Following a presidential tweet, Donald Trump’s Department of Justice is poised to betray Robert Mueller’s independence — after the fact. Reportedly, Justice will retract the sentencing recommendation to sentence Roger Stone for seven to nine years for lying to Congress and witness tampering. All four of the prosecutors quickly resigned from the case.
The whole point of Mueller’s status as special prosecutor was to protect his investigation from improper White House influence. Now, Stone’s sentencing is being hijacked by direct presidential influence.
None of this is normal. It’s not normal for the Justice Department to reverse a sentencing recommendation already submitted to court. It’s especially not normal when the decision follows the president tweeting that the sentence sought was too high. And it’s the trifecta of non-normalness when the person being sentenced was convicted of lying to protect the president in an investigation of whether the president colluded with a foreign power to get elected.
Lest you have forgotten, Roger Stone is a veteran of Richard Nixon’s regime of dirty tricks and self-professed mentee of the late and unlamented Roy Cohn. Stone served as a conduit between WikiLeaks and the 2016 Trump campaign. Questioned about his conduct by the House Intelligence Committee, Stone lied under oath — five separate times, according to the Mueller team and the jury that convicted him.
Stone also tried to pressure an associate, the radio personality Randy Credico, to lie to Congress so that their stories would match. And he did it in an especially colorful fashion, telling Credico to emulate the conduct of the character Frank Pentangeli from the film “Godfather II,” who lies to Congress to protect mobster Michael Corleone.
The Mueller team discovered Stone’s crimes and indicted him in January 2019. Ordinarily, the federal government lawyers who file an indictment get to try their cases through verdict and sentencing, but because the Mueller team dissolved after its report was filed, Mueller farmed out several criminal prosecutions to different U.S. Attorney’s offices. Two former members of Mueller’s team, Aaron Zelinsky and Adam Jed, continued to work on the case. Both prosecutors left the case Tuesday, as did Michael Marando. The fourth prosecutor, Jonathan Kravis, announced he was quitting his job as an assistant U.S. attorney entirely.
The sentencing recommendation was certainly at the high end of what the Department of Justice would ordinarily seek for a first-time felon convicted of a nonviolent crime. Yet it fit within federal sentencing guidelines. Explaining the request, the prosecutors pointed out the seriousness of interfering with the 2016 election. They emphasized Stone’s disrespect for Congress and the investigative process. And they mentioned Stone’s contempt for the judicial process, including his outrageous conduct of posting a picture of the presiding judge with crosshairs next to her head.
When President Trump heard about the sentencing recommendation, he tweeted immediately that it was “horrible and very unfair.” The Department of Justice will likely claim that it would have revised the recommendation regardless, but that claim is doubtful and in any case impossible to prove.
What’s so strikingly bad here is that the entire purpose of appointing Mueller as special counsel was to assure him the greatest degree of independence from Trump permitted by current government regulations. A constant concern throughout Mueller’s investigation was that Trump or those around him would wrongfully try to influence the investigation and its outcome.
Now Trump is taking advantage of the fact that the investigation is over to interfere in a criminal prosecution that was filed as part of that very investigation. And he’s going to get away with it, insofar as Attorney General William Barr agrees to do his bidding. The sentencing judge could always choose to impose a longer sentence, of course, but it would be pretty unusual for a judge to give a sentence harsher than the one recommended by prosecutors.
It can’t be ignored that Trump’s conduct follows so soon after the Senate voted to keep him in office. Although the timing of the sentencing recommendation is presumably coincidental, Trump’s response surely reflects how completely unconstrained he feels post-impeachment.
Trump famously called Ukrainian president Volodymyr Zelenskiy immediately after the release of the Mueller report, which stopped short of stating that he had committed any crimes. Free of the Mueller investigation, Trump committed the conduct for which he was subsequently impeached. Now that impeachment is over, it would seem, Trump is free to settle a score with Mueller’s team.
We may have become inured to Trump’s outrageous conduct. But we shouldn’t be. Trump’s intervention in the Stone sentencing is an outrage against the idea of Mueller’s independence. It further undercuts any possibility for the executive branch to monitor presidential misconduct. That’s bad for democracy and the rule of law.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a U.S. Supreme Court clerk.