01:32, February 13 221 0 theguardian.com

2020-02-13 01:32:04
Roger Stone furore shows 'crisis of credibility' in US justice system, experts warn

The US justice system is facing a crisis of credibility that could undermine the integrity of federal prosecutors, politicize the legal handling of Donald Trump’s friends and enemies, and ultimately threaten democracy itself, top lawyers warn.

A barrage of former justice department figures have sounded the alarm following a decision on Tuesday by the US attorney general, William Barr, to undercut a sentencing recommendation for Trump’s friend Roger Stone. In a new court filing, Barr’s office condemned the initial recommendation of seven to nine years in prison as “excessive and unwarranted”.

The direct interference of the US attorney general in an individual sentencing decision by his department’s own career professionals was highly unusual. The White House and Trump himself also appeared to be involved, with the president posting a tweet shortly before Barr made his move that called the original sentencing proposal for Stone “horrible and very unfair”.

Trump later congratulated Barr on “taking charge of a case that was totally out of control”.

In the fallout, all four career prosecutors who had framed the initial sentencing recommendation quit from the case in protest.

The new filing and the instant resignations it provoked have now led to an outpouring of rebuke from senior legal figures who cautioned that the rule of law is being shaken by Trump and his DoJ allies.

“This is a crisis of credibility,” said Sasha Samberg-Champion, a former federal appellate attorney now with Relman Colfax. “Nobody knows whether decisions are being made based on the facts and the law, or whether they are based on a political whim.”

Chiraag Bains of Demos, who worked for four years as a DoJ prosecutor, told the Guardian he was shocked by events.

“This will have serious consequences for staff morale at the justice department, for the credibility of justice department attorneys in court, and for the public’s sense that the justice system is fair. How are judges or juries supposed to have faith that prosecutors represent the impartial position of the United States and not a political agenda?” he said.

Two of Barr’s predecessors at the helm of the DoJ expressed their distress. Eric Holder, US attorney general under Barack Obama, said in a statement that the conduct over Stone had “put at risk the perceived – and real – neutral enforcement of our laws and, ultimately, endanger the fabric of our democracy”.

Sally Yates, who briefly held the position of acting attorney general at the start of the Trump presidency, poignantly tweeted that the career lawyers of the DoJ – like the four who had resigned from the case – “are the backbone and the heart of the department. Your noble dedication to the rule of law is the foundation of our republic.”

The insulation of justice officials from any political interference in their handling of criminal prosecutions is seen as the bedrock of the entire US justice system. The concept is enshrined in the mission statement of the DoJ: “To ensure fair and impartial administration of justice for all Americans.”

In the wake of the Watergate scandal, new rules were put in place under the title “White House contacts policy” that severely restrict any communication between the president, his team and justice officials. That wall of separation has been honored by successive Republican and Democratic administrations since 1978.

“Trump has torn down that wall,” Bains said. “He treats the justice department’s prosecution powers as an arm of his political apparatus, to threaten perceived enemies and reward friends.”

Michael Bromwich, who acted as the DoJ’s official ethics watchdog between 1994 and 1999, was so alarmed by the apparent intervention of the White House in Stone’s sentencing that he called on federal prosecutors coming under improper political pressure to report it confidentially to his successors in the inspector general’s office. He said the integrity of government lawyers had been “publicly undermined to suit the whims of the White House”, and said the events amounted to “a cancer on our system of justice”.

Preet Bharara, the former US attorney for the southern district of New York, who was fired by Trump, accused Barr and the DoJ leadership of “humiliating its own career prosecutors, and giving special treatment to the president’s criminal associates. The worst part is they don’t seem even to care any more.”

Bharara is no stranger to the crossing of sacred lines by Trump and his cohorts. A few days before he was dismissed in March 2017, he received a phone call from Trump asking him to talk.

A direct call from the US president to a senior justice official in charge of highly sensitive investigations was utterly against protocol, and Bharara did not pick up the phone. Bharara later told the Guardian it was the best decision he ever made.

“Imagine what it would look like now if I were still US attorney and it became known that I had quiet little chats with the president at the same time we were investigating the Trump organisation.”

That is not the only incident in which Trump has attempted to wield the powers of the presidency to forward his political purposes and help his friends in their tangles with criminal prosecutors. In February 2017, Trump tried to cajole the then FBI director, James Comey, into ending an investigation into the former national security adviser Michael Flynn.

According to NBC News, the interference in Flynn’s case continues to this day. The news outlet reported that, in an echo of the Stone affair, senior DoJ officials intervened last month to try to undercut government sentencing recommendations for Flynn and spare him any prison time for lying to the FBI.

How the current crisis plays out could boil down to what Amy Berman Jackson, the judge in the criminal case against Stone, does next.

Stone was convicted by a jury in November of lying to investigators, obstructing a congressional investigation and witness tampering. Jackson has so far proven herself to be immune to Stone’s legendary wiles. She now exclusively has the power to determine Stone’s sentence.

At the sentencing hearing, set for 20 February, she will also be able to ask the justice department’s lawyer probing and potentially awkward questions.

Barr will come under further questioning on 31 March when he has been called to appear before the House judiciary committee. Democratic leaders of the committee said they wanted to address “the misuse of our justice system for political purposes”.

“This is a test for the entire justice system,” Samberg-Champion said. “It will determine whether political interference will be allowed to happen – because if you allow it once there is nothing to stop it happening again.”

Topics