Stanford Law’s Robert Weisberg on Roger Stone Sentencing and Independence of the DOJ

Last November, long-time advisor to President Trump, Roger J. Stone, was convicted in federal court of seven felonies for obstructing a congressional inquiry into Russian interference in the 2016 election including lying to investigators under oath and trying to block the testimony of a witness whose account would have exposed his lies. Here, Stanford Law Professor Robert Weisberg, a criminal law expert, discusses the sentencing and recent interference by Department of Justice leadership.

Roger Stone and Bill Barr
Roger Stone and U.S. Attorney General Bill Barr

How serious were the charges brought against Roger Stone? I understand they carried a maximum prison term of 50 years.

For a public corruption and dishonesty case, pretty serious. Most obviously he tampered with witnesses, obstructed a congressional investigation, and lied to government agents. Yes, if all the authorized potential sentences were imposed for all Stone’s counts of conviction and were served consecutively, 50 years was theoretically possible. But while the federal sentencing laws are notoriously harsh and there has long been a perception that the federal sentencing guidelines are very rigid and formulaic, they always allowed for some flexibility (now even more under Supreme Court rulings). Especially important are the “grouping” rules, by which when there are overlapping counts for related conduct, the ultimate sentence is usually far lower than any theoretical maximum.

Was the recommendation by prosecutors reasonable? I think they suggested 7-9 years.

Yes. True, he had no criminal record so he gets the lowest possible score for “criminal history.” But the guidelines calculation involved certain so-called “enhancements” because of the particularly egregious way he committed his crimes, including threats of harm to a witness and repeated disobedience of judicial orders.

So, we have this very public disagreement on sentencing recommendation in the DOJ—in-fighting—in a high profile case. What happened here?

That depends on matters of timing for which we lack public information. In a case of such national visibility, it’s likely that the prosecutors consulted fairly far up the DOJ hierarchy—up to the Deputy Attorney General level—before they settled on the 7-9 years recommendation. I doubt they would have made that recommendation without upward consultation. So the likely thing is that after the 7-9 recommendation was made, the Attorney General decided to countermand it. Where the original recommendation relied on enhancement and evidence, this new recommendation cites counter-evidence. As for his motive, well, we all read the papers.

Professor Robert Weisberg
Professor Robert Weisberg

How unusual is this—for senior officials in the DOJ to step in like this?

Again, in big-picture cases, senior officials will very often be consulted on proposed recommendations by line prosecutors, and can revise the proposed numbers. And the line prosecutors, even if they disagree, will do as told. But this second stage countermanding is bizarrely unusual and publicly insults the line prosecutors who presumably thought they had all the DOJ approval they needed.

What about the subsequent actions of the four line prosecutors? Was stepping out of the case their only recourse? And what about the DOJ’s independence?

All four withdrew from the case, and that has required them to make public filing before the judge—and she can read into that whatever she wants. One of them has quit DOJ altogether. Unless the overruling by the top of DOJ could be treated as itself an act of obstruction of justice—that’s the nuclear option of the kind Mueller floated but avoided in his report—the revised recommendation is not illegal. So the only action that the aggrieved prosecutors could take was what they did. But US Attorneys and their assistants and the country are very prideful about their independence from politics, so this is already being seen as a great offense to that pride.

What do you expect to happen next? Can the judge ignore this new, reduced recommendation?  

The judge can do pretty much whatever she wants within the authorized range, and so she could conceivably pay heed to the original recommendation. This is a pretty weird situation, because, as mentioned, the prospectors had solid evidence that Stone had engaged in very specific defiance of this judge. Has the Attorney General anticipated the possibility that Stone will still get the higher sentence? Does he nevertheless think that it was important for him (and the President) to signal that the White House wants to use the levers of government to protect his allies? Is that a pre-signal of a possible commutation?

Anything else?

I urge people to read the revised recommendation. Quite a document. It doesn’t suggest a specific lower sentence; it just says that the sentence should be “far less than” the 7-9. It then enumerates reasons. In doing so, it provides an interesting example of legal writing—if you were writing a defense brief.

Robert Weisberg is the Edwin E. Huddleson, Jr. Professor of Law and Faculty Co-Director of the Stanford Criminal Justice Center. His scholarship focuses on criminal law, criminal procedure, white collar crime, and sentencing policy.