…. because that would be FUBAR … damn … looks like it’s true … shit!
On Tuesday, four federal prosecutors withdrew from a high-profile case, and one resigned his position, after senior Justice Department officials overruled them
and recommended that Roger Stone—a longtime friend and former campaign adviser of President Trump’s—receive a lesser prison sentence.
Stone was convicted last November of lying to Congress and tampering with a witness to prevent investigators from learning how the 2016 Trump campaign
tried to benefit from stolen Democratic Party e-mails.
The highly unusual intervention raises questions about whether the President, or the Attorney General, William Barr,
intervened in a federal criminal case to help an associate.
(Late on Tuesday, NBC News reported that Barr had decided to “take control of legal matters of personal interest to Donald Trump.”)
Last night, Trump tweeted that the seven-to-nine-year sentence prosecutors had recommended for Stone was too harsh.
The group resignation comes less than a month after other prosecutors reduced a sentencing recommendation in the case of another former
Trump associate, Michael Flynn.
To talk through the legal and political issues involved, I spoke by phone with Mary McCord, who was an Assistant U.S. Attorney
for nearly twenty years in the District of Columbia.
She also served as the acting Assistant Attorney General for National Security.
She is now a professor at Georgetown Law School.
During our conversation, which has been edited for length and clarity, we discussed Barr’s tenure as Attorney General, the steps that D.O.J. officials who are concerned
about the rule of law can and should take, and why there may be no legal recourse for a President who wants to politicize criminal investigations.
How concerned should people be by what occurred at the Department of Justice on Tuesday?
I think that there are a lot of different things that people should be paying attention to, but most significant is the fact that the Department of Justice
—by coming in and reversing or reneging on a sentencing recommendation—is really creating long-lasting damage to its reputation and credibility in front of the courts.
It is D.O.J. policy, when you have a high-profile case like the Roger Stone case, to have discussions with D.O.J. leadership—up to and including the Deputy Attorney
General and the Attorney General—before any significant matter, and that includes sentencing.
So we know, under D.O.J. policy, that the line prosecutors would have been running this recommendation up the flagpole to department leadership,
which means that, unless they went completely rogue and changed their recommendation after all had agreed on what that recommendation would be,
it appears that the D.O.J. is now capitulating to pressure being brought to bear by the President because of his displeasure and dissatisfaction
with the sentencing recommendation.
It seems like it sends a message to more than judges.
That’s right. It is not just to judges.
I am initially concerned about the department’s credibility in front of the court, because this is a criminal matter, and judges ought to be able to rely on the
representations made by the Assistant U.S. Attorneys who appear in front of them, and now it looks like those Assistant U.S. Attorneys are being overwritten
by higher powers for political reasons, which is why I was focussing on that lasting damage.
But it also looks like the D.O.J. is now prioritizing, or taking litigation positions, based on the President’s political wishes, and is willing to adjust its approach to even
criminal cases based on whether somebody was a friend to the President—and, in this case, more than a friend to the President and was actively involved in soliciting
foreign election interference to favor the President’s campaign back in 2016.
This sends a message that makes it look like the D.O.J. is overly political.
This was also how I felt when Attorney General Barr stepped out, after Mueller delivered his report,
and came out with a supposed summary of the findings that was very misleading.
That was something that seemed very, very political for the D.O.J. to be engaging in.
How often are line prosecutors overruled, and how often are they overruled in high-profile cases?
I don’t think it is that unusual for line prosecutors and supervisors, or those at the D.O.J., to disagree on appropriate charging decisions or an appropriate sentence.
And I would certainly expect, in a case like this, that there would be a lot of conversations and differing views about whether the prosecutor should be asking for a
sentence within that guideline range of seven to nine years.
What is unusual here is not that there would be disagreement, and not even that line prosecutors might get overruled—because, in fact,
line prosecutors report up a hierarchy, and the higher-level supervisor gets to make a decision if there is a disagreement.
But what is surprising here is that, whatever the state of those discussions were, the line prosecutors felt like they were authorized to make the representation
that they made, and I have a hard time thinking they would have done that if they didn’t have the authorization,
and I have an even harder time thinking that they would have gone rogue and done something they were not authorized to do.
So to then see the D.O.J. come out and change course, in what at least appears to be in response to the President’s tweets,
and perhaps other conversations that he might have had with people at D.O.J.
—I can’t think of another time I have seen that.
That is highly unusual.
All of the prosecutors removed themselves from this case, and at least one is leaving the D.O.J. completely.
How rare are resignations over being overruled, assuming that is, in fact, what happened?
I think that is a fair assumption.
I was in the D.C. office for twenty years.
I don’t think I know of another case where somebody resigned in protest.
