An Investigation of Allegations Concerning the Department of Justice’s Handling of the Government’s Sentencing Recommendation in United States v. Roger Stone

An Investigation of Allegations Concerning

the Department of Justice’s Handling of the

Government’s Sentencing Recommendation in

United States v. Roger Stone

OVERSIGHT AND REVIEW DIVISION

24-081

JULY 2024

I. Introduction

This report describes the Department of Justice (Department or DOJ) Office of the

Inspector General’s (OIG) investigation into allegations concerning the Department's

handling of the sentencing in

United States v. Roger Stone

and the congressional testimony

relating to those allegations. Following Roger Stone’s conviction at trial, on February 10,

2020, the U.S. Attorney’s Office for the District of Columbia (DC USAO) filed the

government’s sentencing memorandum recommending that the U.S. District Judge impose

a sentence upon Stone in accord with the advisory U.S. Sentencing Guidelines (the

Guidelines or USSG), which the government submitted yielded a Guidelines range of 87 to

108 months of incarceration. Early the next morning, then President Donald J. Trump

posted tweets criticizing the government’s sentencing recommendation in the Stone case.

Hours later, at the direction of then Attorney General William Barr, the DC USAO filed a

“supplemental and amended” sentencing memorandum in the Stone case stating: (1) a

sentence within the Guidelines range of 87 to 108 months was “excessive and

unwarranted” and “would not be appropriate or serve the interests of justice,” (2) a

sentence “far less than” 87 to 108 months would be reasonable under the circumstances,

and (3) the government ultimately defers to the court as to what the appropriate sentence

should be. The same day, all four members of the government’s trial team withdrew their

appearances in the Stone case, and one of them resigned from the Department.

Thereafter, the OIG received numerous requests to review the circumstances

surrounding the DC USAO’s filing of the supplemental and amended sentencing

memorandum (second memorandum).

However, the Inspector General Act of 1978

requires the OIG to refer to DOJ’s Office of Professional Responsibility (OPR) misconduct

allegations concerning the actions of DOJ attorneys—including the Attorney General—in

connection with the exercise of the attorney’s authority to litigate, investigate, or provide

legal advice.

The OIG, consistent with our practice in such circumstances, undertook an

assessment of available information to determine whether the OIG had a basis to exercise

jurisdiction and spoke with DOJ leadership (i.e., the Attorney General, Deputy Attorney

General, and their senior staff) and OPR about the matter. During these discussions, the

OIG learned that DOJ leadership did not believe there was sufficient predication to support

the opening of a review by OPR and that OPR had not opened a review. The OIG continued

For instance, in February 2020, members of Congress asked the OIG to investigate the Department’s

change in sentencing position and publicly expressed concern about improper political interference in the

Stone case. In letters to the OIG, members of Congress questioned whether President Trump’s public

comments prompted the second sentencing memorandum and whether Barr had intervened in the case

because of White House pressure.

5 U.S.C. §§ 413(b)(2)-(3).

its assessment of available information to determine whether there was potential OIG

jurisdiction.

On June 24, 2020, while the OIG was still gathering information to determine

whether the OIG had jurisdiction, a member of the government’s Roger Stone trial team,

Prosecutor 2, testified before the U.S. House of Representatives Committee on the Judiciary

(House Judiciary Committee) alleging that improper considerations influenced the

Department’s handling of the Stone sentencing recommendation.

In his Statement for the

Record, Prosecutor 2 stated that the Department exerted “significant pressure on the line

prosecutors in the case to obscure the correct Sentencing Guidelines calculation to which

Roger Stone was subject—and to water down and in some cases outright distort the events

that transpired in his trial and the criminal conduct that gave rise to his conviction,”

culminating ultimately in the filing of the government’s second sentencing memorandum.

Prosecutor 2 further stated that DC USAO management had participated in improper

political pressure imposed on the trial team to change the sentencing memorandum and

made statements that: (1) Stone was “being treated differently from any other defendant

because of his relationship to the President”; (2) Interim U.S. Attorney Timothy Shea was

“receiving heavy pressure from the highest levels of the Department of Justice to cut Stone

a break”; and (3) the Interim U.S. Attorney was “giving Stone such unprecedentedly

favorable treatment because he was ‘afraid of the President.’” During the June 24 hearing,

Prosecutor 2 identified three supervisors in the DC USAO—two by name and one by title—

as having made these statements or been involved in the relevant discussions.

The following day, June 25, 2020, the three supervisors—the then Principal Assistant

U.S. Attorney (Principal AUSA), Chief of the DC USAO’s Criminal Division (Criminal Chief),

and Fraud and Public Corruption Section Chief (FPC Chief)—self-reported the allegations to

OPR and identified them as “false and frivolous.” In light of the allegations that Prosecutor

2’s congressional testimony was false and, therefore, potentially criminal in nature, and

because OPR does not investigate criminal matters, OPR referred those allegations to the

OIG. The OIG has jurisdiction over all criminal allegations against DOJ employees, including

attorneys.

Given Prosecutor 2’s sworn testimony and the supervisors’ assertions to the

contrary, in July 2020, the OIG notified then Attorney General Barr that we were initiating

an investigation of the allegations. The OIG informed Barr that our investigation would

include both the allegation regarding Prosecutor 2’s testimony before the House Judiciary

Committee and an examination of the circumstances surrounding the preparation and

filing of the first and second sentencing memoranda to assess the competing claims

regarding whether improper considerations influenced the Department’s handling of the

Committee on the Judiciary, U.S. House of Representatives, “Oversight of the Department of Justice:

Political Interference and Threats to Prosecutorial Independence” (June 24, 2020).

5 U.S.C. § 413(b)(2).

Stone sentencing recommendation and whether anyone placed improper political pressure

on the Stone trial team. Barr did not raise any objections to the proposed scope of the OIG

investigation. The OIG also informed OPR of the scope of our investigation at that time,

and OPR concurred with the OIG investigating the matter.

Our investigation included a review of documents, emails, phone records, and

available text messages and an analysis of relevant laws, regulations, DOJ policies, and

USSG provisions. We also conducted interviews of 24 current and former Department

attorneys and officials, several over multiple days. More specifically, we interviewed three

of the four members of the Stone trial team—an Assistant U.S. Attorney (AUSA) who held a

senior role in the DC USAO’s Fraud and Public Corruption Section (Prosecutor 1),

Prosecutor 2, and Prosecutor 3—as well as Shea, members of Shea’s management team,

including the Principal AUSA, Chief of Staff to the Interim U.S. Attorney (Shea’s Chief of

Staff), the Criminal Chief, the FPC Chief, and several other DC USAO attorneys. We also

interviewed former U.S. Attorney for the District of Columbia Jessie Liu, Barr’s Chief of Staff

Brian Rabbitt, the Principal Associate Deputy Attorney General during times relevant

herein, Seth DuCharme, and several other Department officials. Barr declined our request

for a voluntary interview, and because the OIG does not have the authority to subpoena

testimony from former Department employees, we were unable to compel his interview.

For the same reason, we were unable to compel testimony from other former Department

officials and employees who declined our requests for a voluntary interview, including

Jeffrey Rosen, Deputy Attorney General during times relevant to this investigation; the

Department’s Public Affairs Director during times relevant to this investigation; Attorney

General Barr’s Chief of Staff who replaced Brian Rabbitt in March 2020; and a member of

the government’s trial team (Prosecutor 4).

As detailed below, our investigation did not identify documentary or testimonial

evidence that the actions and decisions of those involved in the preparation and filing of

the first and second sentencing memoranda were affected by improper political

considerations or influence. The evidence showed that, prior to Shea’s appointment as

Interim U.S. Attorney on February 3, 2020, and during Shea’s first week in that position,

there had been extensive discussions within the DC USAO about the Guidelines calculation

in the Stone case, whether a sentence within the Guidelines range was reasonable, and

whether the DC USAO should advocate for a Guidelines sentence. The OIG did not find

evidence that DOJ leadership discussed the Stone sentencing with Shea or his Chief of Staff

before they joined the DC USAO, and testimony from Liu and DuCharme indicated that no

one from DOJ leadership had been tracking the upcoming sentencing. The OIG also did not

find evidence indicating that, after Shea became Interim U.S. Attorney and before the first

memorandum was filed, DOJ leadership exerted pressure upon Shea or the DC USAO, or

otherwise inserted itself into the internal DC USAO discussions about the sentencing

memorandum and recommendation. Instead, we found that Shea, unsure of what to do,

decided to seek guidance from DuCharme days before the filing deadline, looking for a

"steer" on what sentencing position to take. Then, on February 10, 2020, the day the DC

USAO’s sentencing filing was due and immediately after a

previously scheduled meeting

that Shea had with Barr and others on an unrelated matter, Shea initiated a discussion with

Barr about the Stone sentencing recommendation. At the time of this conversation, Shea

had still not decided what position the DC USAO’s sentencing memorandum should take,

even though it was due later that day. Shea told Barr during their conversation that he

(Shea) believed the Guidelines range was unreasonable, and he and Barr then discussed

the DC USAO taking a sentencing approach that advised the court that a sentence below

the Guidelines range would be appropriate and that deferred to the court on the ultimate

sentence to impose.

However, rather than taking the approach he discussed with Barr,

and despite telling Barr that he believed the Guidelines range was unreasonable, a few

hours later Shea authorized the filing of the DC USAO’s sentencing memorandum that

advocated for a sentence that was “consistent with” the Guidelines range.

The evidence showed that immediately upon learning that evening from media

reporting that the DC USAO’s memorandum’s sentencing recommendation was

inconsistent with the approach that he and Shea had discussed, Barr expressed to

members of his staff that the recommendation reported in the media did not reflect what

he and Shea discussed earlier that day, and his view that it needed to be “fixed.” Several

hours later, shortly after midnight on February 11, then President Trump issued tweets

attacking the DC USAO’s sentencing memorandum. Thus, we found that Barr had

articulated his position about the sentencing recommendation both before and shortly

after the first sentencing memorandum was filed, and before the President’s tweets.

Based on the evidence described in this report, we concluded that the sequence of

events that resulted in the Department’s extraordinary step of filing a second sentencing

memorandum was largely due to Shea’s ineffectual leadership. We found no evidence that

DOJ leadership, Shea, or DC USAO supervisors engaged in misconduct or violated

Department policy in connection with the Stone sentencing.

We also concluded that Prosecutor 2 did not provide false testimony to the House

Judiciary Committee in violation of 18 U.S.C. §§ 1621 and 1001. Although we did not find

evidence sufficient to establish improper political considerations or influence, as

Prosecutor 2 had alleged in his testimony before the House Judiciary Committee, we

identified statements made by Prosecutor 1 and speculative comments by the FPC Chief

that influenced Prosecutor 2’s suspicions about possible political interference and formed a

substantial basis for Prosecutor 2’s testimony. As a result, we found that Prosecutor 2’s

As we describe in this report, even career lawyers at the DC USAO believed at the time that

reasonable minds could differ about the appropriateness of a sentencing recommendation within the range of

the Guidelines.

Unless otherwise noted, the OIG applies the preponderance of the evidence standard in determining

whether Department personnel have committed misconduct. The Merit Systems Protection Board applies this

same standard when reviewing a federal agency’s decision to take adverse action against an employee based

on misconduct. See 5 U.S.C. § 7701(c)(1)(B); 5 C.F.R. § 1201.56(b)(1)(ii).

belief that he (and the rest of the trial team) had been pressured to revise the

memorandum for political reasons was not unreasonable.

We recognize that the Department’s handling of the sentencing in the Stone case

was highly unusual, including its filing of a second sentencing memorandum and DOJ

leadership’s personal involvement in the preparation of that second memorandum.

Moreover, Shea’s and Barr’s participation in the Stone sentencing, given their status as

Administration political appointees and Stone’s relationship with the then President,

resulted in questions being asked and allegations being made about the Department’s

decision making. However, absent a law, rule, regulation, or Department policy that

prohibits their participation (none of which exist here), whether the U.S. Attorney and/or

the Attorney General should personally participate in such a matter is ultimately left to

their discretion and judgment, including their assessment of how such involvement will

affect public perceptions of the federal justice system and the Department’s integrity,

independence, and objectivity.

The OIG has provided a copy of this report to the Offices of the Attorney General

and Deputy Attorney General and the Executive Office for U.S. Attorneys for their

information.

II. Background

United States v. Roger Stone

On January 24, 2019, a federal grand jury indicted Roger Stone on one count of

obstruction of a proceeding, five counts of making false statements, and one count of

witness tampering relating to the U.S. House of Representatives Permanent Select

Committee on Intelligence’s (HPSCI) investigation into Russian interference in the 2016 U.S.

presidential election. The HPSCI investigation was interested in Stone’s efforts in the

months leading up to the 2016 presidential election to obtain information from an

organization, later identified as WikiLeaks, that would help the Trump campaign. The Fraud

and Public Corruption Section of the DC USAO’s Criminal Division prosecuted Stone under

the supervision of the FPC Chief. The trial team included Prosecutor 1, Prosecutor 2,

Prosecutor 3, and Prosecutor 4.

During Stone’s trial, the DC USAO trial team presented evidence that Stone

obstructed the HPSCI investigation by giving false and misleading testimony about, among

other things, his communications with the Trump campaign regarding WikiLeaks, requests

he made for information from WikiLeaks, the source of certain public statements he made

about WikiLeaks, and his possession of documents pertinent to the HPSCI investigation.

Evidence was introduced to show that Stone failed to turn over, and lied about the

existence of, records responsive to HPSCI’s document requests; submitted a letter to HPSCI

falsely identifying a person, later identified as Randy Credico, as his intermediary or source

for information concerning WikiLeaks; and attempted to have Credico testify falsely before

HPSCI or prevent him from testifying.

Most relevant to the issues described later in this report, with respect to the witness

tampering offense, the government presented evidence that Stone urged Credico to

confirm Stone’s false testimony to HPSCI that Credico was his source of information for

statements Stone made in early August 2016 about certain contacts with WikiLeaks and

that Stone took steps to prevent Credico from contradicting his false statements to HPSCI.

The government presented evidence that these steps included, among other things,

threats Stone made to Credico as follows: “I'm going to take that dog away from you” and

"I am so ready. Let's get it on. Prepare to die, cocksucker.” Credico later declined HPSCI’s

request for a voluntary interview and invoked his Fifth Amendment privilege against self-

incrimination in response to a HPSCI subpoena. During Stone’s trial, Credico testified that

he did not take Stone’s threats seriously, but he worried that Stone’s words, if repeated in

public, might cause “other people [to] get ideas.”

Also relevant to the issues described later in this report, after his indictment and

before the trial, Stone posted an image online of the judge presiding over his case with a

crosshair next to her head. At a hearing on the matter, the court found that “the effect and

very likely the intent of the post was to denigrate this process and taint the jury pool,” and

that Stone's actions “posed a very real risk that others with extreme views and violent

inclinations would be inflamed.” The court modified Stone’s conditions of release to

prohibit any public statements by him about the investigation, the case, or any of the

participants in the investigation or the case. However, Stone continued to make public

comments about the pending case and related matters in violation of the court’s orders.

On November 15, 2019, after an almost 2-week trial, Stone was convicted on all

seven counts—obstruction of a proceeding (one count), making false statements (five

counts), and witness tampering (one count).

B. Federal Sentencing Guidelines

1. Sentencing Practice

After a criminal defendant has been convicted of a federal offense, either through a

guilty plea or trial verdict, a U.S. district judge for the federal judicial district in which the

defendant is being prosecuted is responsible for sentencing the defendant. Under federal

law, the judge must impose a sentence that is “sufficient, but not greater than necessary” to

achieve the sentencing goals of retribution, deterrence, incapacitation, and rehabilitation.

18 U.S.C. § 3553(a). The court sentences the defendant at a sentencing hearing where the

United States is represented by a federal prosecutor, who is typically an AUSA assigned to

the matter by the local U.S. Attorney’s Office, and the defendant is usually represented by

counsel. The government’s and the defendant’s sentencing positions can be expressed in

writing in advance of the sentencing hearing through a sentencing memorandum and/or

orally during the sentencing hearing.

To determine the sentence, the court’s analysis begins with calculating the sentence

for the defendant’s offenses pursuant to the advisory U.S. Sentencing Guidelines.

The

Guidelines, which apply in most federal sentencings, are intended to assist federal courts

across the country in achieving sentencing uniformity for similar criminal conduct and

proportionality for criminal conduct of different severity. Under the Guidelines, the offense

guideline sections applicable to the defendant’s offenses must first be identified. For each

offense, the defendant’s offense level is calculated by determining the base offense level in

the relevant guideline section and increasing or decreasing that level to account for any

applicable specific offense characteristics (SOC or specific offense characteristic) and/or

adjustments. Specific offense characteristics and adjustments are aggravating and

mitigating factors that may apply depending on the circumstances of the defendant’s

offenses. If the defendant has been convicted of multiple offenses, the offense levels for

each offense are merged into one, combined offense level through the Guidelines’

grouping rules. These rules group together those offenses that involve substantially the

same harm and then, using a chart set forth in the Guidelines, account for the group with

the most serious offense, and the number and seriousness of other groups, to reach a

combined offense level. This offense level is then reduced if the defendant has clearly

demonstrated acceptance of responsibility for his offenses, which is rare in cases where

the defendant was convicted at trial. Separately, the Guidelines provide instructions for

how to account for a defendant’s criminal history. Using the total offense level and the

defendant’s criminal history category, the Guidelines identify the defendant’s advisory

sentencing range, which is presented in a range of months.

In advance of the sentencing hearing, the U.S. Probation Office, which works on

behalf of the court, is required to prepare a presentence investigation report (PSR) that

includes its calculation of the defendant’s advisory Guidelines range. If the government

and/or the defendant disagree with the Probation Office’s calculation, they may submit

objections to the PSR. After considering the advisory Guidelines range calculated by the

Probation Office, and any objections or arguments by the government and/or the

defendant, the court is required to correctly determine the Guidelines range.

In most cases, the government and the defendant recommend and advocate for a

particular sentence, which can be a sentence within the advisory Guidelines range, a

specific sentence within that range, or a sentence above or below that range by seeking a

departure or variance from the Guidelines range. A departure is a sentence within the

Guidelines’ framework where a party argues that the case’s circumstances are atypical and

outside the intended “heartland” of the relevant offense guideline. See

Rita v. United

Booker

United States

, 543 U.S. 220, 245 (2005), the Supreme Court invalidated the statutory

provision that made the Guidelines mandatory.

States

, 551 U.S. 338, 344, 351 (2007). A variance is a sentence independent of the

Guidelines where a party argues that application of the factors set forth in 18 U.S.C.

§ 3553(a) warrants a sentence higher or lower than the Guidelines range. The § 3553(a)

factors include the offense’s nature and circumstances; the defendant’s history and

characteristics; the need for the sentence imposed to reflect the offense’s seriousness, to

promote respect for the law, and to provide just punishment for the offense; and the need

to avoid unwarranted sentence disparities among defendants with similar criminal records

who have been found guilty of similar conduct.

The Department has put in place various policies to guide federal prosecutors in

deciding what the government’s position should be at sentencing. During the period

relevant to this investigation, they included Attorney General Jefferson B. Sessions III’s May

10, 2017 Department Charging and Sentencing Policy (Sessions Policy).

The Sessions

Policy provided in relevant part:

[P]rosecutors must disclose to the sentencing court all facts that impact the

sentencing guidelines or mandatory minimum sentences, and should in all

cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553. In

most cases, recommending a sentence within the advisory guideline range

will be appropriate. Recommendations for sentencing departures or

variances require supervisory approval, and the reasoning must be

documented in the file.… Each United States Attorney and Assistant Attorney

General is responsible for ensuring that this policy is followed, and that any

deviations from the core principle are justified by unusual facts.

