There are few absolutes in the law. There are many subtleties, and there are exceptions to general rules.
But, broadly speaking, it was a bad idea for Roger Stone to make false statements to Congress about his role as a go-between for Trump campaign officials and fugitive Julian Assange regarding the dissemination of Hillary Clinton’s emails hacked by Russia and published by WikiLeaks.
It’s also a really bad idea to write to a witness in that investigation, Randy Credico, encouraging him to emulate Godfather II character Frank Pentangeli and lie to Congress. It’s a worse idea, when Credico declines, to threaten to steal his dog, and it’s a truly terrible idea to tell the witness, “Prepare to die, [expletive],” adding a profanity related to male roosters and suction.
And it’s an absolutely awful idea, after you’ve already been arrested for these acts, to post to social media a photo of Judge Amy Berman Jackson next to a rifle sight’s crosshairs. And, finally, while under her lawful gag order, it’s pretty poor judgment to do an interview with barking-mad conspiracy theorist Alex Jones. Yet these are all decisions that Stone made.
The Justice Department’s initial recommendation of a sentence of seven to nine years imprisonment for Stone for false statements, obstruction, and witness tampering was eye-popping for an offender with no past criminal record. Yes, violence was threatened, but cartoonishly so, and no one was hurt. Then again, Stone’s behavior was not that of a typical white-collar defendant.
Reasonable citizens can disagree on the merits of the Department of Justice’s tough recommendation. More remarkable were the subsequent interventions.
President Trump decried the government’s sentencing recommendation and withdrew a promotion for the previously responsible U.S. attorney, Jessie Liu. The new acting U.S. attorney, Timothy Shea, withdrew his own office’s recommendation. All four career prosecutors admirably resigned on principle like old-school British civil servants.
Attorney General William Barr claimed in an interview that the president’s social media incontinence made his job “impossible.” Trump did not fire the attorney general, and Barr did not resign, fueling speculation that their bout was the biggest fix since Sonny Liston allegedly took a dive for Muhammad Ali in 1965.
Federal judges enjoy life tenure. Jackson may ask government attorneys to explain last week’s legal gymnastics, but she will not be intimidated by statements from the president, the attorney general, or peanut gallery commentators such as myself. Yet it is important to remember the context in which Thursday’s sentencing will take place.
The Trump administration has taken a position of maximum resistance to congressional oversight since Democrats took control of the House of Representatives. Like many things in life, this comes from both a good reason and a real reason: the former being the academic theory of a unitary executive, the latter being the self-interest of an undisciplined president.
For example, this administration increasingly refuses to obey congressional subpoenas, making legally dubious arguments of absolute executive privilege based on the self-referential opinions of its own Office of Legal Counsel. It’s an extraordinary position but will take months or even years to resolve in the courts.
Trump’s truculence has precedent.
The Obama administration fought congressional scrutiny of the “Fast and Furious” scandal, which resulted in Border Patrol agent Brian Terry’s murder, such that Attorney General Eric Holder was held in contempt of Congress. Lois Lerner blocked oversight of the Internal Revenue Service’s harassment of Tea Party groups by invoking the Fifth Amendment. The slow response to the Benghazi attack was not adequately explained, as Hillary Clinton cynically asked of avoidable deaths, “What difference, at this point, does it make?“
But Trump takes things to another level.
Ambassadors, career public servants, and military officers who testify lawfully and truthfully to inspectors general, law enforcement, or Congress are publicly demonized by the president. They are fired, reassigned, or driven to resignation in retaliation.
Trump’s allies, such as Louie Gohmert and Rand Paul, misused their immunity under the Constitution’s speech and debate clause to out a reported intelligence officer who deserves whistleblower protection (possibly under the Intelligence Identities Protection Act, too), such that he is given armed protection from lunatics threatening to kill him.
Trump regularly takes things too far. Those in the law enforcement and intelligence communities called on to investigate possible misconduct by the president or his aides are subject first to abuse and then criminal investigation, a daunting economic prospect for those on government salaries, even if cleared. The chilling effect is intended and clear.
Those who cheer these developments because they inure to the benefit of a Republican president and emasculate a Democratic House should remember that the shoe could be on the other foot as soon as 2021.
This is not “pearl-clutching.” The proposition that any president with the support of 34 senators against removal may thwart congressional oversight is not a conservative one. Prudential norms developed because wise men know that the worm always turns.
Jackson will do what she thinks is right under the facts and law of the Stone case, mixing justice with mercy. She will take both government and defense arguments into account, along with her experience on the bench. Let’s hope and trust Jackson considers the necessity for oversight of the executive branch, too.
Kevin Carroll was senior counsel to the secretary of Homeland Security and the chairman of the House Homeland Security Committee, law clerk to a U.S. district judge, and a CIA and Army officer. He is a contributor to the Washington Examiner’s Beltway Confidential blog.
