Bill Barr Needs to Soften Roger Stone’s Sentence to Prevent Him from Talking

As noted, after DOJ recommended what Roger Stone’s own memo makes clear is a a guidelines sentence yesterday, top DOJ officials almost certainly named Bill Barr have objected and announced they’re going to lower the recommendation.

I believe the brazenness of this fight may be a reflection of the damaging information Roger Stone may have about Trump’s own conduct.

The trial itself provided ample evidence of what Mark Meadows considers “collusion” involving Donald Trump personally. It showed the campaign — and probably Trump personally — were working through Stone to optimize the WikiLeaks releases from the very day they came out on June 14, 2016. It showed that Stone was informing Trump personally about his efforts to optimize the releases. After some arm-twisting to adhere to his grand jury testimony, Steve Bannon testified he knew of all this, contrary to some of what he had said in earlier testimony that Trump would learn about. Erik Prince was in the loop. Gates testified that Stone was strategizing with Jared Kushner on all this. And it appears that Paul Manafort was in the loop, too.

But all that really damning evidence came out in a trial that only had to prove that Stone had lied to cover up the actions he took to optimize the release of the WikiLeaks emails. The trial did not need to explain what Stone’s actual back channel was, what he had to do to obtain it, and how involved Trump was in that process. And the trial did not explain it.

Indeed, there’s evidence I’ll lay out at more length in a follow-up that the government chose not to lay out all it knew. That is, it appears the government came to trial prepared to present evidence about the underlying “collusion,” but ultimately decided to hold it back for now.

At multiple times during the trial, however, the prosecution pointed to suspiciously timed phone calls, right before or after Stone discussed WikiLeaks with Gates, Manafort, or Jerome Corsi. Only Stone or Trump can tell us what happened between the two men, what Trump’s actual role in maximizing the degree to which his campaign benefitted from Russia’s theft of his opponent’s email.

Immediately after the trial, Stone made an intense effort to get Trump to pardon him, with his wife Nydia appearing on Tucker Carlson’s show to ask directly and a man with a vuvuzela inside the White House calling for a pardon gates.

Since that time, Stone was silent, until the time that the Probation Office provided the sentencing range for the crimes that was built in to the way that Mueller charged this just over a year ago. That is, by charging Stone with witness tampering, Mueller built in the possibility that Stone would be facing the steep sentence recommended yesterday. And that steep sentence may have been envisioned not as the sum of what Stone’s actual actions entailed — certainly every single warrant save the last four showed probable cause that Stone had done far more — but rather as leverage to get Stone to tell what he knows about Trump’s involvement in all this.

Bill Barr was brought in as AG to bury abundant evidence that Trump was personally involved in efforts to maximize the Russian operation, to deny all the ways that Trump did cheat to win. From his initial misleading claims in the wake of the report’s release, he was always suppressing the centrality of Roger Stone in all this.

So it’s fairly safe to conclude that DOJ’s reversal today is not just an effort to prevent a rich white man, Roger Stone, from facing the full consequences of his actions, but to prevent voters from learning what another rich white man did to cheat to get elected.

Yes, ultimately Trump will commute what is left of Roger Stone’s sentence, probably on November 4, just like he fired Jeff Sessions the day after the 2018 election. But I suspect that Roger Stone, rightly, isn’t going to leave anything to chance. And so neither can Bill Barr.

Update: Aaron Zelinsky just quit his position as Special Assistant USA, providing notice to ABJ he’s withdrawing from the case immediately. This likely gives her the opportunity to hear from him, but also frees him up to testify before HJC. And these several steps — the harsh sentence in witness tampering and the possibility that Zelinsky would quit, creating the opportunity for transparency about the case in one or another place, probably has been built in from Barr’s first efforts to shut down this investigation.

Update: Now all four prosecutors are off the Stone team, with Acting DC Criminal Division Chief John Crabb Jr (who replaced the existing CD Chief yesterday) signing a memo that makes a flaccid case that Stone’s guidelines were totally out of whack. Of the four, it appears that Jonathan Kravis left DOJ entirely.

66 replies
  1. Alan says:

    This sentence ploy–and even a pardon–might not help in the end. When a prosecutor in the next administration subpoenas Stone to testify before a Grand Jury that’s investigating Trump, Stone will either have to testify truthfully or he’ll be right back in jeopardy.

    • Kevin says:

      Not necessarily. Remember Ford’s pardon of Nixon? It covered anything and everything Nixon might have done while president, period, without exception. There’s nothing to stop Trump, particularly if he loses the election, from issuing a blanket pardon to Stone for any acts committed prior to the date of the pardon, which would immunize him from criminal liability. And when you can use the phrase “There’s nothing to stop Trump…” in a sentence, you can also assume he would do so, if it protected himself.

