What does justice look like for president’s friends and foes?
The events of this week are raising pointed questions about the rule of law and the political independence of America’s largest law enforcement agency.
On Tuesday, in an extraordinary move, the U.S. Department of Justice reduced its sentencing recommendation for Roger Stone, a conservative political consultant, after President Donald Trump tweeted his dismay at the previous recommendation federal prosecutors had made for his longtime confidant. By the end of the day all four career DOJ prosecutors had withdrawn from the case, and one resigned entirely.
The Justice Department is ostensibly an independent agency within the executive branch. But it has increasingly launched probes into the president’s opponents and softened penalties for his allies since Attorney General William Barr became its leader last year.
Those moves stand in opposition to the core principle of equal protection under the law, critics say, and threaten the integrity of America’s judiciary.
The Justice Department “tends to be pretty aggressive [with white collar sentencing], and to have a sudden outbreak of moderation in the case of a guy who happens to be a crony of the president raises questions,” says Frank Bowman, a professor at the University of Missouri School of Law.
“The minute the public begins to suspect that whether you are prosecuted or what your penalties end up being are affected by whether you are friends or enemies of the president,” he adds, “then a critical pillar of the American judicial system starts to crumble.”
“Principles of punishment”
Mr. Stone was convicted by jury of obstructing Congress and witness tampering in November, in a case related to the special counsel investigation into Russian interference in the 2016 election. It was the final prosecution in Robert Mueller’s special counsel investigation – an inquiry that Mr. Trump regularly criticized, which resulted in seven guilty pleas and two convictions.
His back tattoo of a smiling Richard Nixon encapsulates both Mr. Stone’s political ideology and the approach he took for decades as a conservative political consultant. He has known Mr. Trump since the 1980s, and like other allies who have run afoul of the law, the president rallied to his defense.
Prosecutors had recommended a tougher-than-normal sentence of seven to nine years in prison, which they wrote in a court filing would “accurately reflect the seriousness of his crimes and promote respect for the rule of law.”
A sentencing recommendation is usually not a straightforward process. Prosecutors also take into account the offender’s criminal history, age, and whether they chose to take the case to trial – something that typically results in harsher sentences if convicted.
“I have never seen a prosecutor go in and undermine a jury’s verdict,” says Laura Brevetti, a former Organized Crime Strike Force prosecutor with the DOJ.
For offenses like Mr. Stone’s, federal guidelines typically call for a sentence ranging from 15 to 21 months, though they can request more if the offender engages in additional questionable conduct.
Before his trial, Mr. Stone posted on Instagram a photo of U.S. District Judge Amy Berman Jackson, the trial judge, with crosshairs next to her head. During the trial, prosecutors wrote, he also appealed for a presidential pardon through the right-wing media.
A senior DOJ official told media on Tuesday that the line prosecutor’s recommendation was “extreme and excessive and disproportionate to Stone’s offenses.”
But “the underlying principles of punishment are you want to deter people,” says Kami Chavis, a professor at Wake Forest University School of Law and a former U.S. attorney. “We do want to deter people from lying to members of Congress.”
The fact that the four prosecutors involved have since left the case, she adds, suggests they were “uncomfortable with this high level of intervention that seems politically influenced.”
Sword and shield
Potential for abuse is rife in both a president’s pardon power and their command of the executive branch. The fact that the Justice Department is part of the executive branch means there are two perpetual concerns, says Professor Bowman, author of “High Crimes and Misdemeanors.”
One concern is that a president will use the DOJ “as a shield to himself and his friends.” The other is that they will use the DOJ “as a sword against his enemies.”
“This president has indicated a disposition to do both,” he adds. The Stone case “is not out of the blue. This is not some one-off event.”
- Two weeks ago federal prosecutors backed off a recommendation of up to six months in prison for Michael Flynn, Mr. Trump’s former national security adviser, who he has praised as “a wonderful person” and “a very good man.” Prosecutors now support probation for General Flynn, who pleaded guilty to lying to investigators in the Russia inquiry.
- The first pardon he granted was to Joe Arpaio, an early campaign supporter. The former sheriff of Arizona’s Maricopa County was convicted of contempt of court for disobeying a federal judge’s order to stop racially profiling Latinos.
- Prosecutors oppose requests for early release for Michael Cohen, the president’s longtime personal attorney who cooperated with the Mueller investigation before pleading guilty to tax fraud and lying charges.
- Days after being acquitted by the U.S. Senate, Mr. Trump fired two key witnesses against him during the House impeachment inquiry: Lt. Col. Alexander Vindman, an Iraq War veteran on the National Security Council staff, and Gordon Sondland, the former U.S. ambassador to the European Union. Mr. Vindman’s twin brother, who also was assigned to the NSC, was also removed.
- Jessie Liu, a federal prosecutor who led the Stone case, had her nomination for a post at the Treasury Department abruptly pulled this week by the White House.
“We all know what [Trump] is about and we all know what he is doing,” says Ms. Brevetti. The Stone sentence “brings up the issue of whether or not, at the highest levels of the Justice Department, is integrity no longer the coin of the realm?”
Barr’s Justice Department
When former Attorney General Jeff Sessions recused himself from any investigation into the 2016 election, in which he’d campaigned for Mr. Trump, the president lambasted him for it. After months of public criticism on Twitter, Mr. Sessions resigned in November 2018.
His replacement, Mr. Barr, has appeared more responsive to the president’s interests.
Mr. Barr returned to the DOJ with a track record of supporting broad presidential power and immunity from investigation.
Since taking office he has opened a review of the Mueller investigation and fired FBI Director James Comey’s actions. He has also opened an “intake process” to vet material that Rudy Giuliani, Mr. Trump’s personal lawyer, has gathered in Ukraine on former Vice President Joe Biden, who is seeking the Democratic nomination. On Wednesday the president congratulated Mr. Barr “for taking charge of a case that was totally out of control.” Also on Wednesday, Mr. Barr agreed to testify before the House Judiciary Committee, ending a year-long standoff.
Ultimately, Judge Jackson will still make the decision as to how Mr. Stone is punished.
But these events have significantly damaged the Justice Department’s credibility, says Rebecca Roiphe, a professor at New York Law School and an expert on judicial ethics.
The president and Mr. Barr “are convinced that we have a deep state, including our Department of Justice,” she adds, refuting the idea that the DOJ is full of progressives who are trying to undermine the White House. “Those aren’t the kinds of people who go into law enforcement. People who choose to be federal prosecutors are not left-wing crazies.”
“It’s not the end of the world, but I do think that the credibility of the Department of Justice as a nonpolitical body that enforces the law equally against all is in jeopardy,” she continues. “This is not damage that can easily be constrained to Trump. Once this line is crossed, it’s really hard to go back.”