All Eyes on the DOJ Inspector General?

On February 20, 2020, Judge Amy Berman Jackson sentenced President Trump’s longtime friend, Roger Stone, to three years and four months in federal prison. Stone’s sentencing drew much attention, and Judge Jackson missed no opportunity to admonish Stone for “covering up for the president.” However, the real chaos began over a week before Stone ever stepped foot in Judge Jackson’s courtroom, when all four federal prosecutors quit Stone’s case after their sentencing recommendation was overruled by DOJ leadership.

The prosecution team’s original sentencing memo, filed on February 10th, recommended Stone face up to nine years in prison. The revised memo, filed just twenty four hours later, referred to the first recommendation as “excessive” and ultimately deferred to the court. This left many, including Judge Jackson, wondering what transpired over the course of twenty four hours to warrant such a drastic departure from not only the original memo, but also standard DOJ sentencing policy.

Many opine that the change came from the top—that is, at least in part, from the President of the United States himself. On February 11th the President took to twitter, calling the situation facing Stone “horrible and unfair.” However, in an interview with ABC News just two days after the revised sentencing memo was filed, Attorney General Bill Barr chalked the difference up to a miscommunication between himself and the four attorneys originally on the case. The Attorney General also attempted to make clear that the Department had not been influenced by the President and that the President’s tweets indeed make it “impossible” for the Attorney General to do his job.

Regardless of the underlying reasons behind the discrepancy, the fact is that just hours after the President’s intervention via Twitter, the DOJ reversed course, leaving both Congress and the public suspicious. It is hard to see the reversal as anything other than a chain reaction. Over 1,000 former DOJ employees saw it that way and called on the Attorney General to resign, while the President applauded Bill Barr for “taking charge” of Stone’s case. After the revised memo was filed, the spotlight turned to the DOJ’s Inspector General (“IG”), Michael Horowitz, to investigate the matter.

The Inspector General Act of 1978 provides that an IG’s duties include determining when internal investigations are warranted and issuing reports recommending corrective solutions. As far as public records can show, the DOJ’s Inspector General has not investigated a Department sentencing recommendation in the past five years. And there is no question that the Attorney General has the authority to supervise sentencing matters and intervene at his discretion. But the president’s authority to do so is less clear. President Trump notably believes he has the “absolute right to do what [he] want[s] with the Justice Department.” Still, administrations of both parties have historically maintained distance on law enforcement matters.

As these lines continue to blur under the current administration, the pressure for DOJ Inspector General Michael Horowitz to investigate grows stronger. Because of the unique circumstances of Stone’s case, including the fact that this is not the first time perceived wrongdoing has occurred between the President and the Attorney General, Stone’s situation cannot be written off by simply concluding Attorney General Barr acted within his discretion (and the President acted in accordance with his character). Stone’s case has wider implications for the United States, its people, and its Constitution, including a debate about the proper role of Inspectors General. Stone has already been sentenced. He may likely be pardoned by the President. And the prosecutors on his case have already resigned, a telling symbol of their lack of faith in the Department.

Despite the fact that investigating discrepancies in sentencing recommendations may not be one of the IG’s ordinary assignments, perhaps the novelty of this case weighs in favor of IG intervention in some form. Stone’s case is political, it is high­–profile, and it is unconventional, but similar to any other run–of–the–mill criminal prosecution, from indictment through sentencing, “the truth still matters.”