Criminal law, Politics

All Four Trial Prosecutors Resign After Stone Sentencing Recommendation Is Rescinded

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 It is exceptionally rare for a sentencing memorandum to be withdrawn.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.

87 thoughts on “All Four Trial Prosecutors Resign After Stone Sentencing Recommendation Is Rescinded”

  1. Awesome, more jobs available for people in need….Step right up, unemployed lawyers of the U.S.A., step right up, if you want to be a prosecutor, their is now 4 available spots in D.C.

    I’ll start sending the alert out to wanna-be prosecutors…..THANKS guys. 🙂

    1. there* are*

      Sry, I speed type, allow the auto-coorect, and typically don’t re-read. It’s a comment section on a b-law-g, forgive me, thank you much.

      Also, not an “adult” on Wednesdays. It’s my day off.

  3. All Four Trial Prosecutors Resign After Stone Sentencing Recommendation Is Rescinded

    All the drama aside – isn’t it possible that after Mr Stone is sentenced the president could either pardon or commute his sentence?

    All Four Trial Prosecutors could have recommended a 100 year sentence and the judge at the sentencing hearing could have agreed and the president could still have issued a pardon or commutation.

    What happened to James Clapper, Elliot Abrams or Hillary Clinton when they lied to congress?

    1. Trump doesn’t want to pardon Stone because then Stone couldn’t claim his Fifth Amendment rights when called to testify before Congress about what he’s done. And there’s plenty Stone could say about Trump.

      Commutation is more likely.

    2. What is Stone’s “Project Rasputin”, which according to the DOJ is still under investigation?

  4. I wonder if Jonathan Turley would ever resign from a job in protest.

    In any case, what seems to have happened is this:
    (1) Probation Services ran calculations based on the charges Stone was convicted of (and remember he threatened both a witness and the judge) and came up with a recommendation of 7-9 years.
    (2) DOJ policy is you need special permission from Main Justice to recommend less than Probation calculates.
    (3) The prosecutors in the case told Main Justice: we’re cool with what Probation calculated.
    (4) Main Justice said: Whoa! This is the president’s friend! Do you know how mad he’ll get?
    (5) The prosecutors said: OK, what sentence do you want us to ask for and what legal argument should we make?
    (6) Main Justice responded: Um, well, er, why don’t you come up with something on your own?
    (7) The prosecutors replied: Like what?
    (8) Main Justice answered: See, we don’t want to tell you how to do your jobs. It will look bad later if it comes out we were telling you to go easy on the president’s buddy. But go easy on him, won’t you?
    (9) The prosecutors said: We’re running out of time. The filing is due. What should we submit?
    (10) Main Justice said nothing.
    (11) The prosecutors filed what they originally told Main Justice they were going to file.
    (12) Main Justice freaked out and began writing a new recommendation.
    (13) Trump tweeted about how awful the prosecutors’ recommendation was.
    (14) Atty. General Barr gave a speech in which he complained about prosecutors being too lenient.
    (15) Main Justice announced that there would be a new, more lenient recommendation.
    (16) Main Justice asked the four prosecutors to sign the new recommendation.
    (17) The prosecutors all withdrew from the case in protest.
    (18) The new recommendation was submitted.
    (19) Trump tweeted that Barr was now personally in charge of the Stone case.
    (20) Jonathan Turley offered a bunch of lame excuses as to why this all might be fine.

    Remember, Roger Stone was convicted for lying to cover up the president’s role in the Russian collusion scandal.

    1. No, the Stone indictments show there was no collusion but plenty of overcharging. And show that Stone is a showman who specialized in self aggrandizement. The Trump campaign was trying to find out information about what Wikileaks had and when they would have a document dump — which they wouldn’t need if they had been colluding with the Russians in the first place.

  5. That was less reason to make a big deal out of the President openly doing his job than the impeachment trial. Pressue is when you threaten to fire someone. Those probable Obama appointments quit. on their own no doubt to have a book ghost written which will be more meaningless than Pelosi claiming to be a citizen.

  6. So I take it that Trump supporters don’t mind that a personal lawyer of the impeached President, who is paid by the American people who also carries the title of AG can work out deals for the impeached President for his convicted friends. Of course this is the same AG that worked deals for his former boss Bush 41.

