Speaker 1: You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio.
Speaker 1: A stunning rebuke to the Justice Department, all four US
Speaker 1: government prosecutors who backed a long prison stay for Trump,
Speaker 1: ally Roger Stone, resigned from the case after senior Justice
Speaker 1: Department officials intervened to recommend a more lenient sentence for Stone.
Speaker 1: In a sentencing memo filed on Monday, prosecutors in the
Speaker 1: Stone case recommended a sentence of seven to nine years
Speaker 1: for his conviction for witness tampering, obstruction of justice, and
Speaker 1: lying to Congress. At two a m. On Tuesday, President
Speaker 1: Trump tweeted, quote, cannot allow this miscarriage of justice, and
Speaker 1: by Tuesday afternoon, the Justice Department filed an amended sentencing memo,
Speaker 1: calling the earlier recommendation excessive and unwarranted. A complete reversal.
Speaker 1: Of course. President Trump denied being involved. No, I didn't
Speaker 1: speak to the Justice. I'd be able to do it
Speaker 1: if I wanted. I have the absolute right to do it.
Speaker 1: I stay out of things to a degree that people
Speaker 1: wouldn't believe. But I didn't speak to him. I thought
Speaker 1: the recommendation was ridiculous. I thought the whole prosecution was ridiculous,
Speaker 1: joining me as former federal prosecutor Robert Mints a partner
Speaker 1: mcarter in English. Have you ever seen an entire team
Speaker 1: of prosecutors resigning due to interference from senior officials? I
Speaker 1: think this is really unprecedented. In this case, there were
Speaker 1: four prosecutors on the case, all career prosecutors, all withdrew
Speaker 1: from the case, and one even one so far as
Speaker 1: to resign the position from the Department of Justice. So
Speaker 1: it really has created quite a stir and frankly, the
Speaker 1: optics of this are just terrible for the Department of Justice. So, Bob,
Speaker 1: the optics are bad, but just how bad. One of
Speaker 1: the absolute bedrock principles of the justice system in our
Speaker 1: country is the belief that every defendant will have their
Speaker 1: fair day in court and that prosecutors will pursue cases
Speaker 1: based upon whether or not they believe a crime has
Speaker 1: been committed without any interference from any kind of political
Speaker 1: outside influences. And what we've seen here is the situation where,
Speaker 1: regardless of which side of this case you come down on,
Speaker 1: the fact is that there is the appearance of outside
Speaker 1: influence by the White House that has put pressure on
Speaker 1: the Department of Justice. Whether or not that's true, whether
Speaker 1: or not the president's tweet occurred after the decision was made,
Speaker 1: is really irrelevant. There's just an appearance here that this
Speaker 1: case is being handled in some way outside of the
Speaker 1: mainstream channels of the Department of Justice, and that decisions
Speaker 1: are being made for reasons other than what is possibly
Speaker 1: the strongest prosecutable case for the Department of Justice, and
Speaker 1: that a recommendation for sentencing here is being made for
Speaker 1: reasons other than what the law requires. So President Trump
Speaker 1: said he didn't talk to anyone in the Department of Justice,
Speaker 1: and the Department of Justice says the same thing. But
Speaker 1: you're saying that it does and even matter if he
Speaker 1: spoke to someone at the Department of Justice. Does it
Speaker 1: matter if the Department of Justice was responding to perceived
Speaker 1: pressure from his tweets at two in the morning on Tuesday,
Speaker 1: after the filing was made on Monday, and then all
Speaker 1: of a sudden, a new filing on Tuesday afternoon. Sure,
Speaker 1: And that's exactly the problem here, is that if you
Speaker 1: look at the sequence of the president's tweets and then
Speaker 1: the recalling of the original recommendation on the second recommendation
Speaker 1: being issued as to the sentencing in the Rider Stone case.
Speaker 1: There's an appearance of outside influence here, and that goes
Speaker 1: to the very heart of what people believe should be
Speaker 1: the impartial administration of justice without any political outside influence.
Speaker 1: You have to remember that the Stone case was one
Speaker 1: of the most high profile criminal prosecutions arising from the
Speaker 1: nearly two year investigation of Russian interference in the election
Speaker 1: by the Special Counsel Robert Mueller. This was a case
Speaker 1: that was politically charged from the very beginning. Mr Stone
Speaker 1: was a longtime friend of Mr Trump and was convicted
Speaker 1: last November for obstructing an inquiry by the House Intelligence
Speaker 1: Committee into Russian interference in the twenty sixteen election. He
Speaker 1: was convicted for lying to investigators under oats and for
Speaker 1: trying to block the testimony of the witness who would
Speaker 1: have exposed his lies. So this case always had a
Speaker 1: political overlay, and to inject more politics into it right
Speaker 1: in the eve of sentencing is something that has many
Speaker 1: people very concerned. As a former prosecutor, how does a
Speaker 1: sentencing recommendation work in a high profile case like this?
