WEBVTT - Turmoil at Justice Department Over Stone Sentencing 0:00:00.480 --> 0:00:05.680 You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio. 0:00:05.840 --> 0:00:09.360 A stunning rebuke to the Justice Department, all four US 0:00:09.440 --> 0:00:13.080 government prosecutors who backed a long prison stay for Trump, 0:00:13.080 --> 0:00:17.400 ally Roger Stone, resigned from the case after senior Justice 0:00:17.440 --> 0:00:21.800 Department officials intervened to recommend a more lenient sentence for Stone. 0:00:22.120 --> 0:00:25.439 In a sentencing memo filed on Monday, prosecutors in the 0:00:25.480 --> 0:00:28.640 Stone case recommended a sentence of seven to nine years 0:00:28.680 --> 0:00:32.519 for his conviction for witness tampering, obstruction of justice, and 0:00:32.680 --> 0:00:36.480 lying to Congress. At two a m. On Tuesday, President 0:00:36.479 --> 0:00:41.159 Trump tweeted, quote, cannot allow this miscarriage of justice, and 0:00:41.200 --> 0:00:45.520 by Tuesday afternoon, the Justice Department filed an amended sentencing memo, 0:00:45.800 --> 0:00:51.200 calling the earlier recommendation excessive and unwarranted. A complete reversal. 0:00:51.240 --> 0:00:55.360 Of course. President Trump denied being involved. No, I didn't 0:00:55.360 --> 0:00:57.000 speak to the Justice. I'd be able to do it 0:00:57.000 --> 0:00:58.920 if I wanted. I have the absolute right to do it. 0:00:59.480 --> 0:01:02.600 I stay out of things to a degree that people 0:01:02.600 --> 0:01:04.759 wouldn't believe. But I didn't speak to him. I thought 0:01:04.800 --> 0:01:10.000 the recommendation was ridiculous. I thought the whole prosecution was ridiculous, 0:01:10.280 --> 0:01:13.360 joining me as former federal prosecutor Robert Mints a partner 0:01:13.440 --> 0:01:17.319 mcarter in English. Have you ever seen an entire team 0:01:17.319 --> 0:01:22.520 of prosecutors resigning due to interference from senior officials? I 0:01:22.560 --> 0:01:26.280 think this is really unprecedented. In this case, there were 0:01:26.280 --> 0:01:30.520 four prosecutors on the case, all career prosecutors, all withdrew 0:01:30.600 --> 0:01:32.440 from the case, and one even one so far as 0:01:32.480 --> 0:01:36.360 to resign the position from the Department of Justice. So 0:01:36.760 --> 0:01:40.000 it really has created quite a stir and frankly, the 0:01:40.040 --> 0:01:43.840 optics of this are just terrible for the Department of Justice. So, Bob, 0:01:43.880 --> 0:01:47.039 the optics are bad, but just how bad. One of 0:01:47.080 --> 0:01:51.280 the absolute bedrock principles of the justice system in our 0:01:51.320 --> 0:01:55.120 country is the belief that every defendant will have their 0:01:55.280 --> 0:01:59.560 fair day in court and that prosecutors will pursue cases 0:02:00.000 --> 0:02:02.560 based upon whether or not they believe a crime has 0:02:02.600 --> 0:02:06.360 been committed without any interference from any kind of political 0:02:06.440 --> 0:02:10.720 outside influences. And what we've seen here is the situation where, 0:02:10.760 --> 0:02:13.519 regardless of which side of this case you come down on, 0:02:13.800 --> 0:02:16.520 the fact is that there is the appearance of outside 0:02:16.560 --> 0:02:20.360 influence by the White House that has put pressure on 0:02:20.480 --> 0:02:23.440 the Department of Justice. Whether or not that's true, whether 0:02:23.520 --> 0:02:26.760 or not the president's tweet occurred after the decision was made, 0:02:27.160 --> 0:02:30.440 is really irrelevant. There's just an appearance here that this 0:02:30.520 --> 0:02:34.280 case is being handled in some way outside of the 0:02:34.280 --> 0:02:37.280 mainstream channels of the Department of Justice, and that decisions 0:02:37.320 --> 0:02:41.359 are being made for reasons other than what is possibly 0:02:41.680 --> 0:02:45.440 the strongest prosecutable case for the Department of Justice, and 0:02:45.680 --> 0:02:48.640 that a recommendation for sentencing here is being made for 0:02:48.720 --> 0:02:52.720 reasons other than what the law requires. So President