Additionally, during the relevant time period, the Department’s Justice Manual, 9-27.730,

provided in relevant part:

The attorney for the government should make sentencing recommendations

based on an individualized assessment of the facts and circumstances of

each case and the history and characteristics of the defendant, without

improper consideration of the defendant’s race, religion, gender, ethnicity,

national origin, sexual orientation, or political association, activities, or

beliefs.

On January 29, 2021, Acting Attorney General Monty Wilkinson rescinded the Sessions Policy and

reinstated, on an interim basis, Attorney General Eric H. Holder, Jr.’s May 19, 2010 Department Policy on

Charging and Sentencing. On December 16, 2022, Attorney General Merrick Garland issued a new

memorandum, “General Department Policies Regarding Charging, Pleas, and Sentencing,” which, among other

things, sets forth current guidance to federal prosecutors on sentencing.

In June 2023, this provision was revised slightly to state: “The attorney for the government should

make sentencing recommendations based on an individualized assessment of the

nature and circumstances of

the offense

and the history and characteristics of the defendant, without improper consideration of the

defendant’s race, religion, gender, ethnicity, national origin, sexual orientation, or political association, activities,

or beliefs.” (Emphasis added.)

After hearing the government’s and the defendant’s arguments regarding the

appropriate sentence, the court “must make an individualized assessment based on the

facts presented” and cannot presume that the advisory Guideline range is reasonable.

Gall

v. United States

, 552 U.S. 38, 50 (2007). To guide its sentencing discretion, the court must

consider the § 3553(a) factors. After considering the advisory Guideline range and the

3553(a) factors, the court, using its discretion, determines the defendant’s sentence and

states its reasons for the sentence.

2. Application of Offense Guideline Section 2J1.2

Under the advisory Guidelines, the total offense level for Stone’s offenses was

calculated using offense guideline 2J1.2, which is titled “Obstruction of Justice.” For all

offenses under this guideline section, including obstruction of a proceeding and witness

tampering, the base offense level is 14.

The Guidelines then prompt consideration of whether certain specific offense

characteristics apply, which, as noted previously, can raise or lower the offense level.

Relevant to Stone’s offenses, the specific offense characteristics under Section 2J1.2 include

an 8-level increase in the offense level if the offense involved causing or threatening to

cause physical injury to a person, or property damage, to obstruct the administration of

justice (8-level threats SOC). See USSG § 2J1.2(b)(1)(B). Courts have recognized that this

specific offense characteristic does not have an “additional ‘seriousness’ requirement”

regarding the defendant’s conduct “beyond the fact of a violent threat.”

United States v.

Bakhtiari,

714 F.3d 1057, 1061 (8th Cir. 2013), quoting

United States v. Plumley

, 207 F.3d

1086, 1090 (8th Cir. 2000). Separately, if the offense resulted in substantial interference

with the administration of justice, including the unnecessary expenditure of substantial

governmental resources, the offense level is increased by three levels (3-level substantial

interference SOC). See

USSG § 2J1.2(b)(2), comment (n.1). Additionally, if the offense was

extensive in scope, planning or preparation, the offense level is increased by two levels (2-

level extensive SOC). See

USSG § 2J1.2(b)(3)(C).

Further, Section 3C1.1 of the Guidelines, which is titled “Obstructing or Impeding the

Administration of Justice,” provides for an adjustment that increases the offense level by

two levels if the defendant willfully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction, and the obstructive conduct related to the

defendant’s offense of conviction (2-level obstruction adjustment). In cases where the

defendant, like Stone, was convicted of an obstruction of justice offense covered by Section

2J1.2, the Guidelines provide that this adjustment should only be applied if a significant

further obstruction occurred during the investigation, prosecution, or sentencing of the

obstruction offense itself. See

USSG § 3C1.1, comment (n.7).

III. Events Leading Up to the Government’s First Sentencing Memorandum

A. Trial Team’s Sentencing Guidelines Calculation, Meeting with Probation

Office, and Submission of Draft Sentencing Memorandum to DC USAO

Management on February 1

After the November 15, 2019 guilty verdict, the judge set Stone’s sentencing hearing

for February 20, 2020. The judge further required that the DC USAO and defense counsel

file any sentencing memorandum by Friday, February 7, 2020. That deadline was

subsequently extended by the court to February 10 at the defense’s request.

The trial team began preparing for Stone’s sentencing hearing by calculating the

Guidelines range, providing information to the U.S. Probation Office, and drafting a

sentencing memorandum. Prosecutor 2, who took a lead role in the trial team’s sentencing

preparations, told the OIG that the team’s sentencing position was developed through an

“ongoing deliberative discussion” and not finalized until the team completed its draft of the

memorandum, which Prosecutor 1 submitted to DC USAO management for review on

February 1, 2020.

In calculating the Guidelines range, the team agreed that the 3-level substantial

interference and 2-level extensive SOCs likely applied. However, the team was initially less

certain about whether the government should seek application of the 8-level threats SOC

for Stone’s offense conduct related to Credico and the 2-level obstruction adjustment for

Stone’s post-indictment conduct related to his online postings and public statements about

the presiding judge and his pending case. Specifically, in November 21, 2019 emails

between the trial team, Prosecutor 3 described the 8-level threats SOC as “more debatable”

than the 2-level extensive SOC, and Prosecutor 2 expressed that he did not think the

government should seek application of the 8-level threats SOC because it was “a reach”

unless they could show “more than ‘prepare to die’ and the [dognapping] text.” Prosecutor

2 also described the 2-level obstruction adjustment for Stone’s post-indictment conduct as

“more [of a] stretch” than the 2-level extensive SOC. Email communications reflect that

Prosecutor 2 initially believed, and Prosecutor 4 agreed, that Stone’s post-indictment

conduct could instead be addressed in their analysis of the § 3553(a) factors in the

sentencing memorandum.

The 8-level threats SOC and 2-level obstruction adjustment, therefore, were not

included in the team’s internal November 26, 2019 written Guidelines calculation that the

team drafted in preparation for their December 4, 2019 meeting with the Probation Officer

assigned to Stone’s case. However, Prosecutor 2 told the OIG that the team reached a

consensus before the Probation Officer meeting that both of these sentencing

enhancements likely applied.

Both Prosecutor 2 and Prosecutor 3 told the OIG that at the

same time, the team did not have a settled Guidelines calculation because they wanted to

see the Probation Office’s calculation in the PSR.

uring the December 4 meeting with the Probation Officer, Prosecutor 2,

Prosecutor 3, and Prosecutor 4 provided information regarding the facts proven at trial.

According to Prosecutor 2 and Prosecutor 3, they also shared the team’s initial view that

the 8-level threats, 3-level substantial interference, and 2-level extensive SOCs, and the 2-

level obstruction adjustment potentially applied to the advisory Guidelines calculation.

On January 16, 2020, the Probation Office issued its draft PSR, which included in its

advisory Guidelines calculation the 8-level threats and 3-level substantial interference

SOCs, and the 2-level obstruction adjustment. The draft PSR did not include the 2-level

extensive SOC which, as noted below, resulted in the trial team subsequently submitting an

objection arguing that the 2-level extensive SOC applied.

Under the Sentencing

Guidelines, the addition of the three enhancements to Section 2J1.2’s base offense level of

14 results in a total offense level of 27 and, for a defendant with no criminal history, a 70 to

87 months sentencing range. After receiving the draft PSR, Prosecutor 2 emailed the team,

“Wow, 70-87 months.” Prosecutor 2 told the OIG that he was surprised that the Probation

Office had largely agreed with the team’s calculation.

A few days later, on January 20, Credico sent a letter to the court asking the court

not to sentence Stone to prison. In the letter, Credico stated that he never felt that Stone

“posed a direct physical threat” to him or his dog. According to Prosecutor 1 and others,

the team had reasons to doubt Credico’s credibility in the letter and believed the 8-level

threats SOC was legally and factually supported even if Stone posed no physical threat.

On January 23, Prosecutor 2 emailed the team the first draft of the sentencing

memorandum, which the team subsequently supplemented and revised. Prosecutor 2 told

the OIG that, as “a starting point for [further] discussion” about the Guidelines calculation,

this first draft included the same calculation as the draft PSR, which did not include the 2-

Although email communications reflect that Prosecutor 2 initially believed that the team would look

“less credible” with the court if they sought application of the 8-level threats SOC, Prosecutor 2 told the OIG that

he eventually became convinced that this sentencing enhancement applied after legal research, team

conversations, and a review of Credico’s grand jury testimony and interview summaries. He told the OIG, “[T]he

argument that had increasing salience to me over time was [that the 8-level threats SOC is] not an

enhancement that is based on necessarily the ability of the person making the threats to carry out the activity,”

but it requires only that the defendant made the threat. Prosecutor 1 told the OIG that he always believed the

8-level threats SOC applied. Prosecutor 3 told the OIG that, before the Probation Office meeting, his view was

that the 8-level threats SOC likely applied, and he thought others on the team agreed.

Information in this report about the contents of the draft PSR, which was not filed on the public

docket, is described in Stone’s sentencing memorandum, which was filed on the public docket.

See

Defendant

Roger Stone’s Sentencing Memorandum and Motion for Variance from Advisory Guidelines,

United States

Roger Stone,

No. 1:19-cr-18-ABJ (D.D.C. Feb. 10, 2020).

level extensive SOC.

However, after further deliberations and research, the trial team

concluded that the 2-level extensive SOC also applied and, on January 30, submitted an

objection to the draft PSR’s Guidelines calculation making that argument. With the addition

of the 2-level extensive SOC, the team’s calculation resulted in a total offense level of 29

and an 87 to 108 months sentencing range.

In addition to calculating the Guidelines range, the trial team considered and

discussed the § 3553(a) factors relevant to Stone to determine an appropriate sentencing

recommendation. These factors included “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of similar

conduct.” 18 U.S.C. § 3553(a)(6). According to the FPC Chief and other evidence, other

defendants convicted of the same offenses as Stone typically received sentences lower

than the 87 to 108 months Guidelines range calculated by the team. Through research,

Prosecutor 4 attempted to identify other defendants who engaged in comparable conduct,

but the task proved difficult, which the FPC Chief and trial team members told us was due

to Stone’s unique conduct.

Prosecutor 2 told the OIG that the “closest analogue” was the prosecution of Scooter

Libby, who was the Chief of Staff to then Vice President Richard B. Cheney and was

convicted at trial of obstruction of justice, making false statements, and perjury, and

sentenced to 30 months’ imprisonment. According to a November 26, 2019 email from

Prosecutor 2 to the trial team, he initially believed that Libby’s Guidelines range of 30 to 37

months “seem[ed] about right” for Stone. However, according to the trial team, and as

reflected in the government’s sentencing filings in the Libby case, unlike Stone, Libby did

not threaten a witness or engage in obstructive, post-indictment acts. Prosecutor 1 told us

that he suggested using Libby’s 30-month sentence as a starting point and then adding

Stone’s different, more serious conduct using the § 3553(a) factors to reach an appropriate

sentencing recommendation. Prosecutor 2 told us that this discussion ultimately

persuaded Prosecutor 2 that a sentence of 87 months, which was the low end of the

Guidelines range calculated by the team, was reasonable and complied with Department

policy, including the Sessions Policy, which, as noted previously, provided that a Guidelines

sentence recommendation is appropriate in most cases. Prosecutor 3 told the OIG that he

thought that 87 months was high based on the comparable cases, but he said that he

generally deferred to other members of the team regarding sentencing issues in part

because he was focused at the time on another case. Prosecutor 1 told the OIG that the

trial team thought 87 months was a reasonable recommendation, and he did not recall

anyone on the team expressing any concerns with it.

According to Prosecutor 2, the trial team also discussed whether a variance below

the Guidelines range would be appropriate, but they did not identify a compelling

In the trial team’s Guidelines calculation, Stone’s lack of criminal history resulted in the

lowest sentencing range associated with the total offense level of 29.

argument under the facts, law, or Department policy to support such a recommendation.

Team members told us that they did not seriously consider making no sentencing

recommendation at all because that was not the DC USAO’s practice. Further, team

members told us that a Guidelines sentence recommendation aligned with the DC USAO’s

Fraud and Public Corruption Section’s practice of seeking a Guidelines sentence following

trial. Prosecutor 2 told us that this practice was also consistent with his other sentencing

experience.

Before Prosecutor 1 submitted the memorandum to DC USAO management for

review, he told the FPC Chief and the Criminal Chief (who was then the Acting Chief of the

DC USAO’s Criminal Division) about the team’s Guidelines calculation and recommendation.

According to Prosecutor 1, the FPC Chief and the Criminal Chief said that the

recommendation of 87 months sounded right.

On January 31, Prosecutor 1 emailed the draft memorandum to the FPC Chief. The

January 31 draft memorandum requested that Stone be sentenced to 87 months’

imprisonment, the bottom of the team’s calculated Guidelines range. The introduction

outlined the reasons why Stone’s conduct was “extensive and egregious,” and a separate

statement of facts detailed Stone’s offense and post-indictment conduct. The

memorandum then provided the team’s Guidelines calculation—a total offense level of

29—with relevant case law support, and a discussion of the § 3553(a) factors that

advocated for a “Guidelines-compliant sentence.” Regarding the need to avoid

unwarranted sentencing disparities, the memorandum provided that “a sentence within

the Guidelines range would be consistent with sentences imposed on other defendants”

and discussed the sentences imposed in other obstruction of justice, witness tampering,

and false statement prosecutions, including Libby and former Trump campaign Chairman

Paul Manafort, with the highest being 35 months’ imprisonment. However, the team

argued in the memorandum that these cases were distinguishable factually and none

involved conduct as significant as Stone’s.

The FPC Chief told us that he believed the Guidelines calculation was correct and the

87 months’ imprisonment recommendation was reasonable. On January 31, the FPC Chief

emailed a small number of edits to the memorandum to Prosecutor 1 that the FPC Chief

characterized as “nits.” The following day, February 1, after some additional minor edits,

Prosecutor 1 emailed the draft memorandum to the Criminal Chief, the FPC Chief, and the

Principal AUSA.

B. Timothy Shea Becomes Interim U.S. Attorney on February 3

On December 10, 2019, President Trump announced his intent to nominate Jessie

Liu, who was then the U.S. Attorney for the District of Columbia, to the position of Under

Secretary for Terrorism and Financial Crimes at the Department of the Treasury. On

January 6, 2020, the nomination was formally submitted to the U.S. Senate. At the request

of then Attorney General Barr, Liu agreed to resign as U.S. Attorney while her Senate

confirmation for the Treasury position was pending. On January 10, 2020, Liu emailed DC

USAO staff that she expected to transition to the Department of the Treasury on or about

February 1.

Liu told us that sometime before she left the DC USAO, likely in early January, she

sent a text message to then Principal Associate Deputy Attorney General (PADAG) Seth

DuCharme to notify him that the government’s sentencing memorandum in the Stone case

was due on Friday, February 7, 2020 (before it was extended to February 10, 2020). Liu told

us that she did not recall receiving a response from DuCharme, and DuCharme said he did

not recall this particular text message.

Liu told us that around this time, likely before she

knew when her last day would be, she asked a DC USAO supervisor for the opportunity to

review a draft of the government’s sentencing memorandum by late January. According to

Liu, it was common practice for her to review and edit a sentencing memorandum in a

significant case. This particular draft, however, did not reach her level of review before she

left the Department. Liu told us that she recalled learning through informal conversations

that the Guidelines range was 87 to 108 months “or something very close to it.” According

to Liu, she recalled thinking at the time that the range sounded “higher than [she] would

have thought” in a “false statements, perjury, and obstruction case” but not necessarily too

high. She explained that she did not believe she could have formed an opinion about

whether the Guidelines range was appropriate or excessive without “walking through the

Guidelines analysis,” which she had not done before she left.

On January 30, 2020, Barr announced the appointment of Timothy Shea as Interim

U.S. Attorney for the District of Columbia, pursuant to 28 U.S.C. § 546, effective Monday,

February 3, 2020. At the time of the announcement, Shea was a Counselor to the Attorney

General, a position he had held since March 2019.

Email communications and witness

testimony reflect that although there was an interview process for Liu’s replacement

involving multiple candidates, Barr had a strong preference at the start for Shea to fill the

position. For example, on January 8, 2020, the day before the interviews began, Barr

emailed his then Chief of Staff, Brian Rabbitt: “I want Tim [Shea] in place by the time I leave

After she left the Department, Liu briefly served as Counselor to the Treasury Secretary while her

confirmation was pending.

According to Liu, she did not recall attending any previous briefings with Barr about the Stone case

or having previous discussions with DOJ leadership about the Stone sentencing, but it was fairly common for

her to notify the Principal Associate Deputy Attorney General (PADAG) of significant events in significant cases.

Barr’s former Chief of Staff Brian Rabbitt also told us that he did not recall Barr being briefed on the Stone

case.

Shea previously served as an Associate Deputy Attorney General from 1991 to 1992 during Barr’s

earlier tenures as Deputy Attorney General and Attorney General. From 1992 to 1997, Shea served as an

Assistant U.S. Attorney in the Eastern District of Virginia. Shea also served in roles for two congressional

committees in 1984 to 1991 and 1997 to 1999, and for a Member of Congress in 1982 to 1984. Immediately

before Shea became Counselor to the Attorney General in 2019, Shea was in private practice for approximately

20 years specializing in complex civil litigation.

for Mexico. ASAP.” Rabbitt told us that he likely knew as early as late December 2019 that

Barr “strongly wanted” to appoint Shea as U.S. Attorney for the District of Columbia.

The same day Barr publicly announced Shea’s appointment, Liu and the Principal

AUSA met with Shea and Shea’s soon-to-be Chief of Staff, who at the time was Senior

Counsel to the Deputy Attorney General, to brief them on the DC USAO and identify

matters that would require Shea’s immediate attention. Although Shea told us that he did

not remember any discussion of the Stone case, Liu and the Principal AUSA said that they

recalled a very brief discussion during which they advised Shea that the most immediate

priority was the Stone sentencing memorandum because it was due the Friday of his first

week. Liu and the Principal AUSA said that they did not remember Shea’s reaction or

whether he asked any questions relating to the case.

Email communications reflect that Shea’s Chief of Staff asked the Principal AUSA to

meet with him and Shea again the following day, January 31. The emails do not indicate

the purpose of this second meeting, and Shea’s Chief of Staff and the Principal AUSA told

us that they did not remember having a second meeting. Shea recalled the meeting but

said he did not remember any discussion of the Stone case. Aware that the Principal AUSA

was meeting with Shea, on January 31, the FPC Chief emailed the Principal AUSA some

details about the Stone sentencing memorandum in case the issue came up in discussion.

The details included that the draft sentencing memorandum would be circulated later that

day, the Guidelines range was 87 to 108 months or 70 to 87 months depending upon a

“disputed adjustment” (the 2-level extensive SOC not included in the Probation Office’s

PSR), and the FPC Chief anticipated that “some people will shudder at the Guideline[s]

range.” The FPC Chief also said, “It is important that we not reserve a conversation about

our sentencing position to the last minute.” Accordingly, the FPC Chief suggested to the

Principal AUSA that Shea receive a briefing on the case on Tuesday, February 4, Shea’s

second day in office.

