The withdrawal of all four career prosecutors handling the case against Roger Stone, in the wake of the Justice Department’s sentencing shift, underscores that Attorney General William P. Barr’s department has effectively gone rogue.
None of the prosecutors gave a reason for their actions, but their exits followed the announcement Tuesday morning that the department would reduce its sentencing recommendation for Stone, a confidant of President Trump. That news itself came hours after Trump tweeted that Stone’s sentence was “horrible and very unfair.”
Resignation is the strongest possible protest that prosecutors can employ, within professional bounds, against improper conduct by their leadership. The president’s tweet and the department’s reduction of Stone’s sentencing were utterly rank and improper. The action runs counter not only to standard practice but also to the standard that the Justice Department is supposed to embody: the administration of justice without fear or favor.
It is hard to overstate the irregularity and impropriety of the department’s rollback of Stone’s sentence.
Stone was convicted of serious crimes: lying to Congress and witness tampering. His recommended sentence was by the book — literally. Federal prosecutors go by a manual from the U.S. Sentencing Guidelines Commission that lays out appropriate sentences for specific offenses. The seven- to nine-year sentence that prosecutors had sought was precisely what equal justice mandated. That’s far from the “miscarriage of justice” that Trump called it in a tweet.
The Justice Department updated its sentencing recommendation Tuesday in a filing that said the initial guidance “could be considered excessive and unwarranted under the circumstances.” The department’s leadership had been “shocked” at the initial recommendation, an official reportedly told The Post.
Keep in mind, however, that Stone chose to go to trial. He also sought to vilify the prosecution and engage in circus maneuvers designed to suggest his prosecution was a joke. Federal defendants who engage in such tactics virtually never receive sentences lighter than the guidelines stipulate. The system would break down were it otherwise.
But that anomaly is the least of the outrages in this situation. More worrisome is the naked countermand of the recommendation of career prosecutors in favor of a sweetheart recommendation for a political ally of the president. This is indefensible in the U.S. justice system for any reason, least of all raw political favoritism.
I have never experienced or even heard of a situation in which a career prosecutor had been ordered to withdraw a sentencing memorandum within the guidelines’ range. The original filing in the Stone case came from two career federal prosecutors and two special assistant U.S. attorneys. This rebuke has to be maddening for them.
As a general matter, the Justice Department and the White House are supposed to communicate only in rare, well-defined instances and almost never about the results of individual cases. Such contact is a third rail. For those of us committed to the normal course of legal justice, it cuts into bone for the department to do the White House’s bidding in a case in which the president has a strong personal stake.
A Justice Department spokeswoman said that the sentencing decision was made before the president’s tweet and that the White House did not communicate with the department on Monday or Tuesday. If that’s true, that would in some ways be worse: It would mean that the department has become so attentive to the president’s political preferences that it is willing to cross the political divide uninstructed.
The Stone rollback is particularly disturbing amid a flurry of crass political maneuvers undertaken since the impeachment trial ended. These include the similar reversal in the case of former Trump national security adviser Michael Flynn, who, like Stone, has made it a point of his defense to belittle the department; the recent memorandum ordering that the attorney general must sign off on any politically oriented prosecution and even on the FBI opening a criminal investigation; the institution of a process within the department to consider the opposition research that Trump lawyer Rudolph W. Giuliani has gathered in Ukraine; and the sudden ouster of U.S. Attorney Jessie K. Liu, in favor of a Barr acolyte, from the office that is prosecuting Flynn and Stone. (Liu’s December exit from the U.S. attorney’s office came with the promise of a nomination to a Treasury post — a nomination that Trump is withdrawing, Axios reported Tuesday evening.)
Amid this troubling trend, the prosecutors’ departures will ring the loudest alarm in the Justice Department and in Washington generally. The department’s reputation for doing the right thing, already eroded by the abuses that have piled up since Barr became attorney general, is on life support. That is among the most odious achievements of the Trump presidency.