A Stone’s Throw

When they ran the early morning take-down of Roger Stone, weapons in hand and cameras on, heads spinned. After all, it was Roger Stone, the cartoon character political operative of the vuglar and amoral, but still, it was Roger Stone, who would have walked in to surrender upon request. What else would he do?

Sides shifted, paradigms went spiral and schadenfruede became the flavor of the day. Roger Stone will do that to people. Trump will too. And damn if they didn’t do it again.

In an extraordinary decision overruling career lawyers, the Justice Department recommended an unspecified term of incarceration for Mr. Stone instead of the prosecutors’ request of a punishment of seven to nine years. The move coincided with Mr. Trump’s declaration on Twitter early Tuesday that the government was treating Mr. Stone too harshly.

The government submitted its sentencing memo seeking a Guidelines sentence of seven to nine years. Had it stopped there, it would well have been subject to criticism as ridiculously harsh, but that criticism would have come from folks like me, who have been critical of harsh sentences under the United States Sentencing Guidelines since before the ink dried on Mistretta in 1989.

In other words, it would be an honest criticism. It would be criticism grounded in the Draconian Guidelines that created and perpetuated a lie that life plus cancer was magically the “right” sentence because a grid invented of whole cloth said so.

But before critics could raise their voices, the president did, and thereupon something happened that never happens, that never should happen, but it happened. The president twitted it was too harsh for his pal, then deleted his twit, and then Main Justice pulled the plug on the memo and resubmitted, its new recommendation falling just shy of a stern talking to.

The reaction was extraordinary as well.

The prosecutors — one of whom resigned from the department — were said to be furious over the reversal of their sentencing request, filed in federal court late Monday.

Three prosecutors withdrew from the case. Jonathan Kravis quit Justice altogether. Their sentencing recommendation no doubt received approval in the ordinary course before their submission of the memo, and then got overruled by Main Justice, after it had already been submitted. It wasn’t merely an embarrassing rebuke, but the politization of the process by command influence.*

Stone was Trump’s crony. Trump wanted Stone to get the crony discount. So he did.

As for the four prosecutors, the rest of their work notwithstanding whether good, bad, honest, dishonest or some combination thereof, refused to get on their knees before Trump and suck. Without any commentary on anything else in Jonathan Kravis’ career, his resignation from the Department of Justice in reaction to his being emasculated by rank cronyism was an act of integrity for which he deserves enormous credit.

And as happens with neck-wrenching regularity these days, sides flipped. Those sympathetic to Trump, who the day before called for the swift and fair trial of drug dealers before executing them, and who Attorney General Bill Barr spent the morning excoriating progressive prosecutors for being too lenient, suddenly discovered that the Sentencing Guidelines were harsh and cried for mercy.

How was it, they demanded to know, that those who complained of harsh sentences for every nameless defendant couldn’t muster any empathy for old Rog? Was nine years for perjury suddenly a fair sentence? Why praise prosecutors for their courage and integrity for quitting the case, if not DoJ, when they were the same prosecutors who sought the Draconian sentence you would condemn had it been anyone but Stone?

It’s not an unfair challenge, if a bit too steeped in disingenuous tu quoque, but there is a two-fold response that strikes me as fairly obvious. First, there was no opportunity to criticize the harshness of the Guidelines, of the original government sentencing request, as it was pulled and revised so quickly as to cause radiculopathy. Nor was it “real,” as it’s normal for the government to seek a Guidelines sentence, for the defense to oppose it, and for the judge to make the decision as to what sentence is required under § 3553(a). Until sentence is imposed, there’s nothing really to question.

But the second response is key. Ripping the United States Sentencing Guidelines for their harshness is a constant in the scheme of federal sentencing. It’s been harsh since it was first upheld in 1989 and has been harsh ever since. It is, for lack of a better word, normal.  But using “command influence” by the president, through Main Justice, to the line prosecutors, to withdraw a sentencing recommendation for a crony of the president, never happens. That’s not normal. That’s a unique independent wrong that distinguishes what happened here from what happens in every case. That’s what makes it different.

Some argued that this was the opportunity to turn Trump people around, to bring them to the light of the harshness of the Sentencing Guidelines. To the extent that might be possible, that’s fine, but it was unserious, just as every partisan argument turns out to be these days. And it’s unserious to argue that Trump deserved any credit for complaining that the normal sentencing recommendation of the line prosecutors was too harsh, within a day of his praising execution as the right sentence for drug dealers.**

The irony here is that Trump can still pardon Stone, or grant clemency should he deem the sentence of his garishly-dressed buddy. Hey, he did it for Crazy Joe Arpaio, so why not Roger? But instead, he besmirched the apolitical integrity of the Department of Justice in a way that was just too brazen, too flagrant, even for the loyal opposition to stomach. That ain’t easy, yet he pulled it off.