  7. These Four so called Prosecutors were Muller & Obama appointees. This seemed to planned knowing DOJ was stepping in to recommend reduce sentence. It is a Dem and anti Trump plan to cause problems and for the House to launch more investigations. The Dem’s have failed in all their efforts so when impeachment failed here comes another excuse to investigate Trump for another impeachment. The Dem’s will be doing this right up to and after the elections.

    They hate and FEAR Trump so much they are blinded and will do anything to get rid of Trump

    This is all going to backfire and Trump will get reelected.

    PS I have confidence in AG Barr and I am sure he knows what is going on and will deal with it.

    Lets see if the Judge Amy Jackson, a big time DEM tries anything.

    In the end Stone, after the election will be pardon and freed.

    DRAIN THE SWAMP

  8. In what reality are Roger Stone and General Flynn guilty of serious crimes, any crimes, while Hillary Clinton is not even charged for her colossal life of crime which began when she accepted a bribe from Tyson Chicken as the Arkansas Governor’s wife, continued through her massive, world-class pay-to-play scam as Secretary of State and culminated in her violations with respect to an illegal server, the deliberate demolition of 30,000 e-mails with Bleachbit and hammers as willful destruction of evidence, obstruction of justice, perjury et al.?

    Does the Deep Deep State in the person of AG William Barr, Mr. Deep Deep State himself, get to ignore the law and Constitution and criminally protect Hillary Clinton from prosecution for her numerous egregious crimes right before our very eyes?

    America is in a condition of hysteria, incoherence, chaos, anarchy and rebellion.

    President Abraham Lincoln seized power, neutralized the legislative and judicial branches and ruled by executive order and proclamation to “Save the Union.”

    President Donald Trump must now seize power, neutralize the legislative and judicial branches and rule by executive order and proclamation to “Save the Republic.”

  9. “Many of us felt the recommendation was wildly out of proportion to the underlying crimes of false statements…”

  10. President Trump doesn’t need to pressure Main Justice to intervene. He has the power to commute or pardon. He is also not the first president to voice an opinion regarding the actions of his own DOJ. If Main Justice determines their subordinates are carrying out their duties inconsistent with the directives of their superiors, then it is well within their authority to intervene. If those subordinates don’t agree with their superiors, then they are welcome to resign.

    There seems to be this assumption that non-elected bureaucrats are immune from the standard rules of employment hierarchy. Imagine the national security threat we’d have if if every change of command in the military required the replacement of the officers and senior enlisted, to ensure the commanding officer’s orders are not undermined. Damn.

  11. Hurrah!!!

    The draining of the “swamp” continues.

    More Obama holdovers of the Deep Deep State are purged.

    MAGA!

  12. Suck it up Turley. Where were you when the Demo’s were ripping our Country apart pre, during and after Impeachment? Step aside till the swam is purged..

  13. The sentencing recommendation came from the Sentencing Commission Guidelines, and it was NOT excessive, considering that Stone lied to Congress and threatened to kill one of the witnesses.

    And as to the “benefit of the doubt theme”, come on. Trump tweets, and then the local prosecutors are overridden. Stinks to high heaven, but since Don the Con has gotten away with obstruction of Congress and trying to leverage aid to a U.S. ally for political gain, nothing will come of it.

    U.S. taxpayers have no Attorney General. Barr is corrupt and needs to be removed from office. Don’t hold your breath.

    1. Wrong, what you know about the Sentencing Guidelines fits in a thimble

      Stone was a first offender and it was a heavy recommendation. Too heavy. Brit Hume said that on twitter yesterday btw and he wasnt the only one. People with no liking for Stone can see how heavy handed it was.

  14. “The prosecutors could argue that they set the recommendation at the high end, but still within, the sentencing guidelines.”

    Turley’s analysis implies that the Prosecutors were at least somewhat tethered to reality and reasonableness with this recommendation. They weren’t.

    Politically, they make Stone look like a sympathetic figure. I didn’t think that was possible.

  15. I didn’t hear anyone investigate Obama when he interjected himself in the IRS scandal on national tv Then it was all hands off. Not with President Trump. Hopefully, he doesn’t sneeze around any Dems. They’ll investigate why he sneezed when he did.

