Law & the Courts

The Roger Stone Sentencing Fiasco

Roger Stone gives an interview to Reuters in Washington, D.C., January 31, 2019. (Leah Millis/Reuters)
Some Justice Department personnel handled it questionably, but Trump’s reaction was worse.

The first thing to grasp about the Roger Stone sentencing fiasco is that Stone, even accepting the worst plausible gloss on his crimes, is a 67-year-old nonviolent first offender. If the criminal-justice “reform” fad were authentic, and not a stratagem of social-justice warriors who have taken Washington’s surfeit of useful idiots for a ride, then we could all agree that the original seven-to-nine-year sentence advocated by prosecutors was too draconian — even if it was, as we shall see, a faithful application of the federal sentencing guidelines as written.

But no. Like criminal-justice “reform,” the Stone prosecution is more politics than law enforcement. It was the Mueller probe’s last gasp at pretending there might be something to the Russia-collusion narrative – notwithstanding that, when the “gee, it sure feels like there could be some collusion here” indictment was filed, over a year and a half after special counsel Robert Mueller was appointed, it had long been manifest that there was no Trump–Russia conspiracy.

So, the Left has a quandary here: Do they hate Trump more than they love sentencing “reform”? We could have predicted the decision to go with hating Trump, and thus fomenting outrage over DOJ’s retraction of its original sentencing recommendation of about nine years’ imprisonment, now slashed to a far more reasonable range of four years or less. To be fair, though, Trump critics could not have been expected to resist the combination of DOJ missteps and Trump Twitter taunts that mark Stone’s sentencing, the combination that has managed to turn Mueller’s maulers into media martyrs.

Some background: In a ridiculously overblown, overcharged prosecution, Mueller slammed the ineffable Stone with seven felony counts of obstructing Congress’s Russia investigation. One of these involved tampering with a witness, left-wing radio host Randy Credico (through whom Stone sought a communications channel with WikiLeaks honcho Julian Assange).

At a certain point, Credico let it be known that he intended to cooperate with investigators. A ballistic Stone, when not uttering lunatic references to Watergate and Frank Pentangeli (the Mafioso character goaded into suicide when a plot to take out the Don fails in Godfather II), warned the “stoolie” “rat” Credico to “prepare to die” and vowed to steal his pet dog. Even in context, these seem to be puerile ravings, not real threats. (Stone added that his lawyers were anxious to “rip [Credico] to shreds,” so any murder and dognapping was apparently going to await cross-examination.) And though Stone is patently guilty of witness tampering, Credico himself told the court that he did not take Stone’s threats seriously.

Stone being the sort of Einstein who commits his obstructions in writing (the Credico contacts were mostly text messages), the jury convicted him in nothing flat. That meant DOJ would give the court its take on how the sentencing guidelines applied to the case, as it does with every convicted defendant.

The guidelines tend to be harsh if they are faithfully interpreted, but they are not binding on judges. Since the role of prosecutors is to seek justice, which often is not the maximum sentence, the best practice is for DOJ to provide a neutral explanation of how the guidelines should be calculated — the applicable enhancements and reductions. If the resulting sentencing range seems out of proportion with the offense, DOJ may suggest adjustments that raise or lower the suggested range without doing damage to the guidelines framework and the overarching purposes served by sentencing. Arguments for leniency are always made by defense counsel, and often by the U.S. Probation Department, which also prepares a sentencing recommendation for the court.

In Stone’s case, the guidelines worked a severe result. In tampering cases, a guidelines enhancement calls for a drastic increase in the sentence if the defendant threatened the witness with physical injury. This drove Stone’s “offense level” from 21 to 29 on the guidelines grid, so even though he is a first offender (offense history “Category I” in guidelines-speak), his recommended sentence zoomed to 90 to 108 months — instead of 37 to 46 months, as it would have been at offense level 21 (i.e., without the threats).

