Insubordination shouldn’t be celebrated

All four prosecutors on the Roger Stone case abruptly withdrew from the case this week when their recommended sentencing position was disapproved by the Department of Justice -- or "Main Justice" as it's known by federal prosecutors. The media has been running wild with sensational claims that President Donald Trump and Attorney General William Barr politically interfered with the case. The media, however, is missing the real controversy.

The attorney general is not an outside observer of the DOJ. He is the Senate-confirmed leader of the department. The DOJ has traditionally maintained a degree of independence from the political fray that routinely consumes Washington. This is a good thing; we do not want the DOJ to be used for political gain by either party.

Conversely, federal prosecutors have never been independent from the attorney general or his managers at Main Justice. As stated in the Justice Manual, the official DOJ rule book, United States attorneys and assistant United States attorneys exercise their authority "under the supervision and direction of the Attorney General and his/her delegates."

Federal prosecutors are also required to keep Main Justice "apprised of all developments in sensitive criminal matters." This includes sentencing recommendations. Coordinating with Main Justice is critical to ensure consistency and accountability throughout the department. This practice routinely occurs in high-profile prosecutions and national security cases. It usually takes the form of detailed memos circulating between prosecutors within the United States attorney's office and Main Justice.

So what went wrong in the Roger Stone case?

Roger Stone, an ally and external operative of President Trump, was convicted by a jury of obstructing a congressional investigation, making false statements to Congress, and witness tampering. This week the government was due to submit its sentencing recommendation to the court. The line prosecutors filed a sentencing recommendation seeking seven to nine years in prison.

By all accounts, the prosecutors in the Roger Stone case lied to Main Justice about their sentencing position. A senior DOJ official reported that "the Department was shocked to see the sentencing recommendation in the filing ... The sentencing recommendation was not what had been briefed to the Department."

The very next day, the United States attorney's office modified the sentencing position of the government. The revised filing recommended a sentence far less than seven years, but ultimately deferred to the court as to the specific sentence to be imposed. The original sentencing recommendation "does not accurately reflect the Department of Justice's position on what would be a reasonable sentence," according to the new filing. A sentence of seven to nine years "would not be appropriate or serve the interests of justice."

Seven years is an extraordinarily high sentencing recommendation considering the non-violent conduct at issue. Prison sentences that long typically apply in cases involving violent offenses, such as armed robbery, not obstruction cases.

For comparison, LA County Sheriff Lee Baca was sentenced to just three years for obstructing an FBI investigation into the corrupt operations of Los Angeles jails. In that case dozens of inmates were beaten by sheriff's deputies. Baca and his subordinates covered up these crimes and even went as far as threatening an FBI agent at her home to impede the federal investigation. Or take the case of James A. Wolfe, a staffer of the Senate Intelligence Committee who leaked classified information to a reporter and lied to FBI agents during the investigation. Wolfe was sentenced to just two months in prison.

The abrupt reversal of the government's sentencing position at the direction of Main Justice is exceptionally rare and has triggered strong condemnation of perceived "political influence" by the media and some members of Congress. As a former federal prosecutor, I can assure you that disagreements in legal positions between line prosecutors and supervisors is not unusual. It happens all the time. What's unusual is that this disagreement played out in public.

This entire episode could have been avoided had the line prosecutors complied with the Justice Manual and apprised Main Justice of their sentencing position. Instead, they put their own political and personal interests ahead of the department's and lied about what they intended to file with the court. They presumably did so because they knew that Main Justice would never have approved the outrageously high sentence they were seeking.

Federal prosecutors enjoy a special role, they represent the United States of America, but they must never lose sight that it's the people who run the government through their elected representatives. In this particular case, the elected representative is President Trump, and his Senate-confirmed representative at the DOJ is Attorney General William Barr. By expressing direct defiance to the attorney general, these line prosecutors did not simply defy the attorney general, they demonstrated their insubordination to the people of the United States.

With thousands of prosecutors throughout the nation, we cannot leave the administration of justice up to the whim of each individual prosecutor. Justice must be administered equally and blindly. Political influence in criminal cases from frontline prosecutors is just as concerning as political influence from the top of the government.

The prosecutors in the Roger Stone case should not be praised, they should be denounced for their unethical, insubordinate behavior and perhaps subject to an investigation by the Office of Professional Responsibility. If they are willing to lie to the attorney general about a sentencing position in a high-profile case, what might they be willing to do in other cases not subject to as much scrutiny.

Only one of the four prosecutors resigned their position with the government, the others simply transferred to other DOJ components. If these prosecutors honestly believe in the moral high-ground of their sentencing stunt, perhaps they should demonstrate some personal integrity and actually resign from the department. I predict they will not. 