Even the First Roger Stone Sentencing Memo Was Politicized

Mueller prosecutor Aaron Zelinsky’s testimony for a House Judiciary Committee hearing on how Trump and Barr are politicizing DOJ has been released. As a number of outlets are reporting, he will testify about how, when Bill Barr flunky Timothy Shea was bending to pressure to “cut Stone a break,” Shea did so because he was “afraid of the President.”

I’m more interested in a few details about the actual drafting of the memos, some of which I’ll return to. The original draft of the sentencing memo was drafted by February 5; it was not only approved, but deemed “strong.”

The prosecution team – which consisted of three career prosecutors in addition to myself – prepared a draft sentencing memorandum reflecting this calculation and recommending a sentence at the low end of the Guidelines range. We sent our draft for review to the leadership of the U.S. Attorney’s Office. We received word back from one of the supervisors on February 5, 2020, that the sentencing memo was strong, and that Stone “deserve[d] every day” of our recommendation.

On February 7, the hierarchy started intervening. In addition to asking to drop the enhancements (which is what the final memo did), DOJ big-wigs also asked prosecutors to take out language about Stone’s conduct.

However, just two days later, 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. In particular, there was pressure not to seek enhancements for Stone’s conduct prior to trial, the content of the threats he made to Credico, and the impact of his obstructive acts on the HPSCI investigation. 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.

When we pushed back against incorrectly calculating the Guidelines, office leadership asked us instead to agree to recommend an open-ended downward variance from the Guidelines –to say that whatever the Guidelines recommended, Stone should get less. We repeatedly argued that failing to seek all relevant enhancements, or recommending a below-Guidelines sentence without support for doing so, would be inappropriate under DOJ policy and the practice of the D.C. U.S. Attorney’s Office, and that given the nature of Stone’s criminal activity and his wrongful conduct throughout the case, it was not warranted.

In response, we were told by a supervisor that the U.S. Attorney had political reasons for his instructions, which our supervisor agreed was unethical and wrong. However, we were instructed that we should go along with the U.S. Attorney’s instructions, because this case was “not the hill worth dying on” and that we could “lose our jobs” if we did not toe the line.

We responded that cutting a defendant a break because of his relationship to the President undermined the fundamental principles of the Department of Justice, and that we felt that was an important principle to defend.

Meanwhile, senior U.S. Attorney’s Office leadership also communicated an instruction from the acting U.S. Attorney that we remove portions of the sentencing memorandum that described Stone’s conduct. Again, this instruction was inconsistent with the usual practice in the U.S. Attorney’s Office, and with the Department’s policy that attorneys for the government must ensure that relevant facts are brought the attention of the sentencing court fully and accurately.

Ultimately, we refused to modify our memorandum to ask for a substantially lower sentence. Again, I was told that the U.S. Attorney’s instructions had nothing to do with Mr. Stone, the facts of the case, the law, or Department policy. Instead, I was explicitly told that the motivation for changing the sentencing memo was political, and because the U.S. Attorney was “afraid of the President.”

Ultimately, Tim Shea approved the prosecutors’ inclusion of the enhancements, but took out the language about Stone’s conduct.

On Monday, February 10, 2020, after these conversations, I informed leadership at the U.S. Attorney’s Office in D.C. that I would withdraw from the case rather than sign a memo that was the result of wrongful political pressure. I was told that the acting U.S. Attorney was considering our recommendation and that no final decision had been made.

At 7:30PM Monday night, we were informed that we had received approval to file our sentencing memo with a recommendation for a Guidelines sentence, but with the language describing Stone’s conduct removed. We filed the memorandum immediately that evening.

That means even the first sentencing memo — the one that made a strong case for prison time — had been softened by Barr’s flunkies, in some way not laid out in Zelinsky’s opening statement.

Here’s the first sentencing memo. One thing lacking from that memo — but in Zelinsky’s opening statement — pertains to Stone’s discussions directly with Trump.