C. Interim U.S. Attorney is Briefed on Stone Case, Disagreements Within DC

USAO Emerge Over the Proposed Guidelines Calculation and Sentencing

Recommendation

Shea’s first involvement in the Stone case occurred on Tuesday, February 4, which

was the day after he was sworn in as Interim U.S. Attorney. That day, Prosecutor 1 briefed

Shea on the case, including the underlying conduct, the indictment, the trial, and the

proposed sentencing recommendation. The Principal AUSA, the Criminal Chief, the FPC

Rabbitt told us that although he understood that Shea was “the favorite” for U.S. Attorney in Barr’s

mind, Rabbitt recommended to the Attorney General that they conduct an interview process so that the

Attorney General had the opportunity to consider other candidates as well. Rabbitt told us that he did not have

any concerns about Shea’s qualifications, but he told Barr that he had some concern about appointing Shea as

the U.S. Attorney of a high-profile office that may require him to make difficult decisions. According to Rabbitt,

he thought highly of Shea but was not aware of him having previously served in a similar role.

Chief, and Shea’s Chief of Staff also attended the briefing. By all accounts, there was no

debate about the merits of the sentencing recommendation at this briefing; instead, the

briefing was primarily informational.

Shea told the OIG that this briefing was his first introduction to the Stone case. We

did not find documentary or testimonial evidence indicating that DOJ leadership discussed

the Stone sentencing with Shea or his Chief of Staff before they joined the DC USAO on

February 3 and received this initial briefing on February 4, and Shea told us that he did not

join the DC USAO with a directive or understanding from DOJ leadership about how to

handle the Stone sentencing. Shea’s Chief of Staff provided similar testimony.

Shea told us that his initial reaction to the sentencing recommendation was that “it

was very high,” and that he needed to “dig a little deeper” into the case. Shea said that he

prosecuted several perjury cases when he was an AUSA and had never seen those cases

produce a sentence that high, and that he was aware of many violent crimes that did not

result in sentences “anywhere near” the sentence the team was recommending for Stone.

No decisions regarding the sentencing memorandum were made during this initial briefing,

and, according to Prosecutor 1, Shea concluded it by stating that he (Shea) “would take a

closer look at the sentencing memo[randum] and [that they] would probably talk about it

again.”

Shea and the Principal AUSA discussed the Stone sentencing memorandum again

either later that Tuesday or the following day. According to the Principal AUSA, Shea

described the sentencing range as “surprisingly high” and also stated that “he didn’t like the

rhetoric” in the factual summary portion of the sentencing memorandum. Shea told us

that he had two concerns with the proposed sentencing position: (1) the 8-level threats

SOC almost doubled the Guidelines range and he was not certain the SOC applied given

Stone’s “erratic nature” and Credico’s letter to the court; and (2) the recommendation did

not seem proportional to the sentences imposed in comparable cases and instead

appeared “out of whack.” The Principal AUSA told us that he and Shea were just “talking it

through” at this point, and no decisions were made. During this conversation or shortly

thereafter, Shea asked to see the materials referenced in the sentencing memorandum,

such as the draft PSR, and those materials were forwarded to him.

As described in the next section, Shea reached out to DuCharme on at least two

occasions during that first week, likely February 4 and 6 based on Department phone

records, to seek DuCharme’s advice on what to do. The OIG did not find evidence, as we

detail in the next section, of DuCharme or DOJ leadership reaching out to Shea or the DC

USAO to give direction on the sentencing position. Instead, the evidence shows that Shea

took it upon himself to seek advice from DuCharme and later Barr.

The Criminal Chief told us that after the initial briefing the Principal AUSA spoke to

him about the proposed sentencing recommendation. According to the Criminal Chief,

although the Principal AUSA stated that the Guidelines range was most likely calculated

accurately, the Principal AUSA conveyed his view that the range was not just surprising but

“excessive,” and he wanted to explore whether a Guidelines sentence was appropriate in

this case. The Criminal Chief stated that for this reason, the Principal AUSA wanted to

initiate a discussion within the office about the office’s position.

The Criminal Chief told us that after he spoke to the Principal AUSA, he met with the

FPC Chief and Prosecutor 1 to convey the concerns the Principal AUSA expressed, and the

Criminal Chief initiated a discussion in this meeting about whether a downward variance

would be appropriate in this case. The FPC Chief told us that he expressed an

unwillingness to change the sentencing position because a Guidelines sentence

recommendation was the “right thing” to do, but he said Prosecutor 1 was more “vocal”

during this meeting. According to both the FPC Chief and the Criminal Chief, Prosecutor 1

expressed strongly that a Guidelines sentence was appropriate, and Prosecutor 1 seemed

to believe that the Criminal Chief was doing something “improper” by even broaching the

issue. The FPC Chief stated that while he had no concerns about this meeting or the

Criminal Chief’s motivations, he (the FPC Chief) began to grow concerned around this time

“about what might be motivating the Department at this stage to intervene in the Stone

case, given that there had been almost no scrutiny of it up to [this] point.” According to the

FPC Chief, he had no information suggesting that anyone from Main Justice (i.e., DOJ

leadership offices) was involved in the Stone sentencing at this time and no evidence

pointing to improper motivations influencing these discussions. However, based on his

experience in other matters, Stone’s relationship with then President Trump, and the

recent appointment of Shea, who the FPC Chief understood by reputation to be “a good

friend of the Attorney General,” the FPC Chief believed “that this was not going to be an

internal U.S. Attorney's Office decision,” and he worried about political motivations

affecting the ultimate sentencing recommendation. The FPC Chief stated that, on

Wednesday and Thursday, February 5 and 6, he and Prosecutor 1 began to share their

concerns with each other, including that the FPC Chief “may have explicitly said to

[Prosecutor 1], something like, ‘I really hope this doesn’t end with all of us quitting our

jobs.’” Prosecutor 1 told the OIG that he did not recall these conversations with the FPC

Chief, or the prior conversation with the FPC Chief and the Criminal Chief.

The FPC Chief told us that in response to the initial feedback he and the Criminal

Chief received from the Principal AUSA, he took the time to carefully read the draft

memorandum a second time to make sure he believed the Guidelines calculation and

sentencing recommendation were “right” and that he was not simply “defaulting to the trial

team.” On Wednesday evening, the FPC Chief emailed the trial team minor edits to the

draft sentencing memorandum. In his email, which he forwarded to the Criminal Chief the

next day, the FPC Chief described the memorandum as “an exceedingly strong product”

and added that Stone “deserves every day of the 87 months you recommend that he be

imprisoned.” The team incorporated the FPC Chief’s edits the following day.

On Thursday, February 6, the Principal AUSA met with the Criminal Chief, the FPC

Chief, and Prosecutor 1 to discuss the Stone sentencing memorandum. The Principal AUSA

stated that the main purpose of the meeting was to make Prosecutor 1 aware of Shea’s

concerns with the memorandum. We asked the Principal AUSA if he had the same

concerns as Shea. The Principal AUSA told us that he shared Shea’s initial surprise that the

Guidelines range was so high, but he said he only became concerned with the range when

he realized the 8-level threats SOC was primarily responsible for the high number. In

particular, the Principal AUSA stated that he believed Credico’s letter to the court “gutted,

arguably, that enhancement or at least significantly mitigated” it. According to the Principal

AUSA, he became “open to the idea of laying out the Guidelines analysis but arguing that

some type of [downward] variance may be appropriate” and deferring to the court on the

extent of the variance. Although the Principal AUSA did not agree with the sentencing

position in the draft memorandum, he also told the OIG that he believed the position was

reasonable. Shea’s Chief of Staff told the OIG that before this Thursday meeting, which he

did not attend, he met with Shea, the Principal AUSA, and the Criminal Chief, and they all

agreed that the sentencing recommendation was too high. According to Shea’s Chief of

Staff, the purpose of Thursday’s meeting was for the Principal AUSA and the Criminal Chief

to evaluate the strength of the FPC Chief and team’s “conviction” regarding their

recommendation.

According to participants at the Thursday meeting, the Principal AUSA asked

whether the government would have more credibility with the court if it asked for a

variance given the severity of the 8-level threats SOC and the mitigation of Credico’s letter

(which, as noted previously, stated that Credico never felt that Stone “posed a direct

physical threat” to him or his dog). The Principal AUSA told us that the group also

discussed the issue of maintaining the office’s credibility with the public and how the

sentence would “be viewed in the public eye.” Prosecutor 1 told us that he recalled that

when they discussed this issue, the Principal AUSA expressed that “people will say that we

are a bunch of deep state liberals who hate the President, and that's why we're

recommending such a high sentence.” Prosecutor 1 said the Principal AUSA added, “We

will get a lot of criticism for it.” The Principal AUSA told us that he did not recall anyone

using the phrase “deep state liberals” when discussing his credibility concern, but he said

that they discussed the potential public narrative to the effect that the office was “piling on”

to Stone’s sentence because the office hates the President or hates Stone. The FPC Chief

Emails we reviewed from Thursday, February 6, suggest that some consideration was given to

seeking a downward variance based on Stone’s individual characteristics, specifically his age and health,

pursuant to § 3553(a). Before the meeting with the Principal AUSA, the FPC Chief emailed the Criminal Chief

examples of cases in which the DC USAO had opposed downward variances on the basis of a defendant’s age

and/or health pursuant to § 3553(a). The FPC Chief told the OIG that he was “troubled” by the consideration of

Stone’s age and health because the FPC Chief believed that there would not have been any conversation about

Stone’s age and health if Stone’s Guidelines range had been lower. Prosecutor 1 stated that he discussed the

topic with the FPC Chief, and they agreed that it would be inappropriate to request a variance on those grounds

because the office normally would not make such a request.

and Criminal Chief told us they did not believe the Principal AUSA used the phrasing that

Prosecutor 1 recalled, but the FPC Chief generally remembered that the Principal AUSA

expressed a concern that seeking such a high sentence (as the FPC Chief and trial team

recommended) could negatively impact the credibility of the Department or the DC USAO.

The Criminal Chief told us he did not remember the Principal AUSA expressing this

concern. Prosecutor 1 and the FPC Chief stated that they told the Principal AUSA that the

Department should not consider the public’s response when making sentencing

recommendations and should instead treat Stone the same as any other defendant.

Prosecutor 1 and the FPC Chief spoke with one another after this meeting and

agreed that they found it unsettling. Prosecutor 1 stated that he told the FPC Chief that he

was beginning to suspect inappropriate motives underlay the concerns about the

recommendation. According to the FPC Chief, he told Prosecutor 1 he shared his suspicion,

but he added that it was important that he and Prosecutor 1 continue to participate in

these discussions and advocate for a Guidelines sentence.

The FPC Chief told us that sometime during Shea’s first week, he recalled expressing

to the Principal AUSA that they would not be discussing how high the draft sentencing

recommendation was “if [Stone] wasn’t the friend of the President.” According to the FPC

Chief, the Principal AUSA responded to the effect of, “I don't see why it has to be that

politics are afoot here. Yes, this is a high-profile case. Yes, sometimes high-profile cases

are what cause us to take a closer look at our position here…and that's what we're doing.”

The Principal AUSA told us that he generally remembered someone expressing the

sentiment that maybe the reason they were discussing changing the sentence

recommendation was because Stone was a friend of the President. He said he could not

recall whether he responded to that sentiment, but that his reaction at the time was that

Stone’s relationship to the President was not in his own mind at the time, and that neither

Shea nor anyone else told him that Stone’s relationship to the President was influencing

their thought process.

The Principal AUSA told us that during Shea’s first week, the Principal AUSA learned

from the FPC Chief that, in public corruption cases, the Fraud and Public Corruption Section

had a policy of always seeking sentences within the Guidelines range to minimize the risk

of being accused of making a sentencing recommendation based on the identity of the

defendant. According to the Principal AUSA, he recalled the FPC Chief saying that

consistent with this policy, the DC USAO should seek a Guidelines sentence for Stone. The

Principal AUSA also recalled the FPC Chief expressing concerns about this policy not being

followed in Stone’s case and Stone being treated differently than other public corruption

Prosecutor 1 told us that he was particularly troubled by the invocation of public perception into the

discussions about the sentencing recommendation. Although, as noted previously, the Criminal Chief had the

impression that Prosecutor 1 thought even the act of discussing lowering the sentencing recommendation was

improper, Prosecutor 1 told us that if he had expressed that sentiment, he only meant that he did not believe

they should be discussing how the recommendation would be publicly perceived.

defendants. The Criminal Chief told us that both the FPC Chief and Prosecutor 1 asserted

that week that the Fraud and Public Corruption Section always sought Guidelines

sentences and should do so in Stone’s case. The FPC Chief told us that unless the Fraud

and Public Corruption Section was “overruled” or presented with an “extraordinary case,”

the section’s approach to sentencing in public corruption cases was to seek Guidelines

sentences in accord with “Department [sentencing] policy” (the Sessions Policy) and due to

the importance of the public having confidence in how such cases are handled. He recalled

the Principal AUSA expressing throughout the week that although a variance may seem

unusual to the FPC Chief and Prosecutor 1, the DC USAO sought variances in drug and

other cases all the time.

With no agreement as to the Guidelines calculation or sentencing recommendation,

on Friday afternoon, February 7, Shea met with the Principal AUSA, Shea’s Chief of Staff, the

Criminal Chief, the FPC Chief, and Prosecutor 1 to discuss the Stone sentencing

memorandum. Shea told the OIG that his purpose for holding the meeting was to ensure

that all of the enhancements included in the Guidelines calculation were justified and then

discuss the ultimate recommendation, on which he said he remained undecided. Shea also

told the group that he did not like the tone of the draft memorandum and requested it be

less argumentative.

Each sentencing enhancement was discussed in detail during this meeting—a

discussion that Shea described as him “challenging” Prosecutor 1 and the FPC Chief to

defend their Guidelines calculation. The Principal AUSA told us that Shea had not worked

with the Guidelines in a long time, and they “needed to walk him through [the Guidelines]

calculations.” This testimony is consistent with the testimony of the Criminal Chief and the

FPC Chief who told us that in their discussions with Shea about the Guidelines calculation,

Shea did not appear to have a good grasp or understanding of the Guidelines.

After discussion of the Guidelines calculation, Shea raised the possibility of

recommending a downward variance from the Guidelines range. According to Shea, he

was trying to balance two competing factors: (1) the office would lose credibility with the

court if they requested a sentence that was too high and not “proportional” to comparable

cases; and (2) Stone’s crimes were “serious.” Shea stated that he thought “deferring to the

judge…made the most sense”; however, he emphasized that he did not make a decision

about the calculation or the recommendation during this Friday meeting, which he

described as “inconclusive.” Others also told us that no consensus was reached, and the

Shea told the OIG that the tone of the memorandum was not in harmony with his general

philosophy for arguments to the court—namely that “overkill” in how strenuously a lawyer proffers arguments

to the court can hurt the government’s credibility. He said that he prefers instead to provide information in

court filings that is necessary but not to “characterize the facts.” According to the Criminal Chief, the FPC Chief,

and Prosecutor 1, Shea stated that the trial team should save these arguments for the allocution at the

sentencing hearing.

meeting concluded without resolution. However, the Criminal Chief told the OIG that he

left the meeting believing that Shea would ultimately decide to seek a downward variance.

Prosecutor 1 told us that he found the Friday meeting “sickening,” and, from his

perspective, “Shea was looking for any way he could find to lower the Stone sentencing

recommendation.” Prosecutor 1 said that he pushed back on efforts to lower the

sentencing recommendation, explaining in this meeting that the trial team had given the

issues relevant to the Guidelines calculation and sentencing recommendation a lot of

thought. Prosecutor 1 said that he explained in this meeting why the trial team thought

each argument to lower the Guidelines calculation did not have merit, and he also

explained that typically “we would not be making a recommendation that departed

downward from the applicable Guidelines range for a defendant who had gone to trial and

[was] convicted, rather than accepting responsibility by pleading guilty.”

Prosecutor 1 told us that he suspected at the time that Stone was receiving special

treatment because of improper political considerations and that he developed this

suspicion because of the “extraordinary and unprecedented” number of meetings about

the sentencing memorandum and the lack of any “good faith legal reasoning” in the

“results-driven conversation” about Stone’s ultimate sentence. Prosecutor 1 stated that he

had raised this concern earlier on Friday with the Criminal Chief, who told Prosecutor 1 that

he had not seen or heard anything to suggest anyone was acting improperly. Shea told us

that Stone’s relationship to the President, or the possibility that the President could publicly

react to Shea’s decision making, did not factor into his thinking on the Stone sentencing.

In response to a question that arose at the Friday meeting about the 3-level

substantial interference SOC, Prosecutor 1 sent an email to his supervisors with legal

research supporting the application of that enhancement. The Principal AUSA told the OIG

that sometime on Friday after this email, he had a brief conversation with Shea during

which he updated Shea on Prosecutor 1’s research and reached consensus with Shea that

the Guidelines calculation should not be changed. The Principal AUSA told us that his

advice was that even if the calculation was a “somewhat technical” application of the

enhancements, Shea should focus instead on the government’s recommendation,

including whether to support a downward variance but defer to the court on the ultimate

sentence. According to the Principal AUSA, Shea agreed to the Principal AUSA’s proposed

approach. Shea told us that he specifically recalled Prosecutor 1’s additional research and

feeling “satisfied” that the 3-level substantial interference SOC applied. He also told us that

he remembered reaching consensus on accepting the Guidelines calculation, but that he

did not specifically recall whether that occurred on Friday or at some later time.

Around 8:00 p.m. on Friday, the Principal AUSA sent the Criminal Chief a text

message stating:

[L]et’s talk tomorrow about [the Stone team’s] reaction to the latest proposal.

It’s unusual to advocate for a variance, but this is an unusual case. The

variance is simply to account for the fact [that] the 8 point enhancement is a

very severe punishment for the conduct in light of Credico’s letter and the

type of conduct that would also result in the same 8 point enhancement

([i.e.,] a loaded gun in someone’s face).

In another text message to the Criminal Chief, the Principal AUSA added that the team

could defer to the court on the actual sentence. According to the FPC Chief, the Criminal

Chief told him either Friday evening or Saturday morning that the Guidelines calculation

was settled, and, from that point on, their conversation shifted almost exclusively to

whether to seek a variance.

Also on Friday, February 7, Prosecutor 1 told the other members of the Stone trial

team for the first time about the multiple meetings he had attended with office leadership

that week and his concerns about improper political motivations. Prosecutor 2 told us that

Prosecutor 1 specifically mentioned to him on February 7 that DC USAO leadership was

placing pressure on the team not to seek all the Guidelines enhancements applicable to

Stone’s conduct and to seek a lower sentence for Stone. According to Prosecutor 2,

Prosecutor 1 also told him that day (and in subsequent conversations) that Stone was

being treated differently than every other defendant with respect to his sentencing, and

Prosecutor 1 was concerned that this different treatment was the result of improper

political considerations or influence. Prosecutor 3 told us that he did not recall receiving a

summary or recap of the week from Prosecutor 1 on February 7, but that Prosecutor 2 or

Prosecutor 4, or both, filled him in on some of the week’s events. According to Prosecutor

2, the Stone team decided to sleep on it and then discuss their options on Saturday,

February 8.

D. Interim U.S. Attorney Consults with DOJ’s PADAG

During the first week of his new position, and as the discussions described above

were taking place in the DC USAO over the proposed Guidelines calculation and sentencing

position, Shea reached out to DuCharme on at least two occasions to seek DuCharme’s

advice on what to do. DuCharme told us that no one in the leadership offices had been

tracking the upcoming sentencing before Shea called him.