Speaker 1: Would the line prosecutors have consulted senior officials in d
Speaker 1: o J before making their initial recommendation of seven to
Speaker 1: nine years. Yeah, and that's a great question because people
Speaker 1: on the outside don't necessarily understand how these decisions are made.
Speaker 1: So what happens here in most cases, and what happened
Speaker 1: in this case, is that the line prosecutors, the prosecutors
Speaker 1: who lived with the case night and day and know
Speaker 1: actually prosecute the case through trial, make a recommendation as
Speaker 1: to what they think is an appropriate sentence that has
Speaker 1: to be approved up to the ranks of the U. S.
Speaker 1: Attorney's office, and in this case, the U. S Attorney
Speaker 1: in the District of Washington, d C approved the recommendation.
Speaker 1: But in a very high profile case like this, it's
Speaker 1: not at all uncommon for sentencing recommendations to be reviewed
Speaker 1: by senior officials in main justice in Washington, d C. Here,
Speaker 1: apparently there was no clear agreement between the line prosecutors
Speaker 1: and those higher up the chain in Washington before this
Speaker 1: initial sentencing memorandum was released. The line prosecutors clearly had
Speaker 1: the approval of the U. S. Attorney, which is usually
Speaker 1: the only approval you need for a final sentencing memorandum.
Speaker 1: There was some consultation with Main Justice. Where exactly that
Speaker 1: went off the rails, It's impossible to say at this point,
Speaker 1: but the fact is that that sentencing memorandum was delivered
Speaker 1: to the court, it was backed up by law and
Speaker 1: facts and recommended a particular guideline sentence, and now the
Speaker 1: Department Justice is walking it back in a way that
Speaker 1: gives the appearance that there was outside political influence that
Speaker 1: effected the decision. Now would the walk back have required
Speaker 1: approval from a g bar, Well, it's hard to say.
Speaker 1: You have to assume in a case like this that
Speaker 1: the Attorney General would be paying close attention, particularly to
Speaker 1: walk back a sentencing memorandum, in a case that is
Speaker 1: as visible on high profile as this. We don't really
Speaker 1: know what went on behind the scenes here, but the
Speaker 1: key to this case really focused on the steps that
Speaker 1: Roger Stone took during and after the trial. What prosecutors
Speaker 1: believe was an attempt by Stone to interfere in the
Speaker 1: administration of justice, and a lot of that had to
Speaker 1: do with texts and emails that he was sending to
Speaker 1: a critical witness where he made a death threat to
Speaker 1: that witness. Now, what makes this case interesting is that
Speaker 1: that witness Randy Cretico, actually submitted a letter to the
Speaker 1: court saying he never believed that Roger Stone was threatening
Speaker 1: him and he did not feel in danger, and in fact,
Speaker 1: at the end of the day, he did testify against Stone.
Speaker 1: And so there's a little ambiguity here as to whether
Speaker 1: this threat really should have been treated as seriously as
Speaker 1: prosecutors recommended. But that's a decision that really is hashed
Speaker 1: out internally within the Department of Justice. And historically, when
Speaker 1: a witness tries to interfere with a trial, threatens witnesses.
Speaker 1: In this case, there was even an attempt to threaten
Speaker 1: the judge through a social media posting. That type of
Speaker 1: activity is usually treated very seriously and it's not unusual
Speaker 1: to see a sentence get enhanced substantially for that kind
Speaker 1: of conduct. The four prosecutors in their initial sentencing recommendation
Speaker 1: cited some of the aggravating factors that you just mentioned,
Speaker 1: also Stone disobeying the judges orders. So is the sentence
Speaker 1: recommended of seven to nine years Is that a little aggressive? Well,
Speaker 1: it's a judgment call if you view those threats as
Speaker 1: actually impeding the trial, having threatened to witness, if you
Speaker 1: believe that the social media postings in any way interfered
Speaker 1: with the trial itself, and I think you have to
Speaker 1: take that conduct very seriously. Obviously, the defense lawyers took
Speaker 1: the opposite view, and they characterized the prosecution's arguments as overblown,
Speaker 1: and they noted that while the witness, Mr. Cretico, who
Speaker 1: was a New York radio host, refused to testify before
Speaker 1: the House Intelligence Committee, he was later repeatedly interviewed by
Speaker 1: the FBI and appeared before the grand jury and testified
Speaker 1: against Mr Stone during the trial. So there are two
Speaker 1: sides to the story as to whether or not these
Speaker 1: threats were real, whether they actually impeded justice. But prosecutors
Speaker 1: ultimately made a decision which was supported by the facts
Speaker 1: and supported by the guidelines, that the seven to nine
Speaker 1: years was a reasonable recommendation. The defense disagrees, and ultimately
Speaker 1: will be up to the court to decide what sentences
Speaker 1: handed down here. The government's the government's second memo on
Speaker 1: sentencing is called the Supplemental and Amending Sentencing Memorandum, and
Speaker 1: it says the prior filing quote does not accurately reflect
Speaker 1: the Department of Justice's position on what would be a
Speaker 1: reasonable sentence in this matter. So how will the judge,
Speaker 1: you know, determine which of these memos to follow, if any. Well,
Speaker 1: it's important to realize that, first of all, the federal
Speaker 1: sentencing guidelines, which give some general idea as to what
Speaker 1: is sentencing range should be, are not mandatory and are
Speaker 1: not binding on the court. Secondly, even what prosecutors recommend
Speaker 1: is not something that is binding on the court. It's
Speaker 1: just something that a judge will consider carefully in sentencing.