And that summer, Stone wasn’t just talking to the CEO, Chairman, and Deputy Chairman of the campaign. He was talking directly to then-candidate Trump himself.

On June 14, 2016, the Democratic National Committee (DNC) announced that it had been hacked earlier that spring by the Russian Government. That evening, Stone called Trump, and they spoke on Trump’s personal line. We don’t know what they said.

On August 2, [sic — this should be July 31] Stone again called then-candidate Trump, and the two spoke for approximately ten minutes. Again, we don’t know what was said, but less than an hour after speaking with Trump, Stone emailed an associate of his, Jerome Corsi, to have someone else who was living in London “see Assange.”

Less than two days later, on August 2, 2016, Corsi emailed Stone. Corsi told Stone that, “Word is friend in embassy [Assange] plans 2 more dumps. One “in October” and that “impact planned to be very damaging,” “time to let more than Podesta to be exposed as in bed w enemy if they are not ready to drop HRC. That appears to be the game hackers are now about.”

Around this time, Deputy Campaign Chairman Gates continued to have conversations with Stone about more information that would be coming out from WikiLeaks. Gates was also present for a phone call between Stone and Trump. While Gates couldn’t hear the content of the call, he could hear Stone’s voice on the phone and see his name on the caller ID. Thirty seconds after hanging up the phone with Stone, then-candidate Trump told Gates that there would be more information coming. Trump’s personal lawyer, Michael Cohen, also stated that he was present for a phone call between Trump and Stone, where Stone told Trump that he had just gotten off the phone with Julian Assange and in a couple of days WikiLeaks would release information, and Trump responded, “oh good, alright.” Paul Manafort also stated that he spoke with Trump about Stone’s predictions and his claimed access to WikiLeaks, and that Trump instructed Manafort to stay in touch with Stone.

Surely there’s someone sharp enough on HJC who can note this discrepancy and ask Zelinsky whether there was similar language in the sentencing memo that Tim Shea took out because he’s “afraid of the President.”

Zelinsky knows little about the drafting of the second memo — he describes that he heard about it in the press and the rest of his understanding appears to come from what he was told in the office.

What he was told was that DOJ actually considered attacking its own prosecutors in the memo.

We repeatedly asked to see that new memorandum prior to its filing. Our request was denied. We were not informed about the content or substance of the proposed filing, or even who was writing it. We were told that one potential draft of the filing attacked us personally.

This is akin to the Mike Flynn motion to dismiss, which insinuated that prosecutors had engaged in misconduct. The Attorney General and his flunkies are attacking career officials at DOJ to perform for the President like trained seals.

In the passage where Zelinsky offers his opinion of that second memo he notes that it matched Trump’s tweet of the interim day.

The new filing stated that the first memo did not “accurately reflect” the views of the Department of Justice. This new memo muddled the analysis of the appropriate Guidelines range in ways that were contrary to the record and in conflict with Department policy. The memo said that the Guidelines were “perhaps technically applicable,” but attempted to minimize Stone’s conduct in threatening Credico and cast doubt on the applicability of the resulting enhancement, claiming that the enhancement “typically” did not apply to first time offenders who were not “part of a violent criminal organization.” The memo also stated that Stone’s lies to the Judge about the meaning of the image with the crosshairs and how it came to be posted on Instagram “overlaps to a degree with the offense conduct in this case,” and therefore should not be the basis for an enhancement.

The new memo did not engage with testimony in the record about Credico’s concerns. Nor did the new memo engage with cases cited in the old memo where the obstruction enhancement was applied to non-violent first-time offenders. And the memo provided no analysis for why Stone’s lies to Congress regarding WikiLeaks overlapped at all with his lies two years later to the judge about his posting images of her with a crosshairs. The new memo also stated that the court should give Stone a lower sentence because of his “health,” though it provided no support for that contention, and the Guidelines explicitly discourage downward adjustments on that basis.

