In the statement, issued to the House Judiciary Committee, Zelinsky describes a process that was at times explicitly politicized, thanks to Trump’s own interests.
Let’s break down some key sections of Zelinsky’s statement.
“In the many cases I have been privileged to work on in my career, I have never seen political influence play any role in prosecutorial decision making. With one exception: United States v. Roger Stone.”
This suggests this was hardly business as usual. What are the odds that a prosecutor like Zelinsky, who spent his career as an assistant U.S. attorney, would encounter this — for the first time — on a case involving one of the president’s closest allies?
“What I saw was the Department of Justice exerting significant pressure on the line prosecutors in the case to obscure the correct Sentencing Guidelines calculation to which Roger Stone was subject — and to water down and in some cases outright distort the events that transpired in his trial and the criminal conduct that gave rise to his conviction. Such pressure resulted in the virtually unprecedented decision to override the original sentencing recommendation in his case and to file a new sentencing memorandum that included statements and assertions at odds with the record and contrary to Department of Justice policy.”
This part of Zelinsky’s statement calls to mind a later and equally controversial Justice Department decision to pull its prosecution of another Trump aide, former White House national security adviser Michael Flynn. Zelinsky calls the Stone decision “virtually unprecedented,” which in combination with the Flynn case certainly paints a picture.
“I was told that the Acting U.S. Attorney for the District of Columbia, Timothy Shea, was receiving heavy pressure from the highest levels of the Department of Justice to cut Stone a break, and that the U.S. Attorney’s sentencing instructions to us were based on political considerations. I was also told that the acting U.S. Attorney was giving Stone such unprecedentedly favorable treatment because he was ‘afraid of the President.’ ”
Shea is a Barr ally who took over as interim U.S. attorney for the District of Columbia in February — shortly before the DOJ’s about-face in the Stone case. Zelinsky says in his statement that he is “necessarily” limited in what he can say and that he cleared it with the Department of Justice. Exactly how he learned about such “political considerations” and Shea being “afraid of the president” would seem extremely pertinent, but for now it’s secondhand.
“Together with my fellow line Assistant United States Attorneys, I immediately and repeatedly raised concerns, in writing and orally, that such political favoritism was wrong and contrary to legal ethics and Department policy.
“Our objections were not heeded.
“When I learned that the Department was going to issue a new sentencing memo, I made the difficult decision to resign from the case and my temporary appointment in the U.S. Attorney’s Office in D.C. rather than be associated with the Department of Justice’s actions at sentencing. I returned to the U.S. Attorney’s Office in Maryland, where I work today.”
This would seem to erase any questions about the motivations for the four prosecutors removing themselves from the case — in case there somehow were any.
It’s also notable that Zelinsky is saying all this while still in the employ of the Justice Department — a decision that would be easier for someone who didn’t have to deal with potential internal blowback.
“For the Department to seek a sentence below the Guidelines in a case where the defendant went to trial and remained unrepentant is in my experience unheard of — all the more so given Stone’s conduct in the lead-up to the trial. I was told at the time that no one in the Fraud and Public Corruption Section of the United States Attorney’s Office in the District of Columbia — which prosecuted the Stone case after the Special Counsel’s office completed its work — could even recall a case where the government did not seek a Guidelines sentence after trial.”
Zelinsky makes the case that he and his fellow prosecutors were merely following federal sentencing guidelines in seeking Stone’s sentence. He also details Stone’s history of lying, which wouldn’t argue for a reduced sentence. This would seem to again point to the extraordinary nature of the Justice Department’s intervention.
“The prosecution team — which consisted of three career prosecutors in addition to myself — prepared a draft sentencing memorandum reflecting this calculation and recommending a sentence at the low end of the Guidelines range. We sent our draft for review to the leadership of the U.S. Attorney’s Office. We received word back from one of the supervisors on February 5, 2020, that the sentencing memo was strong, and that Stone ‘deserve[d] every day’ of our recommendation.
“However, just two days later, I learned that our team was being pressured by the leadership of the U.S. Attorney’s Office not to seek all of the Guidelines enhancements that applied to Stone — that is, to provide an inaccurate Guidelines calculation that would result in a lower sentencing range.”
The Justice Department has alleged that high-ranking officials were blindsided by the sentencing recommendation — and/or that there was some kind of miscommunication about it — which led to the reversal. Here, Zelinsky indicates Shea’s office was well aware of and signed off on the recommendation, before it was reversed.
“In response, we were told by a supervisor that the U.S. Attorney had political reasons for his instructions, which our supervisor agreed was unethical and wrong. However, we were instructed that we should go along with the U.S. Attorney’s instructions, because this case was ‘not the hill worth dying on’ and that we could ‘lose our jobs’ if we did not toe the line.”
Again, the question is where these comments came from and how accurate they are. The identity of the “supervisor” would seem particularly worth probing, given that this person appeared to be the go-between.
“Ultimately, we refused to modify our memorandum to ask for a substantially lower sentence. Again, I was told that the U.S. Attorney’s instructions had nothing to do with Mr. Stone, the facts of the case, the law, or Department policy. Instead, I was explicitly told that the motivation for changing the sentencing memo was political, and because the U.S. Attorney was ‘afraid of the President.’ ”
Yet another allusion to this being about politics — and that being clear within the Justice Department.
“At 7:30 p.m. Monday night, we were informed that we had received approval to file our sentencing memo with a recommendation for a Guidelines sentence, but with the language describing Stone’s conduct removed. We filed the memorandum immediately that evening.
“At 2:48 a.m. the following morning, the President tweeted that the recommendation we had filed was ‘horrible and very unfair.’ He stated that, ‘the real crimes were on the other side, as nothing happens to them.’ President Trump closed, ‘Cannot allow this miscarriage of justice!’ ”
This is notable, because it lends credence to Barr’s claim that this decision was made before Trump’s tweet, which Barr would later acknowledge made the decision look problematic. But it doesn’t negate the fact that Zelinsky says — repeatedly — that this was done in response to perceived pressure from Trump.
“To be clear, my concern is not with this sentencing outcome — and I am not here to criticize the sentence Judge Jackson imposed in the case or the reasoning that she used. It is about process and the fact that the Department of Justice treated Roger Stone differently and more leniently in ways that are virtually, if not entirely, unprecedented.”
Judge Amy Berman Jackson sentenced Stone to more than three years in prison — after the initial recommendation of seven to nine years. But it’s not unusual for a sentence to come in below prosecutors’ recommendations.
“I take no satisfaction in publicly criticizing the actions of the Department of Justice, where I have spent most of my legal career. I have always been and remain proud to be an Assistant United States Attorney.
“It pains me to describe these events. But as Judge Jackson said in this case, the truth still matters. And so I am here today to tell you the truth.”
Some witnesses will criticize their superiors while not explicitly saying that’s what they are doing. Zelinsky, though, makes no bones about it.