Monday, March 2, 2020

No. 358: William Barr—Top Enabler of the Donald Trump Autocracy—Must Resign

The Statement by Former DOJ Employees
On February 16, 2020, former employees of the U.S. Department of Justice (DOJ) issued a "DOJ Alumni Statement on the Events Surrounding the Sentencing of Roger Stone." February 26 was the deadline for DOJ alumni to sign on to the statement, and 2,688 have done so. Here are the first, fifth, and seventh paragraphs of the statement:
We, the undersigned, are alumni of the United States Department of Justice (DOJ) who have collectively served both Republican and Democratic administrations. Each of us strongly condemns President Trump's and Attorney General Barr's interference in the fair administration of justice.
Such behavior is a grave threat to the fair administration of justice. In this nation, we are all equal before the law. A person should not be given special treatment in a criminal prosecution because they are a close political ally of the President. Governments that use the enormous power of law enforcement to punish their enemies and reward their allies are not constitutional republics; they are autocracies.
For these reasons, we support and commend the four career prosecutors who upheld their oaths and stood up for the Department's independence by withdrawing from the Stone case and/or resigning from the Department. Our simple message to them is that we—and millions of other Americans—stand with them. And we call on every DOJ employee to follow their heroic example and be prepared to report future abuses to the Inspector General, the Office of Professional Responsibility, and Congress; to refuse to carry out directives that are inconsistent with their oaths of office; to withdraw from cases that involve such directives or other misconduct; and, if necessary—to resign and report publicly—in a manner consistent with professional ethics—to the American people the reasons for their resignation. We likewise call on the other branches of government to protect from retaliation those employees who uphold their oaths in the face of unlawful directives. The rule of law and the survival of our Republic demand nothing less.
The June 2018 Memorandum by William Barr
In No. 326 (August 12, 2019), I wrote about Special Counsel Robert S. Mueller III, Donald J. Trump, and William P. Barr, among others. I said that on June 8, 2018, Barr—then a private citizen—sent a 19-page, single-spaced, unsolicited memorandum to Deputy Attorney General Rod Rosenstein and Assistant Attorney General Steve Engel. (Many observers at the time and later viewed the Barr memorandum as a job application.) In that post, I quoted the following three paragraphs from the beginning of the memorandum (the full memorandum is in the complimentary package offered in No. 326):
I am writing as a former official deeply concerned with the institutions of the Presidency and the Department of Justice. I realize that I am in the dark about many facts, but I hope my views may be useful.
It appears Mueller's team is investigating a possible case of "obstruction" by the President predicated substantially on his expression of hope that the [sic] Comey could eventually "let ... go" of its [the FBI's?] investigation of Flynn and his action in firing Comey. In pursuit of this obstruction theory, it appears that Mueller's team is demanding that the President submit to interrogation about these incidents, using the threat of subpoenas to coerce his submission.
Mueller should not be permitted to demand that the President submit to interrogation about alleged obstruction. Apart from whether Mueller [has?] a strong enough factual basis for doing so, Mueller's obstruction theory is fatally misconceived. As I understand it, his theory is premised on a novel and legally insupportable reading of the law. Moreover, in my view, if credited by the [Justice?] Department, it would have grave consequences far beyond the immediate confines of this case and would do lasting damage to the Presidency and to the administration of law within the Executive branch.
Six months later, on December 7, 2018, Trump nominated Barr to succeed Jefferson B. Sessions III as U.S. Attorney General. On February 14, 2019, the Senate confirmed Barr (on a largely party line vote of 54 to 45), thus placing Barr in charge of the investigation he had criticized.

Since then I have been deeply disturbed by numerous actions taken by Barr, not the least of which were his handling of the Mueller report and his role in the Ukraine scandal that led to Trump's impeachment in the Democratic-controlled House and acquittal in the Republican-controlled Senate. What prompted this post, however, was Barr's role in the federal criminal case of Roger J. Stone Jr., a long-time Trump (and Nixon) friend, supporter, and campaign operative.

The Criminal Case Against Roger Stone
The criminal case against Roger Stone grew out of the Mueller investigation. On January 24, 2019, a federal grand jury indicted Stone on seven criminal counts: one count of obstruction of proceeding, five counts of false statements, and one count of witness tampering.

The case was assigned to U.S.District Judge Amy Berman Jackson. She is a graduate of Harvard College and the Harvard Law School. President Obama nominated her in June 2010. Her nomination lapsed at the end of 2010. Obama renominated her in January 2011, and the Senate confirmed her in March 2011.

On January 29, 2019, Stone pleaded not guilty on all counts and was released on personal recognizance. On November 6, the jury trial began before Judge Jackson. On November 14, the trial ended. On November 15, the jury found Stone guilty on all seven counts.

