Today, Explained - Between a Stone and a hard place

Episode Date: February 13, 2020

In this, the 500th episode of your favorite daily news podcast, Vox’s Andrew Prokop explains why the sentencing of Roger Stone has thrown the United States Department of Justice into disarray. (Transcript here.) Learn more about your ad choices. Visit podcastchoices.com/adchoices

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For just shy of two years, we've been explaining the most important news stories in the world to you, Monday to Friday, but not on the weekends. We've done lots of stories on the environment, on tech, on popular culture, on conflicts abroad, and a good many about President Donald Trump. Ukraine explained is still pretty fresh, but remember that whole Mueller thing? Well, just in time for episode 500, we got a little throwback from the president this week.

He made a big stink about his old pal Roger Stone, the man with the Nixon tattoo. And this stink was so bad that people are now questioning the integrity of the United States Department of Justice. Before we get to the stink, let's talk about Stone. And if you've heard all 500 shows, the fact that Vox's senior political correspondent Andrew Prokop is here to explain will come as no surprise. So back during the 2016 campaign, Roger Stone, who was an outside advisor to Trump and a longtime friend and advisor to Trump on politics, made efforts to get in touch with WikiLeaks to try and get a hold of damaging information about Hillary Clinton.

I actually have communicated with Assange. I believe the next tranche of his documents pertain to the Clinton Foundation. So then in 2017, when congressional investigators started asking around about this, Stone gave them a false story and tried to encourage another witness to stick to that false story and not to reveal the truth about these outreach efforts. We had a very frank exchange. I answered all of the questions. I made the case that the accusation that I knew about John Podesta's email hack in advance was false.

Eventually, he came under scrutiny in special counsel Robert Mueller's investigation. He was arrested and indicted in January 2019 for obstruction of Congress, witness tampering and making false statements. I will plead not guilty to these charges. I will defeat them in court. I believe this is a politically motivated investigation. He went on trial last November, and he was convicted on all seven counts. And now he is ready to be sentenced on February 20th. So, long story short, he tried to obstruct a free election, tried to cover that up, and his efforts to get in touch with WikiLeaks

were total failures or whether there was something more to it. But the gist is that he tried to cover up whatever he did do. He got caught and then he got convicted of it. And now he is ready to be sentenced. Which brings us to this week. How does the story pick back up with his sentencing? So how this works is that the probation office first comes up with technical guidelines for the range of what an appropriate sentence would be. What that probation office came up with was a recommended sentence of about seven

to nine years in prison. So after that, the prosecutors then have to submit their own sentencing memo to the judge in this case, who will end up making the final call on this. And in this case, what they did was that they said that a sentence of the sort recommended by the probation office, seven to nine years or so, would indeed be appropriate given the gravity and seriousness of his crimes. So they didn't come up with that number or make it up out of whole cloth, but they said that, you know what, it fits. And how did President Trump take the news? So in a late night, early morning flurry of tweets and retweets after this sentencing memo was filed, Trump expressed utter outrage. He called this a horrible and very unfair situation. He said, cannot allow this miscarriage of justice, exclamation point.

I thought the recommendation was ridiculous. I thought the whole prosecution was ridiculous. And I look at others that haven't been prosecuted, or I don't know where it is now, but when you see that, I thought it was an insult to our country, and it shouldn't happen. And we'll see what goes on there. But that was a— So then on Tuesday morning, word leaks out to a Fox News reporter that the Justice Department higher-ups in fact agree with Trump on this. And they are going to override the prosecutor's recommendation for Roger Stone's sentence. So do the prosecutors restructure their sentence? What do they do next?

In this case, they quit. We're following some truly stunning breaking news still developing by the minute this hour. Two federal prosecutors in the Roger Stone criminal case have resigned this afternoon. This follows an astonishing decision by the Justice Department to pull back on its recommended sentence

of seven to nine years prison time for Roger Stone. There were four prosecutors on the Stone team, two of whom also served on special counsel Robert Mueller's team previously. And all four of them announced on Tuesday that they were going to withdraw from the case. One of them quit the Justice Department entirely. The other three will continue to work in the department on other matters. But this was a very unusual, highly public, apparent act of protest against political interference from their bosses. What does that mean for the case? Well, what happened after they all quit is that a new prosecutor was put on

and a new sentencing memo was filed saying that actually the memo that was just submitted one day earlier does not accurately reflect the Justice Department's position on what would be a reasonable sentence in this matter, and that a sentence of incarceration far less than that seven to nine year one would be reasonable under the circumstances. But in the end, they defer to Judge Amy Berman Jackson, who will actually sentence Stone on what should actually be done here, as was always going to be the case. Cool, cool, cool.