Further, according to Shea,

DOJ leadership would not have been involved in the Stone case if he had not reached out

to them.

Although Shea told us that he did not recall how many discussions he had with

DuCharme or the timing of those discussions, DuCharme placed the first conversation

about a week before the government filed its first sentencing memorandum, likely either

February 3 or 4, and a second conversation 1 or 2 days after the first. DuCharme said that

Rabbitt told the OIG that the Attorney General’s Office was not tracking the Stone case other than “in

the background,” and that Attorney General Barr was not “especially focused on or interested in” the case.

both conversations with Shea took place over the phone, and Department phone records

show calls between them on February 4 and 6.

According to Shea, he had reached out to give DuCharme a “heads up” that the

government’s sentencing memorandum was due on February 7 (before the court extended

the deadline to February 10) and also to see whether anyone in the DOJ leadership offices

had experience with the Stone case. Shea said that DuCharme did not offer any special

knowledge of the case.

Another reason Shea told us he reached out to DuCharme was to get DuCharme’s

opinion on the sentencing position, given DuCharme’s prosecutorial experience as the

former Chief of the Criminal Division for the Eastern District of New York. According to

Shea, by the time he reached out to DuCharme, he (Shea) had concerns about the intended

sentencing position, and he “wanted to make sure that [his]…impression of the high

sentencing range was…grounded in some experience.” Shea said he probably also asked

DuCharme whether the Department generally “follow[s] the Guidelines ranges.”

DuCharme told us that he thought Shea was looking for a “steer” from him on

whether he (DuCharme) also thought the sentencing range was high and regarding how

Shea should proceed. DuCharme told us that he recalled being mildly surprised at the

sentencing range and thought that it seemed “kind of high.” According to DuCharme, Shea

told him that an enhancement had been applied that substantially increased Stone’s

Guidelines range and asked for DuCharme’s opinion on whether he (Shea) was “stuck” with

the Guidelines sentencing range. According to DuCharme, he counseled Shea that if Shea

had reservations about the Guidelines producing a fair and appropriate sentence, he

should leave the Guidelines calculation alone but explain his reservations in the analysis of

the factors set forth in § 3553(a). DuCharme further counseled Shea that, in his experience,

the § 3553(a) analysis allows for a “nuanced conversation” that can signal to the court that

the government believes the Guidelines range is too high. DuCharme told us that he

caveated this advice by explaining to Shea that he (DuCharme) did not have knowledge of

the facts of the case, other than from public reporting and possibly informal conversations,

and that he was not in a position to opine on what the ultimate recommendation should

Both Shea and DuCharme said that notifying the PADAG of an upcoming event that could generate

media attention was within the normal course for a U.S. Attorney. Indeed, the Justice Manual, 1-13.100,

requires U.S. Attorney’s Offices to submit “Urgent Reports” notifying DOJ leadership of certain matters,

emergencies, or events, including “major developments in significant investigations and litigation” and matters

“likely to generate national media or Congressional attention.” The Justice Manual, 1-13.120, states that

sentencing should be considered a “major development.” The DC USAO advised the OIG that its office did not

submit any urgent reports in the Stone case, and, according to the Principal AUSA, the DC USAO’s typical

practice was not to submit formal urgent reports to DOJ leadership in cases that leadership was already aware

of, like the Stone case.

be.

DuCharme estimated that his first call with Shea lasted about 5 minutes, and he did

not necessarily expect to hear back from Shea or anticipate that DOJ leadership would

become involved in the case.

After the first call between Shea and DuCharme, Shea’s Chief of Staff had his own

brief conversation with DuCharme about the upcoming Stone sentencing. On Wednesday,

February 5, Shea and his Chief of Staff attended three meetings (unrelated to the Stone

case) in the Main Justice building and, while there, Shea’s Chief of Staff ran into DuCharme

in the hallway. According to Shea’s Chief of Staff, one of them mentioned the Stone

sentencing coming up, and DuCharme said something to the effect of: “I’ll tell you what I

told [Shea]. Prosecutors are not experts on sentencing…. Your job as the…leaders of the

office is to be reasonable.” DuCharme told us he did not recall this hallway interaction with

Shea’s Chief of Staff.

Shea’s Chief of Staff told us that on a separate occasion during the same day at

Main Justice, Shea mentioned the upcoming Stone sentencing at the end of a meeting with

Brian Rabbitt, stating that he had a few concerns after receiving the draft sentencing

memorandum. According to Shea’s Chief of Staff, Rabbitt made a “somewhat offhand”

comment to “just go with the Guidelines.” Shea’s Chief of Staff said that although he

recalled responding to Rabbitt that the Guidelines produced a range that was “inordinately

high,” he did not recall Rabbitt reacting substantively to his response. Rabbitt and Shea

told us that they did not recall this conversation.

DuCharme said that Shea consulted him a second time later that same week—which

phone records suggest was likely on Thursday, February 6—with Shea stating that he had

encountered substantial resistance from “the prosecutors” to the idea of signaling to the

court that a sentence below the Guidelines would be reasonable. According to DuCharme,

during this second phone conversation, Shea wanted his reaction to two points the

prosecutors raised, which DuCharme recalled were: (1) the DC USAO always seeks a

Guidelines sentence, and (2) Department policy is always to seek a Guidelines sentence.

DuCharme told us he was “skeptical” of these points based on his own experience in New

York, noting that in certain terrorism and narcotics cases, for example, sentences below the

Guidelines were commonly sought. More generally, he recalled feeling a little frustrated at

the time that the issue was coming back to him again, because he thought the solution did

not necessitate a complicated analysis. His advice to Shea was that Shea had the ultimate

authority as the head of the office, and that there was nothing precluding Shea from

exercising discretion and doing what he thought was the right thing to do. According to

DuCharme told us that he was very cognizant at the time that, to reach his own opinion on the

sentence, he would need to conduct a careful review of the Guidelines, case law, facts, and trial transcript.

Upon further questioning, DuCharme said it was possible one of the two points from the

prosecutors was that it was DC USAO’s practice to always seek a Guidelines sentence after trial, but he was not

certain.

DuCharme, his guidance to Shea regarding how to express this position in the sentencing

memorandum was to provide the Guidelines calculation, consider each of the § 3553(a)

factors “honestly and earnestly,” and state that the Guidelines are presumptively

reasonable but advisory and that a sentence below the Guidelines range would also be

reasonable.

According to DuCharme, he advised Barr of these conversations with Shea. He said

that he believes he told Barr about the first conversation at the next regularly-scheduled

senior staff meeting, which he estimated was a day or two after Shea first called him.

DuCharme said that he had a memory of sitting in Barr’s office and advising Barr that Shea

let him know that the Stone sentencing was coming up and that Stone was looking at about

8 years, which Shea seemed to think was kind of high. According to DuCharme, Barr

expressed mild surprise at the 8 years and said something to the effect of, “that does

seem…kind of high.” DuCharme told us that he then explained that the number was the

result of an enhancement for a threat to do harm, but that Shea was still working with the

team and taking a closer look. According to DuCharme, Barr had “an immediate reaction”

to how high Stone’s Guidelines range was given Stone’s age, but that they did not engage in

“super rigorous analysis” at this time. DuCharme said that in the end, Barr did not give

clear direction one way or another, and that their entire discussion lasted 1 or 2 minutes.

DuCharme told us that although he believes he updated Barr about his second

conversation with Shea, he did not have as clear a recollection of this update as he did his

first. He told us that he believes he probably would have said that he talked to Shea again

and that Shea was working it out. DuCharme further stated that he thinks he also would

have said that he had given Shea confidence that Shea had discretion and was not

completely bound by policy or precedent. DuCharme said he believed Barr was “mildly

interested” but not especially focused on the issue.

According to Rabbitt, neither he nor Barr recalled DuCharme advising them that he

(DuCharme) had spoken with the DC USAO before the first sentencing memorandum was

filed on February 10. Rabbitt told us that he was present during a conversation between

DuCharme and Barr on February 11 or 12, 2020, during which DuCharme mentioned that

he had been in contact with the DC USAO the week before the filing. According to Rabbitt,

DuCharme said, “I may have mentioned it to you, sir…just in passing.” Rabbitt said that he

and Barr both responded to DuCharme that they did not recall DuCharme mentioning that.

According to Rabbitt, he and Barr did not dispute that DuCharme may have done so, only

that he and Barr did not recall it.

Available information does not conclusively establish when Barr held senior staff meetings in the

days following February 4, 2020, the day we believe Shea first contacted DuCharme. Based upon our review of

the Attorney General’s calendar, it appears most likely that Barr held senior staff meetings on February 6, 7, and

10.

Barr declined our request for a voluntary interview. In a hearing before the House

Judiciary Committee in July 2020, in response to questions about when Shea first raised the

Stone sentencing with the Attorney General’s Office, Barr testified that: “I think at a 9

o'clock meeting [senior staff] said that [Shea] was trying to work something out on

sentencing, and [Shea] was actually optimistic that something could be worked out, so I

didn't think of it as an issue until that Monday.…"

Rabbitt told us that he believed Barr

was referring to DuCharme and what DuCharme may have told the Attorney General the

week before the filing of the government’s sentencing memorandum on Monday, February

10. Rabbitt told us that he interpreted Barr’s July 28, 2020 testimony as trying to convey the

“possibility” that DuCharme had advised him of the DC USAO discussions the week before.

Other than an email from DuCharme on Friday, February 7, asking Shea whether

filing deadline extensions were requested in “both cases,” one of which the OIG believes

was a reference to the Stone case, the OIG did not find evidence of DuCharme or anyone

else from the DOJ leadership offices reaching out to Shea or the DC USAO the week before

the filing to obtain more information about the Stone case or give direction.

E. FPC Chief Attempts to Broker a Resolution between Trial Team and DC USAO

Management, While Interim U.S. Attorney Revises Sentencing Memorandum

to Support a Downward Variance

Throughout the weekend of February 8 and 9, 2020, DC USAO managers and the

Stone trial team members continued discussions on the sentencing memorandum. Phone

records from that weekend show dozens of calls among involved DC USAO personnel as

well as some text messages, which witnesses told us related to the Stone case. These calls

and text messages began on Saturday morning and continued throughout the day and the

following day, with the Principal AUSA communicating with the Criminal Chief, the Criminal

Chief communicating with the FPC Chief, and the FPC Chief serving as a conduit between

DC USAO managers and the team. As discussed below, during this time, the DC USAO

managers discussed alternative approaches to sentencing that the FPC Chief shared with

the team, while trial team members discussed amongst themselves and with the FPC Chief

their growing concerns over efforts to change the sentencing recommendation and other

aspects of the sentencing memorandum.

1. Alternative Approaches to Sentencing Raise Concerns Within Trial

Team About the Motivations Behind Seeking a Lower Sentence

As described previously, according to the Principal AUSA, he and Shea eventually

reached a consensus by Friday evening, February 7, that the enhancements technically

See William P. Barr, Attorney General, U.S. Department of Justice, before the Committee on the

Judiciary, U.S. House of Representatives, concerning “Oversight of the Department of Justice” (

July 28, 2020),

available at https://judiciary.house.gov/committee-activity/hearings/oversight-of-the-department-of-justice-2

(accessed May 17, 2024).

applied, but Shea’s idea of seeking a downward variance was left unresolved going into the

weekend. Text messages between the Principal AUSA and the Criminal Chief on Friday

evening and between the Criminal Chief and the FPC Chief on Saturday morning indicate

that DC USAO managers continued to discuss the possibility of seeking a downward

variance. By Saturday, their focus had turned to the idea of an open-ended downward

variance recommendation, that is, advising the court that the government believed a

sentence below the Guidelines range was appropriate but deferring to the court as to how

far below that range Stone should be sentenced. According to the FPC Chief, he advised

the Criminal Chief during a phone call on Saturday that he thought a recommendation

below the Guidelines range was a mistake, but that he would confer with Prosecutor 1

about whether “we’re comfortable…following this guidance.”

Prosecutor 1 recalled the possible alternatives under discussion somewhat

differently. He told us that he remembered the FPC Chief advising him on Saturday that DC

USAO managers were considering three options for lowering the sentence: (1) arguing that

the 8-level threats SOC did not apply; (2) stating that the 8-level threats SOC did apply, but

because the eight levels overstate the seriousness of the defendant’s conduct, a downward

variance is appropriate; and (3) not making a sentencing recommendation at all and simply

deferring to the court.

Prosecutor 1 said he told the FPC Chief that he would have to

confer with the other members of the trial team to get their reactions, but that he

personally could not agree to any of these options. Prosecutor 1 suggested to the FPC

Chief that he (Prosecutor 1) be permitted to withdraw from the case to allow someone else

to file a sentencing memorandum containing one of these options, but the FPC Chief

wanted Prosecutor 1 to stay on the case.

After this discussion with the FPC Chief, Prosecutor 1 began contacting members of

the trial team, with the intention of reporting back to the FPC Chief. During these calls,

Prosecutor 1 told the trial team about the meetings he had attended with DC USAO

managers the week before. Prosecutor 2 provided the OIG with the most detailed

summary of what Prosecutor 1 shared about those meetings.

According to Prosecutor 2,

during a call with the entire team early Saturday evening, Prosecutor 1 told the team that

he was pressured, at various times, to remove every single enhancement in the team’s

Guidelines calculation, based upon arguments that Prosecutor 1 did not find reasonable,

credible, or in good faith. Prosecutor 1 told the team that management did not engage in

“the substance of [the] prosecution,” the legal or factual arguments in the sentencing

Regarding the first option, Prosecutor 1 told the OIG that the trial team did not know that the

Guidelines calculation was settled until Sunday evening, February 9, when, as described later in this report, the

Criminal Chief sent the FPC Chief a new revised draft of the memorandum, which the FPC Chief forwarded to

the team.

Although Prosecutor 2 recalled more details, Prosecutor 1’s and Prosecutor 3’s testimony to the OIG

was generally consistent with Prosecutor 2’s description of what Prosecutor 1 shared with the team about his

previous meetings and conversations with DC USAO managers.

memorandum, or the counterpoints that Prosecutor 1 proffered in response to the points

they raised in the meetings. Prosecutor 1 also told the team that he had concerns that

what was happening was unethical, based not only upon what he observed during these

meetings, but also based on Prosecutor 1’s experience that the DC USAO’s Fraud and Public

Corruption Section had never before sought a sentence below the Guidelines after a

defendant was convicted at trial.

According to Prosecutor 1, Prosecutor 2, and Prosecutor 3, these concerns led the

team to suspect that the desire to lower the sentencing recommendation was being

improperly influenced by political considerations. More specifically, the team had a

growing concern that because of Stone’s relationship to then President Trump, and

because they believed Stone’s obstructive conduct ultimately favored the President, Stone

was getting “cut breaks” and being treated differently than any other defendant. According

to Prosecutor 1 and Prosecutor 2, at some point the team also discussed seeing troubling

parallels between what was happening in their case to then recent actions taken in other

high-profile cases, including, for example, the case against former National Security Advisor

Michael Flynn where the government filed a reply memorandum in January 2020 clarifying

its sentencing position to include that probation without incarceration was appropriate.

When asked whether the parallels they perceived influenced the team’s thinking on how

the Stone sentencing was being handled, Prosecutor 2 said that the parallels may have had

some influence, but that they did not cause their concerns relating to the Stone sentencing.

Prosecutor 1 said that the Flynn parallels did not add to his concerns regarding what was

happening with the Stone sentencing.

As discussed below, the team and the FPC Chief had a conference call on Saturday

evening. According to Prosecutor 2, the team wanted to better understand the concerns of

DC USAO management, so that they could come up with a solution that might satisfy all

involved—address the concerns of DC USAO management while simultaneously allowing

the team to file a memorandum that they believed complied with their ethical obligations

and was the “right thing” to do.

2. Shea Provides Handwritten Edits and Comments for the Sentencing

Memorandum to his Chief of Staff and the Principal AUSA

On Saturday afternoon, not long before the trial team’s call with the FPC Chief, Shea

emailed handwritten edits and comments for the sentencing memorandum to his Chief of

Staff and the Principal AUSA. Phone records do not show conversations between Shea and

either his Chief of Staff or the Principal AUSA over the weekend, and both the Chief of Staff

and the Principal AUSA told us that they did not recall talking to Shea on Saturday or

Sunday about his handwritten feedback.

Among his edits, Shea removed three paragraphs from the memorandum’s

introduction describing the severity of Stone’s obstruction crimes and his post-indictment

conduct to interfere with the court proceedings. Shea told us that he removed these

paragraphs because, as described previously, his preference generally in written

submissions was to provide the information necessary for the judge to decide the sentence

but not to “characterize the facts.” The Principal AUSA and the Criminal Chief later

conveyed to the trial team that they could instead make these arguments orally at the

sentencing hearing, which the Principal AUSA told us Shea had authorized.

Shea did not make any edits to the section that set forth the Guidelines calculation,

but he asked whether a reference to Credico’s letter should be added to the discussion of

the 8-level threats SOC. Shea told us that he had already discussed the enhancements the

week before, and that, by Saturday, he was not challenging the team and the FPC Chief’s

position on them. However, Shea noted on the draft that the ultimate sentencing

recommendation of 87 months “needs to be revised,” and that the summary paragraph at

the end of the memorandum explaining why the government believed a Guidelines-

compliant sentence was appropriate “needs to be re-drafted.” Shea told us that he could

not remember what revisions he wanted made at the time he wrote these two notes.

However, he also told us that an open-ended downward variance recommendation

reflected what he had been considering at that time, adding “we pushed at that.” At the

same time, he said that he did not make a final decision on the recommendation on

Saturday, and that he was still thinking about the sentencing position over the entire

weekend. According to Shea, he is “a little bit of a procrastinator” who makes decisions

“last minute,” and he intended to see where they were on Monday.

Shea’s edits provided other feedback, including that he disagreed with the

memorandum’s assertion that a sentence within the Guidelines range for Stone was

consistent or comparable to sentences imposed on other defendants (who had been

charged with the same offenses). He also removed language stating that Stone’s efforts to

tamper with Credico succeeded, noting that the government did not know whether Credico

declined to provide congressional testimony because of Stone’s threats or on the advice of

counsel. Shea’s feedback further stated that he wanted to add language in two places

indicating that the court did not revoke Stone’s bail when he violated the court’s orders

before his trial. He also asked whether there was support for the memorandum’s claim

that the impact of Stone’s obstruction on the congressional investigation was “significant.”

Early Saturday evening, the Principal AUSA responded by email to Shea that the

Criminal Chief would make sure Shea’s edits were incorporated into the next draft of the

sentencing memorandum, which they expected to receive from the trial team sometime on

Sunday. Text messages show that the Principal AUSA had shared the edits with the

Criminal Chief and asked him to make the necessary changes to “reflect the current

approach,” which the Principal AUSA told us was to seek a downward variance from the

Guidelines range but defer to the court on the ultimate sentence. The Principal AUSA told

us that he interpreted Shea’s handwritten comments on Saturday as an indication that

Shea had decided to take the sentencing approach that they had discussed on Friday after

the meeting with Prosecutor 1—keeping the Guidelines calculation as is but seeking a

downward variance and deferring to the court on the ultimate sentence. According to the

Principal AUSA, Shea’s comments that the sentencing recommendation needed to be

“revised” and “redrafted,” the day after they discussed seeking an open-ended downward

variance, made it “pretty clear where he stood.”

