Turmoil at Justice Department Over Stone Sentencing

In a sentencing memo filed on Monday, prosecutors in the Stone case recommended a sentence of seven to nine years for his conviction for witness tampering, obstruction of justice, and lying to Congress. At two a m. On Tuesday, President Trump tweeted, quote, cannot allow this miscarriage of justice, and by Tuesday afternoon, the Justice Department filed an amended sentencing memo, calling the earlier recommendation excessive and unwarranted. A complete reversal.

Of course. President Trump denied being involved. No, I didn't speak to the Justice. I'd be able to do it if I wanted. I have the absolute right to do it. I stay out of things to a degree that people wouldn't believe. But I didn't speak to him. I thought the recommendation was ridiculous. I thought the whole prosecution was ridiculous, joining me as former federal prosecutor Robert Mints a partner mcarter in English. Have you ever seen an entire team

of prosecutors resigning due to interference from senior officials? I think this is really unprecedented. In this case, there were four prosecutors on the case, all career prosecutors, all withdrew from the case, and one even one so far as to resign the position from the Department of Justice. So it really has created quite a stir and frankly, the optics of this are just terrible for the Department of Justice. So, Bob,

the optics are bad, but just how bad. One of the absolute bedrock principles of the justice system in our country is the belief that every defendant will have their fair day in court and that prosecutors will pursue cases based upon whether or not they believe a crime has been committed without any interference from any kind of political

outside influences. And what we've seen here is the situation where, regardless of which side of this case you come down on, the fact is that there is the appearance of outside influence by the White House that has put pressure on the Department of Justice. Whether or not that's true, whether or not the president's tweet occurred after the decision was made,

is really irrelevant. There's just an appearance here that this case is being handled in some way outside of the mainstream channels of the Department of Justice, and that decisions are being made for reasons other than what is possibly the strongest prosecutable case for the Department of Justice, and that a recommendation for sentencing here is being made for reasons other than what the law requires. So President Trump said he didn't talk to anyone in the Department of Justice,

and the Department of Justice says the same thing. But you're saying that it does and even matter if he spoke to someone at the Department of Justice. Does it matter if the Department of Justice was responding to perceived pressure from his tweets at two in the morning on Tuesday, after the filing was made on Monday, and then all

of a sudden, a new filing on Tuesday afternoon. Sure, And that's exactly the problem here, is that if you look at the sequence of the president's tweets and then the recalling of the original recommendation on the second recommendation being issued as to the sentencing in the Rider Stone case. There's an appearance of outside influence here, and that goes to the very heart of what people believe should be the impartial administration of justice without any political outside influence.

You have to remember that the Stone case was one of the most high profile criminal prosecutions arising from the nearly two year investigation of Russian interference in the election by the Special Counsel Robert Mueller. This was a case that was politically charged from the very beginning. Mr Stone was a longtime friend of Mr Trump and was convicted last November for obstructing an inquiry by the House Intelligence

Committee into Russian interference in the twenty sixteen election. He was convicted for lying to investigators under oats and for trying to block the testimony of the witness who would have exposed his lies. So this case always had a political overlay, and to inject more politics into it right in the eve of sentencing is something that has many people very concerned. As a former prosecutor, how does a sentencing recommendation work in a high profile case like this?

Would the line prosecutors have consulted senior officials in d o J before making their initial recommendation of seven to nine years. Yeah, and that's a great question because people on the outside don't necessarily understand how these decisions are made.

So what happens here in most cases, and what happened in this case, is that the line prosecutors, the prosecutors who lived with the case night and day and know actually prosecute the case through trial, make a recommendation as to what they think is an appropriate sentence that has to be approved up to the ranks of the U. S. Attorney's office, and in this case, the U. S Attorney in the District of Washington, d C approved the recommendation.

But in a very high profile case like this, it's not at all uncommon for sentencing recommendations to be reviewed by senior officials in main justice in Washington, d C. Here, apparently there was no clear agreement between the line prosecutors and those higher up the chain in Washington before this initial sentencing memorandum was released. The line prosecutors clearly had the approval of the U. S. Attorney, which is usually the only approval you need for a final sentencing memorandum.

There was some consultation with Main Justice. Where exactly that went off the rails, It's impossible to say at this point, but the fact is that that sentencing memorandum was delivered to the court, it was backed up by law and facts and recommended a particular guideline sentence, and now the Department Justice is walking it back in a way that gives the appearance that there was outside political influence that

effected the decision. Now would the walk back have required approval from a g bar, Well, it's hard to say. You have to assume in a case like this that the Attorney General would be paying close attention, particularly to walk back a sentencing memorandum, in a case that is as visible on high profile as this. We don't really know what went on behind the scenes here, but the key to this case really focused on the steps that

