Business Crimes Bulletin ® January 2021 Equal Justice Should Apply to All, Including the President’s Friends By Harry Sandick and This has led to understandable on Feb. 10, 2020, the government Jacob Tuttle Newman criticism: Why should DOJ treat initially proposed that Stone President Trump or his advisors receive a sentence within the In the past year, we have seen differently than other defendants Sentencing Guidelines range appli- the Department of Justice (DOJ), are treated? Equal justice under cable to his offense, which was 87 under the direction of now-former law is the highest value of our to 108 months’ imprisonment. This Attorney General William Barr, legal system, and no one should is consistent with the position that present arguments in several cases receive preferential treatment the government ordinarily takes at that implicate the conduct of either because they are friends with the sentencing, where it typically President Donald Trump or his President. This is why bar associa- advises the court that a within-the- close advisors. In this article, we tions and former prosecutors have range sentence is reasonable consider certain positions taken spoken out against these steps. under 18 U.S.C. §3553(a). Shortly by DOJ in cases involving Roger Rather than insist that the after the government filed its brief Stone, Michael Flynn and the sub- President’s associates be treated seeking a Guidelines sentence, poenas duces tecum issued by the more harshly, we offer this modest President Trump tweeted on Feb. New York District Attorney’s proposal: Remedy the unequal 11, 2020, that the sentencing rec- Office in connection with its treatment by affording to all crimi- ommendation was “horrible,” “very investigation into the Trump nal defendants the same consider- unfair,” and a “miscarriage of jus- Organization. In each instance, ation accorded to Stone, Flynn and tice.” Later that day, on February DOJ has taken positions that the Trump Organization. Defense 11, the government filed a diverge from the positions usually lawyers should cite to DOJ’s posi- “Supplemental and Amended Sentencing Memorandum” in taken by DOJ prosecutors in tions in these three cases and ask which it took the exact opposite ordinary criminal prosecutions. courts to give ordinary defendants position: that a within-the-range the same treatment. sentence “would not be appropri- Harry Sandick, a member of the Busi- ‘UNITED STATES V. ROGER STONE’ ate or serve the interests of justice ness Crimes Bulletin’s Board of Editors, Roger Stone, a longtime in this case.” United States v. Stone, is a partner in the Litigation Department Republican operative and a friend No. 19-cr-00018, Dkt. No. 286 of Patterson Belknap Webb & Tyler LLP, a member of the firm’s White Collar De- and advisor of President Trump, (D.D.C. Feb. 11, 2020). fense and Investigations team, and a for- was convicted of crimes relating The arguments presented by the mer Deputy Chief Appellate Attorney in to the obstruction of the Mueller government were familiar ones to the U.S. Attorney’s Office for the South- investigation into Russian interfer- defense counsel in federal sen- ern District of New York. Jacob Tuttle Newman is an associate in the firm’s liti- ence with the 2016 presidential tencing. The government contend- gation department. election. Before Stone’s sentencing, ed that, in two different ways, the LJN’s Business Crimes January 2021 Guidelines overstated Stone’s cul- what they did in the Stone case: even if untrue; the FBI already pability. The government also identifying reasons for why a knew the truth about Flynn’s calls argued that a within-the-range Guidelines sentence is too long. with the Russian officials and there sentence would be longer than Instead of only providing the was no ongoing investigation at sentences imposed in other tailored, nuanced sentencing the time of his interview. The gov- obstruction of justice cases, violat- analysis for friends of President ernment’s motion to dismiss has ing §3553(a)(6)’s direction to avoid Trump, such case-specific analysis not yet been decided, as the dis- “unwarranted sentencing dispari- by the government should be the trict court has appointed retired ties.” Finally, the government norm, and the government should judge John Gleeson as amicus cur- pointed to other factors individual advocate for below-the-range iae to assist in its determination to Stone as justifying a below-the- sentences in a broader array of about whether to grant the motion. range sentence, such as his age cases than it currently does. And As Judge Gleeson pointed out in (he was 68 years old), health, and district courts should challenge one of his filings, prosecutors rou- lack of a criminal record. In the prosecutors to treat ordinary tinely reject arguments similar to end, the district court varied down- defendants just as well as Stone the ones that it made in its motion ward to a sentence of 40 months’ was treated. If ordinary defendants to dismiss the Flynn case. Id. at imprisonment. were given this type of treatment, Dkt. No. 223 (June 10, 2020). The These same arguments should be sentencing in federal court would government’s legal position also considered in every federal sen- be fairer than it is today. seems to be contradicted by exist- tencing. The Guidelines are too ‘UNITED STATES V. MICHAEL FLYNN’ ing law. See, e.g., United States v. harsh and often overstate true cul- Michael Flynn was one of Moore, 612 F.3d 698. 