Several former federal prosecutors told TPM Tuesday that they were shocked by the news that the Justice Department was scaling back its sentencing recommendation for Roger Stone — an announcement that was made after President Trump tweeted angrily about a recommendation that had already been filed in court less than 24 hours earlier.
Former DOJ officials called the situation unprecedented, embarrassing, and, in the words of one former U.S. attorney, “a shocking erosion of DOJ independence that will undermine public confidence.”
How the walk-back unfolded was particularly stunning to them, and they said it further revealed the improper influence at play.
“The crude way this is being done — almost oafish like — simply removes any rational doubt about what’s going on,” said Patrick Cotter, a former federal prosecutor who told TPM he had never seen anything like it in his 30 years practicing law.
“It certainly gives the unmistakable impression that this is a wholly political and partisan decision being imposed on federal prosectors,” Cotter, now a defense attorney, said.
Less than 24 hours after Timothy Shea, the U.S. attorney for D.C., filed in a court a recommendation based on U.S. sentencing guidelines that Stone serve 7-9 years, a senior DOJ official told several news outlets that the recommendation was “extreme, excessive and grossly disproportionate to Mr. Stone’s offenses.” The Department is going to “clarify” its position to the court on Tuesday, the official reportedly said.
The only thing to happen in between Monday’s filing and the DOJ’s disavowal of it was a tweet by the President bashing the recommendation as “a miscarriage of justice.”
A DOJ official told several outlets the decision to scale back the recommendation was made before the tweet. But several former prosecutors didn’t buy that claim, and said, even if true, the situation still created a perception of undue political influence.
“The message this sends is that there is one set of rules for most defendants and another, far more lenient set of rules, for cronies of the President,” said Peter Zeindenberg, a former prosecutor who worked for the D.C. U.S. Attorney’s Office.
Overruling the professionals
According to the Washington Post report on the reversal, in the days leading up to Monday’s filing of the 7- to 9-year recommendation, there was a disagreement behind the scenes between the prosecutors who worked day-to-day on the case — known as “line prosecutors — and their superiors, over how aggressive the recommendation should be.
The memo filed Monday reflected the line prosecutors’ position, the Washington Post reported. A senior DOJ official now is claiming, according to the various reports, that the Justice Department was not briefed about the recommendation and that it was shocked when it saw it.
Some DOJ alum were skeptical that the department wouldn’t get at least get a heads up about the sentencing memo for a case as high profile as Stone’s.
Regardless, they said that what the line prosecutors were recommending was well within the norm of what they would have expected. It is extremely common — if not almost universally done — for prosecutors to stick to the guidelines that the U.S. Sentencing Commission lays out, which is what the Monday filing did in the Stone case.
“It’s somewhat extraordinary to seek a sentence that is outside of the guidelines,” said former DOJ spokesperson Matt Miller, as the Justice Department is now expected to do it in its amended memo. Usually, the Justice Department recommends sentences below those guidelines only when the defendant has cooperated with the government, ex-DOJ officials said.
Harry Sandick, a former prosecutor who is now a defense attorney, said that the guidelines issued by U.S. Sentencing Commission may in fact be too harsh, but that’s no reason to flout them for an ally of the President’s and only for an ally of the President’s.
“This benefit doesn’t get extended to the drug dealer who sells an ounce of crack cocaine, this benefit doesn’t get extended to the businessman who engages in a small fraud, and so people will ask, why is it being extended to the President’s friend and advisor?” Sandick said.
‘So obviously political’
That the DOJ is now stepping away from the guidelines after embracing them in a publicly filed court document makes the move all the more extraordinary.
“It is unusual for Main Justice to get involved in a sentence recommendation made by a local U.S. attorney,” Miller said. “It’s unusual, if not unprecedented, for them to intervene after that recommendation has been made in court.”
Even the language itself that the DOJ official used in the statement in Tuesday’s reports was noteworthy.
According to Sandick, in the rare circumstance where prosectors don’t think the guidelines are appropriate, “at most they would say this variance is warranted.”
“They don’t trash the guidelines in that way,” Sandick said.
The icing on the cake is that all this happened after Trump publicly expressed his disagreement.
“[It] raises a fair inference that DOJ is bowing to the political pressure of the president,” said Barbara McQuade, a former U.S. Attorney who now teaches out Michigan Law. “This is a shocking erosion of DOJ independence that will undermine public confidence.”
DOJ spokeswoman Kerri Kupec denied that the Department was reacting to any Trump directive or to his dismay, according to the New York Times. Kupec said that there were no discussions with anyone at the White House, including the President, about the case, according to the Times.
Miller said that even if the Department was thinking about going easier on Stone before Trump’s tweet, the tweet should have given them more reason, not less, to stick to the guidelines.
“A normal DOJ would say, well we can’t follow that because it will look so obviously political and so we’re just going to follow the guidelines, so there is no questions,” Miller said.
Update: This story has been updated to reflect new reporting about the Justice Department’s defense of the walk-back.