We found no evidence that the FPC Chief was provided with, or aware of the content

of, Shea’s edits before the FPC Chief’s call with the trial team on Saturday evening. The FPC

Chief told us that on Saturday, he understood that a decision on the recommendation had

not been made, but that Shea wanted to seek a variance. According to the FPC Chief, he

understood that DC USAO leadership wanted him or the team to recommend a variance so

that Shea did not have to overrule the position of the career prosecutors on the case. The

Criminal Chief told us that on Saturday, the FPC Chief was aware of Shea’s view that a

variance would be appropriate, but the FPC Chief did not like the position. The Criminal

Chief told us that although the FPC Chief did not like the idea of a downward variance

recommendation, the Criminal Chief understood that on Saturday evening, the FPC Chief

would try to reach agreement with the team on a memorandum recommending a variance

that the team could “live with.” According to the FPC Chief, however, he did not think it was

possible that the Criminal Chief or others believed that the FPC Chief would try to reach

agreement with the team on a downward variance because the FPC Chief had not

communicated to anyone that he supported a variance. Although the FPC Chief

understood that his role was to communicate between DC USAO leadership and the team,

the FPC Chief told us that the Criminal Chief did not tell the FPC Chief what to say to the

team that evening, and the FPC Chief’s goal remained a Guidelines sentence

recommendation.

3. The FPC Chief Discusses and Validates the Trial Team’s Concerns,

Varying Testimony by Witnesses During OIG Interviews on What the

FPC Chief Urged the Team to Do or Accept

On Saturday evening, the FPC Chief and the trial team had a conference call during

which the trial team sought to better understand the concerns of DC USAO management,

and the FPC Chief sought to determine whether there was any flexibility in the team’s

position on the sentencing recommendation.

Specifically, according to the FPC Chief, the

calls he had with Prosecutor 1 earlier in the day confirmed for him (the FPC Chief) that both

he and the trial team should continue to advocate for a Guidelines sentence

recommendation, but he was hoping on this call to convince the team to develop some

compromise language for the memorandum that would be acceptable to the team and DC

USAO management.

Prosecutor 1, Prosecutor 2, and Prosecutor 3 participated in this conference call with the FPC Chief.

Prosecutor 4 had a scheduling conflict and did not participate.

Early into the call, the trial team expressed their concerns to the FPC Chief about

what had taken place over the last few days, including that they believed the desire to

lower the sentencing recommendation was being improperly influenced by political

considerations. According to Prosecutor 1, the FPC Chief responded to their concerns by

stating that the U.S. Attorney was entitled to “kick the tires” or evaluate the sentencing

recommendation, and that there was nothing improper about doing so. Prosecutor 1 said

that when he asked the FPC Chief if that was what the FPC Chief thought was happening,

the FPC Chief responded in the negative and said that he thought that Shea was trying to

lower the sentencing recommendation because of politics. Prosecutor 1 said that he asked

the FPC Chief why a decision based on political considerations would be “okay,” and he told

us that the FPC Chief responded that, from his (the FPC Chief’s) perspective, “this is not the

hill to die on.” Prosecutor 1 interpreted these words to mean that they should not pick this

fight because, as the FPC Chief had expressed to the team, the “number” reflected in the

government’s sentencing recommendation was not going to make a difference in how the

court ultimately decided to sentence Stone. Prosecutor 2 and Prosecutor 3 provided

similar descriptions of the FPC Chief’s response to the team’s concerns and similar

interpretations of the sentiment that the sentencing recommendation was “not the hill to

die on.” In addition, Prosecutor 2 told us that he recalled that after the FPC Chief said that

politics was motivating the desire to lower the sentence, the FPC Chief said that political

pressure is just what happens in big cases, regardless of administration.

The FPC Chief told the OIG that he believed that he did acknowledge on this call that

he thought Shea’s desire to lower the sentence was being influenced by politics, and that

he may have agreed with the team that a decision based on politics would be unethical.

According to the FPC Chief, he was trying to validate the concerns that the trial team

expressed, as well as acknowledge his own suspicions and belief that Shea was acting out

of fear of then President Trump and, more particularly, fear of the consequences of not

seeking a lower sentence for an influential friend of then President Trump. The FPC Chief

told us that, at the time of this call, he had not reached the point of concluding that what

was happening was, in fact, unethical such that he would not follow the instructions of his

supervisors. He explained that he did not have any direct knowledge as to Shea’s

motivations to conclude that Shea was, in fact, being influenced by something other than

the facts of the case.

The FPC Chief told us that when he said, “this is not the hill to die on,” he meant that

being required to add some compromise language to the sentencing memorandum was

not worth the trial team quitting their jobs over. Specifically, the FPC Chief told us that he

urged the team to propose new language for the sentencing memorandum that would

both (1) “tip a cap” to the § 3553(a) factors in a way that would acknowledge to the court

that there were circumstances that might mitigate in favor of a downward variance, and (2)

still maintain the recommendation of a Guidelines sentence. Such language, in his view,

was not a hill worth dying on. According to the FPC Chief, he believed that the court would

not impose a Guidelines range sentence on Stone, and therefore, the FPC Chief may have

told the team that adding such language to the memorandum was “not the hill to die on”

because “the court is going to do what the court is going to do.”

Prosecutor 1, Prosecutor 2, and Prosecutor 3 told us that they did not recall the FPC

Chief asking the trial team to “tip a cap” to mitigating factors or otherwise asking them to

draft new compromise language for the sentencing memorandum. They told us that they

recalled that the trial team took it upon themselves before the call with the FPC Chief to

work on new language that might serve as a potential compromise.

According to Prosecutor 3, Prosecutor 1 told the FPC Chief on this call that the team

was working on new compromise language, and the FPC Chief warned them not to draw “a

line in the sand” about what they were willing and not willing to accept, or to state in

writing their concerns about improper political influence. Prosecutor 3 told us that

Prosecutor 1 expressed concern before the team call with the FPC Chief that negotiations

with DC USAO management could push the trial team further and further beyond their

comfort level, and this concern led to discussions about whether to “draw a line in the

sand” in any proposal communicated to the front office about how far the trial team would

be willing to go to reach a compromise.

Prosecutor 1, Prosecutor 2, and Prosecutor 3 told us that the FPC Chief urged the

team on this call to go along with what the DC USAO management wanted. Although

Prosecutor 3 said that he did not recall exactly what proposal from DC USAO managers was

under consideration at this particular time, Prosecutor 2 told us that he recalled that the

FPC Chief urged the team to go along with a lower sentencing recommendation either by

changing the Guidelines calculation or by recommending a downward variance.

Prosecutor 1 told us that he recalled that the FPC Chief mentioned that DC USAO

management was going to be making changes to the memorandum and that the FPC Chief

was urging the team to go along with whatever changes were coming. Prosecutor 1 said

that the FPC Chief did not explain what changes were coming, but that Prosecutor 1

generally expected them to lower the sentencing recommendation through one of the

alternatives the FPC Chief discussed with him earlier in the day. According to the FPC Chief,

According to Prosecutor 1 and Prosecutor 3, Prosecutor 3 was the one to suggest to Prosecutor 1,

before the call with the FPC Chief, that the trial team draft revised language for the memorandum. Prosecutor

3 told us that although he had concerns, he was not certain that DC USAO managers had improper motivations

or were asking the trial team to do something improper and that he, therefore, wanted to see whether an

understanding could be reached between the trial team and DC USAO management on the language in the

memorandum.

Also, before the trial team’s call with the FPC Chief, a text message between the Criminal Chief and

Principal AUSA indicated that the Criminal Chief asked the FPC Chief to “draft some language for the memo.”

The Criminal Chief and the Principal AUSA told us that they did not recall the language to which this text was

referring. The FPC Chief told us that he remembered the Criminal Chief asking him for some language for the

memorandum that would describe how the § 3553(a) factors mitigate in favor of a sentence lower than the

Guidelines range and that the Criminal Chief did not offer specific language but appeared to be leaving the

specifics to the trial team.

however, he d

id not urge the team—on this call or at any other time—to agree to a lower

sentencing recommendation. The FPC Chief said he told the team that Shea wanted to

seek a variance and the team should not insist on filing the memorandum exactly the way

they had drafted it.

Prosecutor 1 told us that at some point during this call, the FPC Chief stated that the

“stakes could not be higher” and that “people’s jobs are on the line,” the meaning of which

Prosecutor 1 was not certain. Prosecutor 2 and Prosecutor 3 told us that they recalled the

FPC Chief stating that jobs were on the line, or something to that effect. Prosecutor 2 said

he understood the FPC Chief to mean that the jobs of Shea and perhaps other DC USAO

managers were on the line, whereas Prosecutor 3 told us that he found the statement

ambiguous as to whose jobs were on the line. According to Prosecutor 2, the FPC Chief

separately said on this call that if the U.S. Attorney “loses faith in you...you’re not going to

be able to…do your job.” Prosecutor 2 said that he interpreted this statement as a threat

that the trial team needed to sign a memorandum that soft-pedaled Stone’s conduct and

recommended a lower sentence for Stone or else they could lose their jobs.

The FPC Chief told us unequivocally that he never threatened the trial team with job

loss or otherwise told them that they could lose their jobs if they did not do something.

The FPC Chief said that, at most, he may have asked them “why would we put ourselves in

a position where, over some lines in a sentencing memorandum, or [by] not trying to work

this out, we’re all going to quit our jobs? Because that’s where this is headed.” According

to Prosecutor 1, he did not recall if the exact words the FPC Chief used were that the team

“could lose their jobs” or “could be fired” if Shea “lost faith in them,” but that he did recall

the FPC Chief conveying the sentiment that the trial team members could lose their jobs or

be demoted if they did not go along with a lower sentencing recommendation. Prosecutor

3 told us that he also did not specifically recall the FPC Chief stating that the team “could be

fired” if “Shea lost faith in them.” Prosecutor 3 said that he thought the trial team losing

their jobs would not be “inconsistent” with what the FPC Chief said to the team on this call

but that, as noted above, he personally found the FPC Chief’s statements to be ambiguous

as to whose jobs were on the line. Prosecutor 3 also told us that after the team’s call with

the FPC Chief, members of the trial team discussed whether the FPC Chief had threatened

their jobs on the call. Prosecutor 3 said that he remembered that there were members of

the team (he said he didn’t recall which ones) who viewed what the FPC Chief said on the

call as a threat to their jobs, but that at least he (Prosecutor 3) was not sure what the FPC

Chief meant.

The call ended without resolution and with the trial team taking the FPC Chief’s

statements under advisement. According to Prosecutor 3’s testimony and notes, the FPC

In comments the FPC Chief’s counsel submitted after reviewing a draft of this report, counsel stated

that, on this call, the FPC Chief “urged [the team] to evaluate the reasonableness of the proposed revisions with

an open mind when they came in, and to not reflexively reject them and withdraw from the case."

Chief told the team at the end of the call to “do what you think is right” and “send what you

are going to send.”

4. Trial Team and DC USAO Management Exchange New Edited Drafts,

Prosecutor 1 Raises His Concerns Directly to the Criminal Chief

Phone records and a text message between the FPC Chief and the Criminal Chief

indicate that, later on Saturday evening, after the conference call with the trial team, the

FPC Chief updated the Criminal Chief, and the Criminal Chief updated the Principal AUSA.

The FPC Chief told us that he did not specifically recall the details of his conversation with

the Criminal Chief, but the Criminal Chief recalled that the FPC Chief conveyed to him, and

he (the Criminal Chief) conveyed to the Principal AUSA, that the trial team was adamantly

against a downward variance, but that the FPC Chief and the team were still talking and

trying to make progress. Further, the Criminal Chief said that at some point over the

weekend, possibly on this call with the FPC Chief, the Criminal Chief learned that among

the trial team members, Prosecutor 1 and Prosecutor 2 were most opposed to the notion

of a downward variance.

The Principal AUSA told us that although there was no agreement with the trial

team, the Principal AUSA considered the edits from Shea as “more concrete instructions”

from the Interim U.S. Attorney on what to do and that it was time to turn around a draft

that reflected Shea’s views. Therefore, on Sunday morning, the Principal AUSA sent the

following text to the Criminal Chief:

You and [the FPC Chief] should not kill yourselves trying to get [Prosecutor 1]

and [Prosecutor 2] “on board” today…. If they really don't think reasonable

minds could disagree about whether increasing Stone's applicable guidelines

range from 37 to 46 months (level 21) to a range of 87 to 108 (level 29) which

is an increase of 50 months at the bottom and 62 months at the top, based

solely on his conduct [regarding] Credico, might be a little excessive and

mitigated by Credico's letter to the judge, then there is not much to discuss.

…We are talking about going from a minimum of 3 years to [a] minimum of

7+ years in prison for the Credico conduct. All we are asking them to do is to

add a paragraph acknowledging that a variance would be appropriate in light

of the significant impact the [8-level threats SOC] enhancement has on the

applicable guidelines range and the mitigating effect of Credico’s letter, but

we are deferring to the Court as to how much of a variance from the

applicable guidelines range is appropriate. And [Shea] is asking to eliminate

some of the rhetoric in the pleading because his name is on it too and he

does not necessarily agree with all of it, and it is not his style to include such

rhetoric in sentencing memos anyway. The fact that he is OK with the team

employing that rhetoric at the sentencing hearing strikes me as a reasonable

way to show his respect for their views and accommodate their request to

express them in connection with this sentencing.

Not long after this text message, Prosecutor 1 sent two separate emails to the

Criminal Chief—the first containing new compromise language the trial team developed for

the memorandum and the second describing Prosecutor 1’s concerns with the way DC

USAO management was handling the sentencing memorandum. Prosecutor 1 said that the

trial team decided to send these emails to the Criminal Chief because the Criminal Chief

was the most experienced career official involved in the discussions. The trial team’s new

compromise language stated:

The government recognizes that [the 8-level threats SOC] covers a range of

conduct, from making threatening statements to actually causing harm to a

witness. The government further recognizes that several of the

enhancements discussed above—in particular [the 3-level substantial

interference SOC] and [the 2-level extensive scope SOC]—cover similar

aspects of the offense conduct. In recognition of this, the government has

requested a sentence at the bottom of the applicable sentencing guidelines

range. The Court may take these considerations into account in determining

a just sentence.

In his second email, Prosecutor 1 referenced the meetings that took place the week

before and noted:

I have been asked to attend three meetings this week in which I have been

encouraged to request a lower sentence for Roger Stone. At one time or

another in these meetings, the application of every enhancement

recommended by the presentence report writer has been questioned, the

sentencing memo[randum] has been criticized as too argumentative, and a

downward variance for Stone has been proposed.

Before last week, I have never attended a meeting in which it was suggested

that a defendant who was convicted at trial should not receive a guidelines-

compliant sentence. Nor have I ever attended a meeting in which it was

suggested that the government should not seek sentencing enhancements

that plainly apply to a defendant convicted at trial. Moreover, I believe that it

has been the consistent practice of the [DC USAO’s] Fraud and Public

Corruption Section to seek guidelines-compliant sentences in all its cases.

Based on the events of the past week, I am concerned that this practice is not

being followed in the Stone case because of the identity of the defendant.

Other email communications show that before he sent both emails, Prosecutor 1

deleted language he originally drafted for the emails that would have indicated that he and

the rest of the trial team were willing to withdraw from the case rather than sign a

memorandum that lowered the sentencing recommendation or made no recommendation

at all. Prosecutor 1 told us that he ultimately deleted the language because “different

people on the team were in different places on this.” According to Prosecutor 2, the team

had discussed on Saturday and Sunday morning the possibility of withdrawing from the

case, and Prosecutor 1 and Prosecutor 2 were most certain about withdrawing from the

case if necessary, Prosecutor 4 was least certain, and Prosecutor 3 was somewhere in the

middle. Prosecutor 1 gave a consistent description of where each team member was at

this point in time, except that Prosecutor 1 placed himself somewhere in the middle

between Prosecutor 2 and Prosecutor 4.

The Criminal Chief did not directly respond to the first email containing the trial

team’s proposed compromise, but he responded to Prosecutor 1’s second email on Sunday

evening after conferring with the Principal AUSA. In the response, the Criminal Chief stated

that he did not believe Prosecutor 1 had been encouraged to request a lower sentence but

instead had been asked to consider whether a downward variance was appropriate in

whatever amount the court deemed sufficient—based not on the defendant’s identity but

primarily on the circumstances involving Credico and Credico’s letter to the court. The

Criminal Chief also defended Shea’s desire to adjust the tone of the memorandum and

review the legal and factual basis for the Guidelines calculation, noting that Shea ultimately

decided not to question the application of any of the enhancements.

As noted earlier, Prosecutor 4 declined our request for a voluntary interview. Prosecutor 3 told us

that he recalled that the team discussed the possibility of refusing to sign the sentencing memorandum, with

varying degrees of certainty among individual team members about where they stood at this particular time (he

said he was somewhere in the middle), but that he did not recall whether the team had also discussed on

Saturday and Sunday morning the possibility of withdrawing from the case. Email communications suggest

that, as Prosecutor 1 and Prosecutor 2 said they recalled, the trial team also considered the possibility of

withdrawal.

Before he sent this response, the Criminal Chief consulted two DC USAO colleagues who were not

involved in the Stone sentencing but, through prior supervisory positions in the DC USAO, had knowledge of the

case. According to the Criminal Chief, he did not agree with the Principal AUSA that a sentence below the

Guidelines was warranted, but he (the Criminal Chief) also believed that reasonable minds could disagree about

the appropriate sentence for Stone. The Criminal Chief told us that he wanted a “reality check” to see whether

these two colleagues, whom he trusted and considered his peers, agreed that a downward variance

recommendation would not be unethical. According to the Criminal Chief, both colleagues agreed.

Further, the Criminal Chief told us that he also consulted Jesse Liu over the February 8-9 weekend or

possibly sometime during the previous week. He said that he was both commiserating with Liu, who had

recently left the office and knew all of the people involved in the Stone case, and seeking advice on how to keep

the situation “on the rails.” According to the Criminal Chief’s testimony and notes, he generally remembered

telling her that the Stone sentencing memorandum was “causing a lot of controversy and dissension and could

just blow up,” and that Prosecutor 2 and Prosecutor 3 were “inflaming [Prosecutor 1],” which he told us was his

impression at the time. The Criminal Chief said that he shared with her that there was internal disagreement

about whether to recommend a Guidelines sentence or a downward variance. The Criminal Chief also shared

with her that he had his own concerns at the time about whether a downward variance recommendation would

(Cont’d.)

After sending this response, the Criminal Chief sent a new draft of the sentencing

memorandum to the FPC Chief that the Criminal Chief had prepared with the Principal

AUSA. The new draft incorporated the edits from Shea the day before, including removing

the introduction that described the severity of Stone’s conduct, revising the end of the

§ 3553(a) analysis that had originally argued in favor of a Guidelines sentence, and making

other changes consistent with Shea’s previous edits. In particular, the revised paragraph at

the end of the § 3553(a) analysis borrowed from the compromise language the trial team

submitted earlier in the day on February 9 but changed the government’s sentencing

position from a sentence at the bottom of the Guidelines range to an open-ended

downward variance. Specifically, the revised paragraph stated:

The government recognizes that [the 8-level threats SOC] covers a range of

conduct, from making threatening statements to actually causing harm to a

witness, and that the resulting increase in the applicable guideline range is

significant. In this case, the enhancement increases the low end of [the]

applicable guidelines range by 50 months and the high end by 62 months.

The government further recognizes that several of the enhancements

discussed above—in particular [the 3-level substantial interference SOC] and

[the 2-level extensive SOC]—cover similar aspects of the offense conduct. In

recognition of these circumstances, the government submits that a

downward variance from the applicable guidelines range of 87-108 months

would be appropriate in this case, but defers to the Court as to the extent of

that variance.