    Professor Turley, perhaps you can give us legal advice regarding the pain and suffering we’ve endured the last three years as a direct result of the Dems lies and attempted coup and their failure to fulfill their constitutional duties.

    Also, advice for those who were caught in their web of deceit and lost their homes and were forced to spend hundreds of thousands of dollars defending themselves from venom released by the Dems. When will these horrible people be brought to justice?

  16. Let’s talk about who has lied to Congress – Clapper, Comey, McCabe, Adam Schiff with his fake phone call. When they are in jail with 7-9 years sentences then maybe Stone too.

  18. Any time a prosecutor offers any consideration for testimony he should go to jail for attempting to suborn perjury. The whole DOJ POS system needs to eliminated.

  19. We should not be surprised by what Trump has done since being acquitted by the Senate. He is now using his unlimited powers to have Rudy Giuliani continue to investigate the Bidens. Using the office of the President to investigate private citizens for domestic political purposes was at the heart of the 1st Article of Impeachment. Emboldened Trump is now blatantly attacking the independence of the Justice Department. Roger Stone, a close Trump ally, was convicted of lying to Congress and witness tampering. Prosecutors urged a sentence of 7 to 9 years, Trump became incensed calling the recommended sentence a “miscarriage of justice”. AG William Barr got the message and intervened to recommended a lighter sentence. All four prosecutors resigned in disgust. Trump not only attacked the prosecutors but even attacked Judge Jackson who is presiding over the Stone case. So much for an independent judiciary! The Trump/Barr intervention in the Stone case reveals just how far the President is willing to go to protect his cronies. You seem to think this may have been a “good faith disagreement” between the prosecutors and Barr. Hogwash! In “1984” George Orwell wrote: “The Party told you to reject the evidence of your own eyes and ears”. My eyes and ears tell me Trump will not hesitate to corrupt the Justice Department to protect his political allies. In William Barr Trump has found his Roy Cohn–his “fixer”! No matter what sentence Judge Jackson hands down Trump will want to seriously consider a pardon for Stone. This is how “justice” works under the reign of Trump.

    1. Because God forbid anyone should investigate Joe Biden, after he bragged on camera about a quid pro quo in which he withheld $1 billion in US aid until and unless fired the prosecutor within 6 hours…that same prosecutor who was investigating Burisma…which just so happened to have hired his drug addict son with no oil and gas work experience in a company that operated in Ukraine. They paid him multiples of what experienced Exxon executives receive. In fact, Hunter’s only possible benefit that he could bring to the company was that his father was the VP of the United States, and had bragged on camera that it was he, not Obama, who set Ukraine policy.

      Oh, and if Trump has “unlimited power” then why hasn’t he acted like Nero and had Nancy Pelosi and Romney killed in a drone strike? Unless, when you used the term “unlimited” you didn’t really mean it.

      1. Karen, you’ve been corrected on the facts concerning VP Biden executing the policy of the US – including GOO Senators fully in the loop – and our allies regarding the Ukraine in 2015 and 2016, as well as the facts surrounding the do nothing prosecutor he helped remove, those facts offered by republicans.

        Why do you keep repeating known falsehoods?

    2. Barr is a very bad actor and warrants close watching. (But Prof Turley always gives him the benefit of the doubt. They are “friends,” says JT.)

      Perhaps the prison sentence recommended for Stone was excessive. But isn’t that what El Presidente argues makes for successful negotiating – ask for more than you reasonably expect to get – and then leave it up to the arbiter: here, the federal judge who will make the decision.

      The cutting distinction here is that all four of the government lawyers who were on Stone’s case have resigned from further involvement. It is not clear whether they did so voluntarily or under Barr’s orders. Either way, it is clear that they disagree with Barr’s assessment that the recommended sentence for Stone was excessive.

  20. Good reddance they probably worked on P.M M.F.C.P. cases to. They are all a close net of never trumpers. We need to throw them all out. Trump should have cleaned house when he first took office. These prosecutors would not even consider prosecuting Comey, Mccade,Page,Strouk,or the FBI attorney that changed the email for the FISA abuse. So we are better off to get some honest FBI attorney’s. These were very dishonest. So again Good riddance

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