Ultimately, the memo argued, Stone deserved at least some time in jail– though it did not give an indication of what was reasonable. All the memo said was that a Guidelines sentence was “excessive and unwarranted,” matching the President’s tweet from that morning calling our recommendation “horrible and very unfair.” [my emphasis]

Zelinsky’s read of that second memo also complains that it left out the record on Randy Credico’s response to Stone’s threats. In his opening statement, he provides this detail, which I don’t recall from the trial (Amy Berman Jackson was able to rely on Credico’s grand jury transcript in her sentencing, because Stone had submitted that with one of his filings).

Then, fearful of what Stone’s associates might do to him, Credico moved out of his house and wore a disguise when going outside.

Credico explains that he grew a thick mustache and wore a cap and sunglasses. Dressing up as John Bolton is indeed a fearful disguise.

The detail that Credico moved out of his house, taken in conjunction with the detail from the Stone warrants that Stone hired a private investigator to find an address to “serve” Credico with a subpoena he never served him, is especially chilling.

Stone hired a PI to hunt Credico down after Credico took measures to hide from him and (Credico has always emphasized) Stone’s violent racist friends.

In addition to making it clear that Shea politicized even the first memo in some way, Zelinsky hints at ways that Stone’s witness tampering was more aggressive than widely understood.

Let’s hope those details come out in tomorrow’s hearing.

35 replies
  1. Misteranderson says:

    It’s interesting, this strategy of Trump to take down the Russia investigation one piece at a time. Fire Comey, fire McCabe to prevent him getting his pension, going after Sessions relentlessly, taking out Page & Strozk, dangling pardons to get people to change their testimony, lying in his written testimony, getting after Burr for the stock scandal, investigating the investigators, removing US Attorneys, & Barr creating in the public mind that Mueller found no evidence. All of this was just methodical & actually well done(in that he’s gotten away w/ it & that a substantial amount of the public believes there was no “ there” there). He has wiped out nearly the entire investigative structure of the Russia probe & nearly everyone was retaliated against. Trump, in agreement w/ others, worked out a careful plan to do all of this. Historically speaking, I wish we had an inside mole in this operation, so we knew what the conversations were & who was involved in this conspiracy(i.e. who are the unseen people who helped Trump & Barr pull this off). Trump is a maestro of corruption.

    • earlofhuntingdon says:

      I don’t know if that’s a strategy so much as the only way Trump knows how to work. He’s two-dimensional, can keep only a few simplified things in his head at one time, and can see only a few feet in front of him. But, like Roy Cohn, he is relentless and vindictive as hell. So, a repeated tactic appears to be a strategy. That, and he is unrelentingly corrupt.

      • misteranderson says:

        I am willing to keep both ideas in mind. Could be just relentless tactics, or it could be an overarching strategy. There isn’t anything he isn’t willing to do.

      • soothsayer says:

        I met and knew before he recently passed, the only lawyer to ever take Roy Cohn to court for another client, and win. Yeppers. John, was a good man, a very very good man.

        Anyways, he obviously got a hold of a few documents from the court case. I actually have no idea what they were. But, he definitely confirmed that Roy was not a good man O_o

        • earlofuntingdon says:

          By all accounts, Roy Cohn was brilliant. He earned his undergraduate and law degrees from Columbia at the same time, when he was twenty. He had to wait until he was twenty-one to take the bar exam. But he was a thoroughly, relentlessly nasty, self-hating piece of work.

          You get a glimpse of his approach from the way he described his work. He said he did not want to know the law and facts about his client’s problem, he wanted to know who the judge was. Puffery aside – he knew the law and facts, too – having dirt on a judge – or being able to do him a favor under the table – was a more consistent way to win in NYC or DC than having the law on your side. That and having a stable of powers that be in your Rolodex.

          Cohn’s was said to include the allegedly sexually compromised J. Edgar Hoover and Francis Cardinal Spellman, and a raft of union heads and mob bosses, police commanders, ward bosses, big bidnessmen, entertainers, and politicians. From time to time, they all needed problems fixed or enemies buried. If Roy Cohn had had a garage, it would have been full of shovels.

