Roger Stone was the final case indicted by the Special Counsel’s Office. Less than two months later the Mueller Report was transmitted to DOJ, approximately five months after the indictment the SCO was shuttered, and the responsibility for the remaining cases was transferred to US Attorney’s Offices in the districts where the cases were filed. Roger Stone’s case was continued by the US Attorney’s Office in the District of Columbia.
This is my fourth story looking at the history of the prosecution of Roger Stone by former members of the Special Counsel’s Office, led by former Special Counsel’s Office Prosecutor Aaron Zelinsky.
The series was prompted by the inane claims made by Zelinsky before the House Judiciary Committee that improper political influence by “leadership” in the US Attorney’s Office and Main Justice was exerted on the “line prosecutors” – which they resisted until compelled to resign from the case – leading ultimately to a modification of the sentencing recommendation made by the government, and seeking for Stone a much shorter sentence than the one advocated for by the “line prosecutors.”
My first story took a look at the question “Who Were Those Guys?” with regard to the four DOJ prosecutors that were needed to try a criminal case lasting only 4 days, during which only five witnesses were called. The fact that four federal prosecutors worked a single trial with only 5 witnesses is the kind of story that is laughed about for years – but not in a good way for the four prosecutors involved.
My second story looked at the manner in which the leader of the team, former SCO prosecutor Zelinksky, tried to justify the team’s approach to crafting a sentencing recommendation for Stone that was far outside the norm for similar cases. My story included a detailed explanation of how the sentencing guidelines are applied in individual cases and the role of the prosecutor in the process.
My third story looked more closely at DOJ policies that direct federal prosecutors in how they are to involve themselves in the sentencing process. The selection and imposition of sentences are within the exclusive province of the judge, and the prosecutor plays only a tangential role. But DOJ policy dictates that a prosecutor’s first obligation is to seek “just sentences”, and the application of the sentencing guidelines is the “starting point” not the “end destination” in that regard. Part Three also began to examine the story told by Zelinsky to the Judiciary Committee, with respect to what he claimed was improper political interference.
Part Four: Zelinsky Reflects the Political Bias of the Special Counsel’s Office to the End.
Make no mistake – Aaron Zelinsky withdrew from the Roger Stone case when he was told that his political bias AGAINST Roger Stone – as a friend and supporter of President Trump – would not be allowed to be reflected as DOJ’s position in the sentencing of Roger Stone.
Zelinsky & Company wanted to represent to the District Court Judge responsible for sentencing Roger Stone, that the Department of Justice believed a sentence of 87 months – seven years and 3 months – was a “fair and just” sentence under the totality of facts and circumstances in the case.
But Zelinsky was told by “leadership” in the US Attorney’s Office that his view did not reflect DOJ view – not for political reasons, but because any relatively experienced federal prosecutor looking at the same case with a defendant named John Doe would have recognized that for a first time offender in his mid-60’s, taking into consideration the “blunt” impact of the literal application of the sentencing guideline enhancements, that 87 months was an “objectively unreasonable” sentence when compared to other similar cases.
The most consequential claim made by Zelinsky about the changes, was that they reflected improper political influence because they were directed to remove from their guideline calculation the aggravating factor related to “threat of violence or property damage” associated with the Stone’s conviction for “witness intimidation” count.
Zelinsky & Company wanted that enhancement applied in his sentencing calculation because it added 8 MORE levels to the calculation of Stone’s sentencing level, and increased the sentencing range to 87 -- 108 months. That was more than double what the sentencing range would have been without the enhancement. It increased Stone’s possible sentence by 50 months on the “low-end” and 62 months on the “high-end”. That meant a potential sentence 4-5 years LONGER than without seeking the “threat” enhancement – or without having charged “witness tampering” at all.
Now you can see why adding the “Witness Tampering” charge was a deliberate act – without it, Judge Berman-Jackson could not have sentenced Stone to more than 60 months, regardless of the guideline range. This is because Congress set the “maximum” penalty for all the other charges filed against him at 5 years. Only the witness tampering charge had the potential for a 20-year sentence. It unlocked the SCO’s ability to seek an additional 4-5 years of imprisonment under the guidelines if Stone was convicted.
