DOJ backs away from Roger Stone sentencing recommendation of 7 to 9 years
Trump confidant Roger Stone was convicted of lying to Congress, witness tampering and obstructing House investigation; David Spunt reports from the Department of Justice.
Four career Department of Justice (DOJ) prosecutors abruptly withdrew from their posts on Tuesday in an apparent dramatic protest just hours after senior leaders at the DOJ said they would take the extraordinary step of effectively overruling the prosecutors' judgment by seeking a lesser sentence for President Trump's former adviser Roger Stone.
Fox News reported earlier Tuesday that top brass at the DOJ were "shocked" that prosecutors handling the case had recommended Monday night that Judge Amy Berman Jackson sentence the 67-year-old Stone to between 87 and 108 months in prison. The prosecutors asserted in the Monday filing that Stone's conduct post-indictment -- including violating the judge's social media gag orders -- merited a sentence much longer than the 15 to 21 months that the defense said was actually advisable under the federal sentencing guidelines.
In a new, amended filing Tuesday afternoon, the DOJ told Jackson that the government "respectfully submits that a sentence of incarceration far less than 87 to 108 months’ imprisonment would be reasonable under the circumstances," but that the government "ultimately defers to the Court as to the specific sentence to be imposed."
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The government said in the amended filing that while it was "technically" possible to argue that Stone deserved the severe federal sentencing enhancement for threatening physical harm to a witness, such a move would violate the spirit of the federal guidelines.
It would place Stone in a category of the guidelines that "typically applies in cases involving violent offenses, such as armed robbery, not obstruction cases," the government argued, noting that Stone's "advanced age, health, personal circumstances, and lack of criminal history" also counseled against the harsh penalty.
Specifically, prosecutors said that although Stone had allegedly threatened witness Randy Credico’s therapy dog, Bianca -- saying he was “going to take that dog away from you" -- it was important to recognize that Credico, a New York radio host, has acknowledged that he "never in any way felt that Stone himself posed a direct physical threat to me or my dog."
FILE - In this Nov. 15, 2019, file photo, Roger Stone, left, with his wife Nydia Stone, leaves federal court in Washington, Friday, Nov. 15, 2019. Federal prosecutors are asking a judge to sentence Stone to serve between 7 and 9 years in prison after his conviction on witness tampering and obstruction charges. (AP Photo/Jose Luis Magana, File)
"If the Court were not to apply the eight-level enhancement for threatening a witness with physical injury, it would result in the defendant receiving an advisory Guidelines range of 37 to 46 months, which as explained below is more in line with the typical sentences imposed in obstruction cases," the government wrote.
READ THE DOJ'S NEW FILING ; READ THE ORIGINAL FILING REQUESTING A LONGER SENTENCE
A senior DOJ official confirmed to Fox News that senior leadership officials there made the call to reverse the initial sentencing recommendation, saying the filing on Monday evening was not only extreme, but also substantially inconsistent with how the prosecutors had briefed DOJ leadership they would proceed on the case. The "general communication" between the U.S. Attorney's Office and the main DOJ had led senior officials to expect a more moderate sentence, the official told Fox News.
In response to the new push for a lighter sentence, all the prosecutors on the Stone case, including several holdovers from former Special Counsel Robert Mueller's team, quit. Assistant U.S. Attorney in the U.S. Attorney’s Office for Washington, D.C., Jonathan Kravis, resigned as an assistant U.S. attorney in a filing with Jackson. Another prosecutor, Aaron Zelinsky, also filed a notice with the court that he was leaving his position as a special prosecutor with the U.S. attorney's office in Washington, although he would remain as an assistant U.S. attorney in Baltimore.
Then, prosecutor Adam Jed withdrew from the Stone case, as well. Michael Marando later announced he was off the case.
None of the prosecutors gave an explicit rationale for their resignations. Prosecutor John Crabb was added to the team Tuesday, meaning the government will at least have one representative at sentencing next Thursday.
“It's surprising that would be the line in the sand -- an amended filing," a senior DOJ official told Fox News, adding that the problem with the original sentencing recommendation was it told the judge that the only way to serve justice was a lengthy sentence.
“We're backing off from, 'It has to be this,'" the DOJ source told Fox News. “The amended filing says it's a serious crime, and prison time is appropriate; we're just saying it doesn't have to be 87 to 108 months.”
"It's surprising that would be the line in the sand -- an amended filing."
This official did acknowledge that the process has not played out as planned: “The way it happened is not ideal, but it's not unheard of that we correct the record and move on.”
Stone has been convicted on seven counts of obstruction, witness tampering and making false statements to Congress on charges that stemmed from Mueller’s Russia investigation. Prosecutors charged that Stone lied to Congress about his conversations about WikiLeaks with Credico, although Stone was never linked to any criminal conspiracy to access or leak documents.
Mueller closed shop last May, although several prosecutors had remained behind to handle cases like Stone's -- prompting conservative commentators to openly wonder if politics had motivated their desire for an especially harsh sentence.
Speaking to reporters on Tuesday, President Trump said he stayed out of internal DOJ deliberations, but strongly opposed their initial sentencing recommendation.
"I stay out of things to a degree that people wouldn't believe," Trump said. He added that the initial recommendation was "ridiculous" and called it "an insult to our country."
Later, Trump claimed the prosecutors quitting the case "cut and ran after being exposed" for the tough sentencing recommendation.
Trump also took a shot at Jackson, writing on Twitter: "Is this the Judge that put Paul Manafort in SOLITARY CONFINEMENT, something that not even mobster Al Capone had to endure? How did she treat Crooked Hillary Clinton? Just asking!"
