White House omitted light Jackson child porn sentence in document given to senators, GOP says: 'Cover-up'

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Republicans say the White House did not include in materials given to the Judiciary Committee a grisly child porn case in which Judge Ketanji Brown Jackson departed significantly below probation office recommendation – and are raising questions of whether the White House "intentionally left it out," which the White House disputes. 

Jackson, President Biden's Supreme Court nominee, sentenced the case less than a year ago as she was about to be elevated to the D.C. Circuit Court. Titled U.S. v. Cane, it involved "over 6,500 files depicting children appearing to be of elementary, middle and high school ages, engaged in sexual acts or posing sexually." The probation office recommended a sentence of 84 months in the case but Jackson sentenced the man to 60 months in prison, which was the mandatory minimum.

"Not only does this case, which Judge Jackson left off her list of child abuse cases, undercut her argument that she followed the probation office’s recommended sentences, but it also underscores the perils of moving too quickly in the vetting process," a Republican Judiciary Committee aide told Fox News. 

Supreme Court nominee Ketanji Brown Jackson testifies during her Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, Wednesday, March 23, 2022.  (AP Photo/Alex Brandon)

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The White House said the Cane case was unintentionally left off a list given to the committee which compared Jackson's sentences to the probation office recommendations in 14 child abuse cases because it happened so close to the end of Jackson's tenure on the D.C. District Court. It also defended her handling of the case, arguing it actually undercut Republicans' argument on whether Jackson followed prosecutor recommendations. 

"This case, in which Judge Jackson sentenced the defendant to the term of imprisonment recommended by the government, proves to an even greater extent that in the large majority of her decisions involving child sex crimes, the sentences Judge Jackson imposed were either consistent with or above what the government or the U.S. Probation Office recommended," White House deputy press secretary Andrew Bates said. 

"The Cane case further undermines smears that a small number of Republican Senators have made – and which moderates members in both parties have rejected," Bates continued. "Fact checkers at multiple mainstream outlets have highlighted that the specific Senators who made these attacks have voted for Trump-nominated judges who sentenced defendants for the same crimes in the same way, both in terms of giving sentences below guidelines that are widely considered to be out of date across the judiciary and below timelines sought by the prosecution."

The White House said Jackson's sentence in the Cane case was consistent with the 60-month sentence it says prosecutors asked for. To support this, it pointed to a passage in the sentencing transcript in which Jackson said, "the need to avoid unwarranted sentencing disparities supports the imposition of a similar sentence in this case [compared to other child porn sentences Jackson issued], which is what both defense counsel and the government have recommended."

Supreme Court nominee Ketanji Brown Jackson testifies during her Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, Tuesday, March 22, 2022. (AP Photo/Andrew Harnik)

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During Jackson's hearing, Sen. Ted Cruz- R-Texas, and other Republicans grilled her about her sentences in child porn cases compared to government recommendations, which they said were the best publicly available benchmark. Cruz mentioned the Cane case during Jackson's hearing, but only to dismiss it as a case in which the government didn't make a sentencing recommendation. That's contrary to the White House's argument that Jackson's sentence was consistent with what the government sought – which Republicans say isn't fully supported by Jackson's comment in the sentencing transcript. 

"The transcripts—the only public material to address sentencing in this case—confirm that the probation office recommended a longer sentence than the minimum term imposed by Judge Jackson," a Republican Judiciary Committee aide told Fox News. "They also reveal the government’s arguments for enhancing the penalty, which suggests interest in a sentence longer than the term Judge Jackson handed out."

"The White House is pointing to a sealed document to support their unverified claim about a case that was mysteriously excluded from information they provided to Democrats, but not Republicans ahead of Judge Jackson’s hearing. It’s clear from the sentencing transcript that the probation office, which Judge Jackson repeatedly referenced to justify her sentences, wanted a longer sentence in this case," the GOP aide continued. "Moreover, Judge Jackson even pointed to a case (Cooper), where she imposed the shortest possible sentence despite the prosecutor’s higher recommendation, to justify her sentence in this case."

As Republicans argued during the hearings last week that Jackson systematically sentenced child porn offenders below prosecutor recommendations, Democrats and the White House countered that Jackson was within the mainstream among federal judges for sentencing child porn offenders.

Sen. Ted Cruz, R-Texas, and other members of the Republican Conference leave a luncheon on Capitol Hill in Washington, Wednesday, March 24, 2021. (AP Photo/J. Scott Applewhite)

Democrats also argued that Jackson's sentences were usually consistent with probation office recommendations, and that Republicans were not taking that into account. 

A chart displayed by Cruz, Jackson said, did not "include all of the factors that Congress has told judges to consider, including the probation officer's recommendation." 

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Cruz told Jackson that he didn't have access to those recommendations. 

But later a spreadsheet was distributed to senators which compared the sentences Jackson handed down in 14 child sex crime cases to the probation office recommendations.

It showed that Jackson imposed sentences consistent with what the probation office recommended most of the time – although she indeed departed below the recommendations more often than she departed above them. The spreadsheet became a major part of Democrats' defense of Jackson.

But it didn't include the Cane case. 

"Committee Republicans only just got the sentencing transcript for this case on Friday, after the hearing had ended," the GOP Judiciary Committee aide said. "Clearly, the White House either didn’t thoroughly vet the nominee, or were aware of the record and the intentionally left it out in hopes that the nominee would be confirmed before the full record could be uncovered and reviewed." 

"When we first highlighted her record on child porn cases, the White House leaked information to their friends in the media and Democrats on the Judiciary Committee," Sen. Josh Hawley, R-Mo., told Fox News. "They hid it from the public despite knowing Judge Jackson gives lenient sentences to criminals. The White House is still refusing to be transparent about Judge Jackson’s record."

Supreme Court nominee Ketanji Brown Jackson testifies during her Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, Tuesday, March 22, 2022.  (AP Photo/Andrew Harnik)

"This is a cover-up by the Biden White House and Senate Democrats," conservative Article III Project founder Mike Davis told Fox News. "They're covering up her record. They intentionally omitted this case from less than a year ago because it did not fit their political narrative."

In the sentencing hearing transcript for the Cane case, Jackson disregards some images and videos relied upon by the probation office to make its recommendation because the statement Cane agreed to when he plead guilty did not include that evidence. 

Jackson did this despite the fact that the probation officer at the sentencing hearing urged her to take those "sadistic and masochistic" videos and photos into account in her final sentence. She had authority to do so even if they weren't included in the "statement of offense," the probation officer said. 

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Jackson also cited "policy disagreements with the guidelines concerning the offense level enhancements for use of computer and number of images."

"[A] computer is at work with respect to nearly all distribution offenses today, and it is typically very easy to receive and possess and distribute child pornography electronically such that the mere number of images and the fact that you used an electronic medium are not ordinarily in themselves indicative of an especially heinous or egregious offense," Jackson said. 

During the hearing Jackson also acknowledged some evaluations did not show Cane was fully reformed. And she emphasized the harm child pornography causes to its victims, describing Cane's crime as "heinous."

As she handed down the 60-month sentence, Jackson also acknowledged letters of support from Cane's friends about his "true character," and steps the man took "in prison to try to rehabilitate yourself."