U.S. District Judge Amy Berman Jackson has sentenced longtime Trump friend and adviser Roger Stone—for now–to 40 months behind bars.
Stone was found guilty of seven federal criminal counts for obstruction of justice, witness tampering and lying to federal investigators during the Russia probe. Prosecutors even said Stone lied to protect President Donald Trump. The trial took a week and a half. What happened after the trial proved to be a lot more controversial.
The mass exodus by prosecutors–some of whom were formerly on Robert Mueller’s team–and Attorney General William Barr’s explanation for overriding their sentencing recommendation (in a case of personal interest to President Trump, no less) sparked widespread outrage among DOJ veterans.
Line prosecutors initially recommended a seven to nine years behind bars for Stone, prompting the president to tweet that this was a “miscarriage of justice.” The DOJ responded by changing that recommendation to three to four years. The prosecutors left the case, and one of them left the DOJ entirely. Barr said after the fact that he still thought the Stone prosecution was a “righteous” one.
In the first sentencing memo, prosecutors made clear that they wanted Stone punished for his threatening of witness Randy Credico and for his post-indictment conduct inside and outside of court. For example:
Pursuant to U.S.S.G. § 2J1.2(b)(1)(B), eight levels are added because the offense “involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice.” As detailed above, as part of Stone’s campaign to keep Credico silent, Stone told Credico in writing, “Prepare to die, cocksucker.” Stone also threatened (again in writing) to “take that dog away from you.” Stone may point to the letter submitted by Credico and argue that he did not have a serious plan to harm Credico or that Credico did not seriously believe that Stone would follow through on his threats. But Credico testified that Stone’s threats concerned him because he was worried that Stone’s words, if repeated in public, might make “other people get ideas.” Tr. 11/8/19, at 795.
In any event, it is the threat itself, not the likelihood of carrying out the threat, that triggers the enhancement.
The offense level added up to 29, resulting in the 7- to 9-year range.
The second sentencing memo downplayed all of this, noting that Credico himself said he didn’t take the threats seriously. the government argued the eight-level enhancement shouldn’t apply, dropping the range to 3-4 years:
First, as noted above, the most serious sentencing enhancement in this case—the eight- level enhancement under Section 2J1.2(b)(1)(B) for “threatening to cause physical injury”—has been disputed by the victim of that threat, Randy Credico, who asserts that he did not perceive a genuine threat from the defendant but rather stated that “I never in any way felt that Stone himself posed a direct physical threat to me or my dog.” (ECF No. 273). While Mr. Credico’s subjective beliefs are not dispositive as to this enhancement, the Court may consider them when assessing the impact of applying the enhancement – particularly given the significant impact that the enhancement has on the defendant’s total Guidelines range.
It’s true that Credico said this.
Much was made of Stone urging Credico to “do a ‘Frank Pentangeli’” and the alleged threat to kidnap Credico’s dog, but Credico wrote a letter to the judge after the trial saying that he didn’t really believe Stone would ever harm him or his dog Bianca. Stone’s defense attorneys didn’t question Credico at trial in a way that would have made that clear, according to Credico:
I am writing to respectfully yet fervently implore you not to send Roger Stone to prison when he is sentenced before your Honor. I feel so strongly about this for a number reasons.
Let me begin my saying I stand by my testimony in your courtroom on November 7-8, 2019. In fact, I stand by all of my testimony throughout the Mueller investigation and there pre-trial conversations I had with the DC prosecution team. That being said, there was more I wish I had the opportunity to express had I not been limited by the questions asked of me.
Most notably was after Mr. Stone’s defense attorney asked I had ever thought Mr. Stone was going to steal or harm my dog Bianca. My answer was an emphatic “No.” At the time I was hoping he would follow that question with another asking if I had ever personally felt threatened by Mr. Stone. The answer would have been the same. I never in any way felt that stone himself posed a direct physical threat to me or to my dog. I chalked up his bellicose tirades to “Stone being Stone.” All bark and no bite!
Credico said that understood Stone broke federal laws, but suggested that it would be cruel to sentence Stone to prison when the judge can sentence him to participate in “an alternative to incarceration program.”
“Roger Stone certainly rubs a lot of people the wrong way, particularly those on the receiving end of his wee hours lowbrow character attacks. Stone enjoys playing adolescent mind games and pulling off juvenile stunts, gags and pranks. He shamelessly invents and promotes outlandish and invidious conspiracy tales,” Credico continued. “But the bottom line is Mr. Stone, at his core, is an insecure person who craves and recklessly pursues attention.”
Judge Jackson addressed that letter.
As for Credico’s request for leniency, judge says, “It’s nice that Mr. Credico has forgiven Stone … But all of that says more about Credico than Stone.” Adds that Credico was “nervous” testifying and likely “doesn’t want to be known as the reason behind a tough sentence”
— Rachel Weiner (@rachelweinerwp) February 20, 2020
The judge couldn’t help but notice conflicting positions on the Credico threat at sentencing.
But the DOJ still managed to cloud the issue in a major way, essentially reversing course on the position taken in the revised memo. Prosecutors remarkably said the 8-level enhancement should apply.
The replacement prosectors even said that the confusion was not the fault of the team that resigned.
Prosecutor on the dueling sentencing memos: Confusion not caused by the original trial team. “The original trial team had authorization to submit” the original sentencing memo.
Crabb said he stands by the original sentencing memo, adding, “it was done in good faith.”
— Shimon Prokupecz (@ShimonPro) February 20, 2020
The judge calculated the offense level at 27, closer to the original recommendation than the revised one. This a long way of saying that the DOJ claim that the original recommendation for Stone was “extreme, excessive and grossly disproportionate” was not taken seriously by the prosecutors who replaced the ones that made the recommendation.
The judge agreed the seven to nine years is too long a sentence while also saying the initial recommendation was legally correct and above reproach.
She also called the DOJ intervention fiasco “unprecedented.”
President Trump live-tweeted the Stone sentencing, asking: What about James Comey, what about Hillary Clinton, what about Andrew McCabe?
This sparked critics to, once again, tell Barr to resign in order to prove his sincerity.
The judge made a point to say that this was a mess of Roger Stone’s own making, not a prosecution by his political enemies.
The judge also had some parting shots for the president.
[Image via Drew Angerer/Getty Images]
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