Just like David French, whose dishonest exposition on the Roger Stone commutation I address here, Jeffrey Toobin must begin his own dishonest historical revision of the Stone case with a Richard Nixon anecdote because, after all, Roger Stone is known by his enemies for never having been apologetic for his historical support and admiration of Nixon. As I said in my “fisking” of French’s piece, that is Roger Stone’s original sin for the Anti-Trumpers in the media.
Toobin holds a special place in the legal commentariat. An attorney of no demonstrable legal ability or record, he holds forth on these matters based on the “celebrity” he earned in his daily ramblings about the prosecution of OJ Simpson. Yes, he graduated from Harvard Law School with honors; yes he was on the Harvard Law Review; yes he quit a job clerking for a federal judge to take a position in the office of Independent Counsel Lawrence Walsh as its youngest member — and without any experience; yes, he stayed with the Walsh office for more than three years, including through the trials of Oliver North and John Poindexter during which he sat in the audience every day and took notes; and yes, he spent almost three years thereafter as an Assistant United States Attorney in the Eastern District of New York.
He used his notes taken during the North trial to write a book, “Opening Arguments”, that Walsh sued him over in an attempt to prevent its publication; he played no role that anyone can recall in any of the actual prosecutions done by Walsh – not surprising since he had no experience, and he quit the practice of law altogether when he resigned as a federal prosecutor in Brooklyn. That has all the hallmarks of a crack courtroom legal eagle — right?
Then I stumbled across this “review” of “Opening Arguments” from Commentary Magazine written by Terry Eastland, a spokesman for the Reagan Justice Department, and thereafter a highly regarded member of the conservative media. A few excerpts from Eastland are classic:
Toobin has little feel for the contours of constitutional law or the purpose of the presidency in our system of government, nor is he learned in foreign affairs, whether in the Middle East or Central America….
By the end of the book, Toobin is still a liberal (U.S. policy in Central America is “reprehensible,” he writes…) but he is no longer the zealous crusader. He dwells, now, on the “futility of using the criminal process to expose or correct governmental misdeeds,… [embracing] a “more modest conception of the [Office of Independent Counsel] mission”—that it should stick to enforcing specific statutes, nothing more. “Only crimes are crimes,” he says, cautioning, correctly, that prosecutors “thinking broadly put all of us at peril….” “I know better my own limits and those of all prosecutors.” The world is no doubt a safer place now that Jeffrey Toobin has discovered that only crimes are crimes—something he was apparently never taught at Harvard Law School.
Toobin was a young man in a hurry. His chapters on the North trial are eyewitness accounts of the proceedings, but it is clear that on most days he was not at the prosecution table but in the audience where, I am told, he took notes as though he were just another reporter. Quite apart from the government-ethics question of why the citizenry should have been paying Toobin’s (huge) salary while he pursued a lucrative private interest (this book), and the managerial question of why Walsh did not supervise his rookie lawyer, one wonders whether Toobin joined the OIC to crusade or to make a name for himself.
Eastland went on to note that government records regarding spending by Walsh’s Independent Counsel Office showed he was paying newbie-lawyer-without-any-experience Toobin $70,000 year, double what new attorneys hired by DOJ were making at that time. And Toobin was, most of the time, collecting that salary in order to do research on the book he was planning to write.
Enough about his history. But readers should understand that Jeffrey Toobin is NOT an authority on anything having to do with the actual work of bringing federal criminal prosecutions. He brings to my mind the short exchange between “Animal Mother” and “Private Joker” in Stanley Kubrick’s “Full Metal Jacket” where Private Joker describes himself as a “Combat Correspondent”, and Animal Mother asks “Have you seen much combat?” to which Private Joker replies “I’ve seen a little on TeeVee”.
That’s Jeffrey Toobin when it comes to criminal prosecution – he knows what he’s seen on TV.
So, what has he written that has me calling him out today? Along with his fellow travelers in liberal legal circles, he wants to get in his shots over the Roger Stone commutation. But like the others he can’t contain himself to actual facts – he’s got to make up some to help his cause along the way.
William Barr, the Attorney General, had already overridden the sentencing recommendation of the prosecutors who tried the case—a nearly unprecedented act….
As I wrote here, Barr prevented young and mistake-prone Aaron Zelinsky from the Mueller Special Prosecutor’s Office (seem familiar Jeffrey) from recommending a sentence for Stone that violated DOJ policy. Barr caused to be filed a Supplemental Sentencing Memorandum which removed the recommendation by Zelinsky for an 87-month sentence, and instead stated that DOJ would leave the determination of what would be an appropriate sentence to the sound discretion of the Court. Maybe when Toobin was in the audience taking notes – that’s what he does – he missed what Judge Amy Berman Jackson said about Barr’s “unprecedented act” when announcing the sentence she imposed on Stone:
I agree with the defense and with the government’s second memorandum, that the eight-level enhancement for threats, while applicable, tends to inflate the guideline level beyond where it fairly reflects the actual conduct involved.
