The intervention of the United States Department of Justice (DOJ), who undermined their own prosecutor’s recommendation of a sentence for Republican operative Roger Stone, has prompted outrage from Democratic legislators and some former DOJ officials.
The department stepped in on Tuesday and revised their prosecutor’s recommendation that Stone, who helped President Donald Trump rise to power, face seven to nine years for his conviction on charges that include lying to Congress, witness tampering and obstructing the House of Representatives investigation into whether the Trump campaign coordinated with Russia to influence the 2016 election.
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Instead of the sentence sought by their prosecutors, which was in line with federal guidelines, the DOJ chose not to recommend a sentence to the judge, who will make a final ruling on February 20.
The new filing came shortly after Trump derided the prosecutors’ initially requested sentence on Twitter. The DOJ and Trump both denied they coordinated on the decision, with the department claiming it decided to intervene before Trump had sent his first tweet on the sentence. Trump, however, praised DOJ officials after they announced their decision.
Four federal prosecutors withdrew from the case, with one resigning from the DOJ completely, shortly after the DOJ stepped in.
Christopher Hunter, a former federal prosecutor and nonresident fellow at the Atlantic Council, called the situation a “complete and total outrage”.
“To overrule [the prosecutors’ recommendations], to then go and file a document essentially making no sentencing recommendation at all, especially given the context of the case, is a complete and total abomination of the rule of law,” he told Al Jazeera.
Meanwhile, David Laufman, a former Justice Department chief of counterintelligence and export control, tweeted that the intervention is “a shocking, cram-down political intervention in the criminal justice process”.
“We are now truly at a break-glass-in-case-of-fire moment for the Justice Department,” he said.
This is a horrible and very unfair situation. The real crimes were on the other side, as nothing happens to them. Cannot allow this miscarriage of justice! https://t.co/rHPfYX6Vbv
— Donald J. Trump (@realDonaldTrump) February 11, 2020
The imbroglio kicked off calls from Democratic legislators to probe the situation, with Democratic House Speaker Nancy Pelosi saying on Wednesday there “should be an investigation”.
Democratic Senate Minority Leader Chuck Schumer has also asked the DOJ’s internal watchdog to investigate, while, Democrat Jerrold Nadler, chairman of the House of Representatives Judiciary Committee, said he also would probe the reversal.
Democrats on Wednesday said they would question Attorney General William Barr about the matter when he testifies before Congress on March 31.
How independent is the DOJ?
In the most recent incident, Trump has again reiterated how he views his power when it comes to the DOJ, telling reporters on Tuesday that while he didn’t influence the department in this case: “I’d be able to do it if I wanted. I have the absolute right to do it.”
The comments cut to the heart of a debate over how independent the DOJ, an executive department created in 1870 as the country’s main enforcer of federal laws, should be.
Some, like the National Review Institute senior fellow Andrew McCarthy, have argued that “subordinate executive officers”, like the employees of the Department of Justice, “do not have their own power; they are delegated to exercise the president’s power. When they act, they are, in effect, the president acting.”
In a 2018 article in the National Review magazine, McCarthy, a former chief assistant US attorney, continued: “Prosecutorial power is executive in nature. Federal prosecutors, therefore, exercise the president’s power.”
That does not mean the legislative branch is without recourse if they think the president is acting unreasonably, McCarthy wrote, as they “can impeach the president. Or they can try to bend the president into better behavior by cutting off funding, refusing to confirm nominees, or holding oversight hearings that embarrass the administration.”
Indeed, “no constitutional provision or statute explicitly establishes prosecutorial independence,” Bruce Green, Fordham Law School ethics professor, and New York Law School professor Rebecca Roiphe wrote in their 2018 paper “Can the president control the Department of Justice?”
However, they argued, “prosecutorial independence has become a cornerstone of American democracy, built into the way the country is governed”.
Bruce Fein, the former US associate deputy attorney general under President Ronald Reagan, told Al Jazeera that while a president’s close coordination with the Department of Justice, even in intervening in cases, is not on its face illegal, the president’s “motive and purpose” could constitute obstruction of justice, which is.
“Under the constitution, [the DOJ] is part of the executive branch. Like other cabinet departments, the leadership is selected by the president, confirmed by the Senate. The president can fire people,” Fein said.
“For the president to intercede with a corrupt motive, like protecting friends, having a purely a personal or political agenda in mind … and if it became very clear that the president did do something for a corrupt motive, well that could be an obstruction of justice,” Fein added.
Former prosecutor Hunter said the president “continues to ignore the institutional norms of the United States system of government, in particular the justice department, which is supposed to be the entity that upholds the rule of law, no matter who’s in power”.
‘Disingenuous and false’
Both former federal prosecutors Hunter and Fein, like Democratic legislators, had little confidence in the DOJ and Trump’s denial that they had coordinated before intervening in Stone’s trial, with Hunter calling the denial “disingenuous and false”.
Fein pointed to the specific, and relatively minute, nature of the DOJ’s intervention as evidence of political influence.
“At this granular level … It obviously looks very odd because the president and the White House can’t possibly know all the detailed information about the background and sentencing guidelines better than the prosecutors on the scene,” said Fein, adding the prosecutors’ withdrawal from the case “is further evidence that they understood that this … had nothing to do with the professionalism of their calculation of seven to nine years as a reasonable sentencing guide to the judge”.
On Wednesday, Trump, when questioned by reporters, declined to say if he planned to pardon Stone.