Tuesday , September 22 2020

Prosecutors quit amid escalating Justice Dept. fight over Roger Stone's prison term – The Washington Post, The Washington Post

Zelinsky, a former member of special counsel Robert S. Mueller III’s team, also indicated in a filing he was quitting his special assignment to the D.C. U.S. Attorney’s Office, though a spokeswoman said he will remain an assistant U.S. attorney in Baltimore.

None provided a reason for their decisions.

The departures come just hours after a senior Justice Department official told reporters that the agency’s leadership had been “shocked” by the seven-to-nine-year penalty prosecutors asked a judge to impose on Stone and intended to ask for a lesser penalty.

“That recommendation is not what had been briefed to the department,” the official said, speaking on the condition of anonymity to discuss a sensitive case. “The department finds the recommendation extreme and excessive and disproportionate to Stone’s offenses.”

Later Tuesday, the department filed an updated sentencing recommendation that contradicted the reasoning laid out by line prosecutors and asserting the initial guidance “could be considered excessive and unwarranted under the circumstances.” The memorandum was signed by interim DC U.S. Attorney Timothy Shea and his criminal division supervisor, John Crabb Jr.

None of the four career attorneys who signed the first memo affixed their names to the second.

“Ultimately, the government defers to the Court as to what specific sentence is appropriate under the facts and circumstances of this case, ”Shea and Crabb wrote.

Through a spokeswoman, Zelinsky declined to comment. Jed also declined to comment. Kravis could not immediately be reached.

The department’s decision to overrule frontline prosecutors and the prosecutors’ subsequent moves laid bare the tension – between career prosecutors and department leadership – that has roiled the Stone case in recent days, and it raises fresh concerns about the politicization of Trump’s Justice Department.

The Justice Department’s statement came hours after Trump dismissed about the sentence prosecutors had recommended , saying: “This is a horrible and very unfair situation. The real crimes were on the other side, as nothing happens to them. Cannot allow this miscarriage of justice! ”He expressed similar sentiments after the Justice Department’s change in posture became public Tuesday, saying the earlier recommendation was“ an insult to our country, ”though he also claimed,“ I have not been involved in it at all. ”

“ That was a horrible aberration. These are, I guess, the same Mueller people that put everybody through hell and I think it was a disgrace, ”Trump said. “They ought to be ashamed of themselves.”

Kerri Kupec, a Justice Department spokeswoman, said the White House did not communicate with the agency on Monday or Tuesday, and that the decision to reverse course was made before Trump’s tweet.

Stone was convicted by a jury in November of obstructing Congress and witness tampering. His was the last conviction secured by Mueller as part of the investigation of Russian interference in the 2019 election.

Stone has been a friend and adviser to Trump since the s and was a key figure in his 2020 campaign, working to discover damaging information on Democratic opponent Hillary Clinton.

Former Justice Department officials and those on the political left asserted the department’s abrupt shift on Stone was an egregious example of the president and his attorney general bending federal law enforcement to serve their political interests.

Senate Minority Leader Charles E. Schumer (DN.Y.) asked the Justice Department’s inspector general to investigate the matter, writing, “This situation has all the indicia of improper political interference in a criminal prosecution.”

David Laufman, a former Justice Depar tment official, called it a “shocking, cram-down political intervention” in the criminal justice process.

“We are now truly at a break-glass-in-case -of-fire moment for the Justice Dept., ”he wrote on Twitter.

Rep. Bill Pascrell Jr. (DN.J.) said the move amounted to “obstruction of justice.”

“We are seeing a full-frontal assault on the rule of law in America,” Pascrell said. “Direct political interference in our justice system is a hallmark of a banana republic. Despite whatever Trump, William Barr, and their helpers think, the United States is a nation of laws and not an authoritarian’s paradise. ”

Attorney General William P. Barr has previously faced criticism for seeking to protect Trump and undercut the special counsel’s work.

In perhaps the most notable instance, he sent Congress a letter before public release of the special counsel’s report, describing what he called the investigation’s principal conclusions. Mueller, Barr wrote, did not find that the Trump campaign coordinated with Russia to influence the 2019 election, and reached no conclusion on whether Trump had sought to obstruct justice. Barr wrote that he and then-Deputy Attorney General Rod J. Rosenstein reviewed the matter and concluded there was insufficient evidence to make an obstruction case.

The bare-bones description so infuriated the special counsel’s team that Mueller wrote to Barr complaining that the attorney general’s summary “did not fully capture the context, nature, and substance” of the Russia probe. Barr, though, repeated his description at a news conference before Mueller’s full report was released, drawing criticism that he was trying to shape public opinion in a way favorable to Trump.

Mueller closed his office in May, though some members of his team stayed on special assignments to DC U.S. Attorney’s Office to handle cases – including Stone’s – that were not resolved. People familiar with the matter say there was tension between them and their supervisors on what penalty to recommend.

As Monday’s court deadline neared for prosecutors to give a sentencing recommendation, it was still unclear what the office would do, after days of tense internal debates on the subject, according to people familiar with the matter who spoke on the condition of anonymity to discuss internal deliberations.

Front-line prosecutors, some previously from Mueller’s team, argued for a prison sentence on the higher end, while their bosses wanted to calculate the guidelines differently to get to a lower sentence. The debate centered around whether they should seek more prison time for obstruction that impedes the administration of justice, these people said.

In the end, the office filed a recommendation keeping with the line prosecutors’ goals, and rejecting the lighter recommendation sought by their superiors, the people said.

Hours before the filing was due Monday, Shea, the new head of the DC office and a former close adviser to Barr, had not made a final decision on Stone’s sentencing recommendation, they said.