There are certainly people who sometimes don’t like the direction that a new U.S. Attorney is going, and they ultimately resign,
but it is not a protest based on a decision in one case.
And it is possible that this decision is a culmination of things.
But it is pretty rare—although we did just recently see one of the Assistant U.S Attorneys who was involved in the investigation of Andrew McCabe resign,
and another one come off that investigation, which has now gone on for two years and was widely reported to have gone to the grand jury,
and either the grand jury refused to return an indictment or was not actually asked to return an indictment.
But the prosecutor’s office has not, to my knowledge, publicly or privately told McCabe whether they are still seeking criminal charges against him.
And I raise that example because here are two times in fairly close succession where it seems like a prosecutor has resigned, at least in part,
based on a serious disagreement on the direction of a criminal case in cases where we know the President feels very strongly.
What is the duty of people at D.O.J. who are given orders or overruled for reasons they view as
having to do with political interference?
Well, I think these are things that they should certainly raise with their superiors, and if they feel that there is something they need to blow the whistle on,
there are procedures for that.
And I am not saying, one way or another, whether that is something that should be happening in this particular instance,
because I don’t have the information that those prosecutors have.
And, to be clear, it is certainly within the authority of the Attorney General or the Deputy Attorney General or a U.S. Attorney to overrule a line prosecutor
who directly reports up that chain, and it is not illegal for the Attorney General to make a recommendation based on what the President wants.
The Attorney General is an executive officer and part of the executive branch.
He is nominated by the President and is expected to implement the President’s policies.
But, traditionally, when it comes to the D.O.J., the Attorney General and the Office of the President have recognized historically that it is important for the appearance
of the D.O.J. to actually do justice in an impartial way and keep some distance between the department and the White House when it comes to individual cases.
Both the department and the White House have what in my time there were called White House contacts policies,
which were policies about not having discussions or contacts between White House personnel and D.O.J. attorneys with respect to individual cases.
So it’s not illegal for them to not follow those policies.
Those are internal policies. But those are there for a reason, so the public feels assured that the D.O.J. is not just being used by any President
of any party for political purposes, to go after his enemies and give pardons or fail to go after the President’s friends.
That is important for the appearance of independence and justice and also the doing of justice.
Can you imagine a situation where things got so bad at D.O.J. that people not involved in the cases being talked about would still
have some responsibility to take some collective action?
Knowing the culture of the place, can you imagine a situation where that occurs?
Are you talking about something like writing a letter that a lot of employees would sign?
Whatever comes to mind.
That’s the thing that first comes to my mind.
I think it’s possible.
I think it is probably more likely that you would see “formers” coming together to write some sort of public statement and speak out,
kind of like we saw after the Mueller report.
It is a risky proposition for somebody in the D.O.J. who is not ready to be out on the job market immediately, and maybe has a family and bills to pay,
because of how vindictive this President is, and what they would be protesting is leadership doing the bidding of the President.
And the fact that we have now seen firings or removals of other people, such as Lieutenant Colonel Vindman and his brother,
who have gone against the President’s wishes.
So I think it is less likely that internally you would see some sort of group protest, but it is not impossible.
Many people have already left the D.O.J., which is really unfortunate because it needs that institutional memory,
and the reputations that many individual lawyers have built in the courts are really important to the continued credibility of the D.O.J. in the courts.
Let’s suppose that we had a President, and an Attorney General, who is not interested in the appearance or doing of justice.
And let’s also assume that that President called up the Attorney General and said that his friend was going to get a tough sentence and he really wished that he could get
a lesser sentence.
And the Attorney General said O.K.
What you seem to be saying is that nothing in that chain of events is illegal.
Aside from obstruction of justice, there is not anything that comes to mind that makes that overtly illegal.
I think Congress would be interested and want to have some hearings and talk about it.
I think for the public it would be very concerning.
And it’s possible you could get to a situation where it would appear to be obstruction.
But, as we know from the Mueller report, due to an O.L.C. [Office of Legal Counsel] opinion that a sitting President cannot be indicted for a crime,
it is not really possible for a President to be charged with obstruction while sitting as President, which is why this has been something handled through the political
process, which is an impeachment process, and we saw how that just worked out in a different scenario.
So it seems like what you are saying is that if people at D.O.J. are really upset and feel that there are violations of D.O.J. norms and best practices,
and they feel that it is very dangerous for the country to have a D.O.J. that functions in this way, then they could resign, or complain internally,
or go public with their complaints.
But, short of Congress doing something, or Senate Republicans wanting to take action to constrain Trump via an impeachment conviction,
there is an election, but otherwise there is not much else to be done.
There is not a lot of recourse.
That’s a depressing note to end this on.
You know how the President says, “I have an Article II” of the Constitution?
He seems to think it means “I can essentially do whatever I want.”