So at least everyone's going to respect the judge's decision here. So separately from all this, President Trump went after this judge, Amy Berman Jackson, on Twitter. Never mind. Saying, is this the judge that put Paul Manafort in solitary confinement? Never mind. out to a potential witness. So Judge Jackson ordered that he be taken into custody. She did not decide to put him in solitary confinement. That was a decision made by prison officials, and his solitary confinement conditions were actually pretty swank. They're not as unpleasant as you might have expected. That's nice for Paul. Not a great look for the president.

It's certainly unusual for the president to be attacking a judge who is handling the sentencing of one of his close associates in a criminal case. But, you know, the decision on this sentence is going to be made by Judge Jackson in the end, except, of course, if President Trump decides to overrule her decision by pardoning Roger Stone or by commuting his sentence. Does the president's temper tantrum have any foundation in reality? What's the typical sentence for your average criminal who's been convicted of obstruction of justice, witness tampering, terrible tattoos, and making false statements? So intuitively, I would say it does come off as a little high.

But generally, people who have looked at this think that the way that the probation office calculated the sentencing guidelines were appropriate. Stone, quote, engaged in a multi-year scheme involving false statements and sworn testimony, the concealment of important documentary evidence, further lies in a written submission to Congress, and a relentless and elaborate campaign to silence that witness, Randy Credico. And so, you know, the government has a case that there was a lot to this. This was not some one-off brief thing. You know, Stone's team has also argued that he has no previous trouble with the law, that he is in poor health, that Credico didn't actually feel that threatened, he claims. And so there are arguments for leniency too. Has anyone else weighed in on this publicly? Democrats, Republicans?

So Democrats are very concerned about what's going on. And congressional Democrats, especially on the House Judiciary Committee, have announced that Attorney General William Barr will testify before their committee later in March about what actually happened here and on other issues. Republicans, meanwhile, are tending to say, well, this doesn't really look good, but in the end, it will be up to the judge. So why is it such a big deal? As unfortunate as this sounds, just the president potentially abusing the Department of Justice to keep his friends out of big trouble, it also doesn't sound completely foreign thinking back historically in this country. Does this feel different to you?

I think what's going on here is part of a broader pattern of, we can say, curious incidents that have been unfolding in the Justice Department under Attorney General Bill Barr in the past few weeks and months that have really started to raise concerns that the Justice Department is being very politicized and turned to serve the interests of Donald Trump rather than the impartial administration of justice. More with Andrew in a minute on Today Explained. management software designed to help you save time and put money back in your pocket. Ramp says they give finance teams unprecedented control and insight into company spend. With Ramp, you're able to issue cards to every employee with limits and restrictions and automate expense reporting so you can stop wasting time at the end of every month. And now you can get $250 when you join Ramp. You can go to ramp.com slash explained, ramp.com slash explained, R-A-M-P.com slash explained,ards issued by Sutton Bank.

Member FDIC. Terms and conditions apply. Today. Today explained. Andrew, tell me a little bit more about how the president of the United States is turning the United States Department of Justice into his own personal law firm. So amidst all the controversy about the Stone sentencing, there was a report from NBC News headlined, Barr, meaning Attorney General William Barr, takes control of legal matters of interest to Trump, including stone sentencing. And the reporters here, Carol Lee, Ken Delaney, and Peter Alexander, make the case that this

is really something broader that is going on, that from what they've heard from their sources, this is a concerted effort from Barr to centralize decision-making and authority over political cases in advance of the 2020 elections. Ooh, how exactly is he doing that? So there are a couple of big examples that, especially after this Roger Stone fiasco, definitely look a whole lot more like a pattern. And one of them involves another close Trump ally who is due to be sentenced for charges stemming from the Mueller investigation, namely Michael Flynn,

the former national security advisor. I have called on Hillary Clinton to drop out of the race because she, she put our nation's security at extremely high risk with her careless use of a private email server. I remember him. Lock her up. Lock her up. Flynn pleaded guilty back in December 2017 to lying to the FBI about his contacts with the Russian ambassador. And he agreed to cooperate with Mueller's team. No handcuffs for Michael Flynn. He surrendered and walked into the federal courthouse in Washington to plead guilty to a single charge, lying to the FBI.

