Only hours ago, President Trump tweeted out his rage over the “very unfair” sentencing that prosecutors were thought to be seeking for Roger Stone, his longtime confidant.
By shocking coincidence, the Justice Department is now going to revise its recommendation — while telling us it had nothing whatsoever to do with the president’s command. The Post reports:
The Justice Department plans to reduce its sentencing recommendation for longtime President Trump confidant Roger Stone, after top officials were apparently blindsided by the seven-to-nine year penalty prosecutors urged a judge to impose, a senior Justice Department official said Tuesday.In a stunning rebuke of career prosecutors that will surely raise questions about political meddling in the case, a senior Justice Department official said the department “was shocked to see the sentencing recommendation in the Roger Stone case last night.”“That recommendation is not what had been briefed to the department,” the official said. “The department finds the recommendation extreme and excessive and disproportionate to Stone’s offenses. The department will clarify its position later today.”
The original sentencing recommendation had justified itself by citing the severity of Stone’s offenses — including, among other things, the fact that he tried to obstruct an investigation designed to get to the bottom of interference in our election, which “strikes at the very heart of our American democracy.”
Higher-ups at the Justice Department don’t agree with this designation of severity, apparently.
Trump, of course, just got acquitted by the Senate after overtly using the power of his office to pressure a foreign leader into helping him rig the next election.
At a minimum, whether you agree with the stiff recommendation or not, this raises serious questions about whether Trump and his attorney general, William P. Barr, are working to obliterate the norm known as “prosecutorial independence.”
The norm of prosecutorial independence is a response to a thorny problem: The Justice Department is overseen by the executive branch for the good reason that this makes it subject to political accountability, but this also potentially subjects prosecutors and investigations to presidential manipulation.
As law professors Rebecca Roiphe and Bruce Green detail, after the Watergate abuses, the norm of prosecutorial independence was increasingly seen as an answer. This norm ideally functions as a check on presidential power: The president is the boss, but prosecutors are answerable to the law and the people as well.
But the norm doesn’t enforce itself. And Trump flatly rejects it.
Instead, Trump believes prosecutors are entirely answerable first and foremost to him. Trump has demanded investigations of political opponents. During the special counsel’s investigation, his lawyers took the position that he can shut down an investigation into himself for any reason whatsoever.
In this schema, a president essentially cannot manipulate law enforcement with corrupt intent by definition.
In the case of Stone, we don’t yet know exactly what happened. But the broader pattern is hard to avoid. Trump raged at his former attorney general for failing to protect him from investigations. Barr then got the job because his views on presidential obstruction meshed with the theories articulated by Trump’s own lawyers.
Since then, Barr misled the country to obscure the seriousness of Trump’s likely-criminal efforts to obstruct the special counsel investigation. Barr has undertaken a review of the Russia investigation that’s plainly designed to discredit it — and its conclusions that Russia did interfere to help Trump. The Justice Department worked to keep the whistleblower complaint detailing Trump’s Ukraine shakedown from Congress.
Now we’re learning that Barr has opened up a special channel to receive information about Joe and his son Hunter Biden directly from Rudolph Giuliani, Trump’s private lawyer, who ran Trump’s Ukraine shakedown.
House Judiciary Committee Democrats have sent a letter to Barr demanding that he explain this arrangement with Giuliani — including demanding that Barr say whether he has launched any criminal investigations in relation to it. That is, investigations into the Bidens.
It’s likely that Barr will ball this letter up and use it to practice shooting hoops into his office trash can.
Taken all together, this leaves us adrift, as University of Texas law professor Stephen Vladeck points out:
Imagine a world in which the Justice Department chose only to prosecute alleged crimes committed by members of the other political party.— Steve Vladeck (@steve_vladeck) February 11, 2020
Historically, the norm of prosecutorial independence and the political repercussions of violating it kept us out of that world.
This leaves Democrats no choice but to escalate their oversight of Barr in any way they can. Democratic strategist Simon Rosenberg, who has been prodding them on this, suggested to me that a handful of leading Democrats should devote themselves to going on the airwaves and “hounding Barr from office.”
One possibility for this might be Sen. Kamala Harris of California, who famously questioned Barr about whether Trump has ever instructed him to open investigations of political opponents.
“This is going to require congressional Democrats to play by a different set of rules than they’ve been playing under,” Rosenberg said.
This might seem hopeless — didn’t the administration completely stiff-arm Democrats’ impeachment demands for witnesses and testimony?
Yes — and no. Trump was only partly successful, and the witnesses who did come forward offered a powerful and deeply revelatory account.
And as former Justice Department spokesman Matthew Miller told me, there is good reason for Democrats to keep the pressure on Barr by trying to exercise oversight on the department — if only because it could encourage more of the same.
“You put pressure on the bureaucracy, so if there is any inappropriate interference from up top, people down the chain resist that interference because they worry about being exposed,” Miller told me. “You let everybody know you’re watching.”
The Stone mess seems tailor-made for this. And regardless, not doing this is no longer an option.