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Doj's Arguments in Trump Litigation Should Benefit Other Defendants

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Doj's Arguments in Trump Litigation Should Benefit Other Defendants NEW YORK LAW JOURNAL SPECIAL REPORT White-Collar Crime WWW. NYLJ.COM VOLUME 264—NO. 102 MONDAY, DECEMBER 7, 2020 DOJ’s Arguments in Trump Litigation Should Benefit Other Defendants BY HARRY SANDICK AND JACOB TUttLE NEWMAN n the past year, we have seen the Department of Justice (DOJ), under I the direction of Attorney General William Barr, present arguments in sev- eral cases that implicate the conduct of either President Donald Trump or his close advisors. In this article, we consider certain positions taken by DOJ in cases involving Roger Stone, Michael Flynn and the subpoenas duces tecum issued by the New York District Attor- ney’s Office in connection with its inves- tigation into the Trump Organization. In each instance, DOJ has taken positions that diverge from the positions usually taken by DOJ prosecutors in ordinary they are friends with the president. This ‘United States v. Roger Stone’ criminal prosecutions. is why bar associations and former This has led to understandable criti- prosecutors have spoken out against Roger Stone, a longtime Republican cism: Why should DOJ treat President these steps. Rather than insist that operative and a friend and advisor of Trump or his advisors differently than the president’s associates be treated President Trump, was convicted of other defendants are treated? Equal jus- more harshly, we offer this modest pro- crimes relating to the obstruction of tice under law is the highest value of posal: Remedy the unequal treatment the Mueller investigation into Russian our legal system, and no one should by affording to all criminal defendants interference with the 2016 presidential receive preferential treatment because the same consideration accorded to election. Before Stone’s sentencing, on Stone, Flynn and the Trump Organiza- Feb. 10, 2020, the government initially HARRY SANDICK is a partner in Patterson Belknap’s tion. Defense lawyers should cite to proposed that Stone receive a sentence white collar defense and investigations team; he DOJ’s positions in these three cases and within the Sentencing Guidelines range formerly served as an Assistant U.S. Attorney for the Southern District of New York. JACOB TUttLE NEW- ask courts to give ordinary defendants applicable to his offense, which was 87 MAN is an associate in the firm’s litigation department. the same treatment. to 108 months’ imprisonment. This is MONDAY, DECEMBER 7, 2020 consistent with the position that the Commission’s 2019 annual report, fed- initial national security advisor in Janu- government ordinarily takes at sen- eral district judges in 2019 only imposed ary 2017. However, in November 2017, tencing, where it typically advises the within-the-range sentences in 51.4% he was charged in a criminal informa- court that a within-the-range sentence of the cases before them for sentenc- tion with making false statements to the is reasonable under 18 U.S.C. §3553(a). ing. In spite of this, DOJ rarely recom- Federal Bureau of Investigation (FBI) Shortly after the government filed its mends a sentence outside of the Guide- about conversations he had with Rus- brief seeking a Guidelines sentence, lines range in the typical case, except sian government officials. See United President Trump tweeted on Feb. 11, where the defendant is a cooperating States v. Flynn, No. 17-cr-00232, Dkt. 2020, that the sentencing recommenda- witness. Indeed, in May 2017, Attorney No. 1 (D.D.C. Nov. 30, 2017). Flynn tion was “horrible,” “very unfair,” and General Sessions confirmed that DOJ pleaded guilty, became a cooperating a “miscarriage of justice.” Later that policy counsels that “[i]n most cases, witness, and was scheduled to be sen- day, on February 11, the government recommending a sentence within the tenced when he changed counsel and filed a “Supplemental and Amended advisory guideline range will be appro- sought to withdraw his guilty plea. Id. Sentencing Memorandum” in which it priate” and prosecutors are required at Dkt. No. 151 (Jan. 14, 2020). While took the exact opposite position: that a to obtain supervisory permission, with this motion was pending, DOJ filed a within-the-range sentence “would not documented reasoning, before suggest- motion to dismiss the charges against be appropriate or serve the interests ing a sentence outside of that range. Flynn. Id. at Dkt. No. 198 (May 7, 2020). of justice in this case.” United States These policies discourage and prevent The stated reason for the motion to v. Stone, No. 19-cr-00018, Dkt. No. 286 prosecutors from doing what they did dismiss is that Flynn’s false statements (D.D.C. Feb. 11, 2020). in the Stone case: identifying reasons for were not “material,” even if untrue; The arguments presented by the why a Guidelines sentence is too long. the FBI already knew the truth about government were familiar