Wednesday, February 12, 2020

Trump Justice Department intervenes in Roger Stone sentencing

All four career prosecutors handling the case against Roger Stone withdrew from the legal proceedings — and one quit his job entirely — after the Justice Department signaled it planned to undercut their sentencing recommendation for President Trump’s longtime friend and confidant, reported the Washington Post.
The sudden and dramatic moves came after prosecutors and their superiors had argued for days over the appropriate penalty for Stone, and exposed what some career Justice Department employees say is a continuing pattern of the historically independent law enforcement institution being bent to Trump’s political will.
Almost simultaneously, Trump decided to revoke the nomination to a top Treasury Department post for his former D.C. U.S. attorney, who had supervised the Stone case when it went to trial.
The cascade of controversy began Monday, when career prosecutors handling the case recommended a judge sentence Stone — convicted in November of obstructing Congress and witness tampering — to between seven and nine years in federal prison.
Stone has been a friend and adviser to Trump since the 1980s and was a key figure in his 2016 campaign, working to discover damaging information on Democratic opponent Hillary Clinton. His was the last conviction secured by special counsel Robert S. Mueller III as part of the investigation into Russian interference in the 2016 election. The president suggested angrily on Twitter that Stone deserved more lenient treatment.
“This is a horrible and very unfair situation,” Trump wrote early Tuesday morning. “The real crimes were on the other side, as nothing happens to them. Cannot allow this miscarriage of justice!”
leadership was “shocked” by the recommendation of a seven- to nine-year sentence and would soon revise it.
 “That recommendation is not what had been briefed to the department,” the official said, speaking on the condition of anonymity to discuss a sensitive case. “The department finds the recommendation extreme and excessive and disproportionate to Stone’s offenses.”
One by one, the career prosecutors, two of whom had worked on Mueller’s investigation, filed notices in court of their intention to leave the case. Though none of the prosecutors gave a reason, their asking to do so was highly unusual and suggested they could not ethically affix their names to the government’s revised position.
Career Justice Department lawyers similarly moved in 2018 to withdraw from a case when the Trump administration decided it would not defend the Affordable Care Act against a challenge to its constitutionality. One of those lawyers resigned over the matter.
Kerri Kupec, a Justice Department spokeswoman, said the White House did not communicate with the agency on Monday or Tuesday about the Stone case, and that the decision to reverse course was made before Trump’s tweet.
Trump told reporters later Tuesday, “I have not been involved in it at all,” though in the same remarks he called the career prosecutors’ initial recommendation “an insult to our country.”
“That was a horrible aberration. These are, I guess, the same Mueller people that put everybody through hell and I think it was a disgrace,” Trump said. “They ought to be ashamed of themselves.”
Jonathan Kravis, one of the prosecutors on the Stone case, wrote in a court filing that he had resigned as an assistant U.S. attorney, leaving government altogether. Three others — Aaron S.J. Zelinsky, Adam Jed and Michael Marando — filed notices with the judge saying “please notice the withdrawal” from the case.
Zelinsky, a former member of Mueller’s team, also indicated in a filing he was quitting his special assignment to the D.C. U.S. attorney’s office, though a spokeswoman said he will remain an assistant U.S. attorney in Baltimore.
Through a spokeswoman, Zelinsky declined to comment. Jed and Kravis also declined to comment. Marando could not immediately be reached.
As the drama unfolded Tuesday afternoon, Trump also decided to withdraw his nomination of former D.C. U.S. Attorney Jessie K. Liu to serve as Treasury Department undersecretary for terrorism and financial crimes, people familiar with the matter said. The withdrawal was first reported by Axios.
The reason was not clear. Liu had left her U.S. attorney post last month in a somewhat unusual move, because she had not yet received Senate confirmation for her new job. She was replaced on an interim basis by Timothy Shea, a former counselor to Attorney General William P. Barr.
An administration official said Trump has been lobbied extensively against Liu by those who did not like how she handled the D.C. U.S. attorney’s office — particularly as it related to the Mueller probe. Several people familiar with the matter said Liu had no role in Stone’s sentencing recommendation, having left the office before it was sent to supervisors for approval. Liu, whose confirmation hearing had been scheduled for Thursday, did not immediately respond to requests for comment.
Former Justice Department officials and others characterized the department’s abrupt shift on the case as an egregious example of the president and his attorney general manipulating federal law enforcement to serve their political interests.