  2. CD54 says:

    If this was 47 years ago some Republican Senator would have to tell the President to resign.

    • skippingdog57 says:

      If this was 47 years ago, there would be Republicans left who place nation over party.

  3. Eric C says:

    Thank you, Marcy for all your work! This kind of close reading is not available anywhere else! Mr A, thank you for consolidating all of that obstruction in one place. Wow. The only thing I would wonder about is calling Trump a “maestro.” When you have a Republican Party willing to let this corruption happen in broad daylight, you can be an incompetent fool and still get away with it! But, yes, a mole or a bug would be wonderful … in other words: “lordy, I hope there are tapes!”

  4. PhoneInducedPinkEye says:

    That is a seriously chilling action Stone took, hounding Credico out of house and home & making him desperate enough to cosplay Bolton.

    I wish you were on the HJC committee! I hope someone on that committee takes the time to properly prepare and point out these issues raised here.

    Maybe they will surprise me and do a decent job this time.

  5. Eureka says:

    “not the hill worth dying on”

    As we all drown in the hundred-year-floodwaters at its base.

    Make that a two-hundred and thirty-three year flood.

  6. earlofhuntingdon says:

    The Attorney General and his flunkies are attacking career officials at DOJ [and forcing them] to perform for the President like trained seals.

    Sadly, that’s not unusual for some big law firms and in-house corporate lawyers. Baloo Barr spent twenty-two years as a general counsel, first at GTE, and then Verizon (“Can you hear him now?”), and seven as of counsel at K&E. It’s how some partners expect associates to act and what a certain type of general counsel expects from his staff. “There are no limits that can’t be worked around, get it done,” is the message. Even remembering that yesterday’s demands differed dramatically from today’s can be seen as being too tethered to rules – and make you not a team player.

    It would seem unusual, however, in the public sector. Frequent staffing changes, leaks, the public record, IGs, and expectations of disinterested public service can make such demands career limiting.

    I imagine Barr considers Trump a useful idiot he can use to promote his own extreme view of singular authority and power. (There can be only one pope.) With Trump and his personalized Republican Party, he has one shot to make his views a reality for the federal government. As an analogy, roads imply limits, which Barr rejects. “Roads? Where we’re going, we don’t need roads.”

    • earlofhuntingdon says:

      Correction: fourteen years as general counsel, six at GTE (1994-2000), eight for its successor-after-merger, Verizon (2000-2008).

    • Peterr says:

      Roads, you say?

      Barr to Trump: “We’re not on the road to hell, because it’s paved with good intentions, which leaves us out completely.”

      (I think).

    • BobCon says:

      I’m wondering a bit about how much Barr is engaged in clever strategizing a la Cheney and how much he has gone flat out apocalyptic haywire.

      This article has a reading that he’s sloppily burned some important bridges and may have alienated John Roberts, who he can’t really afford to lose:


      I struggle with all of my might to believe that Roberts would ever seriously cross Barr — if we are doomed to see a repeat of Bush v. Gore in 2021, I can’t imagine Roberts handing the White House to the Democrats on a 5-4 vote.

      But it does seem like Barr is potentially not being a rational actor, and there is the possibility that he will be committing some major unforced errors over the next seven months.

      One hint to me is that he seems careless in a way that Cheney was not — Cheney was careful not to leave his fingerprints anywhere if he could help it, even when time was running out in 2007-08. Barr seems to be pretty reckless, and I tend to think that kind of recklessness leads to unwanted problems down the line.

      It may be the case that Cheney expected continued influence even in the wake of the collapse of the 2008 election, while Barr expects he won’t have any credibility anyway, so he may as well blow it all now. Or possibly more ominous, Cheney may have expected government would still be functioning in 2009, where Barr has much darker suspicions about 2021.

      It may also be that while he has Cheney’s arrogance, he just isn’t as effective as he thinks he is — he may be more like Bolton, effective in a limited tactical sense, but lacking a more potent strategic vision. I can’t rule out, though, that Barr never had the option of building the kind of personnel machinery that Cheney employed, since Trump’s toxicity would scare away too many potential recruits.