Trump 0:02:52.800 --> 0:02:55.519 said he didn't talk to anyone in the Department of Justice, 0:02:55.639 --> 0:02:58.320 and the Department of Justice says the same thing. But 0:02:58.400 --> 0:03:01.440 you're saying that it does and even matter if he 0:03:01.880 --> 0:03:04.800 spoke to someone at the Department of Justice. Does it 0:03:04.919 --> 0:03:10.360 matter if the Department of Justice was responding to perceived 0:03:10.480 --> 0:03:15.040 pressure from his tweets at two in the morning on Tuesday, 0:03:15.160 --> 0:03:18.560 after the filing was made on Monday, and then all 0:03:18.600 --> 0:03:21.720 of a sudden, a new filing on Tuesday afternoon. Sure, 0:03:21.760 --> 0:03:24.079 And that's exactly the problem here, is that if you 0:03:24.120 --> 0:03:27.600 look at the sequence of the president's tweets and then 0:03:28.000 --> 0:03:31.760 the recalling of the original recommendation on the second recommendation 0:03:31.800 --> 0:03:34.640 being issued as to the sentencing in the Rider Stone case. 0:03:34.880 --> 0:03:38.200 There's an appearance of outside influence here, and that goes 0:03:38.240 --> 0:03:40.880 to the very heart of what people believe should be 0:03:40.920 --> 0:03:44.800 the impartial administration of justice without any political outside influence. 0:03:44.960 --> 0:03:47.160 You have to remember that the Stone case was one 0:03:47.160 --> 0:03:50.760 of the most high profile criminal prosecutions arising from the 0:03:50.800 --> 0:03:55.160 nearly two year investigation of Russian interference in the election 0:03:55.520 --> 0:03:58.800 by the Special Counsel Robert Mueller. This was a case 0:03:58.880 --> 0:04:02.360 that was politically charged from the very beginning. Mr Stone 0:04:02.560 --> 0:04:06.440 was a longtime friend of Mr Trump and was convicted 0:04:06.680 --> 0:04:10.200 last November for obstructing an inquiry by the House Intelligence 0:04:10.240 --> 0:04:13.400 Committee into Russian interference in the twenty sixteen election. He 0:04:13.480 --> 0:04:16.599 was convicted for lying to investigators under oats and for 0:04:16.680 --> 0:04:19.200 trying to block the testimony of the witness who would 0:04:19.200 --> 0:04:22.680 have exposed his lies. So this case always had a 0:04:22.720 --> 0:04:26.120 political overlay, and to inject more politics into it right 0:04:26.160 --> 0:04:28.600 in the eve of sentencing is something that has many 0:04:28.680 --> 0:04:33.000 people very concerned. As a former prosecutor, how does a 0:04:33.080 --> 0:04:36.720 sentencing recommendation work in a high profile case like this? 0:04:37.240 --> 0:04:41.640 Would the line prosecutors have consulted senior officials in d 0:04:41.760 --> 0:04:45.839 o J before making their initial recommendation of seven to 0:04:45.920 --> 0:04:50.240 nine years. Yeah, and that's a great question because people 0:04:50.279 --> 0:04:53.360 on the outside don't necessarily understand how these decisions are made. 0:04:53.560 --> 0:04:56.039 So what happens here in most cases, and what happened 0:04:56.040 --> 0:04:59.040 in this case, is that the line prosecutors, the prosecutors 0:04:59.040 --> 0:05:00.680 who lived with the case night and day and know 0:05:00.800 --> 0:05:04.160 actually prosecute the case through trial, make a recommendation as 0:05:04.160 --> 0:05:06.400 to what they think is an appropriate sentence that has 0:05:06.440 --> 0:05:08.680 to be approved up to the ranks of the U. S. 0:05:08.720 --> 0:05:11.200 Attorney's office, and in this case, the U. S Attorney 0:05:11.279 --> 0:05:14.840 in the District of Washington, d C approved the recommendation. 0:05:15.040 --> 0:05:17.360 But in a very high profile case like this, it's 0:05:17.440 --> 0:05:20.679 not at all uncommon for sentencing recommendations to be reviewed 0:05:20.680 --> 0:05:25.559 by senior officials in main justice in Washington, d C. Here, 0:05:25.640 --> 0:05:30.679 apparently there was no clear agreement between the line prosecutors 0:05:30.839 --> 0:05:33.960 and those higher up the chain in Washington before this 0:05:34.000 --> 0:05:38.280 initial sentencing memorandum was released. The line prosecutors clearly had 0:05:38.320 --> 0:05:41.000 the approval of the U. S. Attorney, which is usually 0:05:41.080 --> 0:05:44.960 the only approval you need for a final sentencing memorandum. 