Zelinsky’s testimony is a stunning — and stunningly rare — public rebuke of Justice Department leadership by a sitting official. And it comes as Barr is facing intensifying scrutiny over actions that Justice Department veterans and Democrats have described as dangerous breaches of the Justice Department’s independence from politics. The Justice Department did not respond to an immediate request for comment.
Barr most recently set off alarms when he sought late Friday to remove the top federal prosecutor in Manhattan, U.S. Attorney Geoff Berman, after falsely claiming that Berman had agreed to step down voluntarily. On Monday, Judiciary Committee Chairman Jerry Nadler (D-N.Y.) began a process to subpoena Barr for a July 2 hearing; House leaders have fended off some calls from progressive Democrats to consider impeaching him.
Zelinsky alleges that after Stone was convicted last year of repeatedly lying to Congress and intimidating a witness, Justice Department leaders leaned on him and three other Stone prosecutors to deviate from typical sentencing practices. The prosecutors had been prepared in early February to file a steep sentencing recommendation that they said reflected Stone’s long-term lying to impede an investigation of Russian interference in the 2016 election, a grave national security matter. But DOJ leaders said they should break from department policy and issue a lighter recommendation, Zelinsky says.
“[W]e were told by a supervisor that the U.S. Attorney had political reasons for his instructions, which our supervisor agreed was unethical and wrong,” Zelinsky says. “However, we were instructed that we should go along with the U.S. Attorney’s instructions, because this case was ‘not the hill worth dying on’ and that we could ‘lose our jobs’ if we did not toe the line.”
But the four prosecutors persisted and ultimately were told to file their sentencing recommendation on Feb. 10 but to omit descriptions of Stone’s conduct. Hours later, just before 3 a.m. on Feb. 11, Trump assailed the prosecutors in the case, calling their recommendation for seven to nine years — which was based on sentencing guidelines that prosecutors routinely employ — “horrible and very unfair.”
“Cannot allow this miscarriage of justice!” Trump tweeted.
Hours later, news reports quoting a “senior Justice Department official” circulated suggesting that a new sentencing recommendation would be filed. The four prosecutors on the case were never allowed to see the new memo, which was filed and called for a reduced sentence for Stone. None of the case prosecutors signed the memo, which Zelinsky called “virtually unprecedented.”
Ultimately, Zelinsky and his three colleagues withdrew from the Stone case. One, Jonathan Kravis, resigned from DOJ altogether. Shortly thereafter, the Justice Department filed a new sentencing recommendation for Stone signed only by acting U.S. attorney Timothy Shea.
Judge Amy Berman Jackson largely agreed with the reasoning in the initial sentencing memo, though she settled on a lower sentence than the prosecutors had recommended: 40 months.
“I am not here to criticize the sentence Judge Jackson imposed in the case or the reasoning that she used,” Zelinsky says. “It is about process and the fact that the Department of Justice treated Roger Stone differently and more leniently in ways that are virtually, if not entirely, unprecedented.”
Stone is due to report to prison on June 30, but Trump has strongly hinted that he will pardon him or commute his sentence, telling Stone in a recent tweet to “sleep well at night.”
A Justice Department spokeswoman rejected Zelinsky’s allegations, and noted that he had never directly discussed the matter with Barr, Shea or others at the top of the Justice Department.
“The Attorney General determined the high sentence proposed by the line prosecutors in the Roger Stone case was excessive and inconsistent with similar cases,” the spokeswoman, Kerri Kupec, said in a statement. “In the interest of ensuring the imposition of a fair sentence, the Attorney General directed Tim Shea, who was then U.S. Attorney for the District of Columbia, to leave the sentencing to the discretion of the judge. The judge ultimately sentenced Mr. Stone to half the time that the line prosecutors had originally proposed. As he has previously stated, the Attorney General did not discuss the sentencing of Roger Stone with the President or anyone else at the White House and had made the decision to correct the filing before the President tweeted about the case.”
Elias, the Judiciary Committee’s other key witness, served as the antitrust division’s chief of staff from January 2017 through late 2018, said he reported investigations into marijuana mergers and a probe into car emissions to the DOJ’s Inspector General’s office because of concerns they were improperly motivated by politics.
Elias, a 14-year veteran of the antitrust division, said Barr personally ordered the antitrust division to undertake lengthy merger reviews of 10 cannabis deals, including the $682 million merger between MedMen and PharmaCann that was later terminated because of regulatory delays.
“Rejecting the analysis of career staff, Attorney General Barr ordered the Antitrust Division to issue Second Request subpoenas,” Elias said, referring to the in-depth merger reviews undertaken by the antitrust division in cases where a deal raises antitrust concerns. “The rationale for doing so centered not on an antitrust analysis, but because he did not like the nature of their underlying business.”
The investigations into cannabis deals required the companies to turn over thousands or millions of documents, and at one point accounted for five out of the eight active investigations at the agency, he said.
Elias also raised concerns about an investigation into whether BMW, Ford, Honda and Volkswagen illegally agreed to adopt California’s tougher fuel emissions standards. Antitrust division leadership opened the civil antitrust probe a day after Trump tweeted about California reaching an agreement with the companies, Elias said. The probe was recommended by policy staff, and investigators “expressed concerns about the legal and factual basis for the investigation.”
The DOJ’s Office of Professional Responsibility reviewed concerns about the marijuana mergers and determined that the agency “acted reasonably and appropriately,” DOJ spokesperson Brianna Herlihy said. She also rejected Elias’ testimony related to a probe into automaker’s emission standards.
“The Division’s investigation in this matter was entirely consistent with established policies and not the result of any influence from outside the Department,” Herlihy said. “Mr. Elias’s testimony rests entirely upon his opinion and provides no evidence to the contrary.”