Their original recommendation — asking the judge to sentence Stone within the range set by the U.S. Federal Sentencing Guidelines for the offenses for which Stone was convicted at trial — was a perfectly ordinary filing. It is the type of pleading filed in federal courts by federal prosecutors every day. Certainly, when a defendant is convicted at trial, it is routine for prosecutors to suggest to the judge that he be sentenced within a prescribed range — the result of a cumbersome sentencing guidelines calculation that is often debated between the parties and adjudicated by the court.
Of course, the filing was just a recommendation to the judge, who has ample authority to sentence Stone within that range — or above it or below it — as she determines. Prosecutors do not sentence defendants; judges do. So how did something so ordinary become so extraordinary?
First, some background. The Justice Department that I know and love — and in which I worked for two decades in many roles — must always be two things to the public it serves: fair and perceived as fair. These are related but distinct concepts. Our work must be fair — that is, we must have fair outcomes as a matter of practice and principle. Anything less is unacceptable, which is one reason, for instance, we turned over exculpatory evidence (a constitutional obligation) and why we publicly fronted our mistakes when we made them.
But our work must also be perceived as fair. Fair outcomes are not worth much if the public does not perceive those outcomes as fair. One way, among many, we ensure that is to assiduously avoid politics in our work. When I was a career federal prosecutor in Virginia, my colleagues and I simply did not talk about politics. I did not know then, and I largely do not know now, how my colleagues (including the federal agents with whom we worked) voted or even if they voted. It simply did not matter to our work. Folks did not talk about it. It was irrelevant to our work. We knew that unwritten rule. Whatever our view, we kept it to ourselves, because it had no place in our world and because letting it seep in would corrode our work. We worked free of political interference or influence. Always.
Until now, apparently. What happened? Following the routine filing by the career prosecutors — in line with the sentencing guidelines applicable to the Stone case — the president inexplicably tweeted that the sentence Stone faced was a “miscarriage” of justice, calling it a “horrible and very unfair situation.”
And then — and this is the part that is so disturbing — the prosecutors were ordered, either because of the president’s tweet or irrespective of it (and both scenarios are awful), to rescind their original recommendation and to ask the judge that Stone receive more lenient treatment at his sentencing. What the prosecutors were ordered to do was dangerous and unsettling and undermined everything they — and we — stood for as Justice Department professionals. They properly refused.
We all understand that the leadership at the top of the department is politically appointed, and we make peace with that (in addition to my work as a career federal prosecutor, I served in political positions under Presidents George W. Bush and Barack Obama in the Justice Department and worked for thoughtful appointed leaders of both parties), but being asked by that leadership to allow politics to corrode our work is not remotely normal or permissible. And it is treacherous.
The rule of law is a construct. It was made by people — and is nurtured and preserved by people. It can also be destroyed by people. And unlike the law of gravity, which works everywhere and all the time (at least on this planet), the rule of law is precious and fragile. As citizens and prosecutors, we either safeguard it or we surrender it. That’s the choice. What political leadership did here — mandating a favor for a friend of the president in line with the president’s publicly expressed desire in the case — significantly damages the rule of law and the perception of Justice Department fairness.
Principled resignations by career federal prosecutors highlighted this dangerous stunt. I am proud of them for that.
But I find it revolting that they were pushed into that corner (one resigned his job; three others resigned from the case) and saddened by their sacrifice. This is not normal and it is not right,and it is dangerous territory for the rule of law.
Safeguard or surrender. You choose.