WASHINGTON — Legal experts and former federal prosecutors say the Justice Department’s reversal of the sentencing recommendation for President Trump’s former campaign adviser is an extraordinary development that could have a long-term impact on public perception of federal law enforcement’s independence from political interference.
Roger Stone, a longtime friend of Trump, was convicted last November for lying to Congress, obstruction of justice and witness tampering. The Justice Department overruled the seven-to-nine-year sentencing recommendation prosecutors made in the case.
The controversy over Stone’s sentencing deepened this morning when President Trump took to Twitter to congratulate Attorney General William Barr for “taking control of a case that was totally out of control and perhaps should not have even been brought.”
The case against Stone, a fixture in GOP politics, was a result of special counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential election. While the investigation looked at Stone’s role in the release of hacked emails, he was ultimately charged with lying to Congress and threatening a congressional witness.
He was convicted in November on all charges.
The four federal prosecutors on the case all withdrew from it yesterday; one of them resigned from the Department of Justice after headquarters had recommended an unspecified term in prison. Today the House Judiciary Committee announced it wants Barr to testify next month about the decision in this case as well as the “removal of U.S. Attorney Jessie Liu, who oversaw the prosecutions of President Trump’s deputy campaign chairman Rick Gates, former national security adviser Michael Flynn and President Trump’s longtime political adviser Roger Stone.”
Trump yesterday withdrew Liu’s nomination for a senior post at the Treasury Department.
Scott Fredericksen, whose nearly 30-year career in public service includes a stint as chief of the criminal division for the Eastern District of Virginia, said that the seven-to-nine-year recommended sentence for Stone falls within federal sentencing guidelines and that while it was arguably a “heavy recommendation,” it was well within the expected range for a defendant convicted for Stone’s crimes.
“It wasn’t a number that was just picked out of thin air by prosecutors to be tough. It’s determined by the federal sentencing guidelines which is applicable to everyone who ends up being convicted before our federal courts,” Fredericksen said in an interview.
The prosecutors were right to be upset over the reversal, according to Fredericksen.
“They resigned based on principle,” he said. “The principle is that the president of the United States has absolutely no business involving himself in criminal prosecutions.”
Fredericksen said he was particularly troubled by the fact that Barr’s decision to overrule the prosecutors coincided with a tweet from the president expressing his dismay at the sentencing recommendation.
“It was inappropriate for the attorney general to weigh in and countermand the recommendations of career prosecutors,” he said. “There is no precedent like this in the history of the Department of Justice of which I’m aware and that’s why it is a sad day for the Department of Justice.”
William Yeomans, another veteran federal prosecutor, called the episode “incredibly unusual.”
“I don’t know of an example like this,” Yeomans, who spent 26 years in the civil rights division at the Department of Justice and subsequently served as chief counsel on the Senate Judiciary Committee, said in an interview with Yahoo News. “What’s extraordinary about this is the Department of Justice filed its sentencing recommendation in court and then the president tweeted and then the Department of Justice criticized its own sentencing recommendation.”
Yeomans, now a professor at Columbia Law School, said he worries that the attorney general's decision to overrule his own prosecutors is a sign that Trump will pardon Stone.
“This looks inescapably like political influence forcing the Department of Justice to change its position, and it’s particularly troubling, because this is a case where the president has a strong interest in the defendant, Roger Stone, who was convicted of obstructing Congress’s investigation into the president’s campaign and its connection with Russia,” Yeomans said.
A recent former senior Department of Justice official said he believes the episode may have resulted from the career prosecutors not checking with the U.S. attorney overseeing the case before issuing their recommended sentence. “Who was watching this?” the former senior official said. “It should not be the case that a recommendation has been made by the Department of Justice and the criminal division leadership hasn't been briefed on the recommendation and this is one of the highest profile cases in the country.
“People in the know agree that they didn't get the right sign offs before they sent this letter [recommending 7-9 years] over,” the former official said.
An email sent to one of the prosecutors, Jonathan Kravis, was not answered and the Department of Justice did not return calls seeking comment.
The former senior official said that while there is not an absolute rule requiring federal prosecutors to check with leadership before issuing a sentencing recommendation, in a case as politically sensitive as Stone’s, it is highly unusual to see a U.S. attorney and criminal division leadership surprised by a sentencing recommendation.
This official added that while the seven-to-nine years recommended may be within the sentencing guidelines, “everybody knows there are aspects of the guidelines that are out of whack with justice. ... Sometimes the guidelines overstate the seriousness of the charges because they enhance sentences.”
Jennifer Daskal, a former counsel for the assistant attorney general for national security in the Obama administration and now a professor at American University Washington College of Law, told Yahoo News she is worried about the precedent Barr has set.
“The use of the criminal justice system, including sentence length, to punish and reward individuals based on whether or not they support the president is hugely concerning,” Daskal said. “Whether or not that happened here, it certainly looks like it. And even the appearance of that kind of politicization seriously undermines the rule of law.”
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