George Washington University Law Prof. Jonathan Turley was watching the Roger Stone sentencing as we all were and concluded that the 40 months the latter received “vindicated” Attorney General William Barr’s intervention in the case.
Turley, who recently defended his longtime friend Barr as someone who is not a “witless Trump troll,” fired off a couple of tweets saying that the Thursday result vindicated Barr. Stone was sentenced for obstruction of justice, witness tampering and lying to federal investigators during the Russia probe.
“The 40 month sentence is precisely where I thought the decision would fall. That is less than half of what the prosecutors originally demanded. This is a vindication of the position of Bill Barr and the Criminal division in modifying the recommendation,” Turley said before adding separately, “The original prosecutors were wildly off base in their demand for as much as nine years. The intervention of Main Justice was justified at the time and vindicated in the decision.”
Turley also penned a blog post elaborating on his position:
The question was not whether the original recommendation was within the guidelines, but the proper calculation under those guidelines. As I discussed earlier, the prosecutors sought a major increase of the sentence as a “crime of violence.” As I stated on NPR this morning, the base offense level for these crimes is a little over a year. Enhancements were justified but the prosecutors seemed vindictive and unhinged in their arguments for up to nine years. This included effectively double counting aggravating elements of the underlying crimes. Jackson said that she would take the threats of Stone into account but declined to use enhancements to push the sentence to the top of the range. She also rejected claims that Stone showed extensive planning.
Not surprisingly, the media seems to have moved on with little recognition that the original recommendation was manifestly wrong and excessive. Instead the media besmirched Barr’s reputation and then failed to report the countervailing facts. After the court came down precisely where some of us predicted, it just moved on to the question of whether Stone would be pardoned. Even with a justifiably angry court, the sentence came in at 40 months rather than 108 months.
As Law&Crime noted in our coverage of the Stone sentencing on Thursday, the prosecutors who took over the case for the ones who resigned actually unexpectedly backed the initial sentencing recommendation that Barr and other DOJ officials wanted changed.
Line prosecutors initially recommended seven to nine years behind bars for Stone, calculating the level of offense at 29 [“Accordingly, Stone’s total offense level is 29 (14 + 8 + 3 + 2 + 2), and his Criminal History Category is I. His Guidelines Range is therefore 87-108 months”]. In that first sentencing memo, prosecutors made clear that they wanted Stone punished for threatening witness Randy Credico with “physical injury,” and enhanced the recommendation by eight levels:
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.
For example, 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.
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.
This dropped the proposed sentencing range to 3-4 years.
Although the judge ultimately sentenced Stone within that proposed range, the replacement prosecutors agreed in court that the eight-level enhancement should be applied.
“Our position is that this enhancement applies,” Assistant U.S. Attorney John Crabb Jr. said. Crabb Jr. signed the revised sentencing memo, but he wouldn’t say who wrote it or who directed him to write it when Judge Amy Berman Jackson asked. He did say, however, that “[t]here was nothing in bad faith with the initial prosecution team’s recommendation.” The judge asked Crabb Jr. if the original recommendation was fully consistent with DOJ policy; he said, yes.
The judge, for her part, calculated the Stone offense level at 27 (70-87 months), closer to the original recommendation than the revised one (a DOJ source called the initial memo “extreme, excessive and grossly disproportionate”). The judge agreed that seven to nine years was too long a sentence while also saying that the initial recommendation was legally correct and above reproach.
Some legal observers immediately responded to Turley’s take by suggesting that Barr’s intervention was harmful and all for nothing because the judge ended up sentencing Stone for less than four years anyway. Judge Jackson said the initial sentencing memo was “thorough, well-researched and supported”; she said that neither the “unprecedented actions of the Department of Justice in the past week” nor the president’s tweets affected her conclusion that 7-9 years was too much.
Critics said the price the DOJ paid for its intervention was the widespread perception that the DOJ is not independent of political considerations and was giving Stone, President Donald Trump’s friend, special treatment.
If process actually matters, then it isn't vindication at all because rather than justice being done by Judge Jackson meting out fair punishment notwithstanding the guideline's recommendations, the DOJ tried to subvert standard procedure to benefit one of the president's friends. https://t.co/rBglyK8k06
— Anthony Michael Kreis (@AnthonyMKreis) February 20, 2020
Law&Crime reached out to Turley, and he said that it was position from the start that recommending up to nine years in prison for Stone was an “absurd” demand.
“Many of us said that the demand for up to 108 months was absurd before the controversy erupted. I admit that I view these questions from the bias of a criminal defense attorney. The thrust of the revised recommendation was that 108 months would be excessive,” he said. “I stated earlier that I believed that the sentence would come in at less than half of the original demand. It did. The revised memorandum correctly called for a sentence more in the mid range but maintained that prison time was warranted.”
We asked Turley to explain his argument that Barr was vindicated when critics say that Barr’s intervention accomplished little other than damaging the DOJ. The noise that ensued after the recommendation change and Barr’s interview reached a crescendo when 2,000-plus former DOJ officials voiced full-throated condemnation.
“You seem to believe that the cost was too great for Main Justice to intervene. However, reports have indicated that various officials thought that a more moderate recommendation was warranted and that the recommendation did not reflect that consensus,” Turley responded. “If they believed that this recommendation was excessive, I would hope as a criminal defense attorney that Main Justice would make the correction as part of its duty to the court and to justice. While that may seem like ‘noise,’ I tend to view it was an ethical obligation.”
In closing, Turley said his view “reflects more of a criminal defense perspective than my friendship with Bill Barr.”
“I have seen excessive sentencing demands in the past but that does not make them right or acceptable. As I stated immediately (before Barr’s position was made public), this recommendation was excessive and unsupportable,” he said.
[Image via Fox News screengrab]