    • Jack Assels says:

      If I understand correctly, if Stone is pardoned, he can be forced to testify about his involvement with his co-conspirators, but if his sentence is commuted, he can the 5th Amendment, so Trump would presumably prefer to commute. As usual, though, I may be wrong.

      • bmaz says:

        No, that is not correct. Any crimes for which Stone was convicted on, but subsequently commuted, would be outside of any 5th Amendment protections via the fact he was already paced in jeopardy. There “might” be and issue as to “other crimes” beside that, but then the blanket pardon described above would remove that protection. None of this is as easy and simple as people want to believe.

        • pseudonymous in nc says:

          (No such thing as a blanket commutation, of course.)

          Would a guidelines sentence of, say, five years typically require an early reporting to prison than a lower one, or are those elements discrete?

          • bmaz says:

            No, reporting date up to the discretion of the court. And white collar types usually get some discretion in that area.

          • BobCon says:

            What if Trump issues a blanket commutation anyway? Does the right wing majority on the Supreme Court decide the Executive Branch gets to define what his pardon power is?

            • pseudonymous in nc says:

              Pardons apply to *crimes* (charged and uncharged) but commutations apply to *sentences*, so logically you can’t commute a sentence that hasn’t yet been imposed.

              (I mean, maybe you can get five justices to say that you can bend space and time to do that.)

  2. phil says:

    Feel like a clumsy intervention by the president bodes ill for a defendant convicted of obstruction and witness tampering to benefit the president…

  3. BobCon says:

    Right now the NY Times headline and lede is a rare instance of them not putting their thumb on the scale in favor of Trump and actually pointing out the violation of norms.

    Although they did give pointless anonymous status to DOJ to deny anything hinky.

  4. Charles says:

    So… is it still excessively radical to say that the federal justice system as a whole is compromised?

    Or should I wait until William Barr has Hillary Clinton jailed over her involvement in Uranium One?

  5. Pam in CT says:

    Does the judge have the *option* of calling in Zelinsky and Kravis to query them their reasons for withdrawal, or is that a mandatory/sufficiently common practice that we can expect it to happen? And if it happens… is it generally public, or not necessarily?

    • Dave_MB says:

      Yes, the Judge can query the lawyers for the reason for withdrawal or just accept it at their discretion. The discussion is normally in camera (to the judge only), but I would imagine the Judge could question them publicly.

      • bmaz says:

        Oh, yes, the judge “can” certainly put it on the public record. No decent defense lawyer would do that willingly without imposing a motion though. That should be via ex-parte submissions and in camera discussion.

  6. pseudonymous in nc says:

    And Adam Jed’s withdrawn as well, while the deputy chief of the USAO-DC criminal division has put in a notice of appearance. Along with Alan Smithee soon, I’m sure.

    (In seriousness, USAO-DC is probably scrambling to find attorneys willing to sign any additional filing.)

    • Rugger9 says:

      The judges will do so in Santa Clara County in CA if they think the reasons are not routine. The point is to have qualified representation and that also includes for the People of the United States.

      However, 3 resignations (so far) in a day seems rather spectacular and I wonder if Barr left a few things out of the DOJ walk-back posted overnight (?) for public consumption. It’s one thing to be overruled, but quite another if some spitefulness was added to the sauce.

      Schiff and Nadler might have more to look at, and since the Senate is sitting on 400 House bills, the House has some time on its hands (since many of those bills address the people’s business the GOP whines about). Let’s put it to good use.

      I had noted earlier that there is no restriction on more than one impeachment, and also that once emboldened by the craven Senate Republicans, Individual-1 would engage in conduct to confirm the First Law of Dirtballs: they will always give you another chance for discipline.

  7. Rugger9 says:

    I thought I had noted it elsewhere, but Stone not only trolled for a pardon, but also flagrantly violated Judge Jackson’s orders on talking outside of court. So, while this outcome from Barr’s DO”J” is no surprise, one wonders whether ABJ throws the book at Stone anyway because of the antics.

    How much wiggle room does ABJ have here?

  8. dude says:

    So, were the Judge to ask Zelinksy to testify on his reasons for leaving— or if HJC were to ask the same— and the reasons suggest Barr is meddling—what then? Can HJC begin impeachment of Barr(for example)? Is there something in the courtroom that can happen other than the Judge throwing the book at Stone for whatever reason? (I imagine DOJ might get remonstrated in the Judge’s ruling, but I don’t see anything else happening–but I am not a lawyer.) In other words, I see people becoming more exasperated with the Stone trial and the apparent meddling, but what are the practical consequences?

  9. readerOfTeaLeaves says:

    Stone threatens Trump with disclosures; ergo, Trump orders Barr to make sure Stone gets off easy.
    Is Trump more afraid of Stone, or of Erik Prince? [Honest question; I have no clue.]