Roger Stone took during and after the trial. What prosecutors believe was an attempt by Stone to interfere in the administration of justice, and a lot of that had to do with texts and emails that he was sending to a critical witness where he made a death threat to

that witness. Now, what makes this case interesting is that that witness Randy Cretico, actually submitted a letter to the court saying he never believed that Roger Stone was threatening him and he did not feel in danger, and in fact, at the end of the day, he did testify against Stone. And so there's a little ambiguity here as to whether this threat really should have been treated as seriously as prosecutors recommended. But that's a decision that really is hashed

out internally within the Department of Justice. And historically, when a witness tries to interfere with a trial, threatens witnesses. In this case, there was even an attempt to threaten the judge through a social media posting. That type of activity is usually treated very seriously and it's not unusual to see a sentence get enhanced substantially for that kind

of conduct. The four prosecutors in their initial sentencing recommendation cited some of the aggravating factors that you just mentioned, also Stone disobeying the judges orders. So is the sentence recommended of seven to nine years Is that a little aggressive? Well, it's a judgment call if you view those threats as actually impeding the trial, having threatened to witness, if you believe that the social media postings in any way interfered with the trial itself, and I think you have to

take that conduct very seriously. Obviously, the defense lawyers took the opposite view, and they characterized the prosecution's arguments as overblown, and they noted that while the witness, Mr. Cretico, who was a New York radio host, refused to testify before the House Intelligence Committee, he was later repeatedly interviewed by the FBI and appeared before the grand jury and testified against Mr Stone during the trial. So there are two sides to the story as to whether or not these

threats were real, whether they actually impeded justice. But prosecutors ultimately made a decision which was supported by the facts and supported by the guidelines, that the seven to nine years was a reasonable recommendation. The defense disagrees, and ultimately will be up to the court to decide what sentences

handed down here. The government's the government's second memo on sentencing is called the Supplemental and Amending Sentencing Memorandum, and it says the prior filing quote does not accurately reflect the Department of Justice's position on what would be a reasonable sentence in this matter. So how will the judge,

you know, determine which of these memos to follow, if any. Well, it's important to realize that, first of all, the federal sentencing guidelines, which give some general idea as to what is sentencing range should be, are not mandatory and are not binding on the court. Secondly, even what prosecutors recommend is not something that is binding on the court. It's just something that a judge will consider carefully in sentencing.

And the way that against obviously the defense position where they will be arguing for a much lighter sentence in this case, they're asking for for probation. At the end of the day, it's up to the court. The court will often sentence the defendant to less than what prosecutors are asking for and more than the defense is seeking.

So in this case, Judge Amy Burman Jackson, who sat through the entire trial and who observed Mr Stone and is well aware of all of his conduct and all of his attempts to arguably influence the trial through impermissible ways through social media posting and through texts and emails to this witness, she I believe has a very firm understanding and in her own mind a belief as to whether or not that conduct should be treated as harshly

as prosecutors initially recommended. So at the end of the day, I'm not sure that any of this will really make a difference as to what sentence will be handed down here. I believe Judge Berman will make the decision based upon the facts as she knows them, and she will ultimately decide what she believed is a fair sentence under these circumstances.

You were talking about the optics of the situation, and talking about optics, let's talk about former National Security Advisor Michael Flynn, because prosecutors sought six months in prison, and then a few weeks ago they backtracked on that and said they would not oppose probation instead of prison time. So putting that Mueller case together with the Stone Muller case, what are the optics. Well, that's part of the problem here is that the Stone case is not a standalone issue.

You've got the case of Flynn, where as you say, they stepped back their position there as well, not as dramatically as is being done here with Riser Stone. But it's another example of how people on the outside may look at this and believe that there's some political influence that's going into these decisions that are being made by the Department of Justice. There's a lot of judgment that

goes into these decisions. It's wrong to think that these are black and white decisions that you simply have to take these facts and apply them to the federal sentencing guidelines and you automatically add up to a sentence that is clear and undisputed. That's really not the way it works. There's a good amount of judgment that goes into applying

these sentencing guidelines to the facts of the case. And at the end of the day, the guidelines are only advisory, so it's ultimately up to the judge to decide what to do. But what's important is that the decision, however it is achieved, is one that is made for the right reasons, particularly that it's not being made based upon

any outside political influence. The Justice Department is supposed to operate independently of the White House in criminal investigations and in prosecutions, but is that observed strictly in every presidential administration. Former Attorney General Eric Holder faced complaints from Republicans that he was too close to President Barack Obama. So how strictly is that observed well, And that's exactly the tension that you always see in the Department of Justice. The

Attorney General is obviously a political appointment. It's typically somebody who is trusted by the president, and so there's always a concern that not only the Attorney General, but those that are surrounding the attorney general are political appointees and could in some way influence the decisions made by the Department of Justice. Most of the men and women who serve in the Department of Justice are career prosecutors who are not politically active, who don't involve themselves in politics

in any significant way. In fact, they're barred under the law from doing so, and those are the ones who make most of the decisions. But when you get these very high profile cases, highly politically charged cases, those are the types of cases that will ultimately make their way up to the highest levels of the Department of Justice.

And that's when you have to be concerned that outside political influences may infect decisions that are being made that should be purely an impartial decision based upon the fair administration of justice. Thanks Bob that's Robert Man's a partner. McCarter in English.