Ask Barr, in your mind--what part of upholding justice is advanced by this disgrace:

I wrote two articles about a year ago pointing out how misguided this case was and how unfair were the actions of the judge. Unlike the prosecutions of former Trump campaign manager Paul Manafort and former Trump attorney Michael Cohen, Stone was accused of no financial crime, failure to file as a lobbyist, or any other business or financial malfeasance. This was not for lack of trying: Prosecutors went through every aspect of Stone’s life and called witnesses galore, even bringing in the “Manhattan Madame” to testify. But they obviously found nothing of interest. Yet, at the end of their investigation, long after they knew there was no Trump-Russia collusion, special counsel Robert Mueller’s prosecutors circled back to go after Stone as a parting gift of their $31 million investigation. Even though Stone’s infractions were of absolutely no consequence, they went after him with a vengeance. 

Presumably, Stone’s “intimidating” texts then served as justification for arresting him with an armada of 26 armed officers, weapons drawn, and an amphibious unit out back in case he had a speedboat ready for a mad dash to Cuba or Venezuela. The raid, conveniently broadcast by CNN, telegraphed to the world that Stone was a danger to the republic of the highest order. 

On top of this, Stone drew the same judge that threw Manafort into solitary confinement and denied him reasonable bail. Stone didn’t have a passport, so the judge was unable to repeat that here; instead, she issued a gag order, ostensibly to prevent him from tainting the jury pool — a pool that had been tainted by the very public raid that CNN was there to cover in all its armed glory. 

New evidence of how tainted that pool was comes from the late-breaking fact that the jury foreman in Stone’s case had cheered on both the Mueller investigation and the very raid that arrested Stone. You see, in the eyes of this judge, there was no problem with that raid; the problem was in letting Stone defend himself in public and raise funds for his defense. The gag order remained in place, remarkably, even after the jury was picked and deliberated — when the First Amendment’s prior restraint had no purpose whatsoever but to shield the court from criticism and pressure Stone to cave rather than appeal.

Barr complained that Trump was making it difficult to deal with judges in DoJ prosecutions. Would not the proper description be more along the lines of "colluding" with unjust judges (Luke 18:1-8)? Doesn't the Department of Justice have a duty to oppose unjust actions even when those actions are taken against defendants? Granted, Barr was late to the game, but was it not his duty--at a minimum--to make sure in advance that this travesty of a prosecution ended with a sentencing recommendation that reflected the sham nature of the prosecution, that was known to anyone paying attention? Or was it Barr's duty in justice to avoid controversy with regard to a sleazy defendant?

Penn closes with the heavy artillery:

Let’s review some of the lies told by others in the Trump and Hillary Clinton investigations that were not prosecuted:

• Hillary’s closest aides denied to the FBI that they knew her private email server existed, even though they later turned out to be partially responsible for maintaining it.
• A Platte River Networks employee realized that he forgot to destroy Hillary’s emails, then destroyed them after they were subpoenaed. He “lied his ass off,” according to the FBI — and his punishment for both acts was immunity. 
• Former FBI director James Comey lied repeatedly about his contacts with the media and that he gave out classified information, according to the DOJ’s inspector general.
• Former Director of National Intelligence James Clapper lied to Congress about the surveillance of American citizens, concealing a potentially illegal program for years until it was uncovered.
• Former British spy Christopher Steele lied to the FBI about his contacts with the press and, as a result, a warrant was inappropriately issued against Trump campaign adviser Carter Page.
• Many in the FBI and the DOJ appear to have lied about the use of Steele’s dossier and their failure to verify anything of substance in it while they used and reused it, despite conflicting information from its key source, to spy on Page.
• Not one of these lies has been prosecuted. Not even the documented “lack of candor” by fired FBI deputy director Andrew McCabe, recorded on tape. Not even the doctoring of an email by a DOJ lawyer to try to affirm the surveillance of Page.
• So what was the consequence of Roger Stone’s actions in his congressional testimony? Did he wholesale destroy records, snoop on Americans without justification, cause warrants to be issued falsely? No, there was absolutely no consequence to it, and any reasonable prosecutor would have dropped it or offered him the same jail sentence that another Trump campaign aide, George Papadopoulos, got — two weeks. 

I am no fan of Stone’s tactics and history. I am a fan of an FBI and a DOJ that treat everyone equally. 

The principal concern of the country’s Founders was that people not be railroaded by runaway prosecutions and public fury. Somehow, things have been turned upside down so that defending people who have the weight of the state thrown at them is seen as perverting our system of justice. (The system of pardons is yet another check on the power of runaway bureaucrats and prosecutors who wield power without facing the public for an election.) 

Yes, in the age of Twitter, it’s very messy — but if there were not political prosecutions like Stone’s, Twitter might not be necessary.

If you're wondering, Yes, rereading about Barr's role in the Ruby Ridge killings did influence me in writing this.

I still want Barr to remain as AG--I want that very much. But I also want him to have a real conversion with regard to equal justice. Not to authorize unjust prosecutions. But if he thinks a prosecution that many are calling for (say: McCabe) would be unjust, then more than a simple letter to the defense attorneys saying "we dropped it" is called for. An explanation is called for. And if an injustice that Barr knows of is about to occurr, or one that he can remedy has occurred--he needs to be upfront in seeking remedies and calling the injustice out. And naming names.

UPDATE 1: At this point, post sentencing by a very clearly unbalanced judge, the honorable thing for AG Barr to do is to file a motion supporting Stone's motion for a new trial based on juror bias. He should also pursue criminal action against any of the jurors implicated. This is the only way to uphold the ideal of equal justice before the law. Barr heads the Department of Justice, not the Department of Prosecution.

UPDATE 2:

Andy McCarthy
@AndrewCMcCarthy

Judge very carefully, and with praise for performance of trial team, imposes on Stone a sentence completely consistent with the shocking, Constitution-shredding, Republic-destroying 36-47 month range Barr DOJ said would be reasonable. Impeach!

11:39 AM · Feb 20, 2020

Obvious sarcasm. How could 40 months be consistent with "shocking, Constitution-shredding, Republic-destroying" conduct? But ... it was still over the top, and Barr was wrong to recommend that range.

UPDATE 3: Important point--Judge Amy was embracing the tin foil hat denialism re NO RUSSIA COLLUSION:

Undercover Huber
@JohnWHuber

Also unmentioned is that the “Trump-Russia investigation” he lied to wasn’t Mueller’s, it was House Democrats *Congressional* investigation. By that standard, I’m sure the bracelets are going to come out any minute now for all of those who obstructed House GOP and Devin Nunes...

11:42 AM · Feb 20, 2020