They forgot that under Trump, there are two sets of rules
In the uproar over Department of Justice political appointees overruling the sentencing memo career attorneys filed in the Roger Stone case, what the media and others seem to be getting wrong is that the career attorneys never asked for a seven- to nine-year sentence. In fact, the career attorneys very carefully explained why U.S. District Court Judge Amy Berman Jackson would be perfectly within her authority to sentence Stone to less than seven years. The memo is nothing more than the career attorneys doing what DOJ rules require of them — to seek “the most substantial guidelines sentence.”
With more than a decade of DOJ experience as a career trial attorney and assistant United States attorney in Washington, D.C., I have authored or co-authored more than 50 sentencing memos. As a politically appointed deputy assistant attorney general, I never once interfered with the sentencing decision of the career attorneys. I know what an appropriately independent DOJ looks like.
Here, the career attorneys’ crime was failing to understand that under President Donald Trump, there are two sets of rules — those for his white friends, and those for everyone else. The white friends, of course, include former Sheriff Joe Arpaio, Conrad Black and those supported by his white friends like Sholom Rubashkin. Trump pardoned Alice Johnson, who is black, despite Trump’s own U.S. Attorney saying that there is evidence that she ordered a hit on someone who stole a shipment of drugs from her, just because Kim Kardashian lobbied the president on her. Trump does not care about Alice Johnson; he cares about having Kim Kardashian say nice things about him. Let’s not forget that this same president refuses to acknowledge that he was wrong about taking out a full-page newspaper advertisement demanding the death penalty for the Central Park Five — five black and Latino youths forensically proven innocent.
The career attorneys in the Stone case followed former Attorney General Jeff Sessions’s memo on sentencing policy perfectly. Sessions’s sentencing memo was a repudiation of Obama Attorney General Eric Holder’s sentencing policy, which gave career prosecutors discretion to make “an individualized assessment of the facts and circumstances of each particular case.”
But following what was required of them, Stone’s prosecutors’ memo walks through his numerous crimes; explains what the most substantial guidelines sentence for each would be; notes how comparable defendants have been sentenced (none higher than 35 months) and accurately notes that Stone’s conduct was worse than all of those. But then the memo does an extraordinary thing — it explains to Judge Berman Jackson why seven to nine years is nonetheless likely too high. The memo specifically notes that the enhancement for Stone’s threats to a witness is extreme and the Judge would be acting within her authority not to fully use that enhancement.
In addition, the memo notes that two of the other applicable enhancements could be seen as overlapping and the Judge could decide not to apply both. The career prosecutors clearly indicate to the Judge that going below seven years would be “in accord with the advisory Guidelines.”
These career prosecutors simply did what DOJ’s current rules require them to do, but they forgot whose friend the memo was being written for.
Of course, this unfair, inconsistent treatment of people is a stain on the justice system and extremely painful for all of us who used to work in a Justice Department where honesty and fairness were expected. I am proud of the four career prosecutors who walked the walk and walked away from this farce.
What is ultimately silly about this entire episode is that the political appointees at DOJ were unnecessarily transparent about the two sets of rules that they use depending on the defendant. Regardless of whether the Judge sentences Stone to nine years or one year, Trump will soon be issuing a pardon to his friend.
Roy L. Austin, Jr. is a partner at Harris, Wiltshire & Grannis, LLP and a former deputy assistant attorney general, assistant United States attorney and trial attorney in the U.S. Department of Justice.