In an unusual, embarrassing and incompetent display of political interference in a federal sentencing recommendation, the Department of Justice first filed a sentencing memorandum on February 10, 2020 and then filed a “supplemental and amended” one the next day in U.S.A. v. Roger J. Stone, Jr.

Both were presented to Judge Amy Jackson Berman, a federal district judge in D.C. who presided over the case  in which the defendant was convicted of several serious federal crimes. Judge Berman will sentence Stone.

Stone is an alleged friend of Trump. The first memorandum suggests that Stone should be sentenced to 87 to 108 months in federal prison and was prepared by four Justice lawyers who tried the case and who quit when they found out about the second one.

Rejecting the reasoning of the first memorandum about the amount of time Stone should serve, the second one just says that Stone should get a “sentence of incarceration,” because the first one misapplied the advisory federal sentencing guidelines and reached an excessive recommendation. Seems a little late. The original memorandum was certainly reviewed at the highest levels of Justice.

But Attorney General Barr didn’t like the idea of telling the judge that Stone should go away for seven to nine years. After Justice’s original  87-108 months recommendation became public, Trump decided that he didn’t like it either and started a falsehood-laden tweetstorm.

Barr has said that he decided to countermand his staff and make a new filing before Trump’s anger and invective ever happened. In a case of this public importance it seems that Justice has an obligation to get it right in the first instance.

The dueling memoranda discuss the application of the advisory sentencing guidelines. The guidelines offer a grid and score the defendant and his or her crimes with points starting with “base points” and, if warranted, levels of “enhancement” based on conduct by the defendant that make the circumstances of the crimes particularly egregious.

Provision is also made in the guidelines for “downward departures” but they are inapplicable to Stone, a determination upon which both of the duelers appear to agree.

Now to the facts.

During the 2016 campaign WikiLeaks released a trove of material that was stolen from the Democratic National Committee. Stone monitored WikiLeaks’ plans for these leaks through a Julian Assange confidant named Jerome Corsi.

He shared his knowledge with the Trump campaign, through Richard Gates, Steve Bannon and Paul Manafort including the timing of the releases, referred to in emails as “dumps,” a word that would also be appropriate in the alimentary context.

All this became the subject of Stone’s testimony before Congress. He lied his head off, denying that he had shared with the Trump campaign, and falsely stating that Randy Credico was the Assange confidant when it was actually Jerome Corsi.

When the congressional investigators sought the testimony of Credico (which they never got), Stone began a campaign of intimidation and obstruction. Among other actions to keep Credico silent, Stone told Credico in writing, “Prepare to die, cocksucker” and threatened to “take that dog away from you.”

The dueling recommendations diverge on the significance of these threats because Credico did not believe them. The later sentencing memorandum objects to enhancements based on these threats.

The original memorandum points out that it is the “threat itself, not the likelihood of carrying out the threat, that triggers the enhancement” under the guidelines. And Credico was concerned that Stone’s words if publicly known might make “other people get ideas.”

Post-indictment, Stone started acting out even though Judge Berman ordered him to desist several times. For example, Stone posted an Instagram photo of Judge Berman with a symbol that appears to be a crosshairs next to her head. At a hearing on the matter, Stone asked for a “second chance.” Judge Berman discredited Stone’s “evolving and contradictory explanations” and found that “the effect and very likely intent of the post was to denigrate this process and taint the jury pool.”

Undeterred, Stone subsequently violated courts orders proscribing his contemptuous behavior.

The filing of an unconvincing and poorly conceived second memorandum demonstrates a Department of Justice in disarray even without the fair inference that the new take on Stone’s sentence was political.

Even arrogant jerks like Stone have to face justice after a conviction for these crimes.

At his sentencing, he will.