The DOJ Sentencing Memorandum
On February 10, 2020, the DOJ filed a 26-page sentencing memorandum, which is in the complimentary package offered at the end of this post. The memorandum was submitted by Jonathan Kravis and Michael J. Marando, Assistant U.S. Attorneys; and by Adam C. Jed and Aaron S. Zelinsky, Special Assistant U.S. Attorneys. The section entitled "Guidelines Calculation" is on pages 16-18. The first and last sentences of that section, and the three-sentence "Conclusion" on page 26, read:
The government submits that Stone's total offense level is 29 and his Criminal History Category is I, yielding a Guidelines Range of 87-108 months.
Accordingly, Stone's total offense level is 29 (14 + 8 + 3 + 2 + 2), and his Criminal History Category is I. His Guidelines Range is therefore 87-108 months.
Roger Stone obstructed Congress's investigation into Russian interference in the 2016 election, lied under oath, and tampered with a witness. And when his crimes were revealed by the indictment in this case, he displayed contempt for this Court and the rule of law. For that, he should be punished in accord with the advisory Guidelines.
The Roger Stone Sentencing Memorandum
On the same day, February 10, attorneys representing Stone filed a 35-page sentencing memorandum and a 39-page appendix consisting of letters to Judge Jackson urging leniency in the sentencing of Stone. The one-sentence conclusion of the memorandum reads:
For the foregoing reasons, it is respectfully submitted that the Court should impose a non-Guidelines sentence of probation with any conditions that the Court deems reasonable under the circumstances.
The DOJ Supplemental Sentencing Memorandum
On the next day, February 11, the DOJ filed a five-page supplemental and amended sentencing memorandum. The events surrounding this memorandum precipitated the DOJ alumni statement, because when Trump expressed his displeasure with the original DOJ sentencing memorandum, Barr instructed DOJ staff to file the supplemental and amended memorandum which overruled the original memorandum the career prosecutors had filed the day before. Barr later claimed, in a televised statement, that his decision was not influenced by Trump's displeasure, and that the supplemental memorandum was appropriate. However, many people, including 2,688 DOJ alumni, thought that Barr was aiding Trump in using the DOJ to reward Roger Stone. The supplemental and amended memorandum was submitted by John Crabb Jr., Assistant U.S. Attorney and Acting Chief of the Criminal Division. It is in the complimentary package offered at the end of this post. The concluding paragraph reads:
The defendant committed serious offenses and deserves a sentence of incarceration that is "sufficient but not greater than necessary" to satisfy the factors set forth in Section 353(a). Based on the facts known to the government, a sentence of between 87 to 108 months' imprisonment, however, could be considered excessive and unwarranted under the circumstances. Ultimately, the government defers to the Court as to what specific sentence is appropriate under the facts and circumstances of this case.
On the same day, February 11, Kravis, Marando, Jed, and Zelinsky withdrew from the case. According to a 2,328-word front-page article in The New York Times on February 12 by reporters Katie Benner, Sharon LaFraniere, and Adam Goldman, Kravis resigned from the DOJ, but Marando, Jed, and Zelinsky remained with the DOJ. (See U.S.A. v. Stone, U.S. District Court, District of Columbia, Case No. 1:19-cr-18.)

The Roger Stone Motion for a New Trial
On February 18, attorneys representing Stone filed a motion for a new trial. The motion is pending.

The Sentencing of Roger Stone
On February 20, Judge Jackson sentenced Stone to 40 months in prison. A 1,671-word front-page article in The New York Times on February 21 by reporter Sharon LaFraniere describes in detail what happened at the hearing. Judge Jackson did not order Stone to begin his prison term immediately, because she had not yet ruled on his motion for a new trial.

The Roger Stone Motion to Disqualify Judge Jackson
On February 21, attorneys representing Stone filed a motion to disqualify Judge Jackson. The motion is related to Stone's pending motion for a new trial. The motion to disqualify is based on the alleged bias of the jury forewoman and certain comments the judge made during the sentencing hearing, such as: "The jurors who served with integrity under difficult circumstances cared." Stone alleges that such comments "raise grave doubts about the judge's objectivity." The motion to disqualify is in the complimentary package offered at the end of this post.

On February 23, Judge Jackson issued an order denying the motion to disqualify. The order ends as follows (the full order is in the complimentary package offered at the end of this post):
At bottom, given the absence of any factual or legal support for the motion for disqualification, the pleading appears to be nothing more than an attempt to use the Court docket to disseminate a statement for public consumption that has the words "judge" and "biased" in it. For these reasons, defendant's motion is hereby DENIED. SO ORDERED.
The Hearing on the Roger Stone Motion for a New Trial
On the morning of February 24, Judge Jackson held a closed hearing on Stone's motion for a new trial. Reporters were not allowed to attend, but were able to listen to the proceedings through a closed-circuit audio feed to a media room. That afternoon, reporters Darren Samuelsohn and Josh Gerstein of Politico posted a lengthy article about the hearing. At the end of the hearing, the judge did not immediately rule on Stone's motion for a new trial.

The Neil Steinberg Commentary
As I was wrapping up this post, I saw something that readers might find interesting. I refer to a February 2 commentary by Neil Steinberg of the Chicago Sun-Times entitled "Crumbling US Senate echoes Roman collapse." Steinberg cites The History of the Decline and Fall of the Roman Empire, the towering six-volume master work by English historian Edward Gibbon published more than two centuries ago.

General Observations
Should Judge Jackson deny Stone's motion for a new trial, it seems likely that she will order Stone to report to prison, and that Stone's attorneys will file an appeal. The question is whether Trump will pardon Stone and/or commute the 40-month sentence.

Following Trump's Senate acquittal on impeachment charges, he has taken numerous actions—many of them with Barr's support—favoring his friends and attacking those he perceives as his enemies. Those actions have created a fire storm. They make clear that our great republic has become an autocracy. I agree with the DOJ alumni that Barr must resign.

Available Material
I offered a complimentary package in the above mentioned No. 326. That package, which contains the full June 2018 Barr memorandum, remains available.

Now I offer a complimentary 42-page package consisting of the DOJ's original sentencing memorandum (26 pages), the DOJ's supplemental and amended sentencing memorandum (5 pages), Stone's motion to disqualify the judge (5 pages), and the judge's order denying the motion to disqualify (6 pages). Email and ask for the March 2020 package about Barr.