But along the way, things went awry. He was actually scheduled to be sentenced initially back in December 2018. Prosecutors were totally cool with his cooperation then. Prosecutors wrote that a sentence that does not impose a term of incarceration would be appropriate. Then things took a turn at the sentencing hearing itself. Judge Emmett Sullivan, he shocked the courtroom when he opened this hearing by saying he could not hide his disdain for what Flynn had done.

He even went so far as to ask prosecutors why they weren't charging Flynn with treason. And Marie, that's a crime punishable by death. Now, the judge later apologized for that particular question. But he did give Flynn a last minute out. He gave him the opportunity to delay his sentencing to get further credit for cooperation with the government, some of which wasn't yet complete. Flynn jumped at the chance and asked for the sentencing to be delayed. But then instead of actually doing that further cooperation, Flynn decided to dump his lawyers. He hired a hard-charging

conservative, Sidney Powell, who has been basically laying the groundwork to argue that Flynn was set up. And eventually he did argue that he wanted to withdraw his guilty plea, that he wasn't even really guilty, that the government set him up, that the fix was in. It just sounds like the kinds of actions you would only take if you knew you had sort of support from the higher-ups, you know? It certainly was a bold strategy, but we didn't see much blatant interference from the Justice Department in a way that was designed to help Flynn until recently. So a very similar thing happened to Flynn that happened to Roger Stone. Prosecutors this January

were getting ready for Flynn's new attempt at sentencing, and they decided to let the judge know that they had changed their position in light of Flynn's behavior over the past year. They said given the serious nature of the defendant's offense, his apparent failure to accept responsibility, his failure to complete his cooperation, and the need to promote respect for the law and adequately deter criminal conduct, they wrote that they recommend a sentence of zero to six months of incarceration for Flynn. But then, mysteriously, about three weeks later, as both the prosecutors and the defense continued to send filings back and forth in this case, the government curiously shifted its position. Now, prosecutors wrote on January 29th, all of a sudden, they agreed with the defendant that a sentence of probation is a reasonable

sentence. And this was a shift. They said that they recommended Flynn be incarcerated, and now they are saying that actually probation is reasonable. And according to NBC News, this change came about because senior officials at the Justice Department intervened. So exactly the same thing that's happening with Roger Stone right now? Yes, in a less dramatic way that didn't lead to a bunch of prosecutors quitting, but it looks like these are closely related incidents. And the story gets more interesting as we learn what happened to the person who was in charge of overseeing Flynn's sentencing, the U.S. attorney for Washington, D.C., Jesse Liu.

Is Jesse a dude, a lady, somewhere in between? Lady. What happened to her? So the U.S. attorney for the District of Columbia is a pretty important job. It oversees a lot of these highly charged political cases involving government officials and the federal government. And Lou, she is clearly a conservative, but she had a decent reputation for independence in the post. She certainly didn't seem to be going easy on any of the Trump associates who were prosecuted in her district. She took over overseeing the Roger Stone trials, not as a direct prosecutor, but, you know, as the boss eventually of those prosecutors. And she had been in this job for a couple years at this point.

And early this January, President Trump nominated her to fill a post at the Treasury Department. And at first, this seemed to be ordinary enough, like people move to different posts in the administration. That is normal. But then after this dust up over Michael Flynn's sentencing, Lou was unexpectedly removed from her job before being confirmed to her new Treasury Department position. And who she was replaced with was even more interesting. Timothy Shea, who was a counselor to Bill Barr at the Justice Department and one of Barr's closest advisors, according to the Associated Press. So the final capper on what happened with Jesse Liu is that it was reported by Axios on Tuesday evening that, in fact, Trump was going to withdraw

her nomination to that Treasury Department post. And then on Wednesday night, Jesse Liu officially submitted her resignation from the federal government now that that confirmation is no longer going to come. It's not clear whether this was an effort to retaliate against the person who oversaw Roger Stone's prosecution, whether it was simply an effort to avoid her having to testify to a Senate committee, which was scheduled to happen this week. But it certainly makes her ahead of schedule replacement look even more questionable. So this all sounds dodgy and like William Barr is making sure the Department of Justice aligns with President Trump's interests or perhaps even protects him. But has there been anything more directly aligned with the president's