*Command influence is a concept from the Uniform Code of Military Justice, called the “mortal enemy of military justice” and unlawful under Article 37. Given the hierarchical nature of the military, it’s a critical check on the fairness of the system, as an officer could otherwise order a subordinate to convict, acquit, whatever. Here, the Commander in Chief gave the order, but unlike the military, the subordinates had the option of refusing and they did.

**And Trump, being Trump, can’t help but Trump.

25 thoughts on “A Stone’s Throw

  1. Kathryn Kase

    Ah, another teachable moment about our tri-partite form of government and about separation of powers. But learning requires listening. Is anyone listening?

  2. Skink

    That any lawyer hands-over their discretion to a nutty Trump twit was unimaginable a couple years ago. That the AG would go along would have been incalculable in Vegas. Trump has no integrity and places no limitations on himself. But the result of his goofy rants is generally benign because the limitations are in those with the real authority to act, like the AG. When they go along with insanity, we are in a very bad place.

    Hopefully, Barry Sanders will win the next election.

      1. Jim Tyre

        That’s Barry Sadler. I’m confidant skink meant the superstar retired running back for the Detroit Lions

  3. grberry

    The line that has stuck out to me in other coverage of the case that is omitted above is this one.
    ““The Department was shocked to see the sentencing recommendation in the filing in the stone case last night,” the official told Fox News. “The sentencing recommendation was not what had been briefed to the Department.”” (Quote from a Fox News article of yesterday, not linked because of policy.)

    It makes it sounds like the prosecutors lied to their superiors about what they were planning on filing with the court. Yet your reference here is “Their sentencing recommendation no doubt received approval in the ordinary course before their submission of the memo”

    I don’t see how their initial recommendation can both have “received approval in the ordinary course” and fit “was not what had been briefed to the Department.”

    1. SHG Post author

      Line assistants get signed off by the division chief (or deputy), and in special cases, by the US Attorney (or deputy). Main Justice has nothing to do with it. Essentially, each district is autonomous in the execution of its authority. It helps to understand something about how the normal process functions, which is why this is a law blog and not reddit.

    2. Dan

      SHG addressed the ordinary course of things. Aside from that, did you consider the possibility that the official’s statement might not have been completely honest?

      1. SHG Post author

        Wait, what? A statement coming out of D.C. that’s not entirely honest to explain its improper yet bizarre actions?

        1. Miles

          Not having a very lawyerish day, are we? I suppose your post says all that’s needed to be said for the lawyers, but maybe the nons were feeling bad about the lack of comments and needed to fill the void? Maybe they just worry about your feelz, bro?

  4. Pedantic Grammar Police

    I see what you are trying to say here but it doesn’t work grammatically:

    ” Those sympathetic to Trump, who the day before called for the swift and fair trial of drug dealers before executing them, and who Attorney General Bill Barr spent the morning excoriating progressive prosecutors for being too lenient, suddenly discovered that the Sentencing Guidelines were harsh and cried for mercy.”

    I think you meant something like:

    Those sympathetic to Trump, who the day before called for the swift and fair trial of drug dealers before executing them, and who agreed with Attorney General Bill Barr when he spent the morning excoriating progressive prosecutors for being too lenient, suddenly discovered that the Sentencing Guidelines were harsh and cried for mercy.

  5. Pedantic Grammar Police

    Are you implying that politicians are totally corrupt, and that laws are for the little people? (clutches handkerchief and reaches for smelling salts)

  6. albeed

    Have you considered that everything in this sentencing recommendation may be political (with or without the guidelines and just because.) to force Trump (and Barr) to publicly condemn it? The prosecutors who recommended and signed off on the sentencing recommendations may be persona non grata in the DOJ and are using this opportunity to publicly resign anyway as their work was done as a part of a Never Trump team and Insurance. This is just to provide additional ammunition to publicly attack the president and any charges that eventually may be filed as part of the Durham investigation.

    No, I am not wearing a tin-foil hat. I just don’t trust anyone in government anymore.

    1. SHG Post author

      Or space aliens?!? You really need to find out who stole your hat. Once you go into batshit crazyland, anything is possible, which is why god created reddit.

  7. B. McLeod

    So after all these years, a few DOJ career stalwarts realize there were even more imperfections in the system than they thought. I’m sure they meant to sign on with that other DOJ, the one with the tennis courts and the condominiums.

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