In Stone case, a blast from the Obama past (opinion)

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.

In his policy, Sessions articulates that: “(I)t is a core principle that prosecutors should charge and pursue the most serious, readily provable offense … By definition, the most serious offenses are those that carry the most substantial guidelines sentence …” According to Sessions, “this policy affirms our responsibility to enforce the law, is moral and just, and produces consistency.”

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.

What, you may be asking? Yes, in my opinion, in this case, Barr appears to have followed more closely DOJ’s policy as it stood under Obama’s attorney general, rather than under Sessions, who said at the time that he was ushering in the “Trump Era.” How is this possible?
When Sessions issued his policy, he reversed, in significant ways, two previous policy memoranda issued by Holder.

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?

With respect to the prosecutors’ charging decision, the indictment fairly represented Stone’s criminal behavior and was consistent with Trump-era DOJ policy; charge the most serious crimes.
In regard to sentencing, the government submitted a 26-page sentencing memorandum explaining why DOJ believed that a sentence of seven-to-nine years was appropriate.

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.

When word of the seven-to-nine year recommended sentence broke, Trump appeared incensed and went on a Twitter rampage calling it a “miscarriage of justice!” and suggesting the possibility of “rogue prosecutors.”

The clear implication was that Trump would intervene if things weren’t changed. This is where it gets interesting.

Trump’s encroachment into DOJ territory, especially in such a public way, was unprecedented. Many have speculated that Trump was seeking to pressure the DOJ into changing its sentencing recommendation to aid a political ally and that the DOJ’s subsequent decision to pull its sentencing memorandum and recommendation was influenced improperly by Trump. Barr denies that his decision was influenced by Trump saying he would not “be bullied or influenced by anybody”.
A senior Justice Department official advised that the agency’s leadership, presumably including Barr, was “shocked” by the recommended sentence.
This is who Roger Stone really is
This “surprise” apparently led Barr to pull the four prosecutors’ original sentencing memorandum in favor of a more watered-down recommendation.The career prosecutors resigned from the case in protest, and more than 2,000 former prosecutors and other DOJ officials have issued a statement calling on Barr to resign.
The government’s new sentencing memorandum withdrew the seven-to-nine year recommendation, arguing that it considered that recommendation to be “excessive and unwarranted” under the circumstances. Instead, it asked the Court to impose a sentence of incarceration “sufficient, but not greater than necessary,” without asking for any specific sentence.

(Note: DOJ’s decision not to seek a specific sentence is, in and of itself, quite unusual in my experience.)

The language in the new sentencing memo, “sufficient, but not greater than necessary,” seems more consistent with the sentencing policy objectives of the Holder, than the Sessions Justice Department. Whereas the Sessions policy emphasizes that the most serious crimes should “carry the most substantial guidelines sentence,” Holder specifies that sentencing recommendations must follow from an individualized assessment of the facts and circumstances of each particular case to ensure fairness.

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.

In the end, how things will work out for Stone will be determined by Judge Amy Berman Jackson, who is expected to impose sentence this week.

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.

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