reelection? Yes, Barr has not stopped there. He has issued new rules in the Justice Department for any new investigation to be opened about a presidential candidate, a presidential campaign, presidential campaign staffers, or even potentially illegal foreign contributions to presidential campaigns, any of those investigations would need Bill Barr's personal approval to be open. And to know the backstory of that, you know, both Donald Trump and Hillary Clinton were plagued by investigations in the 2016 campaign. And what Bill Barr seems to be doing is ensuring that in 2020, there will be no surprises from pesky, independent-minded investigators who are turning rocks over or looking into things. If it touches a presidential

campaign, Bill Barr is going to have to sign off on it. Okay, so just to recap, this isn't just about getting Stone a lighter sentence. It's also about getting Flynn a lighter sentence. It's also about punishing people who administer justice to friends of the president. And it's also potentially about preventing investigations into a president who famously has a proclivity for casual treason. How bad is this for the Justice Department? How does this compare to Kennedy appointing his brother as AG or Nixon and the Saturday Night Massacre where he illegally got a special prosecutor fired? I think since Kennedy and starting especially after Richard Nixon and Watergate, norms about the independence of the Justice Department and how it should make decisions on political prosecutions free of political interference started to become strong.

And we're seeing those norms deteriorate. That said, I do think there are some other examples that go against the narrative of Barr and Trump completely perverting the Justice Department to serve their ends. For one, we should remember that Rudy Giuliani's two close allies, Lev Parnas and Igor Fruman, got arrested last October, indicted by prosecutors from the Southern District of New York U.S. Attorney's Office. And there is an investigation going on imperiling Giuliani as well, reportedly. You know, one would think that a Justice Department solely looking out for Trump's whims would not be investigating his lawyer for various crimes. But having said that, there has been other reporting that Justice Department leaders in Washington later ended up getting involved in that New York investigation into Giuliani. And the current state of it remains unclear.

We just don't know what's going on. So the big question is, in all of these, is the Justice Department now going to act like President Trump's political attack machine? Or is it going to respect the judgment of legal experts and prosecutors and weigh cases carefully before bringing charges. And the signs lately have not been encouraging. And the recourse here, basically non-existence? I mean, a congressional hearing isn't going to change anything, right? Probably not. I mean, it would certainly be good to have Bill Barr answer questions under oath about a lot of this stuff and about how the Justice Department is even

functioning these days. But, you know, it's a bit of a red herring if the question is whether Bill Barr is doing this at Trump's behest explicitly or whether he's just doing it because, oh, he just so happens to have the same opinions as Trump on all these issues or he's preemptively trying to anticipate what Trump would want. The point is that they have a mind meld and that Barr is doing what Trump wants him to do. Trump even sent a tweet saying, Congratulations to Attorney General Bill Barr for taking charge of a case, that's the Roger Stone case, that was totally out of control and perhaps should not have even been brought. Now, after that, on Thursday, Attorney General Barr gave an interview

in which he criticized Trump a bit for sending those tweets. He said he thinks it's time for Trump to stop tweeting about Justice Department criminal cases and that the tweets make it impossible for me to do my job. You think that'll be the game changer here? Will President Trump finally butt out of matters involving the Justice Department? I think it's usually a bad bet to bet that Trump will change or improve his behavior on stuff like this. But if you look at what Barr says, he seems to be objecting more to the public nature

of Trump's comments than to their actual substance. And look at what happened here. Barr did what Trump wanted and he got congratulations in a tweet. You know, that's just how our government works now. Wait, wait, wait, wait, wait, wait. Cut the music, Afim. That's just how the government works now? I mean, yes, Procop's clearly right,

and that's distressing, and we'll surely revisit this in the coming weeks and months, but we can't end episode 500 like that, can we? Can we? No, we can't. I think we should go out with a love song No?

When we come out Well, you know we're gonna be We're gonna be the show that makes your afternoon When you go home Yeah, you know you're gonna be You're gonna be so glad you don't sound like a goon When you're baffled Well, we know we're gonna be so glad you don't sound like a goon When you're baffled, well we know we're gonna be

We're gonna be here to explain the news to you And when we space farce, well we know we're gonna be We're gonna be the show you rate and you review And we would make five hundred shows And we would would make 500 more Just to be the daily Podcast that you love Forget those other

Four Robespura, Robespura, Menelima There's Cecilia, Bridget, Noam, Jillian And Amina Mixed by Afib Shapiro BMC, composed of Fimo And the Vox Media Podcast Network publishes the show