There is outrage this morning over what happened to the Department of Justice yesterday. Roger Stone is the President’s longtime friend and former campaign advisor, and now a convicted felon. He was convicted at trial on charges of obstructing justice, making false statements and witness tampering. Now all that’s left is for the judge to sentence him.
At this stage in proceedings, prosecutors make a sentencing recommendation to the judge, which is what the prosecutors here did, recommending a sentence within the federal guidelines. What happened after that—a presidential tweet saying the sentence was too long and a new memo from the U.S. Attorney curtailing its previous recommendation—is such a sharp departure from the norms that it has caused anger and in many corners a sense of sorrow and grief among current and former prosecutors over what is happening at the department.
What’s wrong with the President making suggestions or decisions about a criminal case the Justice Department is prosecuting? After all, he’s the commander in chief—the head of the government—and the Justice Department is part of that government.
No one complains when a President sets policy direction for the federal government, including the Justice Department. They may not like a specific policy, but we don’t hear any argument that a President may not do this. In fact, it’s a key part of his job to set policy in executive branch agencies, including DOJ.
But there is a sharp line dividing presidential leadership in setting policy, which is appropriate, from presidential interference in the conduct of a specific criminal case, which is not. Here’s why they’re different and why we should all be concerned about DOJ’s new sentencing recommendation in the Roger Stone case, which rejects its own initial proposal for one more in keeping with what the President called for on Twitter.
Among the Founding Fathers’ chief goals was to do away with a government where the king was above the law and had absolute power over the lives of his subjects. In our system, the President, like every other citizen, is meant to be subject to the law. The Founding Fathers were explicit about that intention when they debated the shape the new government they were creating would take. And that quintessentially American view that no man is above the law has been the case up until the presidency of Donald Trump.
The rule-of-law approach to government means not only that a President must himself be accountable, but also that he cannot be permitted to create special rules that he can use to benefit his friends or punish his enemies. Trump’s most recent efforts to manipulate the criminal justice system in this regard are like a four-star fire alarm that should summon the entire country, not just half of it, to put out the fire. This is not a partisan matter – whether a President is a Democrat, a Republican or affiliated with any other ideology, he or she cannot be permitted to turn the criminal justice system into a political weapon.
Our system is predicated on the use of standards that apply equally to everyone – people are prosecuted based on what they did, not who they are. No, the system isn’t perfect. It is administered by imperfect humans, which means mistakes happen and injustices can occur. But the goal of the system, its intention, is to apply the rules equally to everyone.
So it is critical that we have a process that is both fair and that people perceive as fair. The standards prosecutors apply to make decisions in criminal cases apply no matter who the defendant is. Those standards range from the amount of proof that is necessary to open a criminal investigation to the evidence necessary to indict a case to the issue that has arisen here, the recommendation the government makes for sentencing defendants after conviction. If you believe this sentence is too long, then the answer is to demand that Congress reform the sentencing laws that apply to everyone who comes into contact with the criminal justice system, not to let the President dispense indulgences to his favorites.
Trump wants special rules. He wants different treatment than others get for those in his inner circle. He has advocated for Paul Manafort and Michael Flynn. His most recent tweets, complaining that the sentence federal prosecutors recommended for Stone was too long, precipitated the current crisis at DOJ, which started when news leaked out that DOJ would be filing a new pleading, changing its recommendation.
On Tuesday afternoon, one after another, the career prosecutors assigned to the Stone case advised the court they were withdrawing from the matter and, in at least one case, resigning from DOJ. Their recommendation for Stone was within the federal sentencing guidelines and appropriate for a defendant who committed the crimes Stone was convicted of and lacked any prior criminal history. But the rules that apply to everyone else weren’t satisfactory to Trump. There is no reason for the change in DOJ’s recommendation, absent the President’s directive by tweet and the acquiescence of Attorney General Bill Barr, who has fully assumed the role of Trump’s Roy Cohn, acting for the President’s benefit, not the people’s.
If the President can get special treatment for himself or for those around him, we no longer have a system people can have confidence in. They will know that it’s rigged. A President who controls prosecutions in this manner has assumed the powers of a monarch or a dictator, not those given to the duly elected representative of the people.
Since his acquittal from the impeachment charges brought against him by the House, Trump has shown a dangerous tendency to retaliate against those he believes have wronged him. If he can corrupt the criminal justice system for the benefit of his friends, there is no reason he cannot also use it to retaliate against those he views as enemies. There is nothing that prevents him from “locking her up,” whether a crime has been committed or not, in a system that responds to his demands.
If a President can interfere in the way professional prosecutors conduct prosecutions, enforcing allegiance to him and stifling dissent, we no longer have a system of justice. No one is safe. Ultimately, a President could prosecute people he wants to jail and prevent prosecutions or lengthy sentences for his allies. If a President can lay claim to these expansive powers with a compliant attorney general at his side, then that President, who is fully above the law, has reduced our democracy to a sham.
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