This week President Donald Trump and his appointees at the Justice Department intervened in the sentencing of Roger Stone, a longtime Trump crony who was convicted last November of obstructing a congressional investigation, lying to a congressional committee, and witness tampering. Yesterday, the day after four prosecutors assigned to the case recommended a sentence of seven to nine years, Timothy Shea, the interim U.S. attorney for the District of Columbia, overrode them, suggesting "a sentence of incarceration far less" than the one originally proposed.
That reversal, which came after Trump called the original recommendation "horrible and very unfair," is unseemly and smacks of legal favoritism. At the same time, a prison sentence of seven to nine years is disproportionate given the nature and consequences of Stone's crimes.
The decision to recommend a more lenient sentence for Stone reportedly involved Deputy Attorney General Jeffrey Rosen and officials in Attorney General William Barr's office as well as Shea and his chief of staff. After Shea filed the amended sentencing memo, the four original prosecutors resigned from the case, apparently in protest, and one of them left the Justice Department altogether.
Not only is Stone a Trump pal, but his crimes were aimed at insulating the president from embarrassment and scandal related to Russian interference in the 2016 election. The new sentencing recommendation therefore looks an awful lot like an attempt to tilt the scales of justice for personal and political reasons.
"This is a horrible and very unfair situation," Trump tweeted early yesterday morning in response to the original sentencing recommendation. "The real crimes were on the other side, [and] nothing happens to them. Cannot allow this miscarriage of justice!"
Later that day, Shea filed the amended sentencing memorandum. Today Trump thanked Barr for "taking charge of a case that was totally out of control and perhaps should not have even been brought" but denied discussing Stone's case with the Justice Department. Although Justice Department officials insist they were not following the president's orders, the coincidence is troubling. And while Trump has the legal authority to override prosecutorial decisions, such meddling compromises the Justice Department's independence and creates the appearance that the president's friends can expect special treatment when they break the law.
Having said all that, I still think there are sound reasons to question the original sentencing recommendation. A prison sentence of seven to nine years is excessive for nonviolent process crimes aimed at concealing legal behavior.
Stone's lies to the House Intelligence Committee and his dogged attempts to dissuade a potential witness from contradicting those lies were all related to the embarrassing emails that Russian hackers stole from the Democratic National Committee and from John Podesta, Hillary Clinton's campaign chairman, in 2016. Stone was excited about the potential political benefits of those emails, which WikiLeaks obtained and began to release in July 2016. Although his attempts to indirectly contact WikiLeaks about the emails were mostly fruitless, he presented himself to Trump campaign officials as a man with inside information, and they seemed to buy it.
There was nothing illegal about any of that. But it was still inconvenient for a president who rejects both the idea that Russia helped him win the election and the charge that his campaign welcomed the assistance. Stone, who testified voluntarily before the House Intelligence Committee in September 2017, also seemed to think he would make the president look bad if he avoided answering its questions about WikiLeaks and the purloined emails by invoking the Fifth Amendment's protection against compelled self-incrimination. Instead he lied, repeatedly and flagrantly, about his contacts with people he thought could relay messages to WikiLeaks, about his communications with Trump campaign officials, and about the emails and text messages that documented those interactions.
Having lied, Stone repeatedly urged one of his WikiLeaks go-betweens, radio host Randy Credico, to back up his story or avoid testifying. When Credico received a subpoena from the House Intelligence Committee, he invoked the Fifth Amendment, just as Stone had suggested. But he later cooperated with Special Counsel Robert Mueller's investigation of Russian election meddling and testified against Stone during his trial.
Stone did not stumble into his crimes or get into legal trouble due to a momentary lapse of judgment. As the prosecutors pointed out in the original sentencing memorandum, he "knew exactly what he was doing," and he did it for more than a year, reaffirming in an unsolicited December 2018 letter to the House Intelligence Committee that everything in his testimony was true. Since he easily could have avoided prosecution by declining to testify or by telling the truth, Stone has no one to blame but himself for his current predicament.
But that does not mean a sentence of seven years or more is an appropriate punishment for Stone's reckless mendacity. As Mueller's report showed, there is no persuasive evidence that the Trump campaign's hankering for useful dirt on Clinton ever crossed the line into an illegal conspiracy with a foreign government or any other sort of crime. When Stone lied, he was committing crimes, but he was not concealing any.
"Because of Stone's conduct," the original sentencing memo says, "the House
Intelligence Committee never received important documents, never heard from Credico (who pled the Fifth), and never heard from [Jerome] Corsi [another WikiLeaks intermediary]….The Committee's report even wrongly stated that there was no evidence contradicting Stone's claim that all his information about WikiLeaks was from publicly available sources." Yet Stone's overtures to WikiLeaks, which came out anyway, were neither consequential nor criminal.
The original memorandum also argues that Stone qualifies for a sentencing enhancement because his witness tampering included threats of violence. "I'm going to take that dog away from you," he told Credico in an April 2018 email exchange about Stone's congressional testimony, referring to Credico's tiny Coton de Tulear. "Not a fucking thing you can do about it either, because you are a weak, broke, piece of shit." Later that day, Stone added, "I am so ready. Let's get it on. Prepare to die, cocksucker." Yet Credico himself said these comments were typical Stone bombast that he did not perceive as genuinely threatening. "I never in any way felt that Stone himself posed a direct physical threat to me or my dog," he said.
The prosecutors also thought Stone deserved a sentencing enhancement for various public comments he made after he was indicted, some of which violated U.S. District Judge Amy Berman Jackson's orders. But as Shea notes in the amended sentencing memorandum, "it is unclear to what extent the defendant's obstructive conduct actually prejudiced the government at trial."
The second memorandum suggests that a sentence of seven to nine years is excessive for nonviolent crimes—a position that may surprise drug offenders serving prison terms that long or longer for peaceful transactions with consenting adults. The enhancements recommended by the first memorandum, Shea says, "more than double the defendant's total offense level and, as a result, disproportionately escalate the defendant's sentencing exposure to an offense level of 29, which typically applies in cases involving violent offenses, such as armed robbery, not obstruction cases."
The new memorandum also suggests that Judge Jackson, who is scheduled to sentence Stone a week from tomorrow, "should consider the defendant's advanced age , health, personal circumstances, and lack of criminal history in fashioning an appropriate sentence." While "the defendant committed serious offenses and deserves a sentence of incarceration," it says, "a sentence of between 87 [and] 108 months' imprisonment…could be considered excessive and unwarranted under the circumstances."
Regardless of its motivation, the revised memorandum is admirably measured and fair-minded, noting that prosecutors have a duty to pursue justice, not simply to clobber defendants with the heaviest penalties the law allows. It would substantially improve the quality of justice in this country if prosecutors more often took that approach with defendants who are not the president's buddies.