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A federal judge swung back at President Donald Trump on Tuesday over his heated criticism of the Roger Stone case, warning that the president’s commentary about his longtime associate’s conviction had helped fuel threats to the jury.
U.S. District Court Judge Amy Berman Jackson cited Trump’s public comments and Twitter posts, as well as an accompanying campaign from the president’s conservative media allies to identify and critique the jury, as one of the reasons for her decision to clamp down on public access to a hearing on Stone’s request for a new trial.
“Any attempt to invade the privacy of the jurors or to harass or intimidate them is completely antithetical to our entire system of justice,” Jackson said before issuing a ruling that cleared the courtroom of any public spectators for a second, highly unusual hearing that featured testimony from the jury foreperson and two other members of the Stone jury.
Not long after Jackson made her remarks, Trump tweeted three times in rapid fashion about the judge and the Stone jury. “There has rarely been a juror so tainted as the forewoman in the Roger Stone case. Look at her background. She never revealed her hatred of 'Trump' and Stone," he wrote in one post. "She was totally biased, as is the judge. Roger wasn’t even working on my campaign. Miscarriage of justice. Sad to watch!”
The president also posted comments from a conservative lawyer complaining that Stone’s jury wasn’t impartial and a link to a Fox News story with a headline suggesting Jackson’s bias “may have jeopardized the whole trial.”
Jackson last week sentenced Stone to more than three years in prison for obstructing the congressional and FBI investigations into Russian meddling in the 2016 presidential campaign. But the judge, an appointee of former President Barack Obama, has also put a hold on immediately locking up Stone until after she rules on his bid for a new trial.
During last Thursday’s sentencing, Jackson made no direct mention of the president’s remarks about the case. But the judge on Tuesday left no mystery that she thought Trump’s comments were a problem.
“The president of the United States used his Twitter platform to disseminate a particular point of view about a juror,” Jackson said. “Any attempt to invade the privacy of the jurors or to harass or intimidate them is completely antithetical to our system of justice. ... They deserve to have their privacy protected.”
Trump has been commenting about the Stone case since his longtime associate was first indicted and arrested in January 2019, but Jackson said she was alarmed by the president’s more recent remarks since the sentencing. During an appearance at a prison program graduation in Las Vegas last week, for example, the president complained without evidence that Stone's jury was "tainted" with anti-Trump bias.
“It's my strong opinion that the forewoman of the jury — the woman who was in charge of the jury — is totally tainted,” Trump said. “When you take a look, how can you have a person like this? She was an anti-Trump activist. Can you imagine this?”
In those remarks, the president also signaled his intentions of issuing a pardon for Stone, though he said he wanted to wait until Stone had a chance to petition for a new trial and make an appeal.
"I want to see it play out to its fullest, because Roger has a very good chance of exoneration," the president said.
Stone’s hearing on the new-trial motion lasted for about three-and-a-half hours -- and it came with some unusual security precautions. Jackson cited an “extremely high” risk of harassment and intimidation for any juror who gets called to testify as a reason to exclude the press and public from the courtroom for that session. She did allow a closed-circuit audio feed to another courtroom and a media room.
Jackson also briefly took secret testimony at the bench from a deputy marshal that she suggested involved threats to the jurors in the case. She allowed one lawyer from each side to listen, but barred the attorneys from discussing the testimony with other counsel or Stone.
The Stone motion for a new hearing had been kept under wraps since it was filed more than a week ago, but Jackson in an order on Monday revealed that Stone's defense recently moved to open the related court filings and any planned hearing to the public.
The defense motion centers on a woman who has identified herself as the foreperson of the jury at Stone's weeklong trial last November, Tomeka Hart. Hart is an attorney who formerly served on the Memphis school board and mounted an unsuccessful bid for the Democratic nomination in Tennessee's 9th District in 2012.
Seth Ginsberg, a Stone lawyer, argued that Hart gave a misleading answer to a multi-part question given to potential jurors before the trial when asked if she had written or commented publicly about Stone, the House Intelligence Committee’s investigation into Russian election interference or special counsel Robert Mueller’s probe.
Hart did not respond to the direct yes-or-no question on that point. But she did answer the open-ended follow-up by explaining that she couldn’t recall if she’d shared an article on Facebook. “Honestly, not sure,” she wrote.
In anticipation of Tuesday’s hearing, Jackson called Hart and the other members of the jury back to the federal courthouse in Washington D.C. for potential testimony. Under oath, Hart confirmed that she had posted multiple times on social media over the last year - sharing news articles and sometimes including her own comments critical of Trump. She also said she had shared an NPR article on the day of Stone’s arrest in January 2019 with the comment, “Brought to you by the lock her up peanut gallery.”
But Hart explained that she nonetheless answered the at-issue questionnaire with the understanding that it was primarily asking whether she’d shared anything about Stone.
“I was trying to be honest. I was not sure. I posted and tweet a lot of stuff. I absolutely was not trying to downplay anything," Hart said.
Both Jackson and Ginsberg also questioned Hart about a tweet she sent early in the morning on Nov. 15, 2019, just hours before the jury would convene for the final time and render its guilty verdicts.
The tweet contained four emojis: two hearts, a fist bump and a raised fist, followed by a link to a Facebook post that is no longer publicly available. Hart said she wasn’t sure what the message alluded to.
“Were you celebrating the verdict that had yet to be decided in the Roger Stone case?” the judge asked.
“Absolutely not,” Hart replied.
Under defense questioning, she later replied that the raised fist signaled “solidarity,” but she insisted she had no recollection of what she was referring to.
Jackson repeatedly accused the defense of trying to blur the issues of bias and misconduct, by suggesting that any strongly-held opposition to Trump amounted to improper bias against Stone.
“It’s not just a question of: What did she write? What did she think? What did she feel? It’s a question of: Did she lie?” the judge said, adding that she didn’t think it was relevant if “she is a dyed-in-the-wool Democrat and probably wouldn’t like Mr. Stone if she met him.”
Jackson issued no immediate ruling on Stone’s new-trial motion but she made clear her view that Hart’s thoughts on climate, immigration, white supremacism, and Trump himself, did not render her too biased to sit on the Stone jury.
“Having an opinion about the president and some or even all of his policies does not mean that she could not fairly and impartially judge the evidence against Roger Stone,” the judge said.
Jackson’s decision to request all the jurors to come to court and to allow several to be questioned initially seemed like at least a tactical victory for Stone’s defense. But the two jurors who took the stand before Hart did not appear to help Stone’s claims of a biased jury and they undermined suggestions by Stone’s allies that Hart engineered a rush to judgment.
Both a male juror and a female juror said the deliberations were respectful and they denied Hart did anything to pressure anyone. In fact, the female jury member said Hart was the one who slowed deliberations at one point by calling for the jury to send a question to the judge about the wording in a specific count.
“We all agreed, most of us agreed on our answer. We already said he was guilty. It was the forewoman that insisted” on asking the question, the juror said.
Stone’s efforts to focus on the jury’s impartiality represents the latest in a series of unsuccessful attempts made by the GOP operative to knock out his criminal case. Jackson ended Tuesday’s hearing saying she’d take the matter under advisement but appears headed toward dismissing the defendant’s motion for a new trial.
“I want to be sure the court of appeals has the full record,” Jackson said in explaining her decision to allow Hart and the other jurors to return to her courtroom for questioning.
Hart didn’t respond to requests for comment from POLITICO at the conclusion of the trial. But after the four prosecutors who handled Stone's trial quit two weeks ago amid a furor over an intervention in the case by Attorney General William Barr, Hart posted a message on Facebook acknowledging her role and defending the prosecution team.
"I can't keep quiet any longer," Hart wrote, according to the Daily Memphian. "I have kept my silence for months. Initially, it was for my safety. Then, I decided to remain silent out of fear of politicizing the matter."
“I want to stand up for Aaron Zelinsky, Adam Jed, Michael Marando, and Jonathan Kravis — the prosecutors on the Roger Stone trial,” Hart added. “It pains me to see the DOJ now interfere with the hard work of the prosecutors. They acted with the utmost intelligence, integrity, and respect for our system of justice."
The absence of most of those government lawyers caused some confusion in court at times Tuesday, but Marando took the witness stand briefly to discuss how prosecutors had handed the jury questionnaires.
During the jury selection process, known as voir dire, Hart was referred to publicly by a four-digit juror number. She had mentioned her congressional run amid examination by one of Stone's attorneys, Robert Buschel. From the thrust of his questions, it seemed evident Hart had run as a Democrat.
But Stone's defense did not move to excuse her based on her questionnaire or what she said in court.
Before the jurors took the stand Tuesday, Jackson zeroed in on that issue and what information about Hart the defense had access to.
Buschel told the judge that none of the lawyers or jury consultants ran a simple web search on Hart.
“No, unfortunately, they did not do that in this circumstance,” the defense attorney said.
On Tuesday, Jackson did not permit the attorneys to refer to the jurors by either their names or numbers, but Hart was described as the jury foreperson, making her identity evident.
Last week, Stone's lawyers sought to have Jackson recuse herself from the pending new trial motion, but she rejected that move Sunday in a stinging decision that rebuked the defense for using the court's docket to accuse her publicly of bias.
Trump has also sent several tweets accusing Jackson of bias — defying a public request from Barr that he stop making public statements about pending cases and the judges handling them.
On Tuesday morning, as Trump was traveling in India, his account retweeted a four-day-old Fox News web post in which a former Democratic Party lawyer, David Schoen, asserted that Jackson’s excoriation of Stone at his sentencing Thursday showed that her bias had infected his whole trial.