This new draft also removed the recommendation of a Guidelines-compliant 87-

month sentence in the conclusion and instead asked for a “substantial period of

incarceration” and stated in the § 3553(a) analysis that a substantial period of incarceration

would be consistent with sentences imposed on other defendants.

The FPC Chief forwarded the new draft to the trial team, and almost immediately

Prosecutor 2, Prosecutor 1, and then Prosecutor 3 expressed (in emails only within the trial

team) that they intended to withdraw from the case. Prosecutor 4 did not express the

same, but he asked how the team was supposed to respond if the court asked what

“substantial period of incarceration” means.

The changes in this new draft formed a basis for Prosecutor 2’s testimony before

the House Judiciary Committee on June 24, 2020.

In advance of this testimony,

be unethical and had consulted a DC USAO peer who gave him some reassurance that a variance would not be

unethical. According to the Criminal Chief, he did not provide Liu with a lot of details, and he did not remember

any advice she had given. He said that but for notes he had written close in time to speaking with Liu, he could

not be sure he would have recalled any specific conversation with her during this time period.

Committee on the Judiciary, U.S. House of Representatives, “Oversight of the Department of Justice:

Political Interference and Threats to Prosecutorial Independence” (June 24, 2020).

Prosecutor 2 submitted a written Statement for the Record (SFR) that described not only

efforts to change the government’s Guidelines calculation and sentencing

recommendation, but also revisions to the facts and arguments in the sentencing

memorandum. Specifically, Prosecutor 2’s SFR stated that the trial team had been

pressured to water down and, in some cases, outright distort the events that transpired in

Stone’s trial and the criminal conduct that gave rise to Stone’s conviction. During his OIG

interview, Prosecutor 2 told us that he was referring to the revisions in the new draft that

the FPC Chief forwarded to the team on Sunday evening that removed the introductory

paragraphs describing the severity of Stone’s offenses and added new language that the

trial court did not revoke Stone’s bail when he violated the court’s orders before his trial.

As described previously, Shea made these two revisions in the handwritten edits he sent

his Chief of Staff and the Principal AUSA on February 8, 2020. According to Prosecutor 2,

the Principal AUSA and the Criminal Chief participated in the improper pressure Prosecutor

2 described in his congressional testimony by incorporating these revisions into the

sentencing memorandum. Prosecutor 2 told us that the Criminal Chief also exerted

pressure on the team through the Criminal Chief’s Sunday email to Prosecutor 1

responding to Prosecutor 1’s concerns, on which the team was copied.

5. Trial Team Offers New Proposal to Avoid Withdrawals from the Case,

Communications with the FPC Chief Break Down, No Agreement

Going into the Morning of the Filing Deadline

As described above, by Sunday evening, at least three trial team members

expressed amongst themselves that they were prepared to withdraw from the case rather

than sign the new draft recommending an open-ended downward variance. Further, the

trial team had become frustrated with the discussions over the weekend, and at least

Prosecutor 1, Prosecutor 2, and Prosecutor 3 questioned whether the Criminal Chief’s

response to Prosecutor 1’s concerns was in good faith. Among other things, Prosecutor 1,

Prosecutor 2, and Prosecutor 3 expressed concerns with the Criminal Chief’s

representation that, "I don't believe that you have been encouraged to request a lower

sentence in this case. Instead, I think you have been asked to consider whether a

variance…might be appropriate." Prosecutor 1 and Prosecutor 3 told us that they believed

that representation was misleading, and Prosecutor 2 told us that he believed it was “false”

and “in bad faith” because the team was under pressure all along to lower the sentencing

recommendation either by removing enhancements or requesting a downward variance.

According to the Criminal Chief, his response to Prosecutor 1 was not as clear as it could

have been and that what he meant was that the trial team had not been asked to lower the

In addition to these revisions, Prosecutor 2 told us that he was referring in his SFR to the revisions in

the final draft, described later in this report, that minimized Stone’s threats to Credico. Prosecutor 2 told us

that he was also referring to an argument in the second sentencing memorandum described later that the 2-

level obstruction adjustment overlapped to a degree with Stone’s offense conduct.

sentence “by fiat,” but rather that there were appropriate reasons to consider a lower

sentencing recommendation.

According to Prosecutor 1, despite the trial team’s frustrations, Prosecutor 1

encouraged the team to make one last proposal to DC USAO management to resolve the

matter and avoid team members withdrawing from the case. Prosecutor 1 told us that

after considerable discussion, the trial team came up with a proposal to present to the FPC

Chief that represented the “bottom line” of what the team, as a whole, could live with.

Recollections varied as to the terms of the proposal the trial team presented to the

FPC Chief over the phone on Sunday evening. According to Prosecutor 1, he told the FPC

Chief that the trial team would accept a memorandum that neither recommended a

Guidelines-compliant sentence nor a downward variance and instead would: (1) remove

the introduction describing the severity of Stone’s conduct, (2) make no recommendation

as to a specific sentence, and (3) state that a substantial period of incarceration was

appropriate. According to Prosecutor 1, he told the FPC Chief that the trial team did not

think this proposal was the right thing to do, but that they would “hold their noses” as long

as DC USAO management agreed, in writing, that the trial team would handle the

sentencing hearing and be permitted to state then that 87 months would be a reasonable

sentence. Prosecutor 2 told us that these terms may have been the “fallback” proposal, but

that the original terms he remembered were that the trial team would accept almost all of

the line edits in the Criminal Chief’s new draft, except those specifically stating that a

downward variance would be appropriate, and that the team would reinsert the

recommendation of a low-end Guidelines sentence and be permitted to handle the

sentencing hearing. Prosecutor 3 told us that he did not recall whether the trial team

made one last proposal to resolve the matter, though the terms Prosecutor 1 outlined

sounded vaguely familiar to him.

The FPC Chief told us that he did not recall many details of this Sunday night phone

conversation with the trial team, including whether the team presented him with a

proposal and whether he shared the proposal later with his management chain, but he left

open the possibility that they discussed a proposal similar to the terms Prosecutor 1

recalled. Both Prosecutor 1 and Prosecutor 2 told us that the FPC Chief quickly dismissed

the proposal as a non-starter, stating that DC USAO management would never agree to

those terms. Prosecutor 1 told us that the FPC Chief instead tried to persuade the team to

accept the changes reflected in the Criminal Chief’s new draft. Prosecutor 2 told us that he

felt pressured by the FPC Chief to accept the changes Shea wanted, including the

downward variance recommendation. Prosecutor 3 told us that he thought, but did not

recall with certainty, that the FPC Chief attempted to persuade the team to accept the

changes.

As described previously, the FPC Chief told us he never urged the trial team to agree

to a downward variance recommendation. He told us that he recalled going into this call

knowing that there was no serious discussion to be had with the team about a downward

variance. He said that his plan instead was to convince them not to immediately withdraw

because the memorandum was not yet final, and he and the team had another day to try

to “get to a better place.”

During this call, trial team members restated the concerns they expressed on

Saturday evening about political considerations influencing the decision making on the

sentencing memorandum. Prosecutor 1 and Prosecutor 2 told us that the FPC Chief

initially responded that what was happening was really not about politics and that Shea

was acting in good faith, statements that they said were at odds with what the FPC Chief

had told the team Saturday evening. Prosecutor 1 and Prosecutor 2 told us that as the

discussion continued, the FPC Chief eventually acknowledged that, “We are going to treat

Roger Stone differently from every other defendant.” Prosecutor 3 emailed his team

members during the call with the FPC Chief noting, “[the FPC Chief] appears to be saying

things that are the dead opposite of what he previously said” and, shortly thereafter, “I

appreciate [that] he just said, ‘we are going to treat [Roger Stone] differently from every

other defendant.’” The FPC Chief told us that he may have made that statement on this

call, but that if he did, he would have made it in the context of agreeing with the team that

that would be the outcome if the office filed the latest version of the memorandum with

Shea’s edits.

Although Prosecutor 2 and Prosecutor 3 told us that they did not have a clear

recollection of how the call ended, Prosecutor 1 told us that the call ended with the FPC

Chief stating that he would take the team’s proposal to DC USAO management, but that he

did not think that they would ever agree to it. The FPC Chief did not recall how the call

ended, but he said that he likely would have told them not to withdraw, and that there was

still a chance that he and the team could get the sentencing memorandum where it needed

to be on Monday.

Prosecutor 1 told us that, immediately after the call, he called the FPC Chief to

apologize for personal criticisms Prosecutor 2 directed at the FPC Chief during the call.

According to Prosecutor 1, not long into the team’s call with the FPC Chief, the conversation

became heated when Prosecutor 2 expressed his personal disappointment in the FPC

Chief’s leadership for being (what Prosecutor 2 viewed as) complicit in DC USAO

management’s improper handling of the sentencing memorandum. Prosecutor 1 stated

that the FPC Chief responded in kind, venting his own frustrations with Prosecutor 2 and,

more generally, with being in a difficult situation.

According to Prosecutor 1, during his

private conversation with the FPC Chief, he told the FPC Chief that he did not “hold this

against [him],” but that he was not going to sign a sentencing memorandum with which he

did not agree. Prosecutor 1 said that it was a short call, and that he did not believe they

During his OIG interview, Prosecutor 2 agreed that he helped raise the temperature during this call,

but he recalled that he was reacting to the FPC Chief’s quick dismissal of the team’s proposal as a non-starter,

after the team had offered changes that went well beyond their comfort level.

discussed anything else. The FPC Chief provided a similar description of this call with

Prosecutor 1 but thought it was possible that he also urged Prosecutor 1 not to withdraw

yet from the case. Phone records reflect that Prosecutor 4 also called the FPC Chief shortly

after the call with the entire team. According to the FPC Chief, Prosecutor 4, like Prosecutor

1, apologized for the personal criticisms directed at the FPC Chief and told the FPC Chief

that he did not agree with them.

Later that evening, Prosecutor 2 drafted a formal notice withdrawing his

appearance in the case. Prosecutor 2 told us that he was motivated to withdraw on

Sunday evening because he was afraid that DC USAO management might do or say

something on Monday to disparage or discredit him or the trial team, and he wanted to

withdraw before that happened. Although he was prepared to file it that evening, he

decided, at Prosecutor 1’s request, to hold off until Monday to see whether DC USAO

managers would agree to make changes that would be acceptable to the team. Available

documentation indicates that Prosecutor 1 made this request to Prosecutor 2 after

Prosecutor 1 had a private conversation with the FPC Chief, during which the FPC Chief

asked Prosecutor 1 and the rest of the team not to withdraw from the case.

Phone records and text messages indicate that the FPC Chief updated the Criminal

Chief after the call with the team, the Criminal Chief then updated the Principal AUSA, and

the Principal AUSA suggested that the three of them meet with Shea first thing the next

morning, Monday, February 10. Although the FPC Chief told us that he did not specifically

recall the update he provided to the Criminal Chief, the Criminal Chief said that he recalled

that the trial team had found the new draft unacceptable and that discussions had reached

an impasse. The Criminal Chief said that he did not remember the FPC Chief sharing a new

proposal from the trial team, and other available information does not indicate whether

the FPC Chief shared the new proposal with other DC USAO managers the following day.

F. Advised of Possible Trial Team Withdrawals, Interim U.S. Attorney Meets

Briefly with the Attorney General on the Day of the Filing Deadline

On Monday morning, February 10—the day of the filing deadline and sometime

before Shea attended a previously scheduled meeting that day with Barr on an unrelated

matter—the FPC Chief met with Shea to discuss the status of the sentencing

memorandum.

The FPC Chief told us that he reported to Shea that the trial team was not

comfortable signing a sentencing memorandum recommending a downward variance. The

A note to file that Prosecutor 2 prepared that evening states that Prosecutor 1 told him that in a

separate conversation Prosecutor 1 had with the FPC Chief, the FPC Chief asked that Prosecutor 1 and the team

hold off on withdrawing their appearances from the case that evening.

The FPC Chief said that he recalled that the Principal AUSA and the Criminal Chief attended this

meeting. The Principal AUSA and the Criminal Chief told us that they did not have a specific recollection of a

meeting with Shea on Monday morning, though the Criminal Chief added that there must have been

discussions that morning about the Stone sentencing memorandum.

FPC Chief told Shea that if he (Shea) was determined to seek a downward variance, at least

Prosecutor 1, Prosecutor 2, and Prosecutor 3 would not sign the memorandum. The FPC

Chief told us he believed he also conveyed to Shea that these three team members were

prepared to withdraw their appearances from the case. The FPC Chief told us that he was

less certain as to Prosecutor 4’s position and conveyed to Shea that it was possible

Prosecutor 4 would sign a memorandum recommending a downward variance if that was

Shea’s final decision. The FPC Chief told us that he did not recall whether he presented the

trial team’s Sunday night proposal to Shea.

The FPC Chief said that on the day of the filing his focus was on urging Shea to make

a final decision and taking “one last stab” at convincing Shea to support a Guidelines-

compliant sentencing recommendation. According to the FPC Chief, Shea did not make a

final decision during this meeting and instead expressed an intention to discuss the

situation with the Attorney General or possibly the Attorney General’s staff (the FPC Chief

could not recall which). The FPC Chief said that when the meeting ended, Shea stated that

he would “do the best” he could. The FPC Chief said that although he did not know what

Shea meant by this statement, the FPC Chief thought that Shea was conveying that he

appreciated that they had only a few hours left before the filing deadline and that the

situation was “serious.” The FPC Chief said that Shea did not indicate which sentencing

position Shea was planning to support when he spoke to DOJ leadership.

Shea told us that he recalled “rehash[ing]” the sentencing issues with the FPC Chief

on Monday morning and that he had some memory of the FPC Chief advocating for a

Guidelines sentence recommendation. Shea said that he (Shea) remained concerned at

that time about the “harshness” of the Guidelines range as compared to other cases, and

he still thought the basis for the 8-level threats SOC was “kind of…weak.” However, Shea

said that his "procrastination kicked in again," and he did not make a decision about what

to recommend to the court by the end of his meeting with the FPC Chief. Shea told us that

the decision he made that morning was that he should advise DOJ leadership of the

situation given the possibility that trial team members may “resign.” Shea said that he did

not know at the time whether the trial team members had stated that they would resign

from the Stone case only or, more broadly, from their employment with the Department.

He told us that he did not ask for clarification because “it would [have been] the same

thing” to him.

After meeting with Shea, the FPC Chief went to see Prosecutor 1. Prosecutor 1 told

us that he (Prosecutor 1) started the conversation by asking the FPC Chief again to let him

withdraw quietly from the case and have someone else sign the memorandum. According

to Prosecutor 1, the FPC Chief told him to wait on withdrawing because the office was “still

working on it.” Prosecutor 1 said that when he asked the FPC Chief what was going on, the

FPC Chief replied that “this is coming from Main Justice. Tim Shea is getting pressure from

Main Justice about the Stone sentencing recommendation, and Tim Shea is terrified of the

President.” According to Prosecutor 1, the FPC Chief did not specify who from Main Justice

was applying pressure or o

therwise provide further details. Prosecutor 1 told us that this

conversation with the FPC Chief on Monday morning was the first time he had heard

anyone mention Main Justice in the Stone sentencing discussions.

The FPC Chief told us that he did not have a clear memory of meeting with

Prosecutor 1 after his meeting with Shea, though he believes he would have met with

either Prosecutor 1 or the entire team to update them.

The FPC Chief told us that he did

not recall telling them that Shea was under pressure from Main Justice or that Shea was

planning to meet with the Attorney General that morning, but that he would not be

surprised if he had conveyed that Shea was under pressure from Main Justice. The FPC

Chief said that although he did not have specific knowledge, he had thought throughout

that Shea must have been “getting pinged frequently” or otherwise under pressure from

Main Justice officials who wanted a downward variance given the amount of questions and

time spent discussing the recommendation. The FPC Chief also said that he would not

question having expressed the view that Shea was afraid of the President. By “afraid of the

President,” the FPC Chief told us he meant that Shea was afraid of being the subject of a

public comment from the President or otherwise receiving public criticism from the

political right or left depending upon his decision making.

In addition to Shea meeting with the FPC Chief that morning, and prior to his

meeting with Barr, it appears that Shea may have given an update to DuCharme. Although

we have been unable to determine the timing, both Shea and DuCharme recalled a

Although Prosecutor 2 told us that he remembered the FPC Chief stating on the Saturday night call

(in addition to similar statements on Monday) that Main Justice was pressuring the DC USAO to lower the

sentencing recommendation, available information suggests Prosecutor 2 may be mistaken on the timing of the

FPC Chief’s first reference to Main Justice involvement. According to Prosecutor 2, the FPC Chief referenced the

Deputy Attorney General’s Office in particular and may have also mentioned the Attorney General’s Office

during the Saturday night call. Further, Prosecutor 2 said that he had a distinct memory that the FPC Chief

mentioned, either on Monday or over the previous weekend, that Shea was “getting a lot of calls” from Main

Justice. However, Prosecutor 2’s notes memorializing the Saturday night call, which he prepared the next day,

do not include any reference to the FPC Chief (or someone else) mentioning Main Justice, and both Prosecutor

1 and Prosecutor 3 told us that they did not recall the FPC Chief mentioning Main Justice on the Saturday night

call.

Prosecutor 2 told us that on Monday, with the agreement of the trial team, he proposed to the FPC

Chief a meeting between the trial team, FPC Chief, Criminal Chief, Principal AUSA, and Shea to discuss the

sentencing memorandum directly in order to avoid “a game of telephone” and reach a final resolution.

Prosecutor 2 told us that the FPC Chief said that DC USAO leadership did not want to meet with the team and

communications about the sentencing memorandum needed to go through him. After reviewing a draft of this

report, Prosecutor 2 said that the trial team was “repeatedly rebuffed” in their efforts to directly discuss the

sentencing issues with Shea, which supported his belief that there was “no legal basis for the pressure to

change our recommendation, and it was purely political in nature.” The FPC Chief told us it was possible that

Prosecutor 2 asked to meet with Shea on Monday, but the FPC Chief did not recall such a request. The FPC

Chief also said that if Prosecutor 2 had asked for such a meeting, the FPC Chief probably would have tried to

avoid one because he was already communicating the team’s views, which were consistent with the FPC Chief’s

views, to Shea.

conversation during which Shea expressed to DuCharme an intention to discuss the

sentencing memorandum with the Attorney General, suggesting the conversation occurred

before Shea met with the Attorney General.

DuCharme told us that after Shea informed

him that Shea was going to speak directly with the Attorney General, DuCharme turned his

attention to other matters and did not engage further with Shea or the Attorney General

on the issue.

Shea told us that his desire to talk to the Attorney General was “mostly

motivated” by the threatened resignations and that, but for the possibility of resignations,

he probably would not have raised the sentencing memorandum to the Attorney General.

epartment records show that Shea arrived at the Main Justice building

approximately 10 minutes before a previously scheduled meeting with Barr at 11:00 a.m.

regarding matters relating to the Federal Bureau of Prisons (BOP). Rabbitt told us that

prior to Shea’s meeting with Barr, Shea caught Rabbitt in between Rabbitt’s meetings and

showed Rabbitt an email from one of the Stone trial team members. Rabbitt’s description

of the email matches the email Prosecutor 1 sent to the Criminal Chief the day before

expressing his concerns with the way the sentencing memorandum was being handled.

