WASHINGTON (CN) — Former federal prosecutors warn the integrity of the Justice Department is in peril after the Trump administration reversed course on the president's longtime ally Roger Stone’s sentencing.
Watergate special prosecutor Jill White-Banks said the Justice Department, unlike other cabinet offices, is meant to be impartial.
“It cannot be impartial if Richard Nixon is allowed to say 'Bring tax cases against all the people on my enemies list,' which is one of the things he tried to do, and if Donald Trump is allowed to say 'Let’s not prosecute any of my friends and let’s make sure they get extremely lenient sentences,'” White-Banks said in an interview.
U.S. District Judge Amy Berman Jackson will decide next week whether to take the Justice Department’s proposal to sentence Stone below what is recommended under federal guidelines, or to look instead to the initial recommendation by career prosecutors for seven to nine years in prison.
“I’m sure that she’s talking to every judge in D.C. trying to figure out what's the right thing to do,” White-Banks said.
The unprecedented move by the Justice Department followed an early Tuesday morning tweet from President Donald Trump calling the prosecutors’ prison proposal a “miscarriage of justice.” The president has continued over Twitter and from the White House to defend Stone — convicted last year of lying to Congress, obstruction and witness tampering — and to attack Jackson, the prosecutors who brought Stone’s case to trial and the Stone trial jury foreperson who spoke out this week.
White-Banks explained the dilemma Jackson now faces, with any sentence she hands down on Feb. 20 either subjecting her to attack as an “anti-Trumper” or having caved to “extra-judicial improper pressures.”
Mimi Rocah, former federal prosecutor in the Southern District of New York, agreed that no matter how Jackson rules, Justice Department officials supplanting career prosecutors’ recommendation has sown doubt in the integrity of the sentencing.
“She is not a judge to be pushed around or influenced. She is going to do this like everything else,” Rocah said, adding that “at least some portion of the country either way will now look at this as a politically influenced decision.”
The former prosecutor — who served as an assistant U.S. attorney under both Republican and Democrat administrations — said she finds it hard to believe that no one in Attorney General William Barr’s chain of command was notified of the original recommendation, as he has claimed.
“That within 24 hours that decision was changed by the political forces at DOJ, that is what is unheard of,” she said.
Both Rocah and White-Banks agree Judge Jackson, who has presided over a series of cases arising from former special counsel Robert Mueller’s investigation, is up to the task, and commended Chief U.S. District Judge Beryl Howell for the U.S. District Court for the District of Columbia for issuing a statement Thursday.
“The judges of this court base their sentencing decisions on careful consideration of the actual record in the case before them; the applicable sentencing guidelines and statutory factors; the submissions of the parties, the probation office and victims; and their own judgment and experience,” Howell wrote. “Public criticism or pressure is not a factor.”
In response to the chief judge’s defense, White-Banks said: “Judge Howell did a really good thing by protecting the system, not just this particular judge but the way things are supposed to work.”
Backing White-Banks’ take, Rocah said given federal judges do not speak publicly except in courtroom proceedings, the statement by Howell was unusual.
“From the Supreme Court on down, federal judges don’t make statements often because everything's meant to be in the context of the case,” Rocah said.
She explained that the Justice Department’s request for a sentence below the guidelines was extraordinary, a demonstration of “preferential treatment” that has no basis in facts or the law.
Both seasoned litigators also agreed the four federal prosecutors who withdrew from the Stone case — with one also resigning his post as a prosecutor in the District of Columbia and another resigning as an assistant U.S. attorney — made the decision at personal risk.
Rocah said while she has heard calls over the last week for mass resignations inside the Justice Department, she does not believe the situation is yet one that will leave the agency gutted of its career officials.
Having retired as an assistant U.S. attorney in October 2017, she explained that during her years prosecuting in the Southern District of New York the presidentially appointed U.S. attorneys who supervised her would step in when political pressures bore down.
“They know where the limit is and they let the president's policy influence how they view cases, but not the president’s political and personal relationships and favors,” Rocah said, while adding many inside the Justice Department are now questioning whether that line of defense has fallen after the events of the last week.
Remembering back to her own debate on whether to resign when Nixon fired Special Prosecutor Archibald Cox, setting in motion his impeachment, White-Banks said the prosecutors who resigned this week made the right call.
“Archie said it very well. He said ‘You know the case better than anyone else. If you resign in protest you are giving the president exactly what he wants. So don't resign, keep working as long as you possibly can,’ and so we did not resign and then of course public pressure enabled us to really go back to work full bore. But sometimes resigning is the right thing.”