The most important point that seems to be overlooked in the stories regarding Roger Stone is whether the proposed seven- to nine-year sentence he received is just. US Attorney General William Barr has said the sentence recommendation is unfair and unjust. He should be applauded — not criticized — for his efforts to correct what he sees as a wrong.
Years ago, as a state prosecutor, I asked an experienced judge of the Superior Court what was the most difficult aspect of his job. Without hesitation, he responded that it was sentencing a convicted defendant. Few offenses carry mandatory sentences, which means most sentences are left to the discretion and determination of the judge, not the prosecutor or the defendant’s attorney.
Under our federal system of sentencing, all participants in a case use advisory Federal Sentencing Guidelines. The guidelines assist in determining a starting point, subject to other considerations that may warrant a sentence above, below, or within the applicable guideline range.
Recent commentaries have criticized the Department of Justice for taking the unusual step of recommending a lower sentence for Stone, rather than the one initially recommended by the trial team. They have also implied that President Trump improperly interfered in the criminal trial of his former campaign adviser. Stone was was convicted in November of seven crimes, including obstruction of justice, lying to Congress, and witness tampering.
First, a president does not forfeit his First Amendment rights when he becomes president. When he sees what he believes to be an injustice — including a recommended sentence, whether to someone he knows or a perfect stranger, he has the right to express his outrage. Second, the DOJ has clearly stated it had no communication with the White House regarding the sentencing of Stone, and the president has confirmed he has “not been involved in it at all.”
It is clear the DOJ on its own had serious concerns regarding the sentencing recommendation made on its behalf. With those serious concerns, it is incumbent on the DOJ to weigh in and ensure a fair and just sentencing recommendation.
What is an appropriate sentence for Stone? Based on his “charged and convicted” conduct and his lack of any criminal history, the base offense level is a sentencing range of 15 to 21 months. Not seven to nine years. Interestingly, the 15- to 21-month sentence is in the range of what others have received for obstruction of justice and lying to Congress. For example, President Nixon’s chief of staff, H. R. Haldeman, was ultimately sentenced to one to four years and served 18 months. John Mitchell, attorney general under Nixon, served 19 months. Even a self-described ex-Communist, working as an FBI informant in the 1950s, who falsely named 200 people as Communists to Congress, was sentenced to five years and served 44 months.
If the charged and convicted conduct resulted in a 15- to 21-month sentence range, how did it get to 87-108 months? The government (as it can) included additional time for uncharged conduct, called enhancements. For example, the prosecutors argued that Stone’s conduct resulted in substantial interference with the House Intelligence Committee’s investigation; that the offense was extensive in scope, planning or preparation; and that after being indicted, Stone gave sworn testimony that was not credible. These enhancements added seven offense levels and increased the sentencing range to 37 to 46 months. The prosecution team then recommended adding an additional eight levels, based on a claim that Roger Stone threatened to cause physical injury to a person or property (a dog), to obstruct the administration of justice. This enhancement brought the sentencing guideline from the initial 15 to 21 months to 87 to 108 months.
This is when the Department of Justice properly stepped in, arguing that a sentence range of 87 to 108 months far exceeds the punishment imposed on similarly situated individuals and does not comport with the goal of sentencing. In response, the four assistant US attorneys who prosecuted Stone quit the case.
The Department of Justice properly informed the court that “the most serious sentencing enhancement in the case – the eight-level enhancement, for threat to cause physical injury, has been disputed by the victim, who asserts, he did not perceive a genuine threat from the defendant. The victim states, ‘I never in any way thought that Stone posed a direct physical harm to me or my dog.’”
Instead of being critical or concerned with the attorney general’s intervention, we as ordinary citizens should be grateful that if the leadership or anyone within the DOJ sees an unfair or unjust action being taken, even if it is within the DOJ, the department will intervene to ensure, as best it can, a fair and just outcome.
Michael J. Sullivan, a former US attorney for Massachusetts, is a partner at the Ashcroft Law Firm.