    • earlofhuntingdon says:

      Trump probably can’t calculate his exposure or through whom. He takes it one threat at a time. But I suspect the pardon/commutation for Stone was pretty much a sure thing since his indictment.

      Here’s hoping that Trump goes for the pardon. That would leave open more exposure for him than if he sticks to a safer-for-him Libby-style commutation.

  10. Zinsky says:

    The House should have impeached Barr first, before impeaching Trump. Knock the legs out from this obese overstuffed panda and bring him to his knees before you kick the shit out of Trump. Bad timing and lack of strategic vision by the Democrats. Every second of the next nine months should be dedicated to bringing down Barr and Trump by any means available….

    • earlofhuntingdon says:

      You think Barr’s impeachment trial in this Senate would have gone better than Trump’s? I have a bridge to sell.

      • Rugger9 says:

        I’ll agree it would not. However, it would seem that since most of the work the House needed to do (outside of the budget) is already on MMMcT’s desk then there is time for Schiff and Nadler to dig into this, as well as why Individual-1 is demanding that the military prosecute LTC Vindman.

        If the Army brass has any spine left, Vindman’s OK, but we shall see.

        • e.a.f. says:

          At times the blog has discussed Trump’s mental state. We can understand why Trump does what he does and no one is going to stand in his way.

          Trump wanting the military to try LTC Vindman? for what? He “pardoned’ the guy, who in my opinion, committed war crimes. oh, right one did something Trump didn’t like and the other was simply …………….. It is simply amazing the “country” has sunk so low and the Republicans think its just fine.

          My only question is, what is Trump going to do next? Trying to put Clinton in jail isn’t beyond the realm of possibility and a few others he doesn’t like. Its scary.

          • P J Evans says:

            There are a *lot* of people Trmp would like to see behind bars, if not dead. It has nothing to do with actual guilt. See the Central Park Five, as one example: he wants them dead, because they’re black, and never mind that the courts exonerated them.

      • Drew says:

        The Senate will be no less craven for Barr’s impeachment than for Trump’s, but it does make sense for the House Judiciary Committee to move against Barr at this time. First, insisting on testimony from Barr and all the attorneys involved, then investigation of the rest of the crap and obstruction that Barr has been practicing. Subpoenas & public testimony all summer and fall.

        I leave it to the political strategists whether the House should vote on impeachment before or after the election. Somehow Veteran’s Day seems appropriate for Barr to be impeached. There’s lots of truth needing to come out to public view.

    • Rapier says:

      Update: Aaron Zelinsky (et al.) just quit his position as Special Assistant USA, providing notice to ABJ he’s withdrawing from the case immediately.

      Finally. Somebody might talk out of school.

    • Terry Sawyer says:

      When will the tell all book from the Mueller minority, the fired witnesses and now, the overridden AAUSAs come out? Hopefully before November.

  11. Fran of the North says:

    If it’s self induced, it can’t be a massacre, right? Perhaps this will go down as the Tuesday afternoon Exodus.

    It is a heartening to see that even in these dark days some in the DOJ have the moral courage to stand for what is right.

  12. Vicks says:

    I know that for sentencing, a judge can only look at what the dude was found guilty of doing, but for crap’s sake, Stone jacked this whole investigation.
    It appears from the sentencing doc there is evidence Stone aided and abetted Russian interference into our election and at a minimum communicated about the stolen emails with willing and able members of the Trump campaign.
    IMHO who ever wrote that up was deliberately and clearly informing the public what Mueller failed to get across in his cryptic wording of the investigation results.
    Yes America, members of the Trump campaign freaking colluded (not a crime!) with Russia to cheat in the 2016 election.
    I guess in the land of criminals Barr is in the best position to head off any fallout if Stone decides he has a problem with the threat of nine years, while the other assholes he is covering for get to grift another day.
    I got pretty lit up yesterday wondering how and why that sentencing memo got past Barr.
    Now I want to know if the prosecutor’s who put it out there anticipated the response, and were ready to track how the order to shut it down was delivered.

    • bmaz says:

      That is absolutely false.

      A federal court can absolutely consider “relevant conduct”. And the ability to do so is stunningly broad.

      Here is a primer on that.

      For the record, I think this sentencing ability and basis is heinously wrong, but it is indeed there.

