The resignation of four prosecutors in the prosecution of Trump confidant Roger Stone has set off alarms throughout Washington. Main Justice today countermanded the prosecutors in the D.C. United States Attorneys office in declaring that their demand for seven to nine years imprisonment as excessive. That alone would be serious. However, once again, President Donald Trump’s decision to publicly denounce the recommendation (shortly before the intervention of Main Justice) has raised legitimate concerns over pressure from the White House in favor of a close confidant of the President. It has also magnified the criticism of Attorney General Bill Barr and suggestions that he intervened due to Trump’s criticism. The four prosecutors who had worked on the trial, Aaron S.J. Zelinsky, Jonathan Kravis, Adam Jed and Mike Marando, filed a motion to withdraw from the case. Trump himself denies asking for a reduction in the proposed sentencing, though that is hardly necessary when you are publicly contradicting your own Justice Department. While I have long been highly critical of the Stone prosecution (and specifically critical of this clearly excessive recommended sentence), there are valid concerns raised by this series of events.
It is hard to see the extraordinary resignation of four prosecutors as anything other than a protest. Unless they were ordered to resign for insubordination, such a protest would likely reflect a confrontation over the exercise of their prosecutorial decision. However, it is not uncommon for Main Justice to intervene in major cases on strategy or sentencing recommendations. The rift would have to reflect a view that the reduction of the recommendation was unjustified or untoward in some way.
As a long-time critic of aspects of the Stone prosecution and its excessive charges (and later excessive sentencing recommendation), I agree with the decision to make a change in the case. That, however, does not mean that I do not have great reservations about how this unfolded. It is exceptionally rare for a sentencing memorandum to be withdrawn. It could reflect a couple of possible scenarios.
First, the prosecutors may have filed without approval and in conflict with the views of Main Justice. That would be an act of insubordination if Main Justice had not signed off on the recommendation or ordered a different recommendation. These prosecutors are subject to the decisions of the Justice Department on policy and strategy.
Second, Main Justice may have demanded a change after the recommendation that the prosecutors may have viewed as political interference from the White House. The prosecutors could argue that they set the recommendation at the high end, but still within, the sentencing guidelines. That would, of course, be equally serious and concerning.
Many of us felt the recommendation was wildly out of proportion to the underlying crimes of false statements and tampering alleged in the seven charges. While Main Justice normally yields to the local prosecutors, it is also a prosecutorial office with its own role in the exercise of prosecutorial discretion.
The Justice Department told the Court that, while prison was warranted, “far less” time was warranted than previously recommended:
“While it remains the position of the United States that a sentence of incarceration is warranted here, the government respectfully submits that the range of 87 to 108 months presented as the applicable advisory Guidelines range would not be appropriate or serve the interests of justice in this case.”
There are some stories that are making sweeping assumptions about these events, which are not fully understood. This could be a serious compromising of the Justice Department, but could also be a good-faith disagreement between prosecutors at the U.S. Attorney’s office and Main Justice. The U.S. Attorney’s Manual expressly states the right of Main Justice and specifically the Criminal Division to intervene in cases:
Department of Justice and Criminal Division policies impose limitations on the authority of the United States Attorney to decline prosecution, to prosecute, and to take certain actions relating to the prosecution of criminal cases. These policy limitations are discussed throughout the Justice Manual, with a centralized listing contained in 9-2.400.
With regard to policy limitations, if in the opinion of the United States Attorney the exigencies of the situation prevent compliance with a policy, he/she shall take the action deemed appropriate. He/she shall promptly report to the Criminal Division the deviation from policy, or if the policy is established by a higher authority, report to that authority and be guided by the instructions furnished him/her. A written report of the deviation should be promptly made. Approval of the action of the United States Attorney or his/her taking action as instructed shall be deemed, for all purposes, to be compliance with the policy. Among the purposes of this language is to ensure that criminals do not escape prosecution by inaction on the part of a United States Attorney immobilized by policy; to require a report of deviation from policy in order that the policy may be evaluated; and to express confidence in the judgment, and to reaffirm the authority, of the United States Attorney in such a situation.
If the United States Attorney discovers that a policy of the Division or of a higher authority has not been followed because of inadvertence, he/she shall promptly notify the Division or higher authority of the deviation from policy by the most expeditious means and subsequently in writing. He/she shall be guided by the instructions furnished him/her. Approval of the action of the United States Attorney, or his/her taking action as instructed shall be deemed, for all purposes, to be compliance with the policy.
In the instances when the United States Attorney is directed to consult with the Division prior to taking an action, such consultation will typically be by an Assistant United States Attorney with an attorney of the section assigned responsibility for the statute or matter involved. If there is a disagreement at this level, the matter should be resolved by appropriate higher authority before the disputed action is taken.
This authority is repeated in another provision, 9-2.131 which states:
If primary prosecutorial responsibility for a matter has been assumed by the Criminal Division or higher authority, the United States Attorney shall consult with the persons having primary responsibility before conducting grand jury proceedings, seeking indictment, or filing an information.
Thus, it is not improper as a general rule to have Main Justice intervene in a case or countermand local prosecutors. The sole question is the impetus for the change. If the Criminal Division objected on the same grounds that many of us have been raising, it would not be improper. If the White House objected, the move to override the local prosecutors would be a serious breach of prosecutorial integrity and independence. Given the President’s public statement, we cannot rule out the latter and assume the former. That is why Barr needs to make this normally confidential process much more transparent.