The Department of Justice’s Office of Inspector General (OIG) is investigating what went on behind the scenes when sentencing recommendations for Roger Stone were controversially reduced, leading to a mass exodus by the line prosecutors on the case and the public perception that a friend of the president’s was cut a break by higher-ups at Main Justice.
The news was first reported by NBC News. Law&Crime has also learned that there is an ongoing investigation into the Stone matter, but the details—other than that investigation focuses on the events of Feb. 2020—are unknown. The timeline of the investigation is also unknown. NBC News, citing a “source familiar with the matter,” reported that unspecified comments made by Aaron Zelinsky made during his June testimony before Congress led to the OIG probe.
Stone is a longtime ally and political adviser of President Donald Trump’s who recently suggested Trump should declare “martial law” if he loses his reelection bid.
In June, Zelinsky, a former Stone prosecutor and former prosecutor in special counsel Robert Mueller’s office, testified remotely before the House Judiciary Committee about what he called “improper politicization” of the DOJ.
Zelinsky and other line prosecutors famously quit the Stone case after Attorney General Bill Barr’s subordinates intervened and overrode their sentencing recommendations. Zelinsky argued at trial that Stone lied to congressional investigators in order to protect Trump. Zelinsky withdrew from the Stone case along with three others after the DOJ intervention back in February. Adam Jed, Michael J. Marando and Jonathan Kravis all left the case, and Kravis left the DOJ entirely.
The prosecutors initially recommended 7-9 years of prison time for Stone, who was convicted of lying to Congress, obstructing justice and witness tampering. DOJ higher-ups overrode that recommendation and instead argued 3 to 4 years was appropriate under the sentencing guidelines. Stone was ultimately sentenced to 40 months of federal prison time that he would never serve. President Trump commuted Stone’s prison sentence in July, calling him the victim of the “Russia Hoax.”
Zelinsky claimed that the decision-making process in the Roger Stone case was unlike any he had ever seen before.
“In the many cases I have been privileged to work on in my career, I have never seen political influence play any role in prosecutorial decision making. With one exception: United States v. Roger Stone,” he said.
He also claimed that Barr’s former top aide Timothy Shea, then the acting head of the U.S. Attorney’s Office in the District Columbia, was “afraid” of the president.
“What I heard – repeatedly – was that Roger Stone was being treated differently from any other defendant because of his relationship to the President. I was told that the Acting U.S. Attorney for the District of Columbia, Timothy Shea, was receiving heavy pressure from the highest levels of the Department of Justice to cut Stone a break, and that the U.S. Attorney’s sentencing instructions to us were based on political considerations,” Zelinsky claimed. “I was also told that the acting U.S. Attorney was giving Stone such unprecedentedly favorable treatment because he was ‘afraid of the President.'”
Back in February, the backlash over the decision was intense enough for Barr to agree to a sit-down interview with ABC News , during which he called the Stone prosecution a “righteous” one.
“Well, as you know, the Stone case was prosecuted while I was attorney general. And I supported it. I think it was established, he was convicted of obstructing Congress and witness tampering. And I thought that was a righteous prosecution. And I was happy that he was convicted,” Barr said.
He also said that the president’s tweets were making his job impossible.
“I think it’s time to stop the tweeting about Department of Justice criminal cases,” Barr continued. “I’m not going to be bullied or influenced by anybody … whether it’s Congress, a newspaper editorial board, or the president. I’m gonna do what I think is right. And you know … I cannot do my job here at the department with a constant background commentary that undercuts me.”
In testimony, Zelinsky included a timeline of events leading up to the sentencing memo flip-flop:
On Monday, February 10, 2020, after these conversations, I informed leadership at the U.S. Attorney’s Office in D.C. that I would withdraw from the case rather than sign a memo that was the result of wrongful political pressure. I was told that the acting U.S. Attorney was considering our recommendation and that no final decision had been made.
At 7:30PM Monday night, we were informed that we had received approval to file our sentencing memo with a recommendation for a Guidelines sentence, but with the language describing Stone’s conduct removed. We filed the memorandum immediately that evening.
At 2:48 AM the following morning, the President tweeted that the recommendation we had filed was “horrible and very unfair.” He stated that, “the real crimes were on the other side, as nothing happens to them.” President Trump closed, “Cannot allow this miscarriage of justice!”
The next morning, media reports began to circulate quoting a “senior Department of Justice official” stating that the Department would file a new sentencing memorandum overriding our old one. This was highly unusual, as the Department generally does not comment on pending filings in criminal cases. The first we heard of any new memorandum was from public media reports. When we asked the U.S. Attorney’s Office about these media reports, we were initially told they were false. But later that day, we were told that a new memorandum would be filed, countermanding our earlier recommendation and asking for a substantially lower sentence for Mr. Stone.
We repeatedly asked to see that new memorandum prior to its filing. Our request was denied. We were not informed about the content or substance of the proposed filing, or even who was writing it. We were told that one potential draft of the filing attacked us personally. Concerned over the political influence in the case – and the explicit statements that the reasons for these actions were political, and that the U.S. Attorney was acting because he was “afraid of the President” – I withdrew. My three colleagues did the same. That evening, the Department filed a new memorandum seeking a substantially lower sentence for Stone. No line AUSA signed the filing—which is also something that is virtually unprecedented.
In August, emails obtained through a Freedom of Information Act request revealed some of the internal turmoil over the DOJ decision.
Soon after the original sentencing recommendation was submitted, Zelinsky sent an email to Jonathan Lenzner, the first assistant U.S. attorney for Maryland. Though the content of the email was redacted in its entirety, the subject of the message was “Re: Looks like they are blinking.”
The DOJ Inspector General is Michael Horowitz, who has released a number of high-profile reports during Trump’s first term—including on “Crossfire Hurricane” and the FBI’s handling of the Hillary Clinton emails investigation.
Horowitz is also the chair of the Council of the Inspectors General on Integrity and Efficiency, an independent entity within the executive branch whose mission is defined by federal statute as working to “address integrity, economy, and effectiveness issues that transcend individual Government agencies; and [to] increase the professionalism and effectiveness of personnel by developing policies, standards, and approaches to aid in the establishment of a well-trained and highly skilled workforce in the offices of the Inspectors General.”
In that capacity, Horowitz publicly criticized the president for firing Intelligence Community Inspector General Michael Atkinson, who famously found the Ukraine whistleblower’s complaint “credible” and “urgent.”
“Inspector General Atkinson is known throughout the Inspector General community for his integrity, professionalism, and commitment to the rule of law and independent oversight,” Horowitz’s said. “This includes his actions in handling the Ukraine whistleblower complaint, which the then Acting Director of National Intelligence stated in congressional testimony was done ‘by the book’ and consistent with the law.”
Jerry Lambe contributed to this report.
[Image via ANDREW CABALLERO-REYNOLDS/AFP via Getty Images]
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