Roger Stone has been sentenced to 40 months by U.S. District Court Judge Amy Berman Jackson. I previously stated that the likely sentence would be half of what the prosecutors originally sought and that is precisely what the court did. The sentence not only completed the conviction of Roger Stone but completely vindicated Attorney Bill Barr on the appropriate length of the sentence. Barr has been unfairly accused of political influence in modifying the original sentence even though many of us denounced the original recommendation as wildly offbase. Not only did over a thousand former prosecutors demand his resignation without knowing the full facts, but one former colleague declared Barr to be “unAmerican.” If these individuals have a modicum of decency, they will acknowledge that Barr was right on the merits of this sentencing recommendation as demonstrated by the court itself.
The question was not whether the original recommendation was within the guidelines, but the proper calculation under those guidelines. As I discussed earlier, the prosecutors sought a major increase of the sentence as a “crime of violence.” As I stated on NPR this morning, the base offense level for these crimes is a little over a year. Enhancements were justified but the prosecutors seemed vindictive and unhinged in their arguments for up to nine years. This included effectively double counting aggravating elements of the underlying crimes. Jackson said that she would take the threats of Stone into account but declined to use enhancements to push the sentence to the top of the range. She also rejected claims that Stone showed extensive planning.
While Judge Jackson stood up for the original prosecutors and called the sentencing change “unprecedented,” she notably followed the opposing call for sentencing below half of what the prosecutors requested. Moreover, it is not clear what is “unprecedented” depending on your perspective. To some at Justice, the filing of a recommendation opposed by Main Justice might seem unprecedented or at least alarming. This does not mean that Jackson supports the intervention. Indeed, she seemed eager to defense the original team.
As a criminal defense attorney, I am also astonished by those who have agreed that the original sentence was excessive and extreme, but still insist that Main Justice should not have intervened. Given the widespread criticism of original sentencing recommendation, the controversy boils down to the fact that Main Justice modified the sentencing recommendation over the objections of the trial prosecutors. However, Main Justice has prosecutors too. The Criminal Division plays a role, as I earlier discussed, in such recommendations. Are critics suggesting that Main Justice is not allowed under the U.S. Attorneys manual to make such decisions or that the Justice Department should never, in full candor to the court, revised a recommendation?
Reports indicate that Main Justice thought that it was understood that a more moderate recommendation would be made. If Justice officials believed that this recommendation was excessive and unsupportable, I would hope that someone would have the courage to correct and not worry about the optics. The Justice Department has a duty of candor to the tribunal as well as a duty to do justice. If this sentence was viewed as excessive, it should be corrected.
I have been in cases with where prosecutors have sought excessive sentences but that does not make it acceptable or right. Given the overwhelming view that the original recommendation was wrong, I find it hard to understand why Main Justice should have stayed silent and not informed the court that justice would not be served with such a sentence.
Not surprisingly, the media seems to have moved on with little recognition that the original recommendation was manifestly wrong and excessive. Instead the media besmirched Barr’s reputation and then failed to report the countervailing facts. After the court came down precisely where some of us predicted, it just moved on to the question of whether Stone would be pardoned. Even with a justifiably angry court, the sentence came in at 40 months rather than 108 months.
While these former prosecutors did not wait for the full facts, it was later shown that the decision was made before Trump’s comments and that there was no communication with the President on the case. It was also later disclosed that Barr and other officials at Main Justice agreed that the recommendation was manifestly wrong. That included the acting U.S. Attorney. Main Justice and specifically the Criminal Division often coordinates or directs decisions in high-profile cases. All of that was ignored in favor of a narrative that Barr carried out the orders of Trump after he publicly denounced the prosecution.
The hair-trigger attacks have become a common feature in legal analysis in these controversies. In this case, however, it was reasonable for many to raise concerns after Trump’s tweets. I immediately called for an investigation and still believe that such an investigation is warranted. It is not the legitimacy of the concerns but the immediate conclusions that are so objectionable.
As I said in the prior column, Barr was right on the merits of the ultimate sentence and the court ended up exactly where he and Main Justice recommended on the sentencing of Roger Stone.