Stone, a longtime Trump confidant, was convicted last year of crimes — including obstruction, lying to Congress, and witness tampering — in connection with his efforts to get and disseminate dirt on Hillary Clinton. Career federal prosecutors considered these to be the most serious offenses warranted by his conduct. Following his conviction, the prosecutors advocated for the most substantial sentence permitted by the federal sentencing guidelines (seven-to-nine years in prison). These actions were in accordance with the Department of Justice policy put in place in 2017 by then-Attorney General Jeff Sessions, advising prosecutors to charge and pursue the most serious provable offenses against defendants.
But, last week, Barr overruled the career prosecutors’ sentencing recommendation and instructed them to seek a more lenient sentence based on his assessment of the specific circumstances of the case and the context in which it arose. In doing this, Barr’s approach, in this instance involving a Trump ally, was more consistent with the DOJ guidance for charging and sentencing issued by Attorney General Eric Holder under President Barack Obama — a policy that the Sessions memorandum essentially reversed.
Under the Holder policy, prosecutors were advised their charging and sentencing determinations always must be made in the context of an “individualized assessment,” specific to the facts and circumstances of the case. In other words, prosecutors were to exercise reasoned prosecutorial discretion to ensure “the fair, effective, and even-handed administration of the federal criminal laws.” Holder acknowledged that the Federal Sentencing Guidelines, when strictly applied, could result in unreasonably harsh sentences.
Sessions, however, made it clear with his memorandum that the DOJ would take a different approach on his watch.
What does all this mean for Roger Stone?
It recounted how Stone lied to Congress, concealed important documents, engaged in elaborate planning to execute his scheme and threatened physical injury to potential witnesses. When all these factors were analyzed under the Federal Sentencing Guidelines, Stone’s conduct met offense level 29 — which yields a guidelines range of 87-108 months, or 7.25-9 years.
Under the Sessions policy, requesting a seven-to-nine-year sentence was suggested, unless the prosecutors concluded that a departure or variance was appropriate. No such variance was deemed appropriate in this case by the career prosecutors.
The clear implication was that Trump would intervene if things weren’t changed. This is where it gets interesting.
(Note: DOJ’s decision not to seek a specific sentence is, in and of itself, quite unusual in my experience.)
Whatever the reasons behind Barr’s apparent preference for Holder’s more reasonable view of sentencing in Stone’s case may be, (and, when Barr testifies next month, Congress must gain assurance that Barr did not buckle under Trump’s pressure and, thereby, undermine the independence of the DOJ) the silver lining in this saga could be that it will prompt DOJ and the Trump administration to reverse the Sessions memorandum and to undertake meaningful sentencing and criminal justice reform.
The sentencing determination rests solely in her hands. All the Department of Justice ever was empowered to do was to make a non-binding recommendation. We’ll have to wait to see what she decides and how Barr and Trump respond.