701 (D.C. Cir. pability or work an unfairness in a President Trump’s top campaign 2010) (a statement is material if it given case. This is part of why, advisors and his initial national is “capable of affecting” the “gen- according to the U.S. Sentencing security advisor in January 2017. eral function” that a federal agen- Commission’s 2019 annual However, in November 2017, he cy was performing when the state- report, federal district judges in was charged in a criminal informa- ment was made to it). 2019 only imposed within-the- tion with making false statements What is more, DOJ often takes range sentences in 51.4% of the to the Federal Bureau of unduly aggressive positions in its cases before them for sentencing. Investigation (FBI) about conver- obstruction of justice prosecutions. In spite of this, DOJ rarely recom- sations he had with Russian gov- It has done so despite being told mends a sentence outside of the ernment officials. See, United over and over again by the Supreme Guidelines range in the typical States v. Flynn, No. 17-cr-00232, Court that it is improperly charg- case, except where the defendant is Dkt. No. 1 (D.D.C. Nov. 30, 2017). ing individuals and institutions a cooperating witness. Indeed, in Flynn pleaded guilty, became a with obstruction of justice. See, May 2017, Attorney General cooperating witness, and was Marinello v. United States, 138 S. Sessions confirmed that DOJ scheduled to be sentenced when Ct. 1101, 1108 (2018) (reversing policy counsels that “[i]n most he changed counsel and sought to conviction for violation of the tax cases, recommending a sentence withdraw his guilty plea. Id. at omnibus clause where broad inter- within the advisory guideline range Dkt. No. 151 (Jan. 14, 2020). While pretation “risk[s] the lack of fair will be appropriate” and prosecutors this motion was pending, DOJ warning and related kinds of are required to obtain supervisory filed a motion to dismiss the unfairness”); Yates v. United States, permission, with documented charges against Flynn. Id. at Dkt. 574 U.S. 528, 536 (2015) (rejecting reasoning, before suggesting a No. 198 (May 7, 2020). the government’s “unrestrained sentence outside of that range. The stated reason for the motion reading” of obstruction statute); These policies discourage and to dismiss is that Flynn’s false Arthur Andersen v. United States, prevent prosecutors from doing statements were not “material,” 544 U.S. 696, 703 (2006) (reversing LJN’s Business Crimes January 2021 conviction for obstruction and presenting novel arguments that propounds and enforces broad urging “restraint” in assessing the are at odds with those defense subpoenas in its many reach of obstruction statutes out attorneys are accustomed to hear- investigations. of concern that “fair warning” ing from DOJ lawyers when dis- CONCLUSION must be given to those who might cussing a subpoena. For example, In short, when viewed in the violate the law). Nothing suggests DOJ complained to the Supreme abstract, DOJ’s arguments in these that the Flynn prosecution ran Court that there were “serious afoul of any of these specific questions about the subpoena’s three cases about sentencing con- principles, but the Department of purpose” and stated that DANY siderations, prosecutorial over- Justice should be more mindful of “has not tailored [its] subpoena to reach, and overbroad subpoenas the risk of unfairness that a criminal investigation.” Trump v. are compelling. While President sometimes accompanies a free- Vance, No. 19-635, Brief for the Trump and his associates may not standing charge of obstruction of United States as Amicus Curiae be the appropriate beneficiaries of justice. When a district court Supporting Petitioner (Feb. 3, DOJ’s newfound skepticism of considers a novel argument about 2020). DOJ also criticizes DANY prosecutorial power, we should whether particular conduct should for not showing why it needs the not be so quick to urge a reversal be subject to an obstruction pros- records now as opposed to at on punitive grounds. Rather, crimi- ecution, it should remember DOJ’s some point in the future, or nal proceedings would be fairer if arguments about materiality in the explaining whether it could obtain the same consideration and open- Flynn case and hold DOJ to its evidence from other sources.