Senate Minority Leader Charles E. Schumer (D-N.Y.) asked the Justice Department’s inspector general to investigate, writing, “this situation has all the indicia of improper political interference in a criminal prosecution.”
, a former Justice Department official, called it a “shocking, cram-down political intervention” in the criminal justice process.
“We are now truly at a break-glass-in-case-of-fire moment for the Justice Dept.,” he wrote on Twitter.
Eric Holder, attorney general under President Barack Obama, said it was “unprecedented, wrong and ultimately dangerous.”
Rep. Bill Pascrell Jr. (D-N.J.) said the move amounted to “obstruction of justice.”
“We are seeing a full-frontal assault on the rule of law in America,” Pascrell said. “Direct political interference in our justice system is a hallmark of a banana republic. Despite whatever Trump, William Barr, and their helpers think, the United States is a nation of laws and not an authoritarian’s paradise.”
In its revised sentencing recommendation, the Justice Department essentially took aim at its own line attorneys, saying their previous guidance “could be considered excessive and unwarranted under the circumstances.” The memorandum was signed by Shea and his criminal division supervisor, John Crabb Jr.
 “Ultimately, the government defers to the Court as to what specific sentence is appropriate under the facts and circumstances of this case,” they wrote.
The decision to file a new sentencing memo was made by officials in the attorney general’s office and the deputy attorney general’s office, according to a senior Justice Department official. The official could not point to another instance of Justice Department headquarters overruling and replacing a sentencing memorandum a day after a filing but insisted it was not unusual for law enforcement officials to “correct the record.”
“I don’t think anyone thinks this went smoothly,” the official said, while declining to discuss who knew what inside the department about the Stone sentencing recommendation.
Like the original sentencing recommendation, the official said the withdrawal of the Stone prosecution team came as a surprise.
Barr has previously faced criticism for seeking to protect Trump and undercut the special counsel’s work.
In perhaps the most notable instance, he sent Congress a letter before the special counsel’s report was publicly released, describing what he called the investigation’s principal conclusions. Mueller, Barr wrote, did not find that the Trump campaign coordinated with Russia to influence the 2016 election, and reached no conclusion on whether Trump had obstructed justice. Barr wrote that he and then-Deputy Attorney General Rod J. Rosenstein reviewed the matter and concluded there was insufficient evidence to make an obstruction case.
The bare-bones description so infuriated the special counsel’s team that Mueller wrote to Barr to complain that the attorney general’s summary “did not fully capture the context, nature, and substance” of the Russia probe. Barr, though, repeated his description at a news conference before Mueller’s full report was released, drawing criticism that he was trying to shape public opinion in a way favorable to Trump.
Mueller closed his office in May, though some members of his team stayed on special assignments to the D.C. U.S. attorney’s office to handle cases — including Stone’s — that were not resolved. People familiar with the matter say there was tension between them and their supervisors on what penalty to recommend.
As Monday’s court deadline neared for prosecutors to give a sentencing recommendation, it was still unclear what the office would do, even after days of internal debates, according to people familiar with the matter who, like others, spoke on the condition of anonymity to discuss internal deliberations.
Front-line prosecutors argued for a prison sentence on the higher end, while their bosses wanted to calculate the guidelines differently to get to a lower sentence. The debate centered around whether they should seek more prison time for obstruction that impedes the administration of justice, these people said.
In the end, the office filed a recommendation keeping with the line prosecutors’ goals, and rejecting the lighter recommendation sought by their superiors, the people said.
Hours before the filing was due Monday, Shea, the new head of the D.C. office and a former close adviser to Barr, had not made a final decision on Stone’s sentencing recommendation, they said.
A Justice Department official said senior leaders were led to believe it would be lighter than what was ultimately filed. But some legal observers were skeptical, and the department declined to provide a more detailed account.
Stone is scheduled to be sentenced by Judge Amy Berman Jackson on Feb. 20.
Mary McCord, a former prosecutor and acting assistant attorney general for the department’s national security division, said decisions related to the sentencing of such high-profile political figures would not be made without initial consultation between a U.S. attorney’s office and Justice Department headquarters, andthat it was is hard to imagine the department was truly taken aback.
“There is no way you can come away from this with anything other than an impression that Justice is taking its orders from the president and pandering to the president,” McCord said. “This is causing lasting and long-term damage to the department’s reputation and credibility.”