"And a swamp creature with 'pull' was just sentenced to two months in jail for a similar thing that they want Stone to serve 9 years for," Trump added. "A phony Mueller Witch Hunt disgrace. Caught! ... Whatever happened to Hillary campaign manager Podesta’s BROTHER? Wasn’t he caught, forced to leave his firm, with BIG BAD things to happen? Why did nothing ever happen to him, only to the “other” side?"
FILE - In this Nov. 12, 2019 file photo, Roger Stone, a longtime Republican provocateur and former confidant of President Donald Trump, waits in line at the federal court in Washington. A Justice Department official tells the AP that the agency is backing away from its sentencing recommendation of between seven to nine years in prison for Trump confidant Roger Stone. (AP Photo/Manuel Balce Ceneta)
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Democrats, meanwhile, accused the White House of overtly politicizing the DOJ.
"The DOJ Inspector General must open an investigation immediately," Senate Minority Leader Chuck Schumer, D-N.Y., wrote on Twitter Tuesday afternoon. "I will be sending a formal request to the IG [Inspector General] shortly."
In a letter to DOJ IG Michael Horowitz, Schumer said the "situation has all the indicia of improper political interference in a criminal prosecution."
"I therefore request that you immediately investigate this matter to determine how and why the Stone sentencing recommendations were countermanded, which Justice Department officials made this decision, and which White House officials were involved," Schumer wrote.
He added: "The American people must have confidence that justice in this country is dispensed impartially. That confidence cannot be sustained if the president or his political appointees are permitted to interfere in prosecution and sentencing recommendations in order to protect their friends and associates. I urge you to conduct an expedited review of this urgent matter and issue a public report with your findings and recommendations as soon as possible."
Former DOJ official David Laufman wrote: "We are now truly at a break-glass-in-case-of-fire moment for the Justice Dept."
Trump, very early Tuesday morning, had complained publicly that the recommended sentence for his longtime ally and confidant was “very horrible and unfair." But, the DOJ said the decision to shorten the sentencing recommendation was made Monday night -- before Trump's tweet -- and that prosecutors had not spoken to the White House about it.
“It’s an inconvenient coincidence,” a senior DOJ official told Fox News, concerning the timing of Trump's tweet.
The move nevertheless raised questions about political interference and whether Trump's views hold unusual sway over the Justice Department, which is meant to operate independently of the White House in criminal investigations and prosecutions.
In the sentencing memorandum Monday night, prosecutors said the 87- to 108-month sentence they proposed was in line with federal guidelines. Such a sentence would send a message to deter others who might consider lying or obstructing a congressional probe or tampering with witnesses, they said.
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The recommendation raised the prospect that Stone could receive the harshest sentence of any of the half-dozen Trump aides charged in Mueller's probe.
The prosecutors wrote in the court papers that “Stone’s actions were not a one-off mistake in judgment” and that he “decided to double -- and triple -- down on his criminal conduct by tampering with a witness for months in order to make sure his obstruction would be successful.”
In the tweet early Tuesday, Trump also said the case against Stone was a “miscarriage of justice.”
It is extremely rare for Justice Department leaders to reverse the decision of its own prosecutors on a sentencing recommendation, particularly after that recommendation has been submitted to the court. Normally, United States attorneys have wide latitude to recommend sentences on cases that they prosecuted.
Sentencing decisions are ultimately up to the judge, who in this case may side with the original Justice Department recommendation. Judge Jackson has repeatedly scolded Stone for his out-of-court behavior, which included a social media post he made of the judge with what appeared to be crosshairs of a gun.
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The judge barred Stone from social media last July after concluding that he repeatedly flouted his gag order.
Besides, judges invariably frown upon crimes that they see as perverting the functions of the criminal justice system, such as making false statements or obstructing an investigation.
Federal prosecutors also recently softened their sentencing position on former national security adviser Michael Flynn, saying that they would not oppose a probation of punishment after initially saying that he deserved up to six months in prison for lying to the FBI. The Flynn prosecution is also being handled by the U.S. Attorney’s office in Washington.
Stone has denied wrongdoing and consistently criticized the case against him as politically motivated. He did not take the stand during his trial and his lawyers did not call any witnesses in his defense.
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Witnesses in the case testified that Trump’s campaign viewed Stone as an “access point” to the anti-secrecy site WikiLeaks, which was in possession of more than 19,000 emails hacked from the servers of the Democratic National Committee and tried to use him to get advance word about hacked emails damaging to Hillary Clinton.
Prosecutors charged that Stone lied to Congress about his conversations about WikiLeaks with Credico -- who had scored an interview with WikiLeaks founder Julian Assange in 2016 -- and conservative writer Jerome Corsi.
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During the 2016 campaign, Stone mentioned in interviews and public appearances that he was in contact with Assange through a trusted intermediary and hinted at inside knowledge of WikiLeaks’ plans. But he started pressing Credico to broker a contact, and Credico testified that he told Stone to work through his own intermediary.
Earlier testimony revealed that Stone, while appearing before the the House Intelligence Committee, named Credico as his intermediary to Assange and pressured Credico not to contradict him.
After Credico was contacted by Congress, he reached out to Stone, who told him he should “stonewall it” and “plead the fifth,” he testified.
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Credico also testified during Stone’s trial that Stone repeatedly told him to “do a ‘Frank Pentangeli,’” a reference to a character in “The Godfather: Part II” who lies before Congress.
Fox News' Andrew O'Reilly and The Associated Press contributed to this report.
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