Tuesday, February 11, 2020
The press is reporting that three four line prosecutors have filed to withdraw from the Roger Stone case. See Matt Zapotosky, Devlin Barrett, Ann E. Marimow & Spencer S. Hsu, Prosecutors Quit Amid Escalating Justice Dept. Fight Over Roger Stone's Prison Term) This is highly unusual to have AUSAs withdraw after they have filed an initial Sentencing Memorandum. It is anticipated that A new sentencing memo has now been filed forthcoming -also unusual.
In the initial sentencing memo the government included a 3C1.1 enhancement for obstruction of justice.The new memo is here (law.com). It excludes enhancements, including 3C1.1 for obstruction of justice. It states in part with regard to this enhancement, "it is unclear to what extent the defendant's obstructive conduct actually prejudiced the government at trial." Yes, this is the government, not the defense, making this statement. The initial memo was a detailed 26 page memo and it was replaced with a 5 page memo. Whether the government should have initially asked for enhancements is something that many will question - but filing a second memo with this language is certainly unusual. Will DOJ be filing memos in all the other cases out there with similar facts?
Two things to also watch here: 1) what will the probation department come in on sentencing; 2) what will the judge give as the sentence. The final decision will be that of the judge.
A question will also be whether there has been any political influence here. Some of us can remember when there was an Investigation of Allegations of Politicized Hiring in the DOJ Honors Program - it didn't go well for DOJ.