Rabbitt showed us typewritten notes he told us he prepared on February 12, 2020,

memorializing his Stone-related conversations on February 10 and 11 (hereinafter referred

to as “Rabbitt’s notes”). Rabbitt’s notes state the following concerning this first meeting

with Shea on February 10:

I am surprised. I had not been tracking Stone case, or sentencing filing. I ask

when it is due. Shea says at end of day. I am annoyed that this is being

dropped on me. Shea says line prosecutors disagree with supervisors [and

Shea] and are threatening to leak to press if USAO leadership doesn't go

along with their sentencing recommendation. Told Shea I was busy, would

need to discuss after meetings, not happy that this is being dropped on us at

the last minute. Shea says OK, but we really need to discuss. I agree.

Shea’s Chief of Staff told us that he heard Shea discussing the Stone sentencing memorandum with

DuCharme over a cell phone speaker in Shea’s office on Monday morning, though he was not sure whether this

call took place before or after Shea’s meeting with the FPC Chief. Phone records of Shea’s and DuCharme’s

Department phones do not show any calls between them that morning. However, Shea and DuCharme were

personal friends, and DuCharme provided the OIG with evidence that the two sometimes used their personal

cell phones to communicate with one another on work-related issues. The OIG did not obtain phone records of

their personal phones.

It is unclear whether Shea informed DuCharme about the potential of trial team members

withdrawing from the case. Although Shea told us that he thought he may have done so, DuCharme said that

he did not remember learning of this possibility until the next day, February 11.

Based on available evidence, Rabbitt’s reference to being told that prosecutors were “threatening to

leak to press” most likely did not occur during this conversation but rather in a later one that day because email

communications, phone records, and other documents indicate that DC USAO managers did not learn of

potential or apparent media disclosures regarding the government’s sentencing memorandum until after this

(Cont’d.)

Shea told us that he did not specifically recall this conversation.

At 11:00 a.m., Shea attended the BOP meeting with Barr. Shea told us that after this

meeting, he raised the Stone sentencing memorandum with Barr in Barr’s office. Shea said

that this conversation was the only conversation he had with Barr about the Stone

sentencing before the first sentencing memorandum was filed later that day and estimated

the conversation lasted about 5 to 10 minutes. According to Shea, he described the

Guidelines range and told Barr that he thought the range was high, disproportionate to the

comparable cases, and “inflated” by an 8-level enhancement. Shea said that he also told

Barr that it was possible that trial team members would resign depending upon the

ultimate recommendation and that “it was going to be a publicity thing.” Shea told us that

he did not recall how Barr reacted to the possibility of resignations.

According to Shea, Barr agreed that the Guidelines range seemed high and said, “we

should defer to the court” on the appropriate sentence. Shea told us that he interpreted

“we should defer to the court” as Barr’s belief as to what should be done, but Shea also said

that Barr “gave [him] no direction to do that.” Shea told us that he was nevertheless “sure”

that Barr thought at the time that “that’s what [Shea] was going to do.” However, Shea told

us that he still wanted to make sure that he was comfortable with this approach and that

he had to go back to the DC USAO to determine whether his office would agree to the

approach. When asked whether Barr’s approach of deferring to the court included

requesting a downward variance (but deferring to the court on the amount), Shea told us

that it was possible that a downward variance was part of the approach Barr expected him

to take, but that he did not recall them discussing a downward variance. According to

Shea, although it was clear Barr wanted to defer to the court, Shea did not recall them

discussing the details about what that would look like “on paper.”

Shea told us that he did not recall what he said to Barr at the end of the meeting.

According to Shea, the discussion with the Attorney General was “a little murky” because it

was a “quick conversation” following a different meeting, and Barr did not ask him to report

back. Shea said that, in hindsight, he now believes there was a miscommunication

between them in that he (Shea) left this meeting thinking he still had discretion in terms of

determining the right sentencing position to take, whereas Barr told him days later that he

(Barr) had thought he had given Shea a directive to defer to the court.

Brian Rabbitt told us that he joined this discussion between Shea and Barr after

walking by and observing the two talking in Barr’s office. According to Rabbitt’s notes and

his OIG testimony, Shea was in the midst of describing for Barr a debate or dispute in the

DC USAO over the sentencing recommendation, with the prosecutors being firmly on one

interaction between Shea and Rabbitt occurred. Rather, it is likely that, during this first conversation on

February 10, Shea referred to the threats by prosecutors to resign or withdraw from the case because that is

what Shea went to tell Barr that morning.

side and Shea and a number of supervisors on the other. Rabbitt said that Shea did not

describe all of the details during this conversation but rather laid out the situation at “an

executive level” for Barr. According to Rabbitt, Shea explained that the prosecutors

calculated the guidelines range as 7 to 9 years and were pushing very hard for a sentencing

recommendation within that range, but one enhancement that almost doubled the range

arguably did not apply or was borderline. According to Rabbitt, Shea said that he and some

others in the office thought that a sentence within the 7 to 9 years range was unreasonable

and that certain § 3553(a) factors probably did not support it, namely that Stone was a first-

time offender, older than most offenders, and convicted of a nonviolent crime, and the

comparable cases were in the range of about 24 to 36 months.

According to Rabbitt, Shea then offered the possibility of going along with a

Guidelines sentence recommendation and relying upon the court to decide an appropriate

sentence. Rabbitt said that Shea presented that approach as the easiest option but not

necessarily the one that Shea wanted. According to Rabbitt, Barr responded that he did

not believe it was appropriate to leave the decision to the court without the government

taking a position. According to Rabbitt, Shea then offered another option that included: (1)

providing the proposed Guidelines calculation; (2) stating that the range is high due to one

enhancement; (3) explaining that the enhancement technically applies but is borderline; (4)

citing the comparable cases; (5) suggesting a significant sentence below the Guidelines

range would be appropriate; and (6) deferring to the court as to the ultimate sentence.

According to Rabbitt, Barr responded, “’[W]ell, that sounds very reasonable to me. I like

that. I think that is good. Let's try to do that.’ And [Shea] said, ‘all right. Let me go see if I

can sell that.’” Rabbitt told us that he believed at the end of this conversation Barr had

made a decision that the government should follow this approach, such that if Shea later

decided to do something differently, Shea would need to report back before doing so.

In the July 2020 hearing before the House Judiciary Committee, Barr testified that

Shea had come to him stating that four prosecutors were threatening to resign unless they

could recommend a 7- to-9-year sentence.

According to Barr’s testimony, Shea told him

that there were no comparable cases to support a sentence within that range, and that all

the comparable cases clustered around 3 years. Barr testified that Shea told him that the

prosecutors reached 7 to 9 years by applying enhancements, one of which had traditionally

been applied to “mafioso” cases, but the prosecutors were applying the enhancement

based on a phone call where Stone told a witness, “if you wanted to get it on, let’s get it on,

On June 23, 2020, while working on an official public statement in anticipation of Prosecutor 2’s

testimony before the House Judiciary Committee, Rabbitt revised a sentence in the draft public statement that

said that Barr “directed” that Shea leave the sentencing to the discretion of the judge by replacing the word

“directed” with “agreed.” During his OIG interview, Rabbitt told us that he did not recall any discussions about

this word choice or the reasons for one over the other, and that both words—“directed” and “agreed”—would

have been accurate. The final version of the public statement approved by the Attorney General’s Office used

the word “directed.”

Barr, “Oversight of the Department of Justice.”

and I will take your dog.” Barr testified that he did not believe that the underlying conduct

really supported the enhancement’s application. He testified that the prosecutors “were

trying to force the U.S. Attorney, who was new in the office, to adopt” 7 to 9 years, and that

he (Barr) made the decision, no, “we are going to leave it up to the judge.”

ccording to Shea, after he left Barr’s office, he went back to the DC USAO with the

intention of reaching a “compromise” with the trial team. He said he hoped to reach a

compromise because he did not want them “abandoning ship.” In terms of what the

compromise might look like, Shea said that he was hoping that they would agree to

something that would make sure the sentence was “proportional” (to the comparable

cases), which Shea believed a recommendation of 87 months would not accomplish. Shea

said that he may have stopped by DuCharme’s office before he left Main Justice and

updated DuCharme on his conversation with the Attorney General. DuCharme told us he

did not recall such a conversation.

Although Shea told us he did not recall any other discussions about the Stone case

before leaving Main Justice, the then Principal Deputy Assistant Attorney General for the

Office of Legislative Affairs (OLA PAAG), told us that she ran into Shea in the hallway on

February 10, 2020, and that the two briefly discussed the Stone case. She estimated that

this interaction occurred around “midday” and that Shea appeared to have come from

Barr’s office immediately before they stopped to talk to one another in the hallway.

According to the OLA PAAG, Shea told her in passing that he had attended a meeting about

the Stone case and said something to the effect of, “I now just got to go back and deal with

folks in my office.” She added that she had a vague recollection that he may have also said

that “he was between folks in his office and the [Attorney General], and he [had] to go back

[to the DC USAO] and…tell [his office] what to do on that.” The OLA PAAG told us that Shea

did not get into the details or specify what he meant by having to deal with the people in

his office. She said she had the impression, however, that Shea had to deliver some news

that people in his office “weren’t going to love.”

Barr’s February 10, 2020 appointment calendar reflects that he had a scheduled

lunch meeting at the White House beginning at noon. According to Rabbitt’s testimony and

notes, Barr and he had lunch that day with the White House Counsel and Deputy White

House Counsel and discussed matters unrelated to the Stone case. According to Rabbitt,

after the lunch, President Trump asked to see Barr, which Rabbitt said was not unusual,

and Barr went to see the President while Rabbitt stayed behind. Rabbitt told us that he

had no information that Barr and the President discussed the Stone case. In the July 2020

hearing before the House Judiciary Committee, Barr testified that he “had not discussed

Barr made similar public statements in media interviews. See Interview with ABC News, February

13, 2020 (hereinafter “ABC News Interview”), available at https://abcnews.go.com/Politics/transcript-attorney-

general-bill-barrs-exclusive-interview-abc/story?id=68975178 (accessed May 17, 2024); Interview wi

th NPR, June

25, 2020 (hereinafter “NPR Interview”), available at https://www.npr.org/2020/06/25/883273933/transcript-nprs-

full-interview-with-attorney-general-william-barr (accessed May 17, 2024).

[his] s

entencing recommendation with anyone at the White House…[o]r anyone outside the

[D]epartment.”

G. Interim U.S. Attorney Changes Course and Agrees to Recommend a

Guidelines Sentence

According to Department records, Shea left the Main Justice building at 12:49 p.m.

on February 10 and returned to the DC USAO shortly before 1:00 p.m. As described below,

sometime after he returned and before the DC USAO’s filing of the sentencing

memorandum at 6:01 p.m., Shea agreed to recommend a Guidelines sentence despite his

previous concerns and discussion with Barr.

1. Reporter Contacts the Criminal Chief and Others in DC USAO, Office

of Public Affairs Director Directs the Criminal Chief to Provide

Information to Reporter Off the Record

Department phone log records show that at 11:42 a.m. on February 10, a reporter

called and spoke to the Criminal Chief for approximately 3 minutes. According to the

Criminal Chief and his contemporaneous notes from the call, the reporter said he was

hearing that there was a draft sentencing memorandum recommending 87 months of

imprisonment in the Stone case, former U.S. Attorney Jessie Liu had approved this

recommendation before her departure, Liu was removed from her position without notice,

and the trial team was told something about how Stone should be treated differently

because he was the President’s friend.

The Criminal Chief told the OIG that he did not

provide the reporter with any information during this phone call.

According to Department phone log records and Department email

communications, reporters from the same news organization also attempted to contact

Prosecutor 2, Prosecutor 3, Prosecutor 4, and the DC USAO’s former Criminal Chief

between 10:35 a.m. and 11:53 a.m.

Both Prosecutor 2 and Prosecutor 3 told the OIG that

Barr, “Oversight of the Department of Justice.” Barr made similar statements in media interviews.

See ABC News and NPR Interviews.

The Criminal Chief told the OIG that the reporter also asked about information the reporter had

heard regarding other matters the DC USAO’s National Security Section was handling.

The former Criminal Chief told us that he did not respond to the reporter and instead forwarded a

voicemail from the reporter to the current Criminal Chief to let him know of the contact. Prosecutor 1,

Prosecutor 2, and Prosecutor 3 told the OIG that they did not disclose information about the Stone case to the

media. According to Prosecutor 2, he spoke with a non-DOJ attorney, with whom he said he had an attorney-

client relationship, about the Stone

case on February 10 but they did not discuss “the substance” of the case.

Prosecutor 2 said he has no reason to believe that his attorney contacted the media about the Stone case.

According to Prosecutor 3, between February 8 and the morning of February 10, he discussed the Stone case

with four non-DOJ attorneys. According to Prosecutor 3, all of these discussions are protected by attorney-

client privilege, and he never came to learn that any of these attorneys disclosed information about the Stone

case to the media.

on the same day, they heard that someone had received an email or voicemail message

from a reporter from the same news organization who had information that “Main Justice,”

rather than the DC USAO, was trying to significantly reduce the Stone sentencing

recommendation, but the OIG was unable to locate a record of such a message.

In the early afternoon, the Criminal Chief informed the Principal AUSA, Shea’s Chief

of Staff, and the then Director of the Department’s Office of Public Affairs (OPA Director),

that information had been disclosed to the media without Department authorization

regarding internal DC USAO deliberations about the Stone sentencing recommendation

(media disclosure). According to the Criminal Chief and his notes, the OPA Director told the

Criminal Chief to tell the reporter “off the record” that Liu had not approved anything

before she left, there were ongoing discussions about the Stone sentencing, the trial team

wanted a higher sentencing recommendation than the supervisors, such a disagreement is

part of the normal process and not a “big deal,” and Shea had not reached a final decision.

The Criminal Chief told the OIG that he shared this information off the record with the

reporter in a second phone call. Department phone log records indicate that the Criminal

Chief called and spoke with the reporter at 1:28 p.m. for approximately 21 minutes, the

reporter called and spoke with the Criminal Chief at 2:34 p.m. for approximately 4 minutes,

and the Criminal Chief called and spoke with the reporter at 2:57 p.m. for approximately 12

minutes.

The Criminal Chief told us that he believes that he told Shea about the media

disclosure after the Criminal Chief’s second call with the reporter at 1:28 p.m. Shea told us

that he did not specifically recall who told him, but that he probably learned about the

media disclosure from the Criminal Chief and the Principal AUSA. According to Shea, the

media disclosure was disturbing and “an attempt to intimidate” him. Shea said he was

trying to make a decision on the Stone sentencing recommendation, and someone was

trying to “influence” or “intimidate” him by going to the media before the decision was

made. The Criminal Chief told us that Shea was angry and wanted to identify anyone in the

DC USAO who had discussed the Stone case with anyone outside of the office.

2. Shea Meets with the FPC Chief and Prosecutor 1, Shea Tells the FPC

Chief that Sentencing Recommendation Will be a Guidelines Sentence

According to the FPC Chief and other evidence, the FPC Chief met with Shea shortly

after his return to the DC USAO at about 1:00 p.m., but we were unable to determine

The Criminal Chief told us that in response to Shea’s desire to know who had discussed the case

with anyone outside the DC USAO, he and the Principal AUSA acknowledged to Shea that they had spoken to

Liu (separately) about the Stone case after her departure. As noted previously, according to the Criminal Chief

and his notes, he had talked to Liu about the “pending controversial filing” in the Stone case and the

disagreement about whether to recommend a variance or a sentence within the Guidelines range. The

Principal AUSA told us that, although possible, he did not recall having a conversation with Liu about the Stone

case after her departure or discussing such a conversation with the Criminal Chief and Shea.

whether Shea knew about the media disclosure at the time of this meeting. The FPC Chief

told us that Shea came to the FPC Chief’s office, told the FPC Chief that he had spoken with

Barr, and said that the Stone sentencing recommendation would be a Guidelines sentence.

The FPC Chief said that Shea gave him the impression that the Attorney General knew that

the recommendation would be a Guidelines sentence and “had signed off on” it. The FPC

Chief said that he did not recall the exact words Shea used but that Shea conveyed, “we’re

going to go with the Guideline[s] sentence, but I don’t want to put 87 months on it as a firm

number.” The FPC Chief told us that he took this statement to mean that Shea wanted the

memorandum to state that the government recommends a sentence at the “low end” of

the Guidelines range, rather than stating a specific number of months (like the 87 months

recommended in the initial draft memorandum). The FPC Chief also recalled that Shea

wanted an acknowledgement of the mitigating § 3553(a) factors in the memorandum and a

“trimmed down” introduction section, but Shea expressed that the trial team could say

what they wanted at the sentencing hearing.

Shea told us that it was possible he stopped by the FPC Chief’s office shortly after

returning from Main Justice and that the two had the conversation the FPC Chief described

to the OIG. However, Shea said that he did not have a specific recollection of this

conversation with the FPC Chief or remember precisely when he communicated that

afternoon that he was ready to move forward with a Guidelines sentence

recommendation. He also told us that he did not recall whether he was aware of the

media disclosure at the time he and the FPC Chief would have had this conversation, but

that he ultimately decided to move forward with a Guidelines sentence recommendation

because he determined that it was “the right thing to do.”

The FPC Chief told us that he did not recall any mention of the media disclosure in

his conversation with Shea, and the FPC Chief did not know whether Shea was aware of it

at that time. However, the FPC Chief recalled telling Shea that he (the FPC Chief) thought

that Shea “got to the right place” with the recommendation and hoped that Shea felt good

about the way he did it and not “strong-armed” by members of the trial team threatening

to withdraw. According to the FPC Chief, Shea definitely did not convey that he felt like he

was “pressed up against a wall” and that he had no choice.

The FPC Chief told us that Shea wanted to talk to Prosecutor 1, and, at 1:18 p.m., the

FPC Chief emailed Prosecutor 1 asking him to see the FPC Chief when he got the chance.

Prosecutor 1 told us that he met with the FPC Chief who told him that Shea wanted to talk

to him. Neither the FPC Chief nor Prosecutor 1 recall the FPC Chief telling Prosecutor 1 that

Shea had authorized a Guidelines sentence recommendation before Prosecutor 1 went to

see Shea.

According to Prosecutor 1, he went to Shea’s office and Shea asked what “the

problem” was. Prosecutor 1 told Shea that he did not want to sign a filing with which he

did not agree. Prosecutor 1 said he also told Shea that the sentencing recommendation of

87 months of imprisonment was “the right recommendation” and noted that Prosecutor 1

had spent a lot of time on the Stone case, sat through the trial, met with the witnesses, and

knew all the evidence. Prosecutor 1 said he acknowledged to Shea that Shea was in charge

of the office, and it was “fine” if Shea wanted to make a different recommendation, but

Prosecutor 1 told Shea to “let [Prosecutor 1] out” because he worked too hard on the case

to be asked to sign a memorandum that recommended a sentence that he did not think

was right.

Prosecutor 1 told us that they did not discuss moving forward with a low-end

Guidelines sentence recommendation during this meeting. According to Prosecutor 1,

Shea asked what he (Shea) needed to do to get Prosecutor 1 to sign the memorandum.

Prosecutor 1 said that he told Shea about the language the trial team had drafted “to

acknowledge some of the issues that [had] been expressed,” which Shea said he had not

seen. Prosecutor 1 also outlined the team’s last proposal from Sunday, February 9, which

was to not include a sentencing recommendation in the memorandum but permit the

team to state at the sentencing hearing that 87 months of imprisonment was reasonable.

According to Prosecutor 1, Shea responded by saying something like, “why don’t we just do

that” and “it sounds like we can work this out.” Prosecutor 1 said that Shea also expressed

that “politics doesn’t have anything to do with this,” and that he had never talked to anyone

at Main Justice about the Stone sentencing recommendation.

