What does justice look like for president鈥檚 friends and foes?
The events of this week are raising pointed questions about the rule of law and the political independence of America鈥檚 largest law enforcement agency.
On Tuesday, in an extraordinary move, the U.S. Department of Justice reduced its sentencing recommendation for Roger Stone, a conservative political consultant, after President Donald Trump tweeted his dismay at the previous recommendation federal prosecutors had made for his longtime confidant. By the end of the day all four career DOJ prosecutors had withdrawn from the case, and one resigned entirely.
The Justice Department is ostensibly an independent agency within the executive branch. But it has increasingly launched probes into the president鈥檚 opponents and softened penalties for his allies since Attorney General William Barr became its leader last year.
Why We Wrote This
There鈥檚 a reason Lady Justice is portrayed as blind. The law is meant to apply equally. Moves this week by the Justice Department have raised concerns that department is no longer hewing to those ideals when it comes to friends and foes of the president.
Those moves stand in opposition to the core principle of equal protection under the law, critics say, and threaten the integrity of America鈥檚 judiciary.
The Justice Department 鈥渢ends to be pretty aggressive [with white collar sentencing], and to have a sudden outbreak of moderation in the case of a guy who happens to be a crony of the president raises questions,鈥� says Frank Bowman, a professor at the University of Missouri School of Law.
鈥淭he minute the public begins to suspect that whether you are prosecuted or what your penalties end up being are affected by whether you are friends or enemies of the president,鈥� he adds, 鈥渢hen a critical pillar of the American judicial system starts to crumble.鈥�
鈥淧rinciples of punishment鈥�
Mr. Stone was convicted by jury of obstructing Congress and witness tampering in November, in a case related to the special counsel investigation into Russian interference in the 2016 election. It was the final prosecution in Robert Mueller鈥檚 special counsel investigation聽 鈥� an inquiry that Mr. Trump regularly criticized, which resulted in seven guilty pleas and two convictions.
His back tattoo of a smiling Richard Nixon encapsulates both Mr. Stone鈥檚 political ideology and the approach he took for decades as a conservative political consultant. He has known Mr. Trump since the 1980s, and like other allies who have run afoul of the law, the president rallied to his defense.
Prosecutors had recommended a tougher-than-normal sentence of seven to nine years in prison, which they wrote in a court filing would 鈥渁ccurately reflect the seriousness of his crimes and promote respect for the rule of law.鈥�
A sentencing recommendation is usually not a straightforward process. Prosecutors also take into account the offender鈥檚 criminal history, age, and whether they chose to take the case to trial 鈥� something that typically results in harsher sentences if convicted.
鈥淚 have never seen a prosecutor go in and undermine a jury鈥檚 verdict,鈥� says Laura Brevetti, a former Organized Crime Strike Force prosecutor with the DOJ.
For offenses like Mr. Stone鈥檚, federal guidelines typically call for a sentence ranging from 15 to 21 months, though they can request more if the offender engages in additional questionable conduct.
Before his trial, Mr. Stone posted on Instagram a photo of U.S. District Judge Amy Berman Jackson, the trial judge, with crosshairs next to her head. During the trial, prosecutors wrote, he also appealed for a presidential pardon through the right-wing media.
