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Law360 (June 24, 2020, 9:20 PM EDT ) A D.C. federal judge has given the U.S. Department of Justice until Thursday to explain its reason for backing Roger Stone's request to delay his prison surrender date until early September, a move coming on the heels of mounting accusations of political interference at the agency.
Stone, a longtime GOP operative and ally of President Donald Trump, is set to report to prison June 30. He asked U.S. District Judge Amy Berman Jackson on Tuesday for a two-month delay of his 40-month prison sentence for obstructing probes into Russian election interference, witness tampering and lying to Congress. Stone, 67, made the request, with the backing of the DOJ, on the basis of concerns of "his heightened risk of serious medical consequences from exposure" to the coronavirus in prison and his age.
But in a minute order Wednesday, Judge Jackson told the DOJ to state in writing why the department does not oppose Stone's motion to extend his surrender date and to indicate how it has responded to similar motions in other cases.
The DOJ should also update the district court on the results of COVID-19 tests at the medium-security federal correctional institution in Jesup, Georgia, where Stone was assigned to serve his sentence, the judge said. While the Bureau of Prisons' website does not show any inmates with COVID-19 at the facility, Stone said it reported that there are 25 tests pending.
Judge Jackson's order came the same day a federal prosecutor, who helped secure a guilty verdict at trial in November against the former adviser to Trump's 2016 campaign, testified before Congress that officials "from the highest levels" of the DOJ intervened and gave "favorable treatment" to Stone ahead of sentencing because of his relationship with Trump.
Career prosecutor Aaron Zelinsky and three other attorneys who brought the case to trial abruptly quit the case in February after Attorney General William Barr overrode their recommendation for Stone to serve up to nine years in prison. Assistant U.S. Attorney Jonathan Kravis, who was part of the original team, resigned from the DOJ altogether.
A new team of political appointees at the U.S. Attorney's Office for the District of Columbia took over the case and sought a more lenient sentence. Trump had publicly rebuked the original recommendation as a "miscarriage of justice."
Judge Jackson had issued a brief order Tuesday night asking the DOJ to explain its position on Stone's motion to delay his surrender date. But in Wednesday's order, the judge in trying to determine whether Stone received any special treatment appeared skeptical of the DOJ's policy for how it handled cases for other defendants set to start their sentences in the wake of COVID-19.
In his request, Stone had noted Barr's March 26 memo, which instructed the Bureau of Prisons must prioritize the use of "various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic." An April 6 memo also urged prisons to consider the pandemic as a factor, especially in cases where the defendant presents little risk of flight or harm to the community or in cases where the defendant is particularly susceptible to the virus.
Stone also cited some criminal cases in which district courts have recognized the health risk of COVID-19 to people in prison and agreed to extend defendants' surrender date.
"We recognize that this court has written that a generalized description of the risk that the COVID-19 virus poses will not suffice," the motion said. "In Stone's case, his serious health issues are set forth in the presentence report. In addition, Stone is filing simultaneously with this motion a motion for permission to file under seal a letter from his treating physician that provides further detail regarding Stone's medical conditions and the danger to his health that incarceration would present at this time."
The self-described political "dirty trickster" told Judge Jackson that his attorneys contacted the U.S. attorney's office in D.C. and were told the government does not oppose the 60-day extension request.
Stone's attorney Seth Ginsberg told Law360 he has no comment on Judge Jackson's minute orders. A DOJ spokesperson did not immediately reply to a request for comment.
Stone appealed his conviction to the D.C. Circuit in April after Judge Jackson denied his request for a new trial. The appeal will not be resolved anytime soon as the circuit court has set briefings until October. Trump, however, has repeatedly suggested he might pardon Stone.
The government is represented by John Crabb Jr. and J.P. Cooney of the U.S. Attorney's Office for the District of Columbia.
Stone is represented by Seth Ginsberg of the Law Office of Seth Ginsberg and Grant Smith of StrategySmith PA.
The case is U.S. v. Stone, case number 1:19-cr-00018, in the U.S. District Court for the District of Columbia.
--Additional reporting by Mike LaSusa. Editing by Orlando Lorenzo.
Update: This article has been updated with comment from Stone's attorney.
For a reprint of this article, please contact reprints@law360.com.