0:05:45.240 --> 0:05:48.960 There was some consultation with Main Justice. Where exactly that 0:05:49.000 --> 0:05:52.120 went off the rails, It's impossible to say at this point, 0:05:52.240 --> 0:05:55.080 but the fact is that that sentencing memorandum was delivered 0:05:55.080 --> 0:05:58.120 to the court, it was backed up by law and 0:05:58.240 --> 0:06:02.599 facts and recommended a particular guideline sentence, and now the 0:06:02.640 --> 0:06:05.279 Department Justice is walking it back in a way that 0:06:05.400 --> 0:06:08.680 gives the appearance that there was outside political influence that 0:06:08.800 --> 0:06:12.840 effected the decision. Now would the walk back have required 0:06:13.000 --> 0:06:16.400 approval from a g bar, Well, it's hard to say. 0:06:16.440 --> 0:06:18.040 You have to assume in a case like this that 0:06:18.080 --> 0:06:21.640 the Attorney General would be paying close attention, particularly to 0:06:21.800 --> 0:06:24.640 walk back a sentencing memorandum, in a case that is 0:06:24.640 --> 0:06:27.360 as visible on high profile as this. We don't really 0:06:27.400 --> 0:06:29.880 know what went on behind the scenes here, but the 0:06:29.960 --> 0:06:33.080 key to this case really focused on the steps that 0:06:33.200 --> 0:06:38.000 Roger Stone took during and after the trial. What prosecutors 0:06:38.000 --> 0:06:41.080 believe was an attempt by Stone to interfere in the 0:06:41.080 --> 0:06:43.560 administration of justice, and a lot of that had to 0:06:43.600 --> 0:06:46.560 do with texts and emails that he was sending to 0:06:46.640 --> 0:06:49.320 a critical witness where he made a death threat to 0:06:49.360 --> 0:06:52.320 that witness. Now, what makes this case interesting is that 0:06:52.320 --> 0:06:56.279 that witness Randy Cretico, actually submitted a letter to the 0:06:56.279 --> 0:06:59.760 court saying he never believed that Roger Stone was threatening 0:06:59.800 --> 0:07:02.440 him and he did not feel in danger, and in fact, 0:07:02.480 --> 0:07:05.799 at the end of the day, he did testify against Stone. 0:07:06.040 --> 0:07:08.600 And so there's a little ambiguity here as to whether 0:07:08.680 --> 0:07:11.520 this threat really should have been treated as seriously as 0:07:11.560 --> 0:07:15.080 prosecutors recommended. But that's a decision that really is hashed 0:07:15.080 --> 0:07:19.200 out internally within the Department of Justice. And historically, when 0:07:19.200 --> 0:07:22.760 a witness tries to interfere with a trial, threatens witnesses. 0:07:22.960 --> 0:07:25.440 In this case, there was even an attempt to threaten 0:07:25.520 --> 0:07:28.520 the judge through a social media posting. That type of 0:07:28.560 --> 0:07:32.560 activity is usually treated very seriously and it's not unusual 0:07:32.600 --> 0:07:35.320 to see a sentence get enhanced substantially for that kind 0:07:35.320 --> 0:07:40.320 of conduct. The four prosecutors in their initial sentencing recommendation 0:07:40.480 --> 0:07:44.120 cited some of the aggravating factors that you just mentioned, 0:07:44.240 --> 0:07:49.920 also Stone disobeying the judges orders. So is the sentence 0:07:50.120 --> 0:07:55.000 recommended of seven to nine years Is that a little aggressive? Well, 0:07:55.120 --> 0:07:58.440 it's a judgment call if you view those threats as 0:07:58.600 --> 0:08:03.000 actually impeding the trial, having threatened to witness, if you 0:08:03.080 --> 0:08:06.640 believe that the social media postings in any way interfered 0:08:06.680 --> 0:08:08.520 with the trial itself, and I think you have to 0:08:08.560 --> 0:08:12.480 take that conduct very seriously. Obviously, the defense lawyers took 0:08:12.520 --> 0:08:16.400 the opposite view, and they characterized the prosecution's arguments as overblown, 0:08:16.640 --> 0:08:19.440 and they noted that while the