On Monday the career prosecutors who handled the trial of the president’s friend and former campaign advisor, Roger Stone, recommended that the court sentence Stone, convicted in November of obstructing Congress and witness tampering, to 87 – 108 months in federal prison, the sentence called for by the federal sentencing guidelines. Less than twenty-four hours later, at 1:48 a.m., President Trump weighed in with a tweet about the recommendation: “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!” Putting aside, for a moment, the fact that the party on the “other side” in Mr. Stone’s case is none other than our own United States of America, with this tweet, the president attempted to put both thumbs on the scale in the criminal prosecution of his friend. What he missed unfortunately was the opportunity to focus legislators properly on the sometimes unduly harsh results of the sentencing guidelines in white collar cases.
The decision by the Department of Justice rewards the president’s ill-advised outburst and magnifies and reinforces the harm to the Rule of Law caused by the president’s conduct. By reversing or overriding the initial sentencing recommendation, seemingly at the president’s request, the Justice Department has done lasting damage to its reputation and credibility before the courts, the country, and, unfortunately, the world.
Almost all past presidents wisely have avoided even the appearance of influence in individual cases within the Department of Justice that involve that president’s friends or personal interests. That is because the perception of a fair and unbiased criminal justice system forms the foundation of our system. As articulated by the New York City Bar, “In our criminal justice system, a single standard must apply to all who are accused or convicted of violating the law—unequal treatment based on political influence is to be deplored in all cases but is especially dangerous if it emanates from the presidency.” President Trump’s behavior destroys that standard and left unchecked, it will lead to a dual justice system – one for those who are friends of the present and one for everyone else.
The last time our country faced a similar crisis, just before Richard Nixon’s Saturday Night Massacre, in an unequivocal condemnation of Nixon’s conduct, then-Attorney General Elliot Richardson resigned rather than obey President Nixon’s order to fire special prosecutor Archibald Cox. The actions of our current Attorney General, William Barr, stand in stark contrast, despite yesterday’s belated shoehorned stab at asserting his independence discussed below.
In the hours after President Trump’s tweet, the Justice Department filed a supplemental and amended sentencing memorandum requesting “a sentence of incarceration far less than” the guidelines range of seven to nine years recommended only a day before by the line prosecutors on the case. Barr’s apparent complicity did not go unnoticed. Shortly thereafter, the entire team of prosecutors withdrew from the case, and one resigned from his position as an Assistant United States Attorney. The president had a different reaction, tweeting “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!” Attorney General Barr has since responded, perhaps after clearing it with the boss, that President Trump’s attacks on the Justice Department have made it “impossible for me to do my job” and asserted, “I’m not going to be bullied or influenced by anybody.” The Department of Justice, however, has not revised its current position on Stone’s sentencing.
By intervening in the criminal justice system on behalf of an associate, President Trump follows in the footsteps of the strongmen leaders our country despises and misses an opportunity to effect real, and necessary, criminal justice reform. Like the strongmen he apparently admires, Erdoğan, Putin, Jong Un, and perhaps even Stalin, Trump now uses the criminal justice system to further his personal and political goals, as he previously has done by using criminal prosecutions to effectuate his foreign policy goals. This development is especially frightening in light of this president’s tendency to purge those he believes are against him, like Colonel Vindman and Ambassador Sondland, and attack his enemies by suggesting we “lock them up.”
If President Trump wanted to resemble, even if only for a moment, a chief executive of a democratic republic and felt – as he perhaps should – that sentences for certain categories of white collar defendants are too long, he should take this opportunity to advocate for sweeping reform that would apply to all similarly situated defendants. As every white collar defense lawyer knows, the current guidelines often call for astronomically high sentences for non-violent offenders by providing large sentencing enhancements based on the sometimes illusory amounts of money involved, supposed trust factors, and other factors often present in white collar cases but which do not suggest a societal need for additional periods of incarceration. For example, President Trump should have, and still can, recommend changes to the sentencing guidelines or insist that his Department of Justice not seek guideline sentences in certain types of cases. If the president would like to adjust the scale of justice, he should use his tweeting thumbs to balance it for all similarly situated defendants, and not just his friends.