Why the prosecutor sided with the Roger Stone memo that Trump opposed

Prosecutor John Crabb Jr. approached Judge Amy Berman Jackson sheepishly at first.

The federal judge in Washington had briefly turned Roger Stone’s hours-long sentencing hearing to focus on the Justice Department leadership’s trampling its career prosecutors the previous week. That shift toward sympathy for Stone, hours after President Donald Trump criticized the prosecutors and supported Stone, had prompted all four of Crabb’s colleagues at the DC US Attorney’s Office to withdraw from the case and one to quit his job.

At that moment Thursday, whether he wanted to or not, Crabb became the face of the Justice Department’s crisis in court. Jackson needed to sort out the two divergent sentencing memos.

Crabb sided with the prosecutors and not Justice Department leadership, who wanted a lighter recommended sentence for Stone, or the President, who called the case unfair.

The move, in theory, could rebut any arguments other criminal defendants will try to make in the future, claiming behavior like Stone’s deserves more leniency.

The reversal was one of the more shocking moments of the intense, at times startling, hearing.

“The Department of Justice and United States Attorney’s Office is committed to enforcing the law without fear, favor or political influence. This prosecution was and this prosecution is righteous,” Crabb said.

Over the 2-and-a-half hours of Stone’s sentencing, Crabb made clear the Justice Department was now walking back nearly everything Justice Department leadership had done over the past week.

“I fear that you know less about the case, saw less of the testimony and the exhibits than just about every other person in this courtroom,” Jackson said to him, kicking off a 10-minute portion of the hearing focused on the sentencing mess. Jackson, a former trial attorney herself, grilled Crabb with questions about what happened.

“Is there anything you’d like to say about why you’re the one standing here?”

“I want to apologize to the court for the confusion that the government has caused with respect to this sentencing and the difficulties surrounding that,” Crabb said. “I want to make clear to the Court that this confusion was not caused by the original trial team.”

The prosecutors in his office last Monday had calculated a sentence of about seven to nine years for Stone would be appropriate. But the following day, the Justice Department, in a memo Crabb signed, asked for more leniency and a lesser sentence for Stone.

The US Attorney’s Office in DC had authorized the original memo, with even the recently appointed US Attorney Tim Shea approving it, Crabb said. Justice Department headquarters and the US Attorney’s Office had spoken about it, but “there was a miscommunication between the Attorney General and the United States Attorney for the District of Columbia as to the authorization and the expectations that the Attorney General had,” he said.

Crabb said he didn’t personally know about the miscommunication, and that he wouldn’t say in court whether a superior forced him to write the revised memo.

“I’m not at liberty to discuss internal deliberations,” he said.

Jackson pointed out to him that it’s department policy to prosecute the most serious offense possible in cases in order to reach higher possible sentencing recommendations.

Crabb during the hearing revealed point by point how the Justice Department still stood with the ex-Stone prosecutors — and largely not the revised recommendation for Stone.

To arrive at their seven to nine year sentencing recommendation, the ex-Stone prosecutors had done legal calculations that highlighted Stone’s threats toward a congressional witness and toward the judge. But the revised memo downplayed both of those sets of threats. On Thursday, Crabb said the threats should receive the harsher possible sentences, effectively disavowing Barr’s approach.

Jackson noted leniency isn’t the department’s typical policy toward defendants.

“For those of you who are new to this, or who woke up last week and became persuaded that the guidelines are harsh … I can assure you that defense attorneys and many judges have been making that point for a long time,” she quipped at the start of the hearing.

In only one way did Crabb stick with the revised memo: saying that prosecutors would defer to the judge on the amount of prison time.

The prosecutors originally wrote Stone should face about 7 to 9 years in prison for his crimes of obstruction, lying to Congress and witness intimidation. In the updated memo, which Crabb signed, it said less than seven was more appropriate.

Crabb clarified on Thursday the Justice Department believed Stone should get “substantial” prison time.

Jackson had done her own calculation for the court record, agreeing on all but one argument for a harsher sentence. She believed the facts of Stone’s case put his legal sentencing calculation between almost 6 years and more than 7 years.

But Jackson ultimately sentenced Stone to three years and four months in prison, plus supervised release and a $20,000 fine. He is still fighting in court for a new trial.