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.
Congratulations to Attorney General Bill Barr for taking charge of a case that was totally out of control and perhaps should not have even been brought. Evidence now clearly shows that the Mueller Scam was improperly brought & tainted. Even Bob Mueller lied to Congress!
— Donald J. Trump (@realDonaldTrump) February 12, 2020