It can be common for prosecutors to disagree about sentencing recommendations, especially when it comes to politically sensitive cases. It would have been unusual, however, for the U.S. attorney’s office to endorse a sentence below the guideline range after winning conviction at trial, according to former federal prosecutors.
In the initial 22-page sentencing recommendation, the career prosecutors wrote that a sentence of 87 to 108 months, “consistent with the applicable advisory Guidelines would accurately reflect the seriousness of [Stone’s] crimes and promote respect for the law.”
Kravis and Marando were part of the U.S. attorney’s office in D.C. Jed and Zelinsky were members of Mueller’s team on special assignment to the office. Kravis and Zelinsky revealed the resignations in formal notices of withdrawal from the Stone case. Jed and Marando asked to withdraw but gave no immediate indication they were resigning from the government.
Crabb, the head of the D.C. office’s criminal division and also a career prosecutor, entered the case in their place.
Stone’s defense on Monday asked for a sentence of probation, citing his age, 67, and lack of criminal history. They also noted that of seven Mueller defendants who have been sentenced, only one faces more than a six-month term: former Trump campaign chairman Paul Manafort, who is serving 7½ years.
Given the hardships and loss of professional standing suffered by Stone and his family, “No one could seriously contend that a [reduced . . .] sentence would cause anyone to walk away from these proceedings believing that one can commit the offenses at issue here with impunity,” defense attorneys Bruce S. Rogow, Robert C. Buschel and Grant J. Smith wrote.
Federal sentencing guidelines are calculated using mathematical formulas. While prosecutors and defense lawyers make recommendations based on their calculations, ultimately it is up to the judge to decide which factors to consider in sentencing someone, and whether to adhere to the recommendation or depart.
In Stone’s case, the prosecutors came up with a recommendation of seven to nine years based on a number of aggravating factors, including an alleged threat to harm a witness, to whom Stone sent the message, “prepare to die,” and because prosecutors decided Stone’s conduct resulted in “substantial interference in the administration of justice.”
Under the federal sentencing guidelines’ point system, those factors add years to Stone’s prospective prison sentence. Stone and the witness in question, Randy Credico, both have maintained Stone’s statement was not a threat of violence, but part of Stone’s history of making bombastic statements.
In their Monday filing, prosecutors argued more time should be added to Stone’s sentence because of his extensive criminal conduct, which stretched two years, and because they say he obstructed the prosecution of the case after he was charged.
In a Tuesday filing from Shea and Crabb, the government argued those enhancements were overkill, noting that Stone’s victim has asked for leniency for him and did not view the statement as an actual threat. The new filing also contended that the enhancements endorsed in the previous government filing were not in keeping with the sentences generally doled out to nonviolent offenders.
Tuesday’s filing suggested — but did not outright recommend — that a sentence of three to four years would be reasonable, and “more in line with the typical sentences imposed in obstruction cases.”
Prosecutors in another case brought by the special counsel’s office, against Trump’s first national security adviser, Michael Flynn, also recently walked back a sentencing recommendation — though the move was subtle.
In early January, prosecutors recommended that Flynn, who pleaded guilty to lying to the FBI about his contacts with Russia’s ambassador to the U.S., be sentenced “within the Guidelines range” of zero to six months in prison. But in another filing just weeks later, they made clear they agreed with Flynn “that a sentence of probation is a reasonable.”
Prosecutors did not explain in the later filing why they emphasized probation as a reasonable sentence for Flynn. Both documents were signed by career prosecutors — Brandon L. Van Grack and Jocelyn Ballantine — though Van Grack has not signed some later filings in the case. Flynn is now seeking to withdraw his guilty plea, alleging a variety of government misconduct.
Barr has been critical of the FBI’s 2016 investigation into Trump’s campaign that Mueller ultimately took over. When the Justice Department inspector general found last year that the bureau had adequate cause to open the case, Barr issued a remarkable public statement registering his disagreement. He said the case was initiated “on the thinnest of suspicions that, in my view, were insufficient to justify the steps taken.”
“It is also clear that, from its inception, the evidence produced by the investigation was consistently exculpatory,” he added.
Barr has tasked the U.S. attorney in Connecticut with exploring the origins of the case, and current and former law enforcement officials have expressed concern that it might be an effort to undercut an investigation because Trump did not like it.
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