Zelinsky wanted to advocate for a sentence based on the eight-level enhancement — 87 months — without recognizing the disproportionate impact that enhancement had on the sentencing range when comparing sentences imposed on other defendants in similar cases with similar characteristics. Zelinsky’s desired recommendation was the product of zealotry and inexperience – which Barr prevented from influencing the Government’s recommendation of a “just sentence” as DOJ policy requires.
Toobin’s comment is a reflection of Toobin’s zealotry – but given his 30+ years of “experience” – it’s also a reflection of his ignorance. And THAT is Exhibit “A” for why readers should for the most part ignore Jeffrey Toobin.
The only trace of shame in Trump’s announcement was that he delivered it on a Friday night—supposedly when the public is least attentive.
Ummm – earlier in the day on Friday, the Court of Appeals for the District of Columbia denied Stone’s “Emergency Motion for Stay” as part of his efforts to force Judge Berman Jackson to extend his surrender date to August 30. Maybe the combination of the Appeals Court’s denial, and the fact that Stone was 72 hours from having to report to the Bureau of Prisons in Jessup, Georgia, influenced the decision on Friday afternoon/evening, and not out of a desire on Pres. Trump’s part to hide what he was doing. Quit making up facts Jeffrey.
Toobin goes on:
In light of the long relationship between Trump and Stone, the commutation represents a consummate act of cronyism;.. But Trump had not, until now, used pardons and commutations to reward defendants who possessed incriminating information against him… As Amy Berman Jackson, the judge in Stone’s case, said, in sentencing him, “He was not prosecuted, as some have complained, for standing up for the President. He was prosecuted for covering up for the President.”
Every reader of this article should Tweet to Toobin demanding that he explain what “incriminating information” he claims Stone possessed about Pres. Trump. In my piece earlier today about David French, I went through in detail the FACTS in the Mueller Report which show that SC Investigation came up with no evidence that Stone had any substantive connections to or contacts with the Russians, Wikileaks/Assange, or anyone associated with the theft of DNC materials.
The innuendo that the Trump opponents have peddled in endless media pieces by blowhard mouthpieces like Jeffrey Toobin is that Roger Stone WAS a conduit for the Trump campaign to Russians wanting to assist Trump to beat Hillary Clinton, and Stone refusing to cooperate with Mueller has kept that information under wraps to the benefit of Trump.
THAT IS ALL A LIE. The Mueller Report sets forth the facts revealing this media narrative to be a lie. Toobin is one of the serial perpetrators of this lie.
The FACTS in the Mueller Report show Stone had NO connections beyond 3-4 Twitter messages in August with “Guccifer 2.0”, which amounted to nothing, one twitter exchange with someone on the Wikileaks Twitter account in October which was acrimonious, and one message from the same Twitter account in November that Stone didn’t respond to.
That’s it – there was nothing more. Stone is not, and never was, a link between the Trump Campaign and any Russian effort to influence the outcome of the election. He is not hiding any information in that regard for the benefit of Pres. Trump, and Jeffrey Toobin telling you that is true reveals either 1) Toobin hasn’t actually read the Mueller Report for himself, or 2) Toobin doesn’t understand the significance of what the Report does say. He’s still living the fantasy of what all those “anonymous” former IC community members whisper in the ears of CNN commentators when the lights go down on the set (apologies to James Gagliano).
I think we found something to agree on:
The Stone commutation represents a culmination (if not, necessarily, the final one) of Trump’s efforts to dismantle the legacy of the Mueller investigation.
I would say that the Mueller investigation was a farce, and it deserves the treatment it is getting from Trump, Barr, and other critics. The two most comprehensive indictments — the GRU Operative case and the Concord Management case, were both written with the full expectation that nothing in those indictments would ever need to be proven in a courtroom. When that turned out to not be the case with respect to Concord Management, the SCO tucked its tail between its legs and dismissed the case — folding up its tent altogether not long after. THAT is an embarrassment likely to never be lived down in the career of Jeannie Rhee, the lead prosecutor and Mueller acolyte on that case.
The entire investigation represents a stain on Robert Mueller’s legacy as a public servant, put there by left-wing zealots working for him – much like when Toobin was a left-wing zealot working for Lawrence Walsh.
These actions [by Barr] are not the even-handed application of criminal law, but rather the indulgence, by the Department of Justice, of the President’s grievances with his enemies.
Well, maybe. Not the President’s “enemies”, but clearly the President’s opponents. And they fired the first shot on July 31, 2016, when they opened an FBI investigation into the campaign of the political opposition based on barroom talk by a lowly campaign aide in a London pub — supposedly — and perpetuated the effort to cripple the administration by employing a Special Counsel while waging “lawfare” on every effort by the Administration to govern the country.
Now that the tale has unraveled, and the “fox is in the henhouse”, a lot of hens are paying the price for that ill-advised strategy.