      • emptywheel says:

        He’s not as effective as Cheney is.
        He’s also more of a power-hungry autocrat, which makes him sloppier.
        He’s also been steeping in Fox News propaganda for two decades, so he may actually believe the bullshit he spews. Some of it anyway.

      • Rayne says:

        “Barr seems to be pretty reckless, and I tend to think that kind of recklessness leads to unwanted problems down the line.”

        It’s worth some time to think about Barr’s mission. What is it? He applied for the job, more or less, so he had an agenda in mind.

        Would seeking a theocracy cause him to act the way he has? Or is his theocratic bent cover for something else?

        Let’s say Barr’s real mission which he may have been serving more than once in his career is to protect the intelligence community. Not by being overtly in favor of IC but by ensuring its means, methods, current and past operations remain under wraps in spite of the tangerine hellbeast in the White House. Hence the effort to reduce sentences through the DOJ’s machinations but not promote pardons which would leave certain persons without Fifth Amendment rights.

        If he’s covering IC’s butt, why is he now “pretty reckless”?

        Is this desperation we see?

        • earlofhuntingdon says:

          Some jobs you never leave. Barr was a high-flyer at the CIA – he was in graduate or law school (his MA in Chinese and government at Columbia, his law degree at GWU) nearly the whole time and finished both in regulation time, while seemingly working full time.

          Barr was at the CIA during its most vulnerable period since its formation: during and after Vietnam, during Nixon’s demise, and during the agency’s disclosures to Congress of the family jewels (coups, dirty tricks, and clandestine ops). It took unprecedented heat before the establishment closed ranks around it. He left it promptly after Jimmy Carter took office.

          Barr seems like a guy who would have concluded the same thing about the CIA that Cheney concluded about Nixon – he should have resisted harder and told his inquisitors, “Go fuck yourself.” That’s consistent with Barr’s support for the agency’s stonewalling of Lawrence Walsh’s investigation. And most of the people Pappy Bush – former CIA chief himself – protected with his six Iran-Contra pardons (orchestrated by Barr) were in or related to the intelligence community, as were the operations those pardons protected.

          The agency was keenly interested in using the new capabilities of mobile phones. Barr spent a decade and a half working for two large telecoms as their top lawyer. That was post 9/11, when rolling out the national 9-1-1 system was used as cover to mandate that each mobile phone have a GPS feature, a cost happily subsidized by the feds. So, your questions deserve answers.

        • earlofhuntingdon says:

          I forgot to mention that Bill Barr’s DoJ, during his first term as AG, slow-rolled its investigation into the massively corrupt BCCI, one of the world’s great money-launderers, with reputed connections to more than one intelligence agency.

        • vvv says:

          Day-um, just … wow.

          That’s a possibility not to be rejected.

          Unlikely anyone gets near such stuff, but he’s now agreed to testify 072820 before the House Judiciary Committee.

        • earlofhuntingdon says:

          As Marcy points out, Barr has promised that before and uniformly failed to appear. He’s just buying the headline and playing Lucy and the football. The House should launch an investigation into his running of the DoJ Now.

        • vvv says:

          I believe it was Jordan who assured the HJC a few hours ago that Barr is going to show up this time (late July), after claiming that the only reason he didn’t previously was because of the Dems continuing for C19, and then being dunked as it was pointed out that Barr failed/refused to appear a couple of times previous to that last (March) date.

      • Ginevra diBenci says:

        Barr’s track record was so clear! Hearing Democratic senators and leftish pundits defend their support of him on the grounds that he would be “an institutionalist” made me sick. That was the hill they decided not to “die on” then. So we’re all dying on it now.

  7. Jenny says:

    Thank you Marcy for putting together the many puzzle pieces.
    Good for Aaron Zelinsky coming forward to testify exposing Barr and Shea (“afraid of the President”). Buried gunk surfacing. More to be revealed …

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