The ink has barely dried on the acquittal of President Donald Trump in Congressional Democrats’ failed impeachment attempt to remove him from office and now it is right on to the next thing, this time the faux outrage that the Justice Department reduced its sentencing recommendation for Trump friend Roger Stone from 9 years to leaving it up to the judge to decide.
Stone was convicted of making false statements and engaging in witness tampering in the House Intelligence Committee’s investigation of the Trump campaign as it pursued what turned out to be false allegations the campaign had conspired with Russia to steal the 2016 election by hacking the Democratic National Committee (DNC) and John Podesta emails and putting them on Wikileaks.
The only reason for the investigation into the campaign was the Hillary Clinton and DNC-funded dossier by former British spy Christopher Steele and Fusion GPS that falsely tied the Trump campaign to Russia. This led to an FBI investigation, top secret surveillance on the campaign, the opposition party in an election year, and then a criminal investigation whose initial object was found to be based on a falsehood.
Former FBI Director James Comey lied to President Trump about the extent of the investigation, saying he wasn’t the subject of the investigation when he always was, which became grounds for Comey’s removal. Special Counsel Robert Mueller was appointed, but no one was ever convicted of conspiring with Russia. Instead, a series of process crimes were found, including Stone but also George Papadopoulos and Michael Flynn, who were all found or pled guilty to lying to investigators. Paul Manafort was convicted of unrelated banking and tax crimes that predated the election.
The original basis for the case against Trump, Stone and other members of the Trump campaign — that Trump and his campaign were allegedly Russian agents responsible for hacking the DNC and John Podesta emails and putting them on Wikileaks — was debunked by none other than Special Counsel Mueller, who found there was no conspiracy by Trump or any member of his campaign and Russia.
From the Mueller report: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities,” and “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference.”
And yet if not for the false allegations, there never would have been an investigation into the campaign and at least Stone, Flynn and Papadopoulos would have never been questioned. None of this would have ever happened.
That is why when news of the Justice Department’s 9-year sentence recommendation of Stone broke, on Feb. 11 President Trump blasted the decision on Twitter, writing, “This is a horrible and very unfair situation. The real crimes were on the other side, as nothing happens to them. Cannot allow this miscarriage of justice!”
Trump noted that Stone was getting harsh treatment in comparison to similar cases, adding, “a swamp creature with ‘pull’ was just sentenced to two months in jail for a similar thing that they want Stone to serve 9 years for.”
The same day, the Justice Department agreed and amended its filing in the U.S. District Court in the District of Columbia, calling the sentence recommendation “excessive and unwarranted,” stating, “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… [T]he government respectfully submits that a sentence of incarceration far less than 87 to 108 months’ imprisonment would be reasonable under the circumstances. The government ultimately defers to the Court as to the specific sentence to be imposed.”
The filing noted that the initial recommendation of 9 years in prison was akin to sentences received by violent offenders: “the Sentencing Guidelines enhancements in this case—while perhaps technically applicable— more than double the defendant’s total offense level and, as a result, disproportionately escalate the defendant’s sentencing exposure to an offense level of 29, which typically applies in cases involving violent offenses, such as armed robbery, not obstruction cases.”
And just like that, the left and the Washington, D.C. establishment were in another tizzy, this time with more than 2,000 former Justice Department officials signing a petition calling for Barr to resign.
The petition claims that “It is unheard of for the Department’s top leaders to overrule line prosecutors” to give what the petitioners say is “preferential” treatment for Stone.
And yet, under 28 U.S. Code § 519 it is the Attorney General’s job to supervise all prosecutions and prosecutors: “the Attorney General shall supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543 of this title in the discharge of their respective duties.”
Meaning, if the Attorney General determines that a prosecution is malicious or in this case, that a sentence recommendation was excessive, he has a responsibility under law to intervene in the case and can direct U.S. attorneys to change course.
There is a question about the President’s involvement in this decision, but under Article II of the Constitution’s sole vesting of executive power in the President and charging the President with faithfully executing the law, we elect presidents to enforce the laws and to ensure rights are not being violated. Trump clearly has the power to direct subordinates like the Attorney General if he felt there was a miscarriage of justice taking place. In this case, that was unnecessary since the Department ultimately came to the same conclusion as the President that Stone was being excessively punished.
Heck, under Article II, the President could pardon Stone and it would be well within the scope of his constitutional powers, something Trump just reminded everyone of by granting clemency and commuting sentences of 11 individuals on Feb. 18.
Moreover, the historical record shows that presidents have always been involved in the administration of justice and prosecutorial decisions, as noted by Sai Prakash in 2005 in a University of San Diego legal article, “The Chief Prosecutor”: “Presidents Washington, Adams, and Jefferson repeatedly directed official prosecutors, instructing them to prosecute some individuals and to cease prosecuting others. Early presidential direction of prosecutors was based on an understanding of the executive’s constitutional authority, for no statute ever authorized presidential control. In presidential proclamations, in addresses to Congress, and in correspondence, presidents often noted that they had given instructions to official prosecutors, sometimes articulating the constitutional bases of their actions. Attorneys general likewise acknowledged that they were executive officers under presidential control and regularly conveyed presidential instructions to the district attorneys.”
Meaning the complaint against Trump and Barr is not based on any law being violated, but that in the execution of their legal authorities, they agreed that 9 years for Roger Stone was excessive, and so did the U.S. Attorney named in the filing, Timothy Shea. And apparently agreeing with the President about the horrible conduct of the Justice Department in 2016 with the phony Russia collusion witch hunt is a crime against the Washington, D.C. establishment.
The argument appears to be that even if the sentence recommendation was excessive and Trump was right, because Stone is a friend of the President’s he must be punished far in excess of what the law prescribes because justice is “equal,” and neither the President nor the Attorney General have any role in supervising that process. Apparently, due process does not apply to supporters of the President because, like in Animal Farm, some are more equal than others.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
