What is the American public to make of Attorney General Bill Barr’s congressional testimony defending his actions in the Trump ally Roger Stone’s case? During Barr’s appearance before the House Judiciary Committee last week, Barr claimed the mantle of fairness and compassion, arguing that the career prosecutors were out of line in seeking a nine-year sentence for this first-time offender, who is a nonviolent criminal and 67 years old. Back in February, Barr had withdrawn the submission of career professionals for a seven-to-nine-year sentence and instead sought a sentence of at most three to four years. Two weeks later, a district judge sentenced Stone to 40 months of jail time, which Barr testified was a vindication in full.
Sound reasonable? Not in the slightest. As every experienced federal prosecutor would immediately understand, Barr’s position violates Department of Justice lawyers’ training, their obligations to the court, their duty under the U.S. sentencing guidelines, and the equal application of the law to all. I know—I was a federal prosecutor for two decades and a senior member of the special counsel’s office under Robert Mueller. Barr’s testimony amounted to an argument that the ends justified the means; it was fine to submit the revised sentencing recommendation so long as a court ultimately selected a sentence within that range.
To understand just how far Barr strayed from the rule of law, it is important to understand how federal sentencing should work—and does work in cases other than those of the president’s friends.
The parties start by considering the defendant’s crimes. A jury had found Stone guilty of five counts of lying to Congress, one count of obstruction of justice, and one count of tampering with a witness by threatening him to change his testimony. Also relevant to sentencing, while on bail, Stone had posted a picture online depicting crosshairs next to the head of the federal judge presiding over his case and then was found to have lied about doing so at a bail hearing.
Taking the facts as they are, the government must then apply the U.S. sentencing guidelines—a set of rules that determine sentencing and provide enhancements and reductions based on the offenses and the specific characteristics of the crime and defendant, among other things. The guidelines’ purpose is to promote greater uniformity in sentencing, so defendants are not subject to widely disparate sentences based on the vagaries of what judge happens to be assigned. One laudable goal of the guidelines is to reduce racial disparities that creep into the system.
So for every federal defendant, the government must calculate the guidelines according to a clear and set methodology, applying the rules to the facts, and the court must determine what sentence range the guidelines produce, but can then decide to vary upward or downward from the range.
The four career prosecutors handling the Stone matter did what we federal prosecutors are all trained to do: They correctly applied the guidelines to the facts in the case and advised the court that the guidelines suggested a sentencing range of seven to nine years. They notably also informed the court that it had the authority to depart downward from that range “in fashioning a reasonable and just sentence” if the court determined that the guidelines overstated the seriousness of Stone’s offenses.
Barr was promptly informed of this submission by the then–U.S. attorney in the District of Columbia—an amanuensis he had recently installed after summarily removing his predecessor. Barr stepped in; having the judge start her evaluation of the appropriate sentence from such a high range was unacceptable. Barr ordered that a new submission be made and that submission—untethered to the facts or law—urged a guideline calculation of three to four years, claimed a nonexistent factual basis for lowering the sentence (a bogus assertion of health issues), and withdrew the prior government position.
This submission led all four career prosecutors to withdraw from the case, and one resigned from the department altogether. Why?
Not because, as Barr suggests, they were vengeful or out of control. In fact, their sin was that they were following the rule of law, playing everything by the book. As every junior prosecutor is taught, you cannot monkey with sentencing rules to achieve a desired result. And you cannot ignore or invent facts to achieve a desired result. Your job is to apply the sentencing rules to all the facts and present that result candidly to the court. Imagine a drug dealer who had sold 15 kilos of heroin; you cannot re-create them as simply one kilo in order to achieve a lower sentence, any more than you could increase the amount to achieve a longer sentence. But that is akin to what Barr did, and the career prosecutors rightly balked.
Barr’s claim that the district court then vindicated him is provably false. “The judge agreed with me,” Barr repeated three times to Representative Ted Deutch of Florida. In truth, the district court rejected Barr’s position on the guidelines entirely, finding that the career submission was “true to the record” and “in accordance with the law and DOJ policy.” Indeed, even the new prosecutor assigned to handle Stone’s sentencing could not and did not defend Barr’s submission during the sentencing hearing. The court thus applied the guidelines and then, consistent with the career-attorney submission, found that they overstated the seriousness of the offense. Whether the district judge would have reached the same resulting sentence of 40 months if she had begun from the dramatically reduced range that Barr advocated is unknown, but even assuming she would have, that still would not justify flouting the rules. A prosecutor is not allowed to hedge that risk by fudging the facts and law to achieve a higher or lower sentencing range, which is precisely what Barr did.
That is not the end of the problems with Barr’s actions. Even if you put all the above aside, Barr had to admit in his congressional testimony that he could not recall intervening in any sentencing proceedings during his tenure as attorney general except those of two of the president’s friends. Stone was one and Michael Flynn was the other, in whose case Barr similarly submitted a revised sentencing memorandum to lower the government’s sentencing position.
So what does this all mean? It means that if you are personally connected to the president or have information that could hurt the president, or both, you can be treated far more favorably by this attorney general, as he will bend the law and facts to the president’s desired result. His actions in U.S. v. Stone strike at the heart of the Aristotelian principle central to the rule of law, that we treat likes alike. John Locke warned that “where law ends, tyranny begins.” Now, more than three centuries later, that statement applies to the head of the American system of justice.