President Nixon’s firing of a Department of Justice lawyer during Watergate became a turning point in his impeachment. Now, a handful of DOJ lawyers have stopped working on the Roger Stone case apparently in response to President Trump’s “interference.” In a desperate attempt to make political parallels between the two events, legacy media types (perhaps acting out their secret desire to be Bob Woodward) insist the Stone story has profound implications. They want to wish it into the Saturday Night Massacre. But the wants and wishes of CNN/NYT/MSNBC are not a basis for a new impeachment or proof that the last attempt was warranted. The DOJ is an executive agency and the President of the United States is ultimately the one in charge.
Tuesday, February 11, 2020, will not go down in history like October 20, 1973.
The breathless headlines read that four DOJ lawyers “resigned” after interference came from administration officials in Roger Stone’s case. Let’s set aside for a moment the notion that managing and directing prosecutors in the DOJ is somehow inappropriate for senior DOJ officials or President Trump. The prosecutors, save one former Obama administration lawyer, did not resign – they simply stopped working on that case. Their judgment in Roger Stone’s sentencing was not accepted and the boss countermanded it. Full stop. The incident is nothing more than that. The prosecutors’ recommendation to the court for Stone’s sentence was not accepted, and they decided to go public with the news. Also, they may have lied to their superiors about their plans. CBS News’ Catherine Herridge reported the “[d]epartment was shocked to see [the] sentencing recommendation [in the] Stone case. This is not what was briefed to Dept. The Dept. believes recommendation is extreme, excessive, grossly disproportionate to offenses.”
Roger Stone was convicted of tampering with a witness and lying to Congress about his efforts to learn of hacked Democratic emails during the 2016 U.S. presidential election. He will be sentenced by Judge Amy Berman Jackson – not by the Justice Department or anyone else. You could be forgiven for thinking somehow that the DOJ was the sentencing body given how the story has been reported. The DOJ often recommends sentences to judges, but it has no legal basis for doing anything other than recommending. Judges impose sentences. That President Trump decided the sentencing recommendation arrived at by a Democrat and Obama administration lawyer was not appropriate is not a scandal.
The Nixon Story
The real Saturday Night Massacre in 1973 happened when Nixon wanted Watergate Special Prosecutor Archibald Cox fired. Cox was hired under terms that he not be fired, except for cause. After Cox subpoenaed audio tapes Nixon had recorded in the Oval Office, the president ordered Attorney General Elliot Richardson to fire him; Richardson refused and resigned effective immediately. Richardson had, in his confirmation hearings before the U.S. Senate, promised not to use his authority to dismiss the Watergate special prosecutor without good cause. Nixon then ordered Deputy Attorney General William Ruckelshaus to do the firing. Ruckelshaus also refused and resigned. The fallout from these events cost Nixon dearly as, less than a week later, NBC News reported that, for the first time, a plurality of U.S. citizens supported impeaching Nixon with 44% in favor to 43% opposed. Will Trump face a similar reaction? Not likely.
Roger Stone lied about his contacts with the document disclosure group WikiLeaks during the 2016 presidential election and about his efforts to get an associate, comedian Randy Credico, to back up his lies. Should he spend the next 9 years in federal prison as a result? That’s what Jonathan Kravis thinks. He quit his job because Trump thinks his recommendation on sentencing is ridiculous. Kravis, a former Obama White House counsel, was also a clerk to Obama’s Supreme Court nominee, Merrick Garland. Why would an Obama administration holdout and his opinion on sentencing be more important than that of the elected president? The stories never say – they simply use words like “interference” and “meddling.” What if we change those to “management” and “guidance?”
Read more from Scott D. Cosenza.