With Mueller’s shop closed down, the Stone prosecution was run out of the U.S. attorney’s office for the District of Columbia. But it was still being overseen by two Mueller staffers, Aaron S. J. Zelinsky (on loan from the U.S. attorney’s office in Maryland, where he had worked for Rod Rosenstein, who, as Trump’s deputy attorney general, later appointed Mueller), and Adam C. Jed (an appellate lawyer from the Obama Justice Department who first came to public attention in 2013, arguing that the ban on same-sex marriage was unconstitutional). Also assigned to the case were Jonathan Kravis, a former associate White House counsel to Obama, and Michael Mirando, an experienced assistant U.S. attorney in the D.C. office.

This team of prosecutors filed a sentencing memorandum on Monday, laying out the guidelines and advising Judge Amy Berman Jackson that they called for a prison sentence of about seven to nine years (i.e., the offense-level guidelines range of 90 to 108 months). Like the indictment itself, the memo is gross overkill.

As the Daily Caller’s Chuck Ross notes, the prosecutors tied Stone to “foreign election interference,” breathlessly framed as the “most deadly adversary of republican government,” even though he was never charged with any such crime — underscoring yet again that the deadliest adversary of republican government is actually domestic — viz., the politicized use of executive police powers. Far from offering any theory in mitigation of the 90-to-108-months range, the prosecutors pooh-poohed Credico’s perception that Stone’s threats were not serious, factitiously insisting that the guidelines enhancement is triggered by the threat, not whether the target is actually intimidated. Plus, prosecutors maintained, Stone’s crimes were exacerbated by his flouting of Judge Berman Jackson’s gag orders during the prosecution.

All that said, the prosecutors’ submission was an accurate (if extreme and unyielding) rendition of federal sentencing law. The enhancement that inflates Stone’s sentencing range does literally apply — even if he is not the kind of violent criminal that the guidelines commissioners had in mind when they wrote it. Prosecutors are not required to argue for clemency, though they should do so when the circumstances call for it. The Justice Department’s default position in criminal cases is that the guidelines should be applied as written, and that it is up to the court to decide whether to follow them.

While Stone awaited sentence, the prosecutors were supervised, at least nominally, by Jessie Liu, the U.S. attorney for D.C. I say “nominally” because the Trump Justice Department has always been leery about being seen as interfering in Mueller-based prosecutions. Moreover, the D.C. office was in transition while court submissions pertaining to Stone’s sentencing were being prepared.

In December 2019, President Trump announced his nomination of Liu to become the Treasury Department’s undersecretary overseeing financial sanctions on terrorists. Liu continued running the U.S. attorney’s office, albeit with one foot out the door, until the end of January. With her Treasury confirmation hearing scheduled for February 13 (i.e., tomorrow), Attorney General Bill Barr appointed one of his top advisers, Timothy Shea (a well-regarded longtime prosecutor, litigator, and Capitol Hill staffer), to become acting U.S. attorney for D.C. on January 30. That was eleven days before the Stone team filed its sentencing submission.

How much participation Shea had in the recommendation is unclear. The New York Times reports that both he and Deputy Attorney General Jeffrey A. Rosen opined that the seven-to-nine-year sentencing recommendation was too severe. Yet, it does not appear that they put their foot down and instructed the Stone prosecutors to ameliorate it before the government’s submission was filed on Monday.

As is his wont, the president went bonkers on Twitter upon learning of the recommendation, calling it “horrible and very unfair” and a major “miscarriage of justice” because “the real crimes are on the other side” — i.e., the Russia-probe investigators — yet “nothing happens to them.” While the Justice Department was obviously aware of the president’s tweet, as well as press reporting about the harshness of the prosecutors’ sentencing recommendation, the DOJ and the White House have had no communications about the case, according to both the president and a spokeswoman for the attorney general.

Nevertheless, the DOJ made it known that the sentencing memo would be rescinded and a new one filed. That announcement prompted the recusals of all four prosecutors, some of whom are quitting the DOJ entirely and some apparently just stepping aside from the Stone case.