witness, Mr. Cretico, who 0:08:19.440 --> 0:08:22.320 was a New York radio host, refused to testify before 0:08:22.360 --> 0:08:26.480 the House Intelligence Committee, he was later repeatedly interviewed by 0:08:26.480 --> 0:08:29.280 the FBI and appeared before the grand jury and testified 0:08:29.480 --> 0:08:32.120 against Mr Stone during the trial. So there are two 0:08:32.200 --> 0:08:34.520 sides to the story as to whether or not these 0:08:34.520 --> 0:08:38.320 threats were real, whether they actually impeded justice. But prosecutors 0:08:38.440 --> 0:08:41.200 ultimately made a decision which was supported by the facts 0:08:41.200 --> 0:08:43.679 and supported by the guidelines, that the seven to nine 0:08:43.760 --> 0:08:47.800 years was a reasonable recommendation. The defense disagrees, and ultimately 0:08:47.840 --> 0:08:49.920 will be up to the court to decide what sentences 0:08:49.960 --> 0:08:53.680 handed down here. The government's the government's second memo on 0:08:53.760 --> 0:08:57.800 sentencing is called the Supplemental and Amending Sentencing Memorandum, and 0:08:57.840 --> 0:09:02.360 it says the prior filing quote does not accurately reflect 0:09:02.360 --> 0:09:05.480 the Department of Justice's position on what would be a 0:09:05.559 --> 0:09:09.000 reasonable sentence in this matter. So how will the judge, 0:09:09.160 --> 0:09:14.640 you know, determine which of these memos to follow, if any. Well, 0:09:14.679 --> 0:09:17.760 it's important to realize that, first of all, the federal 0:09:17.760 --> 0:09:22.400 sentencing guidelines, which give some general idea as to what 0:09:22.559 --> 0:09:26.199 is sentencing range should be, are not mandatory and are 0:09:26.200 --> 0:09:30.160 not binding on the court. Secondly, even what prosecutors recommend 0:09:30.559 --> 0:09:32.600 is not something that is binding on the court. It's 0:09:32.640 --> 0:09:36.000 just something that a judge will consider carefully in sentencing. 0:09:36.040 --> 0:09:39.400 And the way that against obviously the defense position where 0:09:39.600 --> 0:09:41.560 they will be arguing for a much lighter sentence in 0:09:41.600 --> 0:09:44.480 this case, they're asking for for probation. At the end 0:09:44.480 --> 0:09:46.720 of the day, it's up to the court. The court 0:09:46.760 --> 0:09:49.559 will often sentence the defendant to less than what prosecutors 0:09:49.600 --> 0:09:52.400 are asking for and more than the defense is seeking. 0:09:52.640 --> 0:09:55.880 So in this case, Judge Amy Burman Jackson, who sat 0:09:55.960 --> 0:09:58.880 through the entire trial and who observed Mr Stone and 0:09:58.960 --> 0:10:01.200 is well aware of all of his conduct and all 0:10:01.240 --> 0:10:05.559 of his attempts to arguably influence the trial through impermissible 0:10:05.559 --> 0:10:09.640 ways through social media posting and through texts and emails 0:10:09.679 --> 0:10:13.480 to this witness, she I believe has a very firm 0:10:13.559 --> 0:10:17.000 understanding and in her own mind a belief as to 0:10:17.040 --> 0:10:19.360 whether or not that conduct should be treated as harshly 0:10:19.360 --> 0:10:22.600 as prosecutors initially recommended. So at the end of the day, 0:10:22.840 --> 0:10:24.640 I'm not sure that any of this will really make 0:10:24.679 --> 0:10:27.120 a difference as to what sentence will be handed down here. 0:10:27.160 --> 0:10:30.120 I believe Judge Berman will make the decision based upon 0:10:30.160 --> 0:10:32.920 the facts as she knows them, and she will ultimately 0:10:33.120 --> 0:10:36.520 decide what she believed is a fair sentence under these circumstances. 0:10:36.800 --> 0:10:40.160 You were talking about the optics of the situation, and 0:10:40.360 --> 0:10:44.840 talking about optics, let's talk about former National Security Advisor 0:10:44.960 --> 0:10:50.880 Michael Flynn, because prosecutors sought six months in prison, and 0:10:50.920 --> 0:10:54.520 then a few weeks ago they backtracked on that and 0:10:54.559 --> 0:10:58.480 said they would not oppose probation instead of prison time. 0:10:58.800 --> 0:11:03.120 So putting that Mueller case together with the Stone Muller case, 0:11:03.320 --> 0:11:05.880 what are the optics. Well, that's part of the problem 0:11:05.920 --> 0:11:09.880 here is that the Stone case is not a standalone issue. 