Shea told us that he did not remember what he discussed with Prosecutor 1 during

this meeting but he believed that, before making “a final decision,” he wanted to discuss

Prosecutor 1’s views because Prosecutor 1 had “advocated well for the case.”

3. The FPC Chief Asks Prosecutor 2 Not to Withdraw from Stone Case

Because of Potential Compromise

Prosecutor 2 told us that he had decided to withdraw from the case if a decision was

not communicated to the team by 1:30 p.m. Prosecutor 2 said that he made this decision

because he was concerned that DC USAO management might do or say something to

disparage or discredit him or the trial team, and he wanted to withdraw before that

happened. Consequently, at approximately 1:30 p.m., Prosecutor 2 went to talk to the FPC

Chief. Prosecutor 2 told us that the FPC Chief asked him to wait on withdrawing because

“there might be a compromise…here,” and Prosecutor 2 decided to wait. According to

Prosecutor 2, during this conversation, the FPC Chief told him that Shea did not care about

Stone or the Stone case, but that Shea was “afraid of the President” and that this fear was

driving Shea’s actions. According to Prosecutor 2, the FPC Chief said multiple times the day

of the filing that Shea was afraid of the President and said it “with substantial conviction.”

The FPC Chief told us that, although he did not have a clear memory, he may have

had a conversation with Prosecutor 2 on Monday afternoon where they discussed

withdrawal, with the FPC Chief telling him not to withdraw because “we’re not there” yet.

Although he said he did not have a clear recollection of the conversation, as noted

previously, the FPC Chief told us that he would not question having said that Shea was

afraid of the President. The FPC Chief said that this statement represented his speculation

and belief only; he said he was not aware of specific evidence to that effect and did not

convey otherwise to Prosecutor 2 or the team.

4. The FPC Chief and Prosecutor 1 Edit Sentencing Memorandum and

Change Recommendation

According to document metadata, between 1:22 p.m. and 1:46 p.m., the FPC Chief

edited the most recent version of the memorandum, which was the version the Criminal

Chief had emailed him on February 9. The FPC Chief changed the recommendation from a

downward variance to a sentence “at the low end of the applicable Guidelines range” and,

consistent with Shea’s desire to acknowledge mitigating factors, added the following

language regarding Credico and the impact of the 8-level threats SOC:

The government acknowledges that it is appropriate for the Court to

consider the impact that the 8-point upward adjustment Section 2J1.2(b)(1)(B)

has on the overall sentencing range, alongside Credico’s own

acknowledgement at trial that he and Stone routinely exchanged text

messages with hyperbolic language and Credico’s post-trial contention that

he did not seriously believe that Stone intended to do him physical harm.

Although the FPC Chief told us that he did not see anything wrong with this

language, Prosecutor 2 told us that the language suggested that Credico had not been

afraid, which was factually inaccurate and a distortion of the trial record.

At 1:55 p.m., the FPC Chief emailed the revised memorandum to Prosecutor 1, who

forwarded the email and memorandum to the team. According to Prosecutor 1, given the

team’s last proposal to not include a sentencing recommendation in the memorandum, he

was a “little puzzled” when he saw the team’s original recommendation of a sentence at the

low end of the Guidelines range in this draft. Prosecutor 1 told us that he did not

remember the FPC Chief telling him about his (the FPC Chief’s) conversation with Shea, and

the FPC Chief told us that he believed he would have shared that conversation with

Prosecutor 1, but he could not say for sure that he had. The FPC Chief told us that

Prosecutor 1 did not like the mitigating language that the FPC Chief had added to the

memorandum (quoted above), but the FPC Chief persuaded Prosecutor 1 to accept the

language by emphasizing the importance of achieving a Guidelines sentence

recommendation. According to the FPC Chief, Prosecutor 1 ultimately agreed and

communicated with the team, all of whom agreed to sign the revised memorandum.

About 30 minutes after the FPC Chief emailed the revised memorandum to

Prosecutor 1, at 2:23 p.m., the FPC Chief emailed the memorandum to the Principal AUSA

and Criminal Chief, and the Principal AUSA emailed in response, “Has [Prosecutor 1] signed

off on this language?” The FPC Chief responded at 2:33 p.m., stating:

Yes—the entire team would sign this. I think that this accurately reflects my

last conversation with [Shea] and what [Prosecutor 1] told me that he and

[Shea] discussed. But that’s what I want to make sure of before we send up.

I told [Prosecutor 1] that [there] might still need to be some language

noodling. Of course, the less the better.

According to the FPC Chief, “before we send up” reflected his expectation, after learning

from Shea that the Attorney General was involved, that the Attorney General’s Office

and/or the Deputy Attorney General’s Office would review the memorandum. At 3:02 p.m.,

the Principal AUSA emailed the Criminal Chief and the FPC Chief that Shea was reviewing

the memorandum.

At 3:44 p.m., the FPC Chief emailed the Principal AUSA and the Criminal Chief stating

that Prosecutor 1 was editing the document and asking whether they or Shea wanted “one

last review” before filing. Prosecutor 1 changed the memorandum’s recommendation,

which the FPC Chief wrote earlier that afternoon, from a sentence at the low end of the

applicable Guidelines range to a sentence “consistent with the applicable advisory

Guidelines.” Prosecutor 1 also removed a sentence that stated a Guidelines sentence

would be consistent with sentences imposed on other defendants and made other minor

edits.

According to Prosecutor 1, he made these changes because, shortly before he

circulated the final version of the memorandum, the FPC Chief told Prosecutor 1 that he

had just talked to Shea, and Shea wanted the recommendation to be a sentence within the

applicable Guidelines range. The FPC Chief told us that he recalled getting some direction

to “be less specific” in the recommendation, so Prosecutor 1 edited the memorandum

accordingly. Prosecutor 1 said that when he told the trial team about his conversation with

the FPC Chief, they accepted the Guidelines range recommendation but were “kind of

stunned” because it was “stronger” than their original recommendation. Shea told us that

he did not recall this change in the recommendation, but he said that it “doesn’t seem like a

major difference.”

At 3:58 p.m., the Principal AUSA emailed the FPC Chief that Shea wanted to look at

the memorandum “one last time.” At 4:22 p.m., Prosecutor 1 emailed the memorandum’s

“final draft” to the Principal AUSA, the Criminal Chief, the FPC Chief, and the trial team, and

Although Prosecutor 1 said that at some point during that afternoon he had updated the FPC Chief

on the conversation he had with Shea, he believed something may have been “lost in translation” because a

low-end sentencing recommendation was not what he and Shea had discussed.

According to the Principal AUSA and the Criminal Chief, they had little involvement in the February

10 discussions about changing the sentencing recommendation and the edits to the memorandum.

If the court agreed with the government’s Guidelines range calculation and recommendation, Stone

potentially could have been sentenced to 108 months at the high end of the range, which was 21 months more

than the team’s original recommendation of 87 months at the low end of the range.

he asked for authorization to file it. The sentencing memorandum was forwarded to Shea

at 4:33 p.m. No further substantive changes were made to the memorandum.

Prosecutor 1 told us that he was still bothered by the removal of the

memorandum’s introductory paragraphs regarding the seriousness of Stone’s offenses but

that he and the rest of the trial team wanted to get the memorandum filed without a

confrontation. He said that the mitigating language regarding the threats to Credico was

very hard for him to accept but not factually inaccurate. Prosecutor 2 told us that he was

not “happy” with the edits to the memorandum, but he accepted them because, based on

the Justice Manual and the Sessions Policy, the trial team’s requirements had been an

accurate calculation of the Guidelines range and a Guidelines sentence recommendation

(which the final draft reflected). According to Prosecutor 2, it would “look petty” to

withdraw from the case and make “a huge public spectacle” over the removal of “a couple

of paragraphs on the seriousness of the offense” and the addition of “some sentences

about Randy Credico, even if those actually shouldn’t be there.” Prosecutor 3 told us that

he accepted the memorandum because with a Guidelines sentence recommendation,

Stone was being treated like any other defendant who was convicted following a trial.

5. Shea Contacts the OPA Director and DuCharme Before Authorizing

Filing of Sentencing Memorandum, Shea Makes Final Decision to

Recommend Guidelines Sentence

At 4:55 p.m., prior to the sentencing memorandum being filed at 6:01 p.m., Shea

sent an email to the OPA Director with the subject “background info.” In the email, Shea

provided talking points regarding the position taken in the memorandum and portions of

the memorandum that addressed mitigating factors and sentences imposed in other cases.

The talking points emphasized that the Guidelines are advisory, noted that the court could

impose a sentence lower than the Guidelines range, and highlighted factors that the court

could rely upon to do so; however, the talking points did not state that the government’s

recommendation was a sentence consistent with the Guidelines range. Following a short

call from the OPA Director, at 4:59 p.m. Shea emailed the sentencing memorandum to the

OPA Director stating that it was “NOT FINAL” but “close.” Shea told us that he provided the

memorandum and talking points to the OPA Director because reporters “already…[had]

been sniffing around about the internal deliberations of the office.”

Phone records and email communications indicate that Shea reached out to

DuCharme at 5:28 p.m., and the two spoke by phone at 5:31 p.m. and again at 5:53 p.m.

Both Shea and DuCharme told us that they did not recall what they discussed during these

calls. Shea told us that he may have called DuCharme to tell him that the sentencing

memorandum was going to be filed. DuCharme said that they had ”a couple of things

going on at the same time,” including dinner plans that evening, but that it was possible

that Shea contacted him to let him know that Shea was going to file the Stone sentencing

memorandum “along the lines of what [they previously] talked about.” DuCharme told us

that if they did talk about the Stone filing on one or both of these calls, it would not have

een a “substantive” conversation about the content of the memorandum.

The FPC Chief told us that approximately a half hour before the 6:01 p.m. filing, the

FPC Chief went to Shea’s office to determine the status of the filing and observed Shea on

the phone with his Chief of Staff standing nearby. The FPC Chief said that someone told

him, probably Shea’s Chief of Staff, that Shea was reading, or had read, portions of the

Stone sentencing memorandum to DuCharme over the phone. Shea’s Chief of Staff told us

that he did not remember telling the FPC Chief that Shea was reading language from the

memorandum to DuCharme or being aware of that fact at the time. Similarly, Shea and

DuCharme told us that they did not remember Shea ever reading any portion of the

memorandum over the phone.

Shea’s Chief of Staff told us that in the hours before the filing, he had a conversation

with Shea during which Shea conveyed that he had recently spoken to DuCharme and told

DuCharme what the final sentencing recommendation was going to be. Shea’s Chief of

Staff’s February 19 notes regarding this February 10 conversation include, in part, “[Shea]

claimed he spoke w[ith] [DuCharme] who ok’ed, but unclear whether nuance of (1)

suggesting variance for mitigating facts; vs (2) actual variance was captured.” Shea’s Chief

of Staff said that Shea did not explain what he told DuCharme about the final sentencing

recommendation. Shea told us that it was possible that he explained some of his revisions

to DuCharme over the phone, but he did not recall telling DuCharme what his final

recommendation was going to be or seeking DuCharme’s approval. DuCharme told us that

it was possible that Shea told him generally that he found a way to do what he wanted to

do with the sentencing position, and DuCharme responded with “great,” but DuCharme

said that the conversation would have been short of him “okaying or agreeing” with Shea’s

final sentencing position.

At 5:56 p.m., with Shea’s authorization, Shea’s Chief of Staff emailed the FPC Chief,

“File away.” At 6:01 p.m., Prosecutor 1 filed the sentencing memorandum. The final

memorandum incorporated the changes the FPC Chief and Prosecutor 1 made earlier that

afternoon, including the revisions Shea wanted to the paragraph of mitigating factors and

the recommendation that Stone “should be punished in accord with the advisory

Guidelines.”

Shea’s Chief of Staff remembered expressing concern to Shea before the filing that

his sentencing position was going to be misunderstood. According to Shea’s Chief of Staff,

Shea believed at the time that the sentencing position he was taking was “tantamount to

asking for a downward variance without asking for one.” Shea’s Chief of Staff said that he

Shea’s phone call with another Department official in between his calls with DuCharme and other

evidence suggest that one or both of Shea and DuCharme’s calls may have included discussion of another

pending DC USAO matter. However, DuCharme told us that he did not think he discussed this other matter

during his calls with Shea because at that time DuCharme had become less involved in that matter.

expressed to Shea that the nuances of what Shea intended in the sentencing

recommendation “were going to be lost on everybody.” Shea told us that he did not recall

anyone expressing a concern that the nuances of his sentencing recommendation were not

going to be understood, but he said that it was possible that someone had done so.

According to Shea’s Chief of Staff, during this same conversation with Shea, Shea

made clear that he felt pressured by the media disclosure earlier in the day to accept the

proposed sentencing recommendation of a Guidelines sentence. According to his Chief of

Staff, Shea expressed that he could explain the sentencing recommendation to the

Attorney General and DuCharme and deal with them more easily than the trial team who

would run to the press. According to his Chief of Staff, in Shea’s attempts “to please the

prosecutors” yet “satisfy” Shea’s and DuCharme’s “understanding of what the sentence

should be,” Shea “tried to thread a needle that couldn’t be thread” by arguing for a

Guidelines sentence in the memorandum but including mitigating factors that would

support a downward variance. According to Shea’s Chief of Staff, this “compromise

position…got everyone on board.” He said that he told Shea this position was a bad idea

and discouraged Shea from “acceding” to it “mostly because of the means by which it was

procured.” However, he told us that based on Shea’s recent conversation with DuCharme,

Shea expressed that everything was going to be fine. Shea told us that he did not recall

anyone counseling against signing the final memorandum.

According to Shea’s Chief of Staff and his February 19 notes, after the filing, the FPC

Chief apologized to Shea that the trial team “got their way” through “extortion.” Shea’s

Chief of Staff told us that his interpretation of the FPC Chief’s reference to “extortion” was

that Shea effectively had been “blackmailed” and “threatened” by a trial team member who

had “leaked to the media” and would do so again if he “didn’t get his way.” According to the

FPC Chief, he did not feel that Shea’s authorization of a Guidelines sentence

recommendation was “the product of…extortion,” and he said he did not tell Shea that he

believed that the trial team was extorting him. According to the FPC Chief, he told Shea

that he hoped that Shea did not feel “strong-armed” to recommend a Guidelines sentence,

and Shea responded that he did not. The FPC Chief told us that he was not aware of the

media disclosure having any influence over Shea’s decision making regarding the

sentencing recommendation. The FPC Chief also told us that in his view, he had persuaded

Shea (on the merits) to recommend a Guidelines sentence.

According to Shea, “at the end of the day,” he decided to authorize the

memorandum that the DC USAO filed on February 10 because: (1) he believed it was “the

right thing to do” given the seriousness of Stone’s conduct; and (2) because the Guidelines

range was “advisory” and “[not] mandatory,” and “the [j]udge was likely to [impose] a

substantially lower sentence.” When asked if the media disclosure had any impact on his

decision making regarding the sentencing memorandum, Shea said, “I don’t know. I mean,

subconsciously, I don’t know.” Similarly, when we asked Shea whether the possibility of

trial team members resigning had an effect on his decision making, he said that he “tried

consciously not to have” the possibility of resignations affect him, but he did not know if he

could say that it did not have any effect because it would have been “not good” to “have

that kind of thing your first week.” However, Shea told us that he did not remember stating

to anyone or believing at the time that he could deal with the Attorney General and

DuCharme more easily than with the trial team.

IV. Events Surrounding the Government’s Second Sentencing Memorandum

A. Shortly After Public Reporting Regarding the Government’s Sentencing

Recommendation on the Evening of the Filing, Barr Makes Multiple Calls to

his Senior Staff and the Interim U.S. Attorney

Within minutes of the government’s filing, media outlets began reporting that the

Department had asked the court to sentence Roger Stone to 7 to 9 years.

At 7:09 p.m.,

about an hour after the filing, an article was posted online providing details about the

internal deliberations within the DC USAO before the government’s sentencing

memorandum was filed.

These details included that the filing came after “days of tense

debate” in the DC USAO about the appropriate sentence, with “front-line prosecutors”

arguing for “a sentence on the higher end for Stone than some of their supervisors were

comfortable with.” The article further stated:

Hours before the filing was due Monday, the new head of the D.C. office,

interim U.S. attorney Timothy Shea—a former close adviser to Attorney

General William P. Barr—had not made a final decision on Stone’s sentencing

recommendation, according to the people, who were granted anonymity to

discuss internal deliberations. Disagreements among prosecutors about

sentencing recommendations are not uncommon, especially when it comes

to politically sensitive high-profile cases. It would have been unusual,

however, for the U.S. attorney’s office to endorse a sentence below the

See, e.g., “DOJ Asks Judge To Sentence Roger Stone To 7-9 Years in Prison,”

The Hill

(February 10,

2020 6:25 p.m.), available at https://thehill.com/regulation/court-battles/482418-doj-asks-judge-to-sentence-

roger-stone-to-7-9-years-in-prison (accessed May 17, 2024); “Trump Ally Roger Stone Should Go To Prison For

Up To 9 Years, Prosecutors Say,”

CNBC

(February 10, 2020 6:41 p.m.), available at

https://www.cnbc.com/2020/02/10/roger-stone-deserves-prison-sentence-of-up-to-9-years-prosecutors-

say.html (accessed May 17, 2024); “Roger Stone Should Serve 7 To 9 Years In Prison For Lying To Congress,

Prosecutors Say,”

USA Today

(February 10, 2020 7:00 p.m.), available at

https://www.usatoday.com/story/news/politics/2020/02/10/roger-stone-sentencing-feds-want-7-9-years-trump-

ally/4455032002/ (accessed May 17, 2024).

“Roger Stone Deserves 7 To 9 Years Prison For Lying To Congress In Russia Probe, U.S. Says In

Sentencing Recommendation For Trump Confidant,”

The Washington Post

(Feb. 10, 2020), available at

https://www.washingtonpost.com/local/legal-issues/trump-confidant-roger-stone-deserves-7-to-9-years-in-

prison-for-lying-to-congress-prosecutors-say-in-new-filing/2020/02/10/90bc6e9a-4906-11ea-9164-

d3154ad8a5cd_story.html (accessed May 17, 2024).

guideline range after winning conviction at trial, according to former federal

prosecutors.

Rabbitt called Shea at around 6:30 p.m. on Monday evening, before he saw the

media coverage reporting on the government’s sentencing recommendation, to ask “how

things turned out.” Rabbitt told us that he decided to check in with Shea because the OPA

Director had informed him earlier in the day that a news organization had a story that the

Stone prosecutors “were unhappy.” According to Rabbitt, Shea told him that the

prosecutors had agreed to the approach Shea discussed earlier with Barr, and Shea had

assured him that everything was “fine.” In Rabbitt’s notes, Rabbitt stated that Shea

responded that “they got [the] filing done, [and] line prosecutors signed on, as we

discussed with [the Attorney General].” Rabbitt told us that because it sounded like Shea

was in a public place during this call, they did not have a long conversation or discuss the

specifics of the filing. Shea told us that he may have told Rabbitt that everything had

turned out fine, but he did not remember stating that the trial team had agreed to what he

and Barr had discussed earlier in the day, though he could not rule out having given

Rabbitt that impression.

DuCharme told us that he and Shea were at a restaurant together the evening of

the filing when they were alerted (though he did not remember exactly how) to the media

reports that the Department was asking the court to sentence Roger Stone up to 9 years of

incarceration. DuCharme told