Today is the day Roger Stone is scheduled to be sentenced in Washington, D.C. The event, if it is not delayed, promises to be a circus. Why is that?
For starters, Roger Stone is a bit of a walking circus act in his own right. After a jury convicted him a few months back of multiple serious felonies in connection with the 2016 election investigation, he emerged from the courthouse grinning, with a full Nixonian double-peace-signs, arms extended, reminiscent of Tricky Dick’s helicopter departure on the White House lawn. Was being convicted of witness tampering and obstruction of justice something to celebrate?
Maybe Stone didn’t take the trial seriously. Maybe he knew something we wouldn’t know until later — that the President would have his back no matter what. It turns out, as we’ve seen in the last few days, that the Tweeter in Chief went ballistic when he learned that the career prosecutors on the case did what their jobs required: filed a sentencing memorandum asking for several years incarceration for Mr. Stone, as suggested by the carefully promulgated U.S. Sentencing Guidelines that prosecutors and judges must use to guide the sentencing process.
Trump demanded greater leniency (for a defendant convicted of crimes related to the President’s election, no less), and in an astonishing move, the Attorney General of the United States instantly ordered that a new sentencing memorandum be filed, recommending a far lighter sentence. The reaction was swift. The four line prosecutors resigned from the case, with one even resigning completely from the Department of Justice. One can almost hear their internal thoughts: “When I took an oath to uphold the Constitution of the United States, this is not what I signed up for.”
Then, long before newspapers published editorials or the American Bar Association expressed alarm, alumni from the Department of Justice circulated a draft letter of protest, demanding the the Attorney General resign and asking that political considerations not enter into the administration of justice. I’m proud to say that I was one of the first former DOJ lawyers to sign the petition, which at current count now has over 2500 signatures, including those of several former United States Attorneys and high-ranking DOJ supervisors. The full text of the letter can be found here: https://bit.ly/2SL9z8s.
To the non-lawyers who may be reading this, please understand that this is not an everyday thing. Many of us interact with Department of Justice lawyers on a daily basis. It could, in theory, have an impact on our professional lives and even our clients’ cases if our signing the letter were received poorly. We don’t just write letters demanding that the Attorney General resign for nothing.
So what was the big deal? And what is the big deal today at the sentencing?
As my colleagues and I wrote in a more detailed write-up on our website (https://bit.ly/3bTjvo9), at stake is nothing less than the fair administration of justice. We cannot have Presidents ordering Attorney Generals to go easy on their friends and to go after their political opponents for reasons having nothing to do with the law or the facts. We once learned that lesson in the Nixon Administration, where the outrage over the Saturday Night Massacre hastened the President’s resignation. (Ah, but that was before Fox News, when the mainstream media did its best to call things down the middle…) It seems we’re due for a reminder that things simply can’t work this way.
This is not to say that it won’t work this time, just that it shouldn’t. It could well be that Trump, emboldened by his impeachment acquittal, will get his way in the matter. Judge Jackson seems unlikely to fall for DOJ’s sudden change in recommendation. But even if she follows the original DOJ recommendation, Trump seems to see no impropriety in the notion of pardoning his friends when they are convicted of doing his bidding, frequently floating such trial balloons on his Twitter feed. His most recently clemency decisions certainly suggest that he is unafraid to intervene where most Presidents would not consider intervening.
We’re better than this. We have to be. While our democracy and system of laws is far from perfect, if we allow the administration of justice to sink to this level, all of us will suffer. The precedent will always be there for future politicians to consider, once someone has proven the point that the deed can be done. More important, confidence in the legal system will take time to restore after it has been proven to be vulnerable to this kind of interference. It is an open secret that our legal system highly favors those who have money. Do we really want to have it also favor whatever corrupt executive is willing to bend it to his will?
Our system of laws must be fairly administered. Equally important, it must be perceived to be fairly administered. Otherwise, what witness would ever bother to come forward and tell the truth? What whistleblower would dare stick her neck out to right a wrong? What’s the point of participating in a process that has no integrity?
In this same vein, conflict of interest laws require that actual conflicts be avoided or disclosed, and also that lawyers and judges avoid even the appearance of conflicts of interest. The perception of unfairness is as toxic as the actual unfairness.
Democracy is not self-executing. It will hold together only if the people demand that it hold together. That means each of us has to do our part by voting, by writing letters to the editor, by marching, by speaking to people willing to listen, by doing what we can. We, “even we here”, have to add our measure of commitment to democracy in whatever way works for us.
For me this week, it was writing about a Department of Justice populated by fabulous career civil servants being let down by corruption from the top. Integrity and fairness is what is needed, and what we must insist upon.
Even We Here 