Late Tuesday, the DOJ filed a revised sentencing memo, which does not recommend a specific sentence but strongly suggests that a term calculated without the eight-point enhancement — i.e., between 37 and 46 months’ imprisonment — would be just. The new memo concedes that the prosecutors’ calculation in the original memo was “arguably” correct, but contends that it would be unreasonable under the circumstances. On that score, the memo relies on (a) Credico’s dismissal of the threat (though it acknowledges that this is not dispositive); (b) the fact that a sentence driven by the guidelines enhancement would be wildly out of proportion with prison terms imposed in cases similar to Stone’s; (c) Stone’s being a first-offender with no organized-crime or gang connections and thus not typical of the offenders the enhancement is meant to cover; and (d) Stone’s advanced age and failing health.

This is an entirely reasonable recommendation, even if the process of arriving at it has been a train wreck.

The Justice Department correctly observes that the sentence to be imposed is entirely up to the court. The DOJ’s recommendations are non-binding and frequently ignored by judges. Judge Berman Jackson has been thoroughly informed about what the non-binding guidelines say, as well as the cases for and against applying the enhancement.

Furthermore, let’s imagine that, instead of orchestrating a fiasco, DOJ had efficiently managed any internal disputes (which are not uncommon) and had filed a single memo recommending a 37-to-46-month sentence — a memo that explained both the enhancement for threatening witnesses and why applying it would be unreasonable under the circumstances. Does anyone doubt that such a recommendation would nevertheless have been panned as excessive by the president?

For now, while Trump has taken to attacking both the resigning prosecutors and Judge Berman Jackson on Twitter, it appears that former U.S. attorney Liu is taking the fall. Within hours of the prosecutors’ trumpeting their departures in grand Sally Yates style, the White House announced that the president had pulled Liu’s appointment to the Treasury Department position — even though her confirmation hearing was just two days away, and Barr had lavished praise on her upon appointing Shea as her replacement.

Liu certainly had a tumultuous tenure. Besides the thankless task of inheriting the Mueller cases against Stone and former national-security adviser Michael Flynn (the implosion of which is a story for another day), her office foolishly pursued a threadbare Mueller-generated prosecution of Greg Craig for false statements based on lobbying for Ukraine. Craig, former White House counsel to President Obama, was speedily acquitted by a jury last year. Meanwhile, there was also a mini-revolt on the Senate Judiciary Committee a few months back when the president floated the idea of elevating Liu to the No. 3 leadership slot at the DOJ — though she was vigorously defended by AG Barr, and suspicions that she lacked conservative bona fides appear overwrought (the fact that Liu may be pro-choice hardly means she would not enforce laws regulating abortion; and a claim that, 15 years ago, she opposed Justice Samuel Alito’s appointment to the Supreme Court appears to be false).

I would not suggest that Liu and others at the DOJ distinguished themselves in the Stone sentencing debacle. But at this point, the main fault lies with the president.

Yes, the Mueller probe was specious. But for his connection to Trump, Stone would never have been pursued in a collusion fever dream that Mueller’s prosecutors knew was bogus when they charged him. Yet his crimes, while exaggerated, were real. He was convicted by a jury and, under federal law, that presumptively warrants incarceration, though he could be spared by the judge (whom the president has picked a strange time to antagonize). If the president thinks that Stone and Flynn (among others) have been given a raw deal, the Constitution empowers him to pardon them, or at least commute their sentences.

If President Trump is afraid, in an election year, to take the political hit that a pardon for Stone would entail, that is understandable. But then he should bite his tongue and click out of Twitter. The Justice Department’s job is to process cases, including Mueller cases, pursuant to law. If the president wants to make those cases disappear, he has to do it himself and be accountable. His provocative running commentary only ensures that the DOJ will be accused of kowtowing to him. It also guarantees that, if the ongoing criminal probe of the Russiagate investigation eventually yields any indictments, they will be assailed as political persecutions rather than good-faith law enforcement.

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