Top Stone Prosecutor: I Was Told To Go Easy On Roger Stone

William James

Attorney General William Barr has destroyed the reputation of the Justice Department

This is damning - Statement by Mueller prosecutor Aaron Zelinksy To House Judiciary Committee. Zelinsky resigned from his role as the Special Assistant United States Attorney for District of Columbia.

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 10 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.” 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!” 11 The next morning, media reports began to circulate quoting a “senior Department of Justice official” stating that the Department would file a new sentencing memorandum overriding our old one. This was highly unusual, as the Department generally does not comment on pending filings in criminal cases. 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. We were told that one potential draft of the filing attacked us personally. Concerned over the political influence in the case – and the explicit statements that the reasons for these actions were political, and that the U.S. Attorney was acting because he was “afraid of the President” – I withdrew.

My three colleagues did the same. 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. 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. 12 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.”

At sentencing, in the face of questioning from Judge Jackson, the Government’s attorney ultimately conceded that the original sentencing memo had the legally correct analysis of the Guidelines and that the initial filing was fully consistent with DOJ policy – notwithstanding the Department’s seeming change in position and muddled revised submission.

After hearing from both parties, Judge Jackson concluded that the Guidelines should be calculated as 27 (corresponding to 70-87 months’ imprisonment) – two points lower than the recommendation in our initial sentencing memorandum. She noted that the “government’s initial memorandum was well researched, and supported. It was true to the record. It was in accordance with the law and with DOJ policy, and it was submitted with the same level of evenhanded judgment and professionalism they exhibited throughout the trial.”

Judge Jackson also found there was no evidence at all that the defendant’s health was an issue relevant to sentencing, and she rejected the contention that Stone’s post-indictment conduct did not qualify for a separate obstruction enhancement, stating that he “engaged in threatening and intimidating conduct towards the Court, and later, participants in the National Security and Office of Special Counsel investigations that could and did impede the administration of Justice.” Judge Jackson also found that the eightlevel enhancement for threats resulted in a guidelines level above that which fairly reflected Stone’s conduct.

Judge Jackson then noted that the decision was a 13 difficult one, and that she would not be influenced by extraneous events, and that it was important that the responsibility to sentence falls to “someone neutral. . . Not someone whose political career was aided by the defendant. And surely not someone who has personal involvement in the events underlying the case.” Judge Jackson then imposed a sentence of 40 months, citing the nature of egregious nature of Stone’s conduct, and the fact that she couldn’t “ignore the circumstances involving Mr. Credico entirely.”

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. When the sentence was announced, a supervisor from the D.C. U.S. Attorney’s Office forwarded me a copy of the sentencing transcript, noting that “things are raw.

But I hope you know that I am grateful for you and your colleagues work. It may be cold to say, but congratulations – you achieved a remarkable result. Please be sure to read Judge Jackson’s imposition of sentence in its entirely; it is a tribute to your work.” I responded, “Thanks for the message. 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’ (in your words) was wrong, contrary to DOJ policy, and unethical, at a minimum.”

Conclusion Let me close briefly on a personal note. 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.

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