These are not accidental “happenings.” Prosecutors work through these sentencing permutations when making decisions about what charges to bring. The entire approach to the Stone case was to create a scenario where Stone, if convicted, could face nearly 10 years in jail – for offense conduct which at its core was simply refusing to cooperate with a congressional investigation.
Stone WAS treated differently because he was a long-time friend of Donald Trump – the SCO engineered its case against him for the purpose of being able to leverage a guideline calculation that made the recommended sentence WIDLY out of step with other cases involving similar offense conduct.
Zelinsky disingenuously claims that the sentencing statement put together by the Stone team faithfully applied DOJ policy in setting forth an accurate guideline calculation, and it was DOJ leadership that pressured him and the others to present an “inaccurate” guideline calculation.
I learned that our team was being pressured by the leadership of the U.S. Attorney’s Office not to seek all of the Guidelines enhancements that applied to Stone – that is, to provide an inaccurate Guidelines calculation that would result in a lower sentencing range…. Failure to seek these enhancements would have been contrary to the record in the case and to the Department’s policy that the government must ensure that the relevant facts and sentencing factors are brought to the court’s attention fully and accurately.
What does the DOJ manual say about the role of the prosecutor in advocating for “guideline enhancements” and “sentencing factors”? The issue is addressed in § 9-27.730 “Making Sentencing Recommendations”:
The attorney for the government should make sentencing recommendations based on an individualized assessment of the facts and circumstances of each case and the history and characteristics of the defendant, without improper consideration of the defendant’s race, religion, gender, ethnicity, national origin, sexual orientation, or political association, activities, or beliefs.
When making a sentencing recommendation, the attorney for the government should seek a sentence that:
- Reflects the seriousness of the offense:
- Promotes respect for the law;
- Provides just punishment;
- Affords deterrence to future criminal conduct by the defendant and others;
- Protects the public from further crimes of the defendant;
- Avoids unwarranted sentencing disparities between offenders with similar records who have been found guilty of similar conduct;
- Offers the defendant an opportunity for effective rehabilitation; and
- Takes into account the need for the defendant to provide restitution to any victims of the offense.
To avoid unwarranted disparities and to further the goal of uniform treatment of similarly situated defendants, the attorney for the government should first consider whether a sentence within the advisory sentencing guidelines range reflects an appropriate balance of the factors set forth above. In the typical case, such a recommendation will be appropriate. However, based on an individualized assessment of the facts and circumstances of the case, a prosecutor could conclude that a sentence above or below the guideline range better serves the public interest and the purposes of sentencing. Before recommending a sentence that reflects a departure or variance from the advisory guideline range, the attorney for the government must obtain supervisory approval.
The bullet-pointed items are nearly identical to what are called the “18 U.S.C § 3553(a) factors” that the sentencing judge MUST consider in determining an appropriate sentence in a particular case. In other words, this DOJ policy is based on a federal STATUTE that the sentencing judge MUST follow.
Did Zelinsky follow that policy, or did he depart from that policy in claiming that 87 months was a “just punishment” as required? It was part of his job as a federal prosecutor to seek a sentence that achieved the objectives set forth.
It was NOT his job as a federal prosecutor to engineer the case from the charging decision to the guideline calculation in such a way to develop the maximum potential exposure for Stone, and then aggressively advocate for every possible enhancement that might be applicable. That is NOT the process by which a “just sentence” is reached.
It was not Aaron Zelinsky’s job to advocate for the longest possible sentence he could construct from the facts and guideline enhancements. In some circumstances, such advocacy might be the only approach that accomplishes the goals set forth in Items 1-8 under the policy. But this is not “one size fits all” work. Each case requires an individualized assessment by the people who know the case best – the prosecutors.
We know from the facts of the case that Credico did not take the threats seriously – he wrote a letter to the judge prior to sentencing saying exactly that. Once the conviction for witness tampering was in hand, was the application of the aggravating factor for “threatening” Credico warranted given the fact that the “threats” were rhetorical and not real?
Look at what Zelinsky argued in his memorandum on this point – the memorandum that was later withdrawn.
