Revisiting the Roger Stone Sentencing

Tomorrow, one of the line prosecutors in the Roger Stone case will testify before the House Judiciary Committee.  A news story relating part of his prepared testimony tells us that the attorney, Aaron Zelinsky, plans to say, among other things:

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….What I heard – repeatedly – was that Roger Stone was being treated differently from any other defendant because of his relationship to the President. 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.

Zelinsky’s account seems both odd and oddly incomplete.

The odd thing is its  use of the passive voice  —  what “I heard” and what “I was told.”  Conspicuously, Zelinsky doesn’t say that Tim Shea or Bill Barr (or any person he’s willing to name so far as we know) told him about the supposed political influence in the case.  Perhaps he’ll reveal the source in his live testimony if he’s willing to.

Another odd thing is his statement that the Justice Department was “exerting pressure” on the line prosecutors because it saw the guideline calculations differently from the way Zelinsky saw them.  When I was a line attorney in the Justice Department, however, I never viewed it as an alien object.  I viewed it as my employer.  Like every other line attorney employed at DOJ, I had  —  ready now?  —  a boss, that is, someone who supervised my work.  Every single memo I wrote was reviewed, and almost always changed to a greater or lesser extent, by the boss.  Sometimes I thought he was right and other times I thought he wasn’t, but it never occurred to me to think that his differences with me were illegitimate, even though he was more directly accountable to politically appointed superiors than I was (since I was lower down the chain).  I was also, on occasion, modest enough to understand that he might see the case differently because he had more experience or knew better than I did how the court would react.

As it happens, when the Stone sentencing controversy was first percolating back in February, I wrote an op-ed for the Washington Post about it (the Post declined to print it).  As readers will see, I was far from hostile to Zelinsky’s position, since I had been in a similar position in the late Nineties.  As I told the Post:

The career Justice Department attorneys who prosecuted Roger Stone stepped aside, and one resigned altogether, when the Attorney General overrode their sentencing recommendation with a more lenient one. I feel their pain. A little more than 20 years ago, I, also at the time a career Assistant US Attorney, resigned from the job I had held for 18 years because I believed the Attorney General’s position in an important Supreme Court case was incorrect and inconsistent with longstanding and essential Department traditions. I was unemployed for months thereafter. This newspaper was open-mined enough to print my story even though it saw the case differently, Miranda, Morals and Marbles.

So I respect the line attorneys’ action — respect it because I was in their shoes. Yet, on the facts of the present case, the Attorney General has the better of the legal argument. He did the right thing in seeking a more lenient (though still quite significant) sentence for Stone. He did this, moreover, while certainly knowing that he was going to take a hit for supposedly merely bowing to his boss. That makes his action not merely legally sound but, dare I say it, courageous.

Stone seems to have led the life of a blowhard bully. In this case, he was convicted by a jury of seven felony counts of obstructing Congress and witness tampering. The latter charge was based on his having told one adverse witness, Randy Credico, to “prepare to die.” He also threatened to make Credico’s pet dog disappear.

The federal sentencing guidelines, which properly shaped the line prosecutors’ recommendation, are justifiably severe in tampering cases if the defendant threatens the witness with physical harm. Here, that fact drove the guidelines sentencing range from 37 to 46 months — itself a substantial sentence in a white collar case — to 90 to 108 months. The line prosecutors’ assessment reflected a literal, but accurate, assessment of the law. The court, of course, is not required to adopt the prosecution’s view, and, under a 2005 Supreme Court case, the guidelines themselves are advisory only, not binding on the judge.

The Department’s obligation in recommending a sentence is to be fully faithful to the law as a reasonable person would understand it when applied to the facts of the individual case. In this instance, a reasonable person probably would not, on balance, regard a seven to nine year prison sentence as fitting for Stone, reprehensible as he may be. In part this is because of his age — 67 — and in part because his conviction was for a non-violent first offense. Mainly, though, it’s because of one key fact: Credico, who had known Stone casually for years, himself testified that he did not take Stone’s words seriously and did not feel threatened. That makes the line prosecutors’ proposed enhancement for threatening physical harm, while certainly defensible, something of a stretch. As things stand, courts sentence at or near the bottom of the sentencing range about half the time, and below the range in the great majority of the remaining cases. The Attorney General would therefore have been correct in thinking that the line prosecutors’ recommendation was excessive taken on its own terms and — importantly — would be seen to be so by the judge. Protecting the Department’s reputation with the judiciary for tempered judgment is, of course, an essential part of the Attorney General’s job.

When I resigned 21 years ago, the Solicitor General, Seth Waxman, wrote me a wonderfully generous and gracious note thanking me for taking a stand for what I regarded as an important principle. Regrettably, the spirit of Mr. Waxman’s letter seems now to have been lost. It’s possible that well-informed Department lawyers of good faith will have varying views in a politically charged case. In this one, the line attorneys took a stand for what they viewed as the right thing to do. The Attorney General did exactly the same thing. While the Attorney General’s legal judgment seems more correct and measured to me, perhaps the most important long-term lesson to be drawn from this dispute is that the work of the Department and those who lead it needs, and deserves, to be more than a target for the viscera of the moment.

UPDATE:  I now see that the Post has a long and mind-bendingly biased account of Mr. Zelinsky’s statement in its “news story” here.  Buried way, way down in the story is this gem:  “Judge Amy Berman Jackson sentenced Stone to more than three years in prison — [in line with the Barr/Shea recommendation] and after the initial recommendation [by Zelinsky and his line colleagues] of seven to nine years. But it’s not unusual for a sentence to come in below prosecutors’ recommendations.”

Let’s stop right there.  The district judge, an Obama appointee, sentenced Stone to less than half  the incarceration Zelinsky wanted  —  and right in line with what Zelinsky’s politically appointed and much more experienced superiors settled upon.  Goodness gracious.

Let’s try to imagine how the Post would write this story if everyone’s position’s were reversed  —  that is, if we had a Democratic President, a Democratic Attorney General and US Attorney, a slimy Democratic defendant (instead of a slimy Republican one), and a Republican or Republican-leaning line prosecutor who wanted a seven-to-nine year sentence for a 67 year-old white collar defendant.  Somehow I think the Post’s coverage would be along these lines:  “Vindictive prosecutor’s draconian sentencing recommendation for aging, first-time, non-violent offender overruled by more mature judgment of Attorney General;  well-respected district judge rejects line prosecutor’s barbaric sentencing wishes and sides with AG.”   I guarantee you you wouldn’t need to read 15 column inches down the page to find that rendition.