Speaker 1: And the way that against obviously the defense position where
Speaker 1: they will be arguing for a much lighter sentence in
Speaker 1: this case, they're asking for for probation. At the end
Speaker 1: of the day, it's up to the court. The court
Speaker 1: will often sentence the defendant to less than what prosecutors
Speaker 1: are asking for and more than the defense is seeking.
Speaker 1: So in this case, Judge Amy Burman Jackson, who sat
Speaker 1: through the entire trial and who observed Mr Stone and
Speaker 1: is well aware of all of his conduct and all
Speaker 1: of his attempts to arguably influence the trial through impermissible
Speaker 1: ways through social media posting and through texts and emails
Speaker 1: to this witness, she I believe has a very firm
Speaker 1: understanding and in her own mind a belief as to
Speaker 1: whether or not that conduct should be treated as harshly
Speaker 1: as prosecutors initially recommended. So at the end of the day,
Speaker 1: I'm not sure that any of this will really make
Speaker 1: a difference as to what sentence will be handed down here.
Speaker 1: I believe Judge Berman will make the decision based upon
Speaker 1: the facts as she knows them, and she will ultimately
Speaker 1: decide what she believed is a fair sentence under these circumstances.
Speaker 1: You were talking about the optics of the situation, and
Speaker 1: talking about optics, let's talk about former National Security Advisor
Speaker 1: Michael Flynn, because prosecutors sought six months in prison, and
Speaker 1: then a few weeks ago they backtracked on that and
Speaker 1: said they would not oppose probation instead of prison time.
Speaker 1: So putting that Mueller case together with the Stone Muller case,
Speaker 1: what are the optics. Well, that's part of the problem
Speaker 1: here is that the Stone case is not a standalone issue.
Speaker 1: You've got the case of Flynn, where as you say,
Speaker 1: they stepped back their position there as well, not as
Speaker 1: dramatically as is being done here with Riser Stone. But
Speaker 1: it's another example of how people on the outside may
Speaker 1: look at this and believe that there's some political influence
Speaker 1: that's going into these decisions that are being made by
Speaker 1: the Department of Justice. There's a lot of judgment that
Speaker 1: goes into these decisions. It's wrong to think that these
Speaker 1: are black and white decisions that you simply have to
Speaker 1: take these facts and apply them to the federal sentencing
Speaker 1: guidelines and you automatically add up to a sentence that
Speaker 1: is clear and undisputed. That's really not the way it works.
Speaker 1: There's a good amount of judgment that goes into applying
Speaker 1: these sentencing guidelines to the facts of the case. And
Speaker 1: at the end of the day, the guidelines are only advisory,
Speaker 1: so it's ultimately up to the judge to decide what
Speaker 1: to do. But what's important is that the decision, however
Speaker 1: it is achieved, is one that is made for the
Speaker 1: right reasons, particularly that it's not being made based upon
Speaker 1: any outside political influence. The Justice Department is supposed to
Speaker 1: operate independently of the White House in criminal investigations and
Speaker 1: in prosecutions, but is that observed strictly in every presidential administration.
Speaker 1: Former Attorney General Eric Holder faced complaints from Republicans that
Speaker 1: he was too close to President Barack Obama. So how
Speaker 1: strictly is that observed well, And that's exactly the tension
Speaker 1: that you always see in the Department of Justice. The
Speaker 1: Attorney General is obviously a political appointment. It's typically somebody
Speaker 1: who is trusted by the president, and so there's always
Speaker 1: a concern that not only the Attorney General, but those
Speaker 1: that are surrounding the attorney general are political appointees and
Speaker 1: could in some way influence the decisions made by the
Speaker 1: Department of Justice. Most of the men and women who
Speaker 1: serve in the Department of Justice are career prosecutors who
Speaker 1: are not politically active, who don't involve themselves in politics
Speaker 1: in any significant way. In fact, they're barred under the
Speaker 1: law from doing so, and those are the ones who
Speaker 1: make most of the decisions. But when you get these
Speaker 1: very high profile cases, highly politically charged cases, those are
Speaker 1: the types of cases that will ultimately make their way
Speaker 1: up to the highest levels of the Department of Justice.
Speaker 1: And that's when you have to be concerned that outside
Speaker 1: political influences may infect decisions that are being made that
Speaker 1: should be purely an impartial decision based upon the fair
Speaker 1: administration of justice. Thanks Bob that's Robert Man's a partner.
Speaker 1: McCarter in English.