WASHINGTON — Hours after the Justice Department reduced its recommended sentence for his longtime friend, President Donald Trump escalated his attacks against the career prosecutors who handled the case.
In the day before, prosecutors recommended a lengthy prison sentence for Stone. Trump and the Justice Department criticized it. The decision was overruled.
One by one, the prosecutors quit the case. One resigned from the Justice Department.
Now, Jonathan Kravis, Aaron Zelinsky, Adam Jed and Michael Marando have found themselves the target of the president’s anger, their names and faces flashed on TV screens. Some call them heroes. The president calls them the swamp.
But their decision—calling for a lengthy prison sentence after a defendant had been convicted of lying to Congress, threatening a witness and five other crimes—was neither rogue nor misconduct, according to legal experts and former federal prosecutors.
“Roger Stone committed multiple serious felonies and continued his obstruction even after he went to trial,” said William Yeomans, a Justice Department veteran who served under five presidents from Jimmy Carter to George W. Bush. “Though high-end, the recommendation was within the federal sentencing guidelines, which means that it was presumptively reasonable.”
Bennett Gershman, a Pace University School of Law professor and a legal expert on prosecutorial misconduct, called Trump’s accusation “an absurd characterization.”
“The only way you could argue that,” he said, “is if the prosecutors were acting in bad faith—they don’t believe that he (Stone) deserved this kind of punishment and they were making the sentencing recommendation for, let’s say, political reasons.”
Federal prosecutors come up with sentence recommendations using a combination of mathematical calculations and aggravating factors, called “enhancements,” that are detailed in a 600-page manual.
“I haven’t seen anything that would suggest that they are acting other than professionally, responsibly, and fairly,” Gershman said. “They’re doing their jobs, and prosecutors essentially have total discretion to make these kinds of recommendations.”
How prosecutors calculated Stone’s recommended sentence
Stone was found guilty in November of lying to the House Intelligence Committee and obstructing its investigation into Russia’s meddling in the 2016 presidential election. The 67-year-old fixture in GOP politics was also found guilty of threatening a potential congressional witness.
Stone’s convictions stem from his actions in 2016, when he tried to set up back-channel communications with WikiLeaks to push for the release of stolen emails that were damaging to then-Democratic presidential candidate Hillary Clinton.
Stone repeatedly lied to the House Intelligence Committee about his efforts, falsely denying that he had talked to the Trump campaign about them.
Prosecutors asked U.S. District Judge Amy Berman Jackson to sentence Stone next week to seven to nine years in prison, arguing that his “lies to Congress and his obstructive conduct are a direct and brazen attack on the rule of law.”
The sentencing manual outlines several aggravating factors, each of which results in a certain number of enhancements. The more enhancements, the longer the sentence.
In Stone’s case, prosecutors considered several aggravating factors: threatening to harm someone, interfering with the administration of justice, engaging in a crime that spans years, and obstructing the prosecution.
Stone, in emails and text messages, threatened a potential congressional witness, prosecutors said. “Prepare to die (expletive),” Stone said in one text message. Prosecutors argued that because of Stone, the House Intelligence Committee never received important documents. They said Stone’s crimes spanned years.
Finally, prosecutors argued that Stone’s conduct after he was indicted in January 2019 amounted to obstruction. Stone posted an Instagram message of the presiding judge with a gun’s crosshair next to her head. He repeatedly violated her order not to speak publicly about the case.
Those factors elevated the sentencing range to seven to nine years, according to the prosecutors’ sentencing memorandum.
Defense attorneys argued that adding the aggravating factors wasn’t justified. They cited a letter from the witness, Randy Credico, saying he never felt threatened by Stone.
“I chalked up his bellicose tirades to ‘Stone being Stone,'” Credico wrote in asking the judge not to send Stone to prison.
Stone’s attorneys argued his conduct did not cause “substantial interference with the administration of justice.” They said Stone’s violation of the gag order was largely the result of a longstanding problem with anxiety that was “heightened” after he was indicted. And they said Stone’s conduct did not rise to the level of an extensive crime involving years of scheming.
Judges have discretion when sentencing
Regardless of what punishment both sides want, a judge can impose whatever sentence she sees fit.
“A judge is free to depart from the guidelines and has no obligation to go along with the recommendations of the prosecutors or the defense, although they generally do take the recommendations into account,” said Marc Mauer, executive director of The Sentencing Project, which advocates for reduced incarceration and addressing racial disparities in the criminal justice system.
Patrick Cotter, a former federal prosecutor, said Stone’s own conduct required prosecutors to tack time onto his proposed sentence.
“What the government did was look at the guidelines and see which enhancements apply and which don’t,” Cotter said. “I can’t imagine, in almost 40 years of doing this, where a defendant, in writing, threatens a witness and doesn’t get the enhancement. I can’t imagine a case where a witness perjures themselves (before Congress) and doesn’t get the enhancement.
“These are not extreme positions,” Cotter said.
But prosecutors often disagree on appropriate sentences.
Arthur Rizer, a former Justice Department attorney under Presidents George W. Bush and Barack Obama, said prosecutors asked for a severely long sentence.
Sending someone to prison for more than six years for lying to authorities “is insane to me,” Rizer said. “People get less time in child porn cases.”
Prosecutors aren’t supposed to seek longer sentences for defendants who go to trial and don’t get the benefit of a plea agreement in which they are credited for taking responsibility and cooperating with the government, Rizer said.
In a revised sentencing memorandum filed Tuesday, the Justice Department said that while the aggravating factors are “technically applicable,” they “disproportionately escalate” Stone’s punishment and are better suited for violent crimes such as armed robbery.
The new prosecutor, Assistant U.S. Attorney John Crabb Jr., did not recommend a specific sentence, though he suggested three to four years would be more in line with obstruction cases like Stone’s.
Rachel Barkow, a former member of the United States Sentencing Commission, noted that although Crabb disagreed with the other prosecutors’ recommendation, he did not argue they misused or misread the guidelines. That’s another reason the filing is extraordinary, she said.
Jackson, the judge, may be able to call the former prosecutors to court and ask them about their thinking when they made their recommendation, Preet Bharara, former U.S. attorney for the Southern District of New York, said during a podcast Wednesday. Trump fired him in 2017.
“If you’re the judge,” Bharara said, “don’t you want to know what happened here?”