ones to Flynn’s calls with the Russian officials defense counsel in federal sentenc- and there was no ongoing investiga- ing. The government contended that, Defense lawyers should cite to DOJ’s tion at the time of his interview. The in two different ways, the Guidelines positions in these three cases and government’s motion to dismiss has overstated Stone’s culpability. The ask courts to give ordinary defen- not yet been decided, as the district government also argued that a within- dants the same treatment. court has appointed retired judge John the-range sentence would be longer Gleeson as amicus curiae to assist in its than sentences imposed in other Instead of only providing the tailored, determination about whether to grant obstruction of justice cases, violat- nuanced sentencing analysis for friends the motion. As Judge Gleeson pointed ing §3553(a)(6)’s direction to avoid of President Trump, such case-specific out in one of his filings, prosecutors “unwarranted sentencing disparities.” analysis by the government should be routinely reject arguments similar to Finally, the government pointed to the norm, and the government should the ones that it made in its motion to other factors individual to Stone as advocate for below-the-range sentences dismiss the Flynn case. Id. at Dkt. No. justifying a below-the-range sentence, in a broader array of cases than it cur- 223 (June 10, 2020). The government’s such as his age (he was 68 years rently does. And district courts should legal position also seems to be contra- old), health, and lack of a criminal challenge prosecutors to treat ordinary dicted by existing law. See, e.g., United record. In the end, the district court defendants just as well as Stone was States v. Moore, 612 F.3d 698. 701 (D.C. varied downward to a sentence of 40 treated. If ordinary defendants were Cir. 2010) (a statement is material if it months’ imprisonment. given this type of treatment, sentenc- is “capable of affecting” the “general These same arguments should be ing in federal court would be fairer than function” that a federal agency was considered in every federal sentencing. it is today. performing when the statement was The Guidelines are too harsh and often made to it). ‘United States v. Michael Flynn’ overstate true culpability or work an What is more, DOJ often takes unduly unfairness in a given case. This is part Michael Flynn was one of President aggressive positions in its obstruction of why, according to the U.S. Sentencing Trump’s top campaign advisors and his of justice prosecutions. It has done so MONDAY, DECEMBER 7, 2020 despite being told over and over again mised on the notion that the president the production of documents would by the Supreme Court that it is improp- is above the law and should not be work a real hardship, and even where erly charging individuals and institu- the subject of legal process while he the documents are of questionable tions with obstruction of justice. See is president, despite Supreme Court relevance to any investigation. Rather Marinello v. United States, 138 S. Ct. holdings to the contrary. See Clinton than only raising these types of argu- 1101, 1108 (2018) (reversing conviction v. Jones, 520 U.S. 681 (1997); United ments in support of President Trump— for violation of the tax omnibus clause States v. Nixon, 418 U.S. 683 (1974). who has teams of lawyers prepared where broad interpretation “risk[s] the To bolster the president’s claims, the to answer subpoenas, and who in this lack of fair warning and related kinds Department of Justice has intervened case need do absolutely nothing given of unfairness”); Yates v. United States, in these proceedings, presenting novel that the subpoena is addressed to his 574 U.S. 528, 536 (2015) (rejecting the arguments that are at odds with those accountants—DOJ should recognize government’s “unrestrained reading” of defense attorneys are accustomed to that many of the concerns it has raised obstruction statute); Arthur Andersen hearing from DOJ lawyers when dis- in the Trump v. Vance case would be v. United States, 544 U.S. 696, 703 (2006) cussing a subpoena. For example, DOJ worth considering when it propounds (reversing conviction for obstruction complained to the Supreme Court that and enforces broad subpoenas in its and urging “restraint” in assessing the there were “serious questions about many investigations. reach of obstruction statutes out of the subpoena’s purpose” and stated Conclusion concern that “fair warning” must be that DANY “has not tailored [its] sub- given to those who might violate the In short, when viewed in the abstract, law). Nothing suggests that the Flynn DOJ’s arguments in these three cases prosecution ran afoul of any of these When viewed in the abstract, about sentencing considerations, pros- specific principles, but the Department DOJ’s arguments in these ecutorial overreach, and overbroad sub- of Justice should be more mindful of three cases about sentencing poenas are compelling.
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