Harry Litman is a professor of Constitutional law at UCLA. Now a lawyer in private practice, he served as law clerk to Supreme Court Justices Thurgood Marshall and Anthony Kennedy from 1987-89. A former Assistant U.S. Attorney for the Northern District of California as well as the Western District of Pennsylvania, he also served as Deputy Assistant Attorney General at the Department of Justice for five years.
Litman’s reaction to the Justice Department’s repudiation yesterday of the sentencing recommendation made by the DOJ team that prosecuted Trump ally and co-conspirator Roger Stone, and the stunningly abrupt withdrawal of the four prosecutors on that legal team that followed this repudiation, is set forth in today’s Washington Post.
Titled “The Justice Department’s reputation is on life support,” Litman’s editorial is nothing short of blistering. His main point is that by all appearances what occurred yesterday—the action of a rogue Justice Department in fulfilling a demand by the president for political leniency to someone who can legitimately be described as co-conspirator with that president to the commission of federal crimes-- cannot be permitted to stand in a functioning democracy.
Resignation is the strongest possible protest that prosecutors can employ, within professional bounds, against improper conduct by their leadership. The president’s tweet and the department’s reduction of Stone’s sentencing were utterly rank and improper. The action runs counter not only to standard practice but also to the standard that the Justice Department is supposed to embody: the administration of justice without fear or favor.
Litman acknowledges he has trouble even describing just how bad this is. Stone, who was convicted of serious offenses including witness tampering and lying to Congress, received a sentence recommendation literally taken from the Federal Sentencing Guidelines Manual which federal prosecutors routinely and necessarily rely on as the source for such recommendations. He slams the Barr Justice Department’s excuse that the sentencing was somehow disproportionate or shocking under the circumstances. In truth, it was neither, particularly in light of Stone’s cavalier decision to go to trial and flout the Court’s rulings regarding publicity during the proceedings. The recommendation was not only appropriate, it was mandated under the circumstances.
But it is not the sentence itself that is sending an ominous red signal, but the unprecedented countermanding of the recommendation at the obvious instigation of the White House, or, worse (as Litman explains) through an alliance between the DOJ’s interests and those of the White House. That crosses a barrier that simply cannot be crossed if the rule of law in this country is to mean anything going forward.
As a general matter, the Justice Department and the White House are supposed to communicate only in rare, well-defined instances and almost never about the results of individual cases. Such contact is a third rail. For those of us committed to the normal course of legal justice, it cuts into bone for the department to do the White House’s bidding in a case in which the president has a strong personal stake.
As Litman states, if, as the White House contends, it played no part in influencing the repudiation of Stone’s sentencing, then that is even worse, since it shows Barr to be acting at the political preferences of this president without even being instructed to do so. In other words, Barr has abandoned the independence of the Justice Department to serve the political ends of the Executive.
Litman is not alone in his assessment. Other federal prosecutors agree, in even more alarming terms:
Jeffrey Cramer, a longtime former federal prosecutor who spent 12 years at the DOJ, didn't mince words when reacting to the string of developments.
"Can't recall a worse day for DOJ and line prosecutors," he told Insider. "A robbery in broad daylight in the middle of Chicago is more subtle than Barr's obsession to shield Trump and his co-conspirators."
That is the hallmark of a nascent police state. It is the hallmark of a Justice Department weaponized to reward the president’s political friends and punish his political enemies. As noted by another In this respect, as Litman notes, we should have seen it coming.
The Stone rollback is particularly disturbing amid a flurry of crass political maneuvers undertaken since the impeachment trial ended. These include the similar reversal in the case of former Trump national security adviser Michael Flynn, who, like Stone, has made it a point of his defense to belittle the department; the recent memorandum ordering that the attorney general must sign off on any politically oriented prosecution and even on the FBI opening a criminal investigation; the institution of a process within the department to consider the opposition research that Trump lawyer Rudolph W. Giuliani has gathered in Ukraine; and the sudden ouster of U.S. Attorney Jessie K. Liu, in favor of a Barr acolyte, from the office that is prosecuting Flynn and Stone. (Liu’s December exit from the U.S. attorney’s office came with the promise of a nomination to a Treasury post — a nomination that Trump is withdrawing, Axios reported Tuesday evening.)
Referring to Barr’s creation of a “direct line” from Giuliani to provide DOJ with “dirt” on former Vice President Joe Biden, another federal prosecutor is unsparing:
Patrick Cotter, a former federal prosecutor who worked with members of the special counsel Robert Mueller's team, told Insider: "I am aware of no precedent remotely like it in the history of the DOJ. It seems to me to be a classic hallmark of a dictatorial [or] fascist government."
Litman calls this corruption of the Justice Department the “most odious achievement of the Trump presidency.” In what must be a particularly painful realization, he characterizes the Department’s reputation for justice and fairness as on “life support.” Even Litman, it seems, is loathe to admit that the institution he once served with such distinction may in fact already be dead.