Bull meets china shop: Roger Stone controversy follows a familiar pattern

Washington awoke this morning to a brand-new scandal, after the resignation of four Department of Justice (DOJ) trial prosecutors in a high-profile case and questions of whether a presidential screed prompted a change in sentencing recommendations for a friend. It is all too familiar: a tweet, a change, and a scandal. 

As with the Russia scandal, the question is one of sequence. It is what academics call a “causality dilemma.” Forget the chicken and the egg — this is the Trump administration. The perennial question is what came first: the bull or the china shop.

Since his arrival in Washington, Donald Trump has clearly relished the image of a raging bull, but he often suggests that the china shop was built around him. The latest broken china, so to speak, is the remnants of what once was the prosecution of Trump confidant Roger StoneRoger Jason StoneTrump grants clemency to five nonviolent offenders Trump remarks put pressure on Barr DOJ veteran says he's quitting over Barr's 'slavish obedience' to Trump MORE.


It is a signature scandal for Trump, who went public after prosecutors sought a seven- to nine-year sentence for Stone; soon afterward, the Justice Department rescinded the initial sentencing recommendation and the four trial prosecutors resigned en masse. Now there are calls for investigations, as well as widespread denunciations of an “infestation” of political interference and a president run amok.

As a threshold matter, House Speaker Nancy PelosiNancy PelosiOn The Money: Trump says stimulus deal will happen after election | Holiday spending estimates lowest in four years | Domestic workers saw jobs, hours plummet due to COVID Hoyer lays out ambitious Democratic agenda for 2021, with health care at top CNN won't run pro-Trump ad warning Biden will raise taxes on middle class MORE (D-Calif.) is correct in calling for an investigation into the matter. It is uncommon to see the DOJ suddenly withdraw a sentencing recommendation in a high-profile case, and even more uncommon for a team of prosecutors to resign en masse. Legitimate concerns are raised when a president inappropriately lashes out at his own Justice Department in a case involving not just a close associate but someone who refused to testify against him or his campaign. When that attack is followed by a dramatic change in the case, there is a need to look at whether political influence has corrupted the prosecutorial process. 

This, however, has that familiar feel. 

In the Russian scandal, I supported the appointment of a special counsel after President TrumpDonald John TrumpGiuliani goes off on Fox Business host after she compares him to Christopher Steele Trump looks to shore up support in Nebraska NYT: Trump had 7 million in debt mostly tied to Chicago project forgiven MORE fired former FBI director James ComeyJames Brien ComeyGOP former US attorneys back Biden, say Trump 'threat to rule of law' Biden's polling lead over Trump looks more comfortable than Clinton's Trump has list of top intelligence officials he'll fire if he wins reelection: report MORE, but I said at the time that I did not believe there was an underlying crime or collusion with Russia. The fact is that the sequence of events creates reasonable questions of presidential interference. It turned out that there was no Russian collusion and that Trump’s call for Russia to find Hillary ClintonHillary Diane Rodham ClintonGorsuch rejects Minnesota Republican's request to delay House race Biden leads Trump by 6 points in Nevada: poll The Memo: Women could cost Trump reelection MORE’s missing emails was inappropriate but not incriminating. 

The Justice Department — and Trump — have publicly stated that the president had no conversations with the DOJ on the sentencing change. Indeed, the department issued a statement that the decision to change the recommendation was made before Trump publicly denounced what he called a “miscarriage of justice” in the case. If true, the question becomes whether it was inappropriate for Attorney General Bill Barr or officials at Main Justice to demand such a change. Only a full disclosure of the facts can answer that question, but there are reasons why such an intervention might be appropriate on the merits.


While correct in seeking answers to these questions, Pelosi is wrong in her declaration that a change of the sentencing recommendation is, on its face, “outrageous” and that “DOJ has deeply damaged the rule of law by withdrawing its recommendation.” You’ll note she is supported by many of the same experts who declared clear criminal conduct by Trump in the Russia investigation and then the Ukraine investigation. 

The problem is that the DOJ’s new sentencing position is the correct one. When the original sentencing recommendation was filed, many of us denounced it as excessive and ridiculous, given the underlying facts. While it is true that the recommendation was within the sentencing guidelines (albeit on the high end), that was due to DOJ prosecutors stacking counts against Stone for his false statements and tampering with witnesses. I have long been critical of the case as being overcharged, as well as objecting to the prosecutor’s heavy-handed conduct.

In its new filing, the DOJ told the court: "While it remains the position of the United States that a sentence of incarceration is warranted here, the government respectfully submits that the range of 87 to 108 months presented as the applicable advisory Guidelines range would not be appropriate or serve the interests of justice in this case." That just happens to be right in every respect, from the demand for jail time being warranted by Stone’s conduct to the recognition that he should not be sentenced for the rough equivalent of bank robbery or manslaughter. 

The DOJ also was correct in changing the sentencing recommendation for former national security adviser Mike Flynn. The charge against Flynn for a single false statement to federal investigators was highly dubious from the start; he pleaded guilty to a single false statement about a meeting with Russian diplomats during the Trump presidential transition. The meeting was entirely legal, and Flynn did not deny the meeting. However, he denied discussing sanctions with the Russians, and Robert MuellerRobert (Bob) MuellerCNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting The Hill's 12:30 Report: New Hampshire fallout MORE charged him. In the meantime, a key figure in that investigation, former FBI deputy director Andrew McCabeAndrew George McCabeHillicon Valley: CEOs of Google, Facebook and Twitter to testify before Senate | European Union police agency warns of increase in cybercrime | Twitter to remove posts hoping for Trump's death Graham officially schedules hearing on Trump's Supreme Court pick to start Oct. 12 The Hill's 12:30 Report: Trump eager to leave the hospital MORE, was alleged to have lied to investigators but was not charged with any crime.

In both cases, Main Justice was right to rein in its prosecutors. Indeed, that is one of the core functions of Main Justice. Local prosecutors are not independent contractors meting out justice as they deem fit. They are part of a department of prosecutors, subject to the direction and authority of Main Justice. The U.S. Attorney's Manual expressly states that “Department of Justice and Criminal Division policies impose limitations on the authority of the United States Attorney to decline prosecution, to prosecute, and to take certain actions relating to the prosecution of criminal cases.” That includes sentencing recommendations. 

Again, none of this means there are not legitimate questions that need to be answered, but the sequence of events may not prove as damning as reported. It comes down to the same causality dilemma of chickens and eggs. Sometimes the answer is not as binary as suggested by the question, as Neil deGrasse Tyson explained in his answer: "Which came first: the chicken or the egg? The egg — laid by a bird that was not a chicken.” The same may be true of eggs laid by a president who is not a prosecutor.

Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as a witness expert in the House Judiciary Committee hearing during the impeachment inquiry of President Trump.