A high-level conflict over the sentencing of Roger Stone, political confidant to President Donald Trump, will come to a climax next week in a federal courtroom in Washington, D.C. But for Berkeley Law professor Orin Kerr, the conflict is just one battle in a wider war over the independence of the U.S. Department of Justice.
The Mueller report, the Ukraine scandal, the impeachment of the president and now renewed efforts to investigate and impugn Democratic presidential candidate Joe Biden – all are flashpoints in the administration’s efforts to use the department as a political tool, Kerr suggested in an interview this week.
Kerr, a former attorney in the Department of Justice, today is an influential legal scholar specializing in criminal procedure, computer crime law and professional responsibility.
“Any time the machinery of government is being used to further personal political interests, that can raise enormous red flags,” he said. “All of these different stories are related to the same concern — abuse of power in politics.”
Stone was convicted by a federal jury last year on charges of lying to Congress and witness-tampering related to his effort to aid Trump’s 2016 presidential campaign by gathering damaging information about Democratic opponent Hillary Clinton. He is scheduled for sentencing Feb. 20 by U.S. District Judge Amy Berman Jackson.
Department of Justice prosecutors recommended a sentence of seven to nine years; Trump attacked the sentence as too harsh and congratulated Attorney General William Barr when the department changed course to recommend a reduced sentence. The new fight is playing out just days after the president was acquitted of abuse of power in the impeachment process.
Kerr served from 1998 to 2001 as a trial attorney in the Justice Department’s Computer Crime and Intellectual Property Section. He has argued cases before the U.S. Supreme Court, testified before Congress and written extensively, both as a legal scholar and on popular blogs such as Lawfare.
Berkeley News: In your experience, is it common for top-level officials at the Justice Department to intervene in a criminal case to change the sentencing recommended by line prosecutors?
Orin Kerr: No. It would be rare for the front office, like the Attorney General’s office, to get involved in any particular prosecution. Sometimes the higher-ups would have interest and might establish some role in particular cases. But the norm is for the political types to stay completely out of individual cases and certainly not get involved in any granular level.
But we’re seeing an argument made by some experts that the attorney general or the president have a right to engage in cases as they see fit. They’re the top executives — does it stand to reason that they have the authority?
The attorney general certainly has the power to interfere. And the president can tell an attorney general to interfere. The problem is that this is an obvious conflict of interest. We’re talking about somebody, a close adviser to the president who was charged with a crime for protecting the president. And so it’s not a typical case where the attorney general might have an interest in that.
It’s an obvious conflict of interest for the president to be involved or for the attorney general to be trying to protect the president.
And the context here matters.
The Department of Justice — and Attorney General Barr, and apparently the president — are engaging in this case at the granular level. What’s different about the context?
The president fired his former attorney general (Jeff Sessions) for not giving him personal protection, for not being personally loyal enough to the president’s personal interests and concerns. When he hired Barr, he was looking for someone to protect him personally.
So there is a history here and the concern that the president is improperly using his power — not to make proper enforcement decisions about what laws were violated and who should be punished, but personal decisions about what helps Donald Trump as a person.
Why should the public be concerned about this? What risks do you see?
The president has a tremendous amount of power, as does the attorney general, and it’s absolutely essential to the integrity of the rule of law for them to exercise that power independently of their personal interests and their political interests. The rule of law requires that we not punish people for their political views or for being a political opponent of the president. And we shouldn’t be giving favors to people for being allies of the president.
When the president has put in an attorney general in part to protect him and when the attorney general is intervening personally in cases where the president has a personal interest, that raises profound concerns about abuse of power by the executive branch in punishing enemies and favoring allies.
Do you see this as a pattern in the current administration? Is it something that’s has been evolving and expanding over time?
It has been a theme in this administration. It was the heart of the allegations in the impeachment proceeding that was just concluded. This is exactly what the impeachment was about — and here we are, just days later. I don’t think that’s a coincidence.
We’ve already seen the four prosecutors in the Roger Stone case withdraw, and one of them resigned. Based on your experience as a prosecutor in the Justice Department, what impact do you think this will have on morale in the department?
It can’t help but greatly harm morale. The apolitical tradition at the Justice Department is so deeply ingrained — that commitment to the rule of law is so much a part of the mindset of federal prosecutors — that this is Banana Republic-style interference. It’s really shocking.
It’s not that everything that federal prosecutors do is right. Obviously, they make mistakes, and there are always concerns about abuses. But this is coming from the top. And this is not an accident. This appears to be very much a plan to change the outcome of the federal prosecution, because the defendant is the president’s close confidant.
Does the controversy change the way Justice Department attorneys do their jobs?
A lot of what federal prosecutors do just doesn’t touch on any political issue. Most prosecutors are prosecuting gun cases or drug cases or fraud cases, and they’re not touching on any political fault lines. But if you happen to be a prosecutor whose work does bring you to that area, you have to be concerned.
For example, if you’re a public integrity prosecutor who investigates crimes by politicians, you have to feel that the same rules are applying to Republicans and Democrats. When the attorney general is personally intervening in a case that’s obviously of intense personal interest to the president, that’s got to create concern.
Also in recent days, the Department of Justice has indicated that it will evaluate information about former Vice President Joe Biden and his family that the president’s personal attorney, Rudy Giuliani, has purportedly collected in Ukraine. Do you see a connection to the Roger Stone sentencing?
Yes. I think any time the machinery of government is being used to further personal political interests that can raise enormous red flags. All of these different stories are related to the same concern — abuse of power in politics.
Is there a legal mechanism that could encourage the Justice Department to revert to a more traditional political neutrality?
There are a couple different kinds of pushback. The political system is not going to push back because we’ve just seen through the impeachment that that’s not going to go anywhere.
But one pushback to look for is judges: How are the judges going to react to news reports or filings suggesting political interference in cases? Judges can decide to make us think about that and ask a lot of questions about that and express displeasure about that — or they may decide that it’s more appropriate not to.
Prosecutors need the trust of judges on a day-to-day basis, and judicial pushback can create pressure to not engage in these sorts of interference, at least a little bit.
Based on what we’ve seen recently, is there a pressure short of the election in November that can alter the administration’s course?
If we’re talking about political pressure, I think that’s right. If it’s legal pressure, it depends on how you classify judges. Some judges would make a stink about this. Others would just quietly go forward and decide on a sentence. We’ll see which path Judge Jackson takes.