Owie

Recall that US attorney Aaron Zelenski resigned when Barr had the DOJ back off their original sentencing request in the Roger Stone case. He's going to testify to the Senate tomorrow.  Here's his opening statement.

Excerpts:

The first thing every AUSA learns is that we have an ethical and legal obligation to treat every defendant equally and fairly. No one is entitled to more or less because of who they are, who they know, or what they believe. In the United States of America, we do not prosecute people because of their politics.

And we don’t cut them a break because of their politics either. In the many cases I have been privileged to work on in my career, I have never seen political influence play any role in prosecutorial decision making. With one exception: United States v. Roger Stone.

Do tell.

My understanding of what happened in United States v. Stone is based on two things. The first is what I saw with my own eyes: the unusual and unprecedented way that Roger Stone’s sentencing was handled by the Department of Justice. The second is what was told to me at the time by my supervisors in the U.S. Attorney’s Office: why the Department was treating Roger Stone differently from everyone else.

What I saw was the Department of Justice exerting significant pressure on the line prosecutors in the case to obscure the correct Sentencing Guidelines calculation to which Roger Stone was subject – and to water down and in some cases outright distort the events that transpired in his trial and the criminal conduct that gave rise to his conviction. Such pressure resulted in the virtually unprecedented decision to override the original sentencing recommendation in his case and to file a new sentencing memorandum that included statements and assertions at odds with the record and contrary to Department of Justice policy.

What I heard – repeatedly – was that Roger Stone was being treated differently from any other defendant because of his relationship to the President. I was told that the Acting U.S. Attorney for the District of Columbia, Timothy Shea, was receiving heavy pressure from the highest levels of the Department of Justice to cut Stone a break, and that the U.S. Attorney’s sentencing instructions to us were based on political considerations. I was also told that the acting U.S. Attorney was giving Stone such unprecedentedly favorable treatment because he was “afraid of the President.”

I think we need to know who told him these things and have that person testify.

Together with my fellow line Assistant United States Attorneys, I immediately and repeatedly raised concerns, in writing and orally, that such political favoritism was wrong and contrary to legal ethics and Department policy.

Our objections were not heeded.

[...]

In the federal system, the imposition of sentence is reserved for the judge. But in order to promote fairness in sentencing, the law requires that every sentencing begins with a calculation of the Sentencing Guidelines applicable to the defendant and his offense. The Sentencing Guidelines are a formulaic system that starts with a base level for each offense and adds or subtracts “points” for various characteristics of the offense and of the defendant. In the end the Guidelines calculation comes up with a number that corresponds to a range of incarceration; the higher the Guidelines number, the longer the sentence. The purposes of the Guidelines are to ensure that similarly situated defendants get similar sentences; to prevent the courts from basing sentences on impermissible considerations; and to ensure that sentences reflect the gravity of the defendant’s crime. [...] Prosecutors are explicitly prohibited from seeking a below-Guidelines sentence without supervisory approval.

For the Department to seek a sentence below the Guidelines in a case where the defendant went to trial and remained unrepentant is in my experience unheard of – all the more so given Stone’s conduct in the lead-up to the trial.

[...]

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.

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.

[...]

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.

[...]

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.”

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.

At 2:48 AM the following morning, the President tweeted that the recommendation we had filed was “horrible and very unfair.” He stated that, “the real crimes were on the other side, as nothing happens to them.” President Trump closed, “Cannot allow this miscarriage of justice!”

[...]

The first we heard of any new memorandum was from public media reports. When we asked the U.S. Attorney’s Office about these media reports, we were initially told they were false. But later that day, we were told that a new memorandum would be filed, countermanding our earlier recommendation and asking for a substantially lower sentence for Mr. Stone.

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.

[...]

That evening, the Department filed a new memorandum seeking a substantially lower sentence for Stone. No line AUSA signed the filing—which is also something that is virtually unprecedented.

[...]

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.”

[...]

To be clear, my concern is not with this sentencing outcome – and I am not here to criticize the sentence Judge Jackson imposed in the case or the reasoning that she used. It is about process and the fact that the Department of Justice treated Roger Stone differently and more leniently in ways that are virtually, if not entirely, unprecedented.

[...]

I continue to believe, as I previously expressed to you, that changing a sentencing recommendation based on political considerations and the fact that the U.S attorney was ‘afraid of the President’ [...] was wrong, contrary to DOJ policy, and unethical, at a minimum.

[...]

I take no satisfaction in publicly criticizing the actions of the Department of Justice, where I have spent most of my legal career. I have always been and remain proud to be an Assistant United States Attorney.

It pains me to describe these events. But as Judge Jackson said in this case, the truth still matters. And so I am here today to tell you the truth.

DOJ statement:

source

...but hey, do what you want...you will anyway.