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Stone being the sort of Einstein who commits his obstructions in writing (the Credico contacts were mostly text messages), the jury convicted him in nothing flat. That meant DOJ would give the court its take on how the sentencing guidelines applied to the case, as it does with every convicted defendant.
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In Stone’s case, the guidelines worked a severe result. In tampering cases, a guidelines enhancement calls for a drastic increase in the sentence if the defendant threatened the witness with physical injury. This drove Stone’s “offense level” from 21 to 29 on the guidelines grid, so even though he is a first offender (offense history “Category I” in guidelines-speak), his recommended sentence zoomed to 90 to 108 months — instead of 37 to 46 months, as it would have been at offense level 21 (i.e., without the threats).
With Mueller’s shop closed down, the Stone prosecution was run out of the U.S. attorney’s office for the District of Columbia. But it was still being overseen by two Mueller staffers, Aaron S. J. Zelinsky (on loan from the U.S. attorney’s office in Maryland, where he had worked for Rod Rosenstein, who, as Trump’s deputy attorney general, later appointed Mueller), and Adam C. Jed (an appellate lawyer from the Obama Justice Department who first came to public attention in 2013, arguing that the ban on same-sex marriage was unconstitutional). Also assigned to the case were Jonathan Kravis, a former associate White House counsel to Obama, and Michael Mirando, an experienced assistant U.S. attorney in the D.C. office.
This team of prosecutors filed a sentencing memorandum on Monday, laying out the guidelines and advising Judge Amy Berman Jackson that they called for a prison sentence of about seven to nine years (i.e., the offense-level guidelines range of 90 to 108 months). Like the indictment itself, the memo is gross overkill.
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With Mueller’s shop closed down, the Stone prosecution was run out of the U.S. attorney’s office for the District of Columbia. But it was still being overseen by two Mueller staffers, Aaron S. J. Zelinsky (on loan from the U.S. attorney’s office in Maryland, where he had worked for Rod Rosenstein, who, as Trump’s deputy attorney general, later appointed Mueller), and Adam C. Jed (an appellate lawyer from the Obama Justice Department who first came to public attention in 2013, arguing that the ban on same-sex marriage was unconstitutional). Also assigned to the case were Jonathan Kravis, a former associate White House counsel to Obama, and Michael Mirando, an experienced assistant U.S. attorney in the D.C. office.
This team of prosecutors filed a sentencing memorandum on Monday, laying out the guidelines and advising Judge Amy Berman Jackson that they called for a prison sentence of about seven to nine years (i.e., the offense-level guidelines range of 90 to 108 months). Like the indictment itself, the memo is gross overkill.
As the Daily Caller’s Chuck Ross notes, the prosecutors tied Stone to “foreign election interference,” breathlessly framed as the “most deadly adversary of republican government,” even though he was never charged with any such crime — underscoring yet again that the deadliest adversary of republican government is actually domestic — viz., the politicized use of executive police powers. Far from offering any theory in mitigation of the 90-to-108-months range, the prosecutors pooh-poohed Credico’s perception that Stone’s threats were not serious, factitiously insisting that the guidelines enhancement is triggered by the threat, not whether the target is actually intimidated. Plus, prosecutors maintained, Stone’s crimes were exacerbated by his flouting of Judge Berman Jackson’s gag orders during the prosecution.
All that said, the prosecutors’ submission was an accurate (if extreme and unyielding) rendition of federal sentencing law. The enhancement that inflates Stone’s sentencing range does literally apply — even if he is not the kind of violent criminal that the guidelines commissioners had in mind when they wrote it. Prosecutors are not required to argue for clemency, though they should do so when the circumstances call for it. The Justice Department’s default position in criminal cases is that the guidelines should be applied as written, and that it is up to the court to decide whether to follow them.
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Late Tuesday, the DOJ filed a revised sentencing memo, which does not recommend a specific sentence but strongly suggests that a term calculated without the eight-point enhancement — i.e., between 37 and 46 months’ imprisonment — would be just. The new memo concedes that the prosecutors’ calculation in the original memo was “arguably” correct, but contends that it would be unreasonable under the circumstances. On that score, the memo relies on (a) Credico’s dismissal of the threat (though it acknowledges that this is not dispositive); (b) the fact that a sentence driven by the guidelines enhancement would be wildly out of proportion with prison terms imposed in cases similar to Stone’s; (c) Stone’s being a first-offender with no organized-crime or gang connections and thus not typical of the offenders the enhancement is meant to cover; and (d) Stone’s advanced age and failing health.
This is an entirely reasonable recommendation, even if the process of arriving at it has been a train wreck.