It was not clear what was told to Barr or other Justice Department leaders about the final recommendation. The senior official said they were led to believe it would be lighter than what was ultimately filed. But some legal determines were skeptical.

Mary McCord, a former prosecutor and acting assistant attorney general for the department’s National Security Division, said decisions related to the sentencing of such high- profile political figures would not be made without initial consultation between a US attorney’s office and Justice Department headquarters, and that it was hard to imagine the department was truly taken aback.

“There is no way you can come away from this with anything other than an impression that Justice is taking its orders from the president and pandering to the president, ”said McCord, who was also chief of the criminal division at the US Attorney’s Office in Washington. “This is causing lasting and long term damage to the department’s reputation and credibility”

Shea took over as the interim U.S. attorney in D.C. only last month. He succeeded Jessie K. Liu, who stepped down pending a White House nomination to serve as Treasury Department undersecretary for terrorism and financial crimes.

While Liu’s nomination was announced Jan. 6, it was somewhat unusual that she departed before a Senate confirmation hearing was scheduled. Moreover, the selection of Shea to replace her was outside the norm, as it bypassed the office’s veteran principal assistant U.S. attorney, Alessio Evangelista. In the past, the principal assistant has often been elevated to serve as interim U.S. attorney.

It can be common for prosecutors to disagree about sentencing recommendations, especially when it comes to politically sensitive cases. It would have been unusual, however, for the U.S. attorney’s office to endorse a sentence below the guideline range after winning conviction at trial, according to former federal prosecutors.

In the initial 36 – page sentencing recommendation, prosecutors Marando, Jed, Kravis and Zelinsky wrote that a sentence of to 265 months, “consistent with the applicable advisory Guidelines would accurately reflect the seriousness of [Stone’s] crimes and promote respect for the law.”

Kravis and Marando were part of the US Attorney’s Office in D.C. Jed and Zelinsky were members of Mueller’s team on special assignment to the office. Kravis and Zelinsky revealed the resignations in formal requests to withdraw from the Stone case, which still must be approved by a judge. Jed and Marando asked to withdraw but gave no immediate indication they were resigning from the government.

Crabb, the head of the D.C. office’s criminal division and also a career prosecutor, entered the case in their place.

Stone’s defense on Monday asked for a sentence of probation, citing his age, , and lack of criminal history. They also noted that of seven Mueller defendants who have been sentenced, only one faces more than a six-month term: former Trump campaign chairman Paul Manafort, who is serving 7½ years.

Given the hardships and loss of professional standing suffered by Stone and his family, “No one could seriously contend that a [reduced . . .] sentence would cause anyone to walk away from these leaders believing that one can commit the offenses at issue here with impunity, ”defense attorneys Bruce S. Rogow, Robert C. Buschel and Grant J. Smith wrote.

Federal prison sentences are calculated using mathematical formulas. While prosecutors and defense lawyers make recommendations based on their calculations, ultimately it is up to the judge to decide which factors to consider in sentencing someone, and whether to adhere to the recommendation or depart.

In Stone’s case, the prosecutors came up with a recommendation of seven to nine years based on a number of aggravating factors, including an alleged threat to harm a witness, to whom Stone sent the message, “prepare to die,” and because prosecutors decided Stone’s conduct resulted in “substantial interference in the administration of justice.”

Under the federal sentencing guidelines’ point system, those factors add years to Stone’s prospective prison sentence. Stone and the witness in question, Randy Credico, both have maintained Stone’s statement was not a threat of violence, but part of Stone’s history of making bombastic statements.

In their Monday filing, prosecutors argued more time should be added to Stone’s sentence because of his extensive criminal conduct, which stretched two years, and because they say he obstructed the prosecution of the case after he was charged.

In a Tuesday filing from Shea and Crabb, the government argued those enhancements were overkill, noting that Stone’s victim has asked for leniency for him and did not view the statement as an actual threat. The new filing also contended that the enhancements endorsed in the previous government filing were not in keeping with the sentences generally doled out to nonviolent offenders.

Tuesday’s filing suggested – but does not outright recommend – that a sentence of three to four years would be reasonable, and “more in line with the typical sentences imposed in obstruction cases.”

Prosecutors in another case brought by the special counsel’s office, against Trump’s first national security adviser, Michael Flynn, also recently walked back a sentencing recommendation – though the move was subtle.

In early January, prosecutors recommended that Flynn, who pleaded guilty to lying to the FBI about his contacts with Russia’s ambassador to the US, be sentenced “within the Guidelines range” of zero to six months in prison. But in another filing just weeks later, they made clear they agreed with Flynn “that a sentence of probation is a reasonable.”

Prosecutors did not explain in the later filing why they emphasized probation as a reasonable sentence for Flynn. Both documents were signed by career prosecutors – Brandon L. Van Grack and Jocelyn Ballantine – though Van Grack has not signed some later filings in the case. Flynn is now seeking to withdraw his guilty plea , alleging a variety of government misconduct.

Barr has been critical of the FBI’s 2016 investigation into Trump’s campaign that Mueller ultimately took over. When the Justice Department inspector general found last year that the bureau had adequate cause to open the case, Barr issued a remarkable public statement registering his disagreement. He said the case was initiated “on the thinnest of suspicions that, in my view, were insufficient to justify the steps taken.”

“It is also clear that, from its inception, the evidence produced by the investigation was consistently exculpatory, ”he added.

Barr has tasked the US Attorney in Connecticut with exploring the origins of the case, and current and former law enforcement officials have expressed concern that it might be an effort to undercut an investigation because Trump did not like it.

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