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.
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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.
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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?