      • Vicks says:

        After reading the primer I now understand that if Stone were charged with conspiracy (or whatever the crime of colluding with Assange would be called) there is a lot of bad behavior not charged that could fall into the categories described as relevant because they relate to what the primer describes as the “offense” or within the scope of the “criminal activity” what I am NOT seeing is the wording that allows it to work backwards and in this example, consider the gravity of what Stone was trying to cover up when issuing his sentence.
        It does say there is a subsection that explains that “harm is the appropriate measure of relevant conduct” which seemed a possibility but I could not find it spelled out in this or other documents on the Google.
        My wild hair remains the damage this administration has gotten away with by obstructing justice, and how the ethics of their profession keep the good guys from making more of what they know public.
        IMHO Stone’s (first) sentencing memo showed what I believe was the first attempt to transparently name and shame people like Bannon, and more importantly show for the record that Trump and everyone Trumpland are f’ing liars.
        I’m petty enough to want to see more of that.
        Legally of course.

        • bmaz says:

          All kinds of stuff gets considered as “relevant conduct”, every day, whether it should or not.

          I don’t think anything that is not the current convicted charges, or prior convictions, should ever be so considered. But that is me. Courts and judges take ridiculously strong and broad leeway in this regard.

    • Barb D says:

      Judge has ability to go UP or DOWN on recommended sentencing so let’s hope she goes full bore, giving Stone 9 years.

  13. sls642 says:

    From the very beginning, Trump has been focused on protecting Flynn and now Stone. Meanwhile, Manafort sits in prison. Just seems this points to where the bodies are buried.

    A den of thieves, no doubt. Nothing about Trump and his entourage is subtle or smart. He can’t help it, it’s what he is. This all points points to Flynn and Stone having the answers that Mueller never got. Or maybe he had them and then didn’t when Flynn flaked. Both Flynn and Stone have the whole story and Trump will do anything to keep them silent. We are watching it in real time.

    The House should have kept investigating Trump until the election. Sending anything to the Senate was the wrong move with a known ending. Now, Schiff and Nadler need to open a new inquiry into this mess. Might not even be a new or different inquiry, just more of the same. These people have no ethical boundaries and public hearings are their biggest threat. Just do it.

    • P J Evans says:

      It’s sure nice you know more about what should have been done than anyone in the House.
      Schiff and Nadler didn’t close their investigations.

  14. e.a.f. says:

    First the Senate let Trump off the hook.
    Then Trump took revenge on those who testified against him.
    Then we have this “sentencing” thing.

    This is truly upsetting. It leaves me wondering what is happening to the U.S.A. and how will its system survive people like this. True there are tens of millions who won’t agree with any of this, but will they go out and vote later this year to remove Trump from office? If he is returned to office, where does it leave the country or will Putin be invited to speak to Congress at one of those joint speech things……..yikes.

    This post was very good. Thank you to bmaz for the explanation towards the top of the comments.

    • Hika says:

      A salutary lesson of the era of Trump is that norms of proper conduct aren’t worth the paper they’re not written on and that systems are only ever as good as the people who inhabit them.

  15. Mitch Neher says:

    Ms. Wheeler wrote, “a man with a vuvuzela inside the White House calling for a pardon.”

    Vuvuzela definition is – a simple plastic noisemaker in the form of a straight trumpet …

    Oo! La! La! Gaga!

    And Trump, Himself, only gets the comb and tissue paper Kazoo–albeit, a whole marching-band’s worth.

  16. The Old Redneck says:

    There’s good reason for consternation about this. But remember, Amy Berman Jackson gets to make the ultimate decision on sentencing, at least within the constraints of federal sentencing guidelines. Don’t think for a minute that she doesn’t know what’s going on.

  17. Kate Ellington says:

    Marcy Wheeler is like my morning coffee. I need her caffeine (insight) to make sense & understand what these degenerates are doing.

  18. Terrapin says:

    Let us not forget that whatever is going on here, a sentencing recommendation is being made here not an actual sentence. Ultimately, the sentence will be the decision of Amy Berman Jackson, the judge that heard the case. And no doubt, especially given the high profile on Stone’s case, she will provide a detailed justification for the sentence she hands down. I also doubt she will be intimidated by either Donald Trump or Bill Barr.

    And despite Roger Stone’s deplorable behavior before the trial, I get the feeling that like most judges, since Stone is a white-collar defendant, Jackson will go relatively easy on him. So even if Trump and Barr are trying to keep Roger Stone from squealing, I doubt he will have much incentive to because of a harsh sentence.

  19. HRHTish says:

    I don’t know why people think the supposed loss of 5th amendment protections would put off anyone on Team Trump, or even give them cause for pause. They’ll just shrug off their subpoenas and/or lie, lie, lie and no one will do anything about it. Case in point: (waves arms around at everything) Not a single person on Team Trump has really paid a price for blowing off a Congressional subpoena or lying to Congress, yet.

    • bmaz says:

      “Trump is a malefactor, so I gave up on my country and burned the flag I swore, to the VFW veteran who gave it to me, to protect”.

      Burning the flag is legal, and Constitutional. This shit is not admirable. That is not a “great letter” it is rote ignorance.

Comments are closed.