Prosecutors Allege Political Influence At the Justice Department In Stone Case and Other Matters

The House Judiciary Committee will be holding a hearing today on the allegations of political interference with the handling of Justice Department cases, including the controversy over the sentencing recommendations in the prosecution of Roger Stone, a longtime friend and confidant to President Donald Trump.  As I said on NPR this morning, I think such hearings are important and legitimate efforts to answer such widespread concerns.  (The hearing is stacked with only one witness allowed in defense of the Administration but that is unfortunately a long-standing problem in Congress).  Even though I support the congressional inquiry, I continue to believe that the sentencing recommendation in Stone was excessive and unwarranted.  I admittedly have a bias as a long-standing criminal defense attorney but I criticized the original sentencing memorandum before any action was taken by Main Justice.  I have always maintained however that Stone was corrected convicted on some of these counts and warrants some jail time for his criminal conduct, including opposition to any presidential pardon.

Aaron Zelinsky, a member of Special Counsel Robert Mueller’s team, submitted written testimony that states  Stone was “being treated differently from any other defendant because of his relationship to the President.”  He added

“What I saw was the Department of Justice exerting significant pressure on the line prosecutors in the case to obscure the correct Sentencing Guidelines calculation to which Roger Stone was subject — and to water down and in some cases outright distort the events that transpired in his trial and the criminal conduct that gave rise to his conviction.”

That is a very serious allegation and one that the House Judiciary Committee has correctly pursued as part of its oversight functions. There is no more serious allegation than political interference to assist the friend of a president. It is inimical to the most basic concepts of the rule of law.

I thought Zelinsky’s testimony was extremely well-written and cogent on many points.  I will however note disagreement with a couple aspects of his discussion of the Stone case.  While many academics who I respect hold an opposing view, I believe that the original sentencing recommendation was absurdly high for this case.

First, Zelinsky seems to suggest that it is unprecedented for Main Justice to direct or influence the handling of a high profile case. I have been a criminal defense attorney for over 30 years. As I have previously written, I have often had to deal with Main Justice in such cases and it is common for the criminal division to coordinate on major decisions in high-profile cases. For example, in 2008 when President Obama was first running for the White House, prosecutors wanted to bring charges against Black Panthers who stood in front of polling places brandishing weapons. Attorney General Eric Holder and the Justice Department overruled them, despite a rather widespread view that the men were trying to intimidate voters. There were no calls to impeach or incarcerate Holder, who was widely viewed as one of the most political attorney generals in modern history.

Second, I have previously explained why I consider the original sentencing recommendation of Zelinsky and his colleagues to be excessive.  Before the second sentencing recommendation was ever filed, I not only disagreed with the recommended sentence of up to 108 months but said that most judges would impose a sentence of around 40 months. That is precisely what U.S. District Court Judge Amy Berman Jackson handed down.

The reason for my objection to the original sentencing was the use of the aggravator of a “crime of violence.” The base offense level for these crimes is a little over a year. Enhancements were justified but the prosecutors seemed vindictive and excessive in their arguments for up to nine years. This included effectively double counting aggravating elements of the underlying crimes. I did not (and do not) believe that this is a legitimate case involving of crime of violence because Stone made his typical hyperbolic comments to an associate in a conversation.  Few people seriously believed that Stone was actually threatening the witness. Stone described himself as a virtual clown,  “performance artist”and an “agent provocateur.” 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.

Jackson did object to the irregular intervention of Main Justice in the case and defended the original prosecutors.  Yet, even with a justifiably angry court, the sentence came in at 40 months rather than 108 months.  That sentence fell in line with not just what some of us predicted (in contrast to the prosecutors) but also close to what Main Justice was suggesting in its recommendation.

Main Justice has maintained that it had told these prosecutors that it wanted to moderate the recommendation. It did not oppose jail time but specifically objected to the very issues raised by some of us: the enhancements, particularly for a crime of violence. That was in my view the correct approach and the ultimate sentence came down as consistent with the second recommendation.

Having said that, I am also troubled by the irregular course taken in the case and we should all take allegations of political influence seriously.  However, we should not brush over what some of us viewed as excessive elements to the original sentencing proposal.