Pursuant to U.S.S.G. § 2J1.2(b)(1)(B), eight levels are added because the offense “involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice”…. Stone may point to the letter submitted by Credico and argue that he did not have a serious plan to harm Credico or that Credico did not seriously believe that Stone would follow through on his threats. But Credico testified that Stone’s threats concerned him because he was worried that Stone’s words, if repeated in public, might make “other people get ideas.” Tr. 11/8/19, at 795.
In any event, it is the threat itself, not the likelihood of carrying out the threat, that triggers the enhancement…. To apply the enhancement, there is no “additional ‘seriousness’ requirement beyond the fact of a violent threat.” See United States v. Plumley, 207 F.3d 1086, 1089-1091 (8th Cir. 2000) (applying § 2J1.2(b)(1)(B) to a defendant who told co-conspirators to “‘keep our mouth shut,’ because if anyone cooperated with the police he would ‘kick our ass’”); United States v. Bakhtairi, 714 F.3d 1057, 1061 (8th Cir. 2013) (holding there was no seriousness requirement and applying § 2J1.2(b)(1) to a defendant who wrote a menacing email, displayed a loaded rifle to a law partner, and doctored photographs of witnesses children to “add . . . cross-hairs”); United States v. Smith, 387 F.3d 826, (9th Cir. 2004) (applying § 2J1.2(b)(1)(B) to a defendant who threatened to kill a witness and “kick [her] ass,” and noting that § 2J1.2(b)(1) does not contain a “seriousness requirement”).
So, what was changed as a result of the “interference” by “leadership” in the US Attorney’s Office and DOJ? The following day, the sentencing statement filed by Zelinsky & Company, asking that Stone be sentenced to 87 months was withdrawn. A Supplemental Sentencing Statement was filed in its place. Regarding the 8-level “threatening” enhancement, the Supplemental Statement said:
Notably, however, the Sentencing Guidelines enhancements in this case—while perhaps technically applicable— more than double the defendant’s total offense level and, as a result, disproportionately escalate the defendant’s sentencing exposure to an offense level of 29, which typically applies in cases involving violent offenses, such as armed robbery, not obstruction cases. Cf. U.S.S.G. § 2B3.1(a)-(b). As explained below, removing these enhancements would have a significant effect on the defendant’s Guidelines range. For example, if the Court were not to apply the eight-level enhancement … it would result in the defendant receiving an advisory Guidelines range of 37 to 46 months, which as explained below is more in line with the typical sentences imposed in obstruction cases. Accordingly, it would be reasonable for the Court to conclude that the Guidelines range as calculated is unduly high on the facts of this case.
…. While Mr. Credico’s subjective beliefs are not dispositive as to this enhancement, the Court may consider them when assessing the impact of applying the enhancement – particularly given the significant impact that the enhancement has on the defendant’s total Guidelines range.
Everything written in those two paragraphs is objectively true. The Supplemental Sentencing Statement did not provide an “inaccurate guideline calculation” as claimed by Zelinsky. It gave the Court a more complete picture of the case – as the prosecutors were obligated to do under DOJ policies on sentencing.
All the supplemental sentencing memorandum did was call attention to ADDITIONAL facts that were relevant to the sentencing. Zelinsky & Company objected to these ADDITIONAL facts being considered because those facts worked against their goal of maximizing Roger Stone’s sentence. The Supplemental Sentencing Memorandum did not ask the Court to not apply the enhancement, nor did it suggest that the threatening conduct of Roget Stone should be ignored. It said the conduct of Roger Stone should be fairly considered in the context of the relationship between Stone and Credico.
That is exactly what the DOJ Policy on making sentencing recommendations say a prosecutor should do – “make sentencing recommendations based on an individualized assessment of the facts and circumstances of each case and the history and characteristics of the defendant….”
The full extent of Zelinsky & Company’s duplicity comes into focus when you look at the three cases they cite as support for their claim that the 8-level enhancement is fully warranted under the facts. But note carefully the one fact in each of those cases that Zelinsky & Company did NOT include in their brief parenthetical description of the facts – the sentences imposed in each of those cases. Now consider:
United States v. Plumley: a group of white supremacists set off a pipe bomb under the porch of a business where a white female worked because she was dating an African American. When members of the group were contacted by police, and some were given grand jury subpoenas, one member threated the others about cooperating, telling them “I’ll kick your ass.” The sentence imposed – after the 8-level enhancement was applied – was 30 months.