0:11:10.440 --> 0:11:13.880 You've got the case of Flynn, where as you say, 0:11:13.920 --> 0:11:16.760 they stepped back their position there as well, not as 0:11:16.840 --> 0:11:20.080 dramatically as is being done here with Riser Stone. But 0:11:20.120 --> 0:11:23.640 it's another example of how people on the outside may 0:11:23.720 --> 0:11:26.840 look at this and believe that there's some political influence 0:11:27.000 --> 0:11:29.559 that's going into these decisions that are being made by 0:11:29.600 --> 0:11:32.640 the Department of Justice. There's a lot of judgment that 0:11:32.679 --> 0:11:35.840 goes into these decisions. It's wrong to think that these 0:11:35.880 --> 0:11:38.320 are black and white decisions that you simply have to 0:11:38.320 --> 0:11:41.040 take these facts and apply them to the federal sentencing 0:11:41.040 --> 0:11:44.880 guidelines and you automatically add up to a sentence that 0:11:45.040 --> 0:11:48.839 is clear and undisputed. That's really not the way it works. 0:11:48.880 --> 0:11:52.119 There's a good amount of judgment that goes into applying 0:11:52.160 --> 0:11:54.880 these sentencing guidelines to the facts of the case. And 0:11:54.920 --> 0:11:57.640 at the end of the day, the guidelines are only advisory, 0:11:57.840 --> 0:11:59.800 so it's ultimately up to the judge to decide what 0:11:59.880 --> 0:12:03.640 to do. But what's important is that the decision, however 0:12:03.920 --> 0:12:06.480 it is achieved, is one that is made for the 0:12:06.600 --> 0:12:10.000 right reasons, particularly that it's not being made based upon 0:12:10.080 --> 0:12:13.680 any outside political influence. The Justice Department is supposed to 0:12:13.720 --> 0:12:17.840 operate independently of the White House in criminal investigations and 0:12:17.840 --> 0:12:23.760 in prosecutions, but is that observed strictly in every presidential administration. 0:12:24.080 --> 0:12:29.160 Former Attorney General Eric Holder faced complaints from Republicans that 0:12:29.240 --> 0:12:33.760 he was too close to President Barack Obama. So how 0:12:33.840 --> 0:12:38.080 strictly is that observed well, And that's exactly the tension 0:12:38.120 --> 0:12:40.680 that you always see in the Department of Justice. The 0:12:40.720 --> 0:12:45.160 Attorney General is obviously a political appointment. It's typically somebody 0:12:45.440 --> 0:12:48.840 who is trusted by the president, and so there's always 0:12:48.840 --> 0:12:51.840 a concern that not only the Attorney General, but those 0:12:52.160 --> 0:12:55.880 that are surrounding the attorney general are political appointees and 0:12:55.920 --> 0:12:58.280 could in some way influence the decisions made by the 0:12:58.320 --> 0:13:01.400 Department of Justice. Most of the men and women who 0:13:01.440 --> 0:13:04.559 serve in the Department of Justice are career prosecutors who 0:13:04.640 --> 0:13:08.599 are not politically active, who don't involve themselves in politics 0:13:08.800 --> 0:13:11.480 in any significant way. In fact, they're barred under the 0:13:11.600 --> 0:13:14.240 law from doing so, and those are the ones who 0:13:14.280 --> 0:13:17.000 make most of the decisions. But when you get these 0:13:17.080 --> 0:13:21.320 very high profile cases, highly politically charged cases, those are 0:13:21.360 --> 0:13:23.480 the types of cases that will ultimately make their way 0:13:23.559 --> 0:13:25.640 up to the highest levels of the Department of Justice. 0:13:25.800 --> 0:13:28.200 And that's when you have to be concerned that outside 0:13:28.240 --> 0:13:32.079 political influences may infect decisions that are being made that 0:13:32.160 --> 0:13:36.440 should be purely an impartial decision based upon the fair 0:13:36.480 --> 0:13:40.480 administration of justice. Thanks Bob that's Robert Man's a partner. 0:13:40.520 --> 0:13:43.400 McCarter in English.