Timothy Shea became the U.S. Attorney for the District of Columbia last week. On Tuesday, his career ended.
Shea is still technically in office, but his ability to effectively lead the nation’s largest U.S. Attorney’s Office has ceased. That’s because Shea did something unheard of: One day after career prosecutors filed a sentencing memorandum with the court in the Roger Stone case, seeking a sentence that complies with federal guidelines, Shea publicly overruled them by asking the court for a more lenient sentence.
What happened in between? President Donald Trump tweeted his disapproval about the treatment of his friend, calling the initial sentencing recommendation “a horrible and very unfair situation” and stating, “Cannot allow this miscarriage of justice!”
Bowing to political pressure from the president violates the duty of prosecutors to bring impartial justice. Even the appearance that a prosecutor’s office has been swayed by political influence harms its effectiveness by eroding public confidence in its independence. A Department of Justice that favors the friends of those in power is no longer true to its name.
Just last week, Attorney General William Barr named Shea the acting successor to Jessie Liu, whom Trump had appointed to serve as an undersecretary of Treasury. Oddly, rather than continuing to serve as U.S. Attorney while awaiting Senate confirmation, Liu was removed from office and replaced with Shea, who had previously served as an adviser to Barr. Shea’s appointment gave Barr a close confidant in the office handling the cases related to Special Counsel Robert Mueller’s investigation into connections between Russian election interference and the Trump campaign. Former national security adviser Michael Flynn still awaits sentencing. On Tuesday, Trump withdrew Liu’s nomination. Was that more fallout from the conflict in the Stone case, or was that the plan all along?
On Tuesday, an anonymous senior Justice Department official was quoted in press reports as saying that department leadership was “shocked” by the recommendation, which was different from the recommendation that had been briefed to the department. The new pleading was filed later that afternoon.
In my experience as a former U.S. Attorney, reasonable prosecutors sometimes have good-faith disagreements on the appropriate sentencing recommendation in a case, but they work to reach a consensus internally and then speak publicly with one voice. The likelihood is zero that Shea was unaware, in advance of the recommendation, of the line prosecutors would make in their sentencing memorandum, which was filed under his name. In a case of this magnitude, prosecutors also would have notified the attorney general of their sentencing recommendation in advance. As I was always told, the attorney general of the United States should never have to learn about a court filing in one of DOJ’s cases by reading about it in the newspaper. It is highly unlikely that Shea and Barr were unaware in advance of the sentencing recommendation in Monday’s filing. The about-face, then, has one obvious explanation: Trump’s Twitter tirade.
In response to Shea’s changed recommendation, all four of the career prosecutors promptly filed notices with the court that they were withdrawing from the case, and one of them resigned from the Department of Justice. His position will no doubt be filled by some lawyer Shea will hire. Not a good trade.
Last month, a similar reversal occurred when the same U.S. Attorney’s Office filed a sentencing memo recommending up to six months in prison for Flynn, only to file a second brief recommending probation.
Stone was convicted of lying to Congress, obstructing justice, and witness tampering in the House Intelligence Committee’s investigation into Russian election interference. In the sentencing memo filed on Monday, prosecutors explained the calculation of the sentencing guidelines, which assess points for aggravating factors in the commission of the offenses. In this case, those points yielded an advisory sentencing-guidelines range of seven to nine years in prison, and the prosecutors recommended a corresponding sentence of imprisonment. Prosecutors explained that such a sentence was warranted because Stone’s conduct constituted “five categories of lies” and had a significant impact on the investigation being conducted by the committee. Because of Stone’s conduct, the committee never received certain documents and never heard from certain witnesses. Stone’s witness tampering involved threatening physical harm, telling the witness in writing, “Prepare to die …” Even after he was charged, Stone continued to denigrate the court process and taint the jury pool, even posting on social media a photo of the judge in the crosshairs of a gun.
When a defendant is convicted following a trial, a sentence within the federal sentencing-guidelines range is the presumed starting point. It would be unusual for prosecutors to recommend a lower sentence in that situation, yet that is just what Shea did. The brief was signed under Shea’s name by John Crabb Jr., a different assistant U.S. Attorney from the attorneys who had previously handled the case. The new filing omits all of the aggravating factors that were included in the original memo and reads like a brief for the defense. It argues that, contrary to the initial recommendation, a guidelines sentence would be “excessive and unwarranted under the circumstances.”
Department of Justice spokesperson Kerri Kupec said DOJ had not communicated with the White House on Monday or Tuesday. Of course, that means it might have communicated on some other day. Regardless, Shea seemed to get the message anyway. With Trump, public statements via Twitter are hard to miss.
Shea may have pleased his boss for the moment, but running a U.S. Attorney’s Office requires leading in both directions of the chain of command. In this case, Shea may have won the president’s approval, but he has lost the trust of the real public servants who work in his office and across the country.
And he is now the perfect symbol of Trump and Barr’s badly damaged Department of Justice.
Barbara McQuade is a former U.S. Attorney in the Eastern District of Michigan. She now teaches at the University of Michigan Law School.