United States v. Bakhatari: victim was the attorney for a company the defendant had sued three times and lost each time. Defendant wanted victim to no longer represent company. He went to great lengths to discover information about victim’s family, took pictures of his house, doctored photos of family to add the cross-hairs, wrote a menacing email, and displaying a loaded rifle to victim’s law partner – all to make clear he would to harm victim’s family and was willing to execute the threat if victim continued representing company. The sentence with the 8-level enhancement was 51 months.
United States v. Smith: dispute between neighbor families over one family’s child having given information to police that led to arrest of other family’s child. One family threatened to kill the other if the cooperation did not stop, and a law enforcement officer overheard a threat to “kick her ass”. The sentencing with the 8-level enhancement was 33 months.
Those are the cases cited by Zelinsky & Company in their brief to support use of the 8-level enhancement. Actual violence and real threats to use violence – not rhetorical threats like Stone’s.
But most damning to Zelinsky & Company is they DEPRIVED Judge Berman Jackson of a crucial detail – the range of sentences imposed on other defendants for “similar” conduct – much more serious conduct actually.
And then with a straight face, they try to sell to Congress and the world that they were the ones with integrity when arguing that Roger Stone serve 87 months under less egregious circumstances.
The only thing that was changed after Zelinsky & Company withdrew was that the affirmative advocacy for a sentence of 87 months was dropped. Instead, what the prosecutor who appeared at the sentencing hearing said was as follows:
Your Honor, the last point I would like to make is that under the unique facts and circumstances presented in this matter, it is particularly appropriate for the government to defer to the Court with respect to what the specific sentence would be in this case.
Judge Berman-Jackson did conclude that application of the 8-level enhancement was consistent with the language of the guidelines. The Supplemental Sentencing Statement did not claim that it wasn’t.
Judge Berman-Jackson imposed a sentence of 40 months, finding that the sentencing range that resulted from the strict application of the guidelines were not justified. That was the exact point made in the Supplemental Sentencing Statement that Zelinsky faulted in his testimony.
So the upshot of everything was that Zelinsky & Company quit the case because they were not allowed to seek a sentence with “leadership” thought was an unfair and unjust sentence, which was the exact same conclusion that was arrived at by the Court. As Judge Berman Jackson stated:
“I agree with the defense and with the government’s second memorandum, that the eight-level enhancement for threats, while applicable, tends to inflate the guideline level beyond where it fairly reflects the actual conduct involved.”
Does Aaron Zelinsky even understand that his claim of “improper political interference” really boils down to the fact that he was prevented -- by people with more experience than he has -- from making a recommendation for an unjust sentence?
So, let’s recap the SCO’s Stone prosecution:
Four federal prosecutors to examine five witnesses over four days of trial was a joke.
The SCO bringing the case against Roger Stone after it had all but folded up its tent and left town, leaving two newbies in charge, was a joke.
The Deputy Chief of the Fraud and Public Integrity Section of the DC US Attorney’s office having to give the closing argument in a case where three other prosecutors were involved was a joke.
Two Assistant US Attorneys on the case for only 8 months giving both the closing and the rebuttal arguments rather than the two former SCO attorneys who were on the case since the beginning was a joke.
Having an inexperienced prosecutor be toasted by Congress and the press as a “whistleblower” after he was prevented from pushing for an unjust sentence – according to an Obama appointed Judge -- against a 67 year old defendant with no prior criminal record was a joke.
Aaron Zelinsky trying to make the world believe he was right about everything, and it was his critics who were wrongly engaged in improper political interference was a joke.
Someday someone is going to chronicle in a book all the unethical and idiotic things done by the members of the Special Counsel’s Office over the course of their efforts to hang a “Russian Agent” sign around Donald Trump’s neck.
I would like to read that book. It might make quite a referral to the disciplinary offices of the state bar associations where SCO members hold their law licenses.
To Aaron Zelinsky – you have a lot still to learn about the very important job you should feel honored to hold. But you need to internalize the ethos of the following passage from United States v. Berger:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Shipwreckedcrew has 22 years as a federal prosecutor, and 6 years in private practice. Follow him on Twitter @shipwreckedcrew.