A senior DOJ official told media on Tuesday that the line prosecutor鈥檚 recommendation was 鈥渆xtreme and excessive and disproportionate to Stone鈥檚 offenses.鈥�
But 鈥渢he underlying principles of punishment are you want to deter people,鈥� says Kami Chavis, a professor at Wake Forest University School of Law and a former U.S. attorney. 鈥淲e do want to deter people from lying to members of Congress.鈥�
The fact that the four prosecutors involved have since left the case, she adds, suggests they were 鈥渦ncomfortable with this high level of intervention that seems politically influenced.鈥�
Sword and shield
Potential for abuse is rife in both a president鈥檚 pardon power and their command of the executive branch.聽The fact that the Justice Department is part of the executive branch means there are two perpetual concerns, says Professor Bowman, author of 鈥淗igh Crimes and Misdemeanors.鈥�
One concern is that a president will use the DOJ 鈥渁s a shield to himself and his friends.鈥� The other is that they will use the DOJ 鈥渁s a sword against his enemies.鈥�
鈥淭his president has indicated a disposition to do both,鈥� he adds. The Stone case 鈥渋s not out of the blue. This is not some one-off event.鈥�
- Two weeks ago federal prosecutors backed off a recommendation of up to six months in prison for Michael Flynn, Mr. Trump鈥檚 former national security adviser, who he has praised as 鈥渁 wonderful person鈥� and 鈥渁 very good man.鈥� Prosecutors now support probation for General Flynn, who pleaded guilty to lying to investigators in the Russia inquiry.
- The first pardon he granted was to Joe Arpaio, an early campaign supporter. The former sheriff of Arizona鈥檚 Maricopa County was convicted of contempt of court for disobeying a federal judge鈥檚 order to stop racially profiling Latinos.
- Prosecutors oppose requests for early release for Michael Cohen, the president鈥檚 longtime personal attorney who cooperated with the Mueller investigation before pleading guilty to tax fraud and lying charges.
- Days after being acquitted by the U.S. Senate, Mr. Trump fired two key witnesses against him during the House impeachment inquiry: Lt. Col. Alexander Vindman, an Iraq War veteran on the National Security Council staff, and Gordon Sondland, the former U.S. ambassador to the European Union. Mr. Vindman鈥檚 twin brother, who also was assigned to the NSC, was also removed.
- Jessie Liu, a federal prosecutor who led the Stone case, had her nomination for a post at the Treasury Department abruptly pulled this week by the White House.
鈥淲e all know what [Trump] is about and we all know what he is doing,鈥� says Ms. Brevetti. The Stone sentence 鈥渂rings up the issue of whether or not, at the highest levels of the Justice Department, is integrity no longer the coin of the realm?鈥�
Barr鈥檚 Justice Department
When former Attorney General Jeff Sessions recused himself from any investigation into the 2016 election, in which he鈥檇 campaigned for Mr. Trump, the president lambasted him for it. After months of , Mr. Sessions resigned in November 2018.
His replacement, Mr. Barr, has appeared more responsive to the president鈥檚 interests.
Mr. Barr returned to the DOJ with a track record of supporting and immunity from investigation.
Since taking office he has opened a review of the Mueller investigation and fired FBI Director James Comey鈥檚 actions. He has also opened an 鈥渋ntake process鈥� to vet material that Rudy Giuliani, Mr. Trump鈥檚 personal lawyer, has gathered in Ukraine on former Vice President Joe Biden, who is seeking the Democratic nomination. On Wednesday the president congratulated Mr. Barr 鈥渇or taking charge of a case that was totally out of control.鈥� Also on Wednesday, Mr. Barr agreed to testify before the House Judiciary Committee, ending a year-long standoff.
Ultimately, Judge Jackson will still make the decision as to how Mr. Stone is punished.
But these events have significantly damaged the Justice Department鈥檚 credibility, says Rebecca Roiphe, a professor at New York Law School and an expert on judicial ethics.
The president and Mr. Barr 鈥渁re convinced that we have a deep state, including our Department of Justice,鈥� she adds, refuting the idea that the DOJ is full of progressives who are trying to undermine the White House. 鈥淭hose aren鈥檛 the kinds of people who go into law enforcement. People who choose to be federal prosecutors are not left-wing crazies.鈥�
鈥淚t鈥檚 not the end of the world, but I do think that the credibility of the Department of Justice as a nonpolitical body that enforces the law equally against all is in jeopardy,鈥� she continues. 鈥淭his is not damage that can easily be constrained to Trump. Once this line is crossed, it鈥檚 really hard to go back.鈥�
