Whose Prosecutorial Discretion Is It, Anyway?

News outlets and social media are aflame with denunciations of Attorney General William Barr’s order to change the prosecutor’s sentencing recommendation to the judge in the case of Roger Stone, a gadfly Trump supporter. The excitement was created by the dramatic “resignations” of four Assistant U.S. Attorneys who had originally submitted a memo recommending a sentence of 7 to 9 years imprisonment.

Stone was charged with lying to a House Committee, Obstruction and “Witness Tampering” of another witness in the Committee’s investigation of contacts between the Trump campaign and Wikileaks about the latter’s release of emails hacked from the Democratic National Committee. Just over a year ago,  I explained the charges in detail in The Indictment of Roger Stone. Essentially the charges were “process crimes.” Stone withheld records and lied to prevent personal and political embarrassment but there was no underlying crime being covered up. Even the only “victim,” the witness Stone was charged with “intimidating” requested that no jail time be imposed.

No reasonable present or former prosecutor or criminal lawyer has suggested the recommendation of 7-9 years was anything but harsh. Illegal drug sales, frauds involving hundreds of thousands of dollars, robberies and rapes and other crimes of violence routinely receive less time. It seems likely that the harsh sentencing recommendation was  motivated by Stone’s inability or unwillingness to give the prosecutors evidence against others, a common practice among Federal prosecutors.

The Stone case was transferred to the U.S. Attorney’s office in D.C. when the Mueller investigation closed up shop and two of the Mueller prosecutors were appointed “Special” Assistant U.S. Attorneys to the D.C. office to continue it. Three of the four prosecutors who bravely “resigned” are simply going back to their regular positions in the Department of Justice. They won’t miss a paycheck. The fourth was a former Assistant Legal Counsel to President Obama and doesn’t seem a likely career government employee.

Attorney General William Barr is a public servant of real substance and great integrity. He has served in several important government positions in Republican administrations, most notably as Attorney General under President George H.W. Bush from 1991-93. He made a ton of money in the private sector as General Counsel of the telecommunications company GTE through the time of its merger with Bell Atlantic to become Verizon Communications. He remained as Executive VP and General Counsel at Verizon for eight years, retiring in 2008. He had no personal history with Donald Trump and nothing to gain by returning to head the floundering Justice Department in 2019 but serving his country.

Nor has Barr the temperament to cave to bullying either from Trump or Democrats in Congress. Barr’s integrity is an alien thing to those in Congress who have little familiarity with the quality.

Barr made no secret of his views before his confirmation by the Senate. During hearings he testified to his belief in the Constitutional theory of a “Unitary Executive.” Other executives and employees in the Executive Branch derive their authority from the President to whom they are responsible as the only elected executive. As the President is the Commander-in-Chief, not the Secretary of Defense or Chairman of the Joint Chiefs, so he, not the Attorney General or FBI Director, is the Chief Law Enforcement Officer, as the only person charged in the Constitution “to take care that the laws be faithfully executed.” If President Trump was not familiar with the “Unitary Executive” theory, it is certainly his instinctive approach.

Also during his confirmation hearings Barr made plain his intention, not only to permit the Mueller investigation to continue but to investigate the origins of what he flatly called “spying” on the Trump campaign.

Earlier efforts to investigate the origins of the Federal government’s investigation into the Trump campaign, the “unmasking” of wiretapped Americans, the leaks in furtherance of the Russian Collusion narrative and the roles in that activity by CIA Director John Brennan, Director of National Intelligence James Clapper, UN Ambassador Samantha Power and FBI Director James Comey were derailed as supposed efforts to undermine the Mueller investigation.  See The House Intelligence Memo: Damning Details and Jim Clapper’s “Magical Mystery Tour”. Now the concerted efforts to undermine Barr’s credibility are no more than a preemptive strike on the long anticipated results of the quiet investigation by U.S. Attorney John Durham into just those subjects.

As to the Stone sentencing itself, Barr and higher-ups at the Department of Justice got word late on Monday, February 10 that the prosecutors intended to recommend a sentence of 7-9 years for Stone. The interim U.S. Attorney Tim Shea in the District of Columbia was told that the office should make no recommendation at all but leave it to the judge.  Shea passed that on to his four assistants who then threatened to resign. Shea backed off and the prosecutors filed their planned sentencing memo that night. Barr got wind of it that night also and ordered the memo withdrawn and replaced by one making no recommendation.

When President Trump learned of the 7-9 year recommendation the next morning he tweeted his complaint, the memo had already been ordered replaced.  Trump denied ordering the memo replacement. Barr says it was done before Trump even knew about it. I don’t have any problem disbelieving Trump. Those who accuse Barr of  lying are fools or knaves. Those who accuse him of “politicizing” the sentence do not understand the concept of prosecutorial discretion.

Prosecutors have a great deal of discretion in choosing what crimes and persons to charge and what sentences to request from a judge or agree to with a defendant. In Great Britain from which our system of justice derived prosecutors were appointed by the King. We all have an interest in the prosecutor making decisions which comport with our own values and sense of fairness. . So, the United States prosecutors are directly or indirectly accountable to the public, nearly all being either directly elected or appointed by someone who was elected.

Besides the Attorney General, the President appoints 93 U.S. Attorneys in 94 Federal Judicial Districts. Assistant U.S. Attorneys are appointed by the Attorney General. 43 of 50 State Attorneys General are elected and all but two of the remainder appointed by the elected Governor. Thousands of District Attorneys or State’s Attorneys are elected in counties or other districts around the country. In all of these jurisdictions, prosecutorial discretion – decisions about whom or what to charge and what sentence to recommend – resides in the chief prosecutor. Tens of thousands of assistant prosecutors – Assistant DA’s, Assistant AG’s or Assistant US Attorneys are appointed by the chief prosecutor. Depending upon the inclination of the chief prosecutor, the assistants are allowed to exercise varying degrees of prosecutorial discretion in routine cases. In sensitive, high profile or politically charged cases though, that discretion belongs to the chief prosecutor. The assistant who does not recognize this central limitation does not remain one for long.

The ultimate prosecutorial discretion in this case belonged to Attorney General Barr. Most people I know in the field – whatever their views of President Trump – agree that the original recommendation of 7-9 years was wrong. In any case though, it was Barr’s call, not that of four low level government employees. As another example of prosecutorial discretion, the DOJ announced it would not prosecute former FBI Deputy Director Andrew McCabe for lying in an internal investigation about leaks. There is no question that McCabe did lie, that Barr authorized the decision not to prosecute and that President Trump was not happy about the decision.

There is, of course, no reason why Attorney General Barr should not generally consider the wishes of President Trump. Distance from the President seems a new standard, a double standard Democrats are now trying to impose. There was no objection heard from that quarter when Attorney General Eric Holder identified himself as President Obama’s “wingman” or when President Obama announced that the thousands of emails on Hillary Clinton’s private server were not a national security threat, at a time when Attorney General Lynch was considering that very issue. And then, of course, there was Attorney General Robert F. Kennedy.

I noted the significance of all this above. It is not the disposition of the case against a minor Republican functionary. Trump has already pointedly refused to comment on whether he would pardon Stone and, at a minimum he could commute an excessive sentence. Barr has been in this role before when he recommended to President Bush the pardon of former Defense Secretary Casper Weinberger, whom he believed had been the subject of a political prosecution by a Special Prosecutor in the Iran-Contra affair.

The real significance of this contretemps is the effort by the Democrats to discredit Bill Barr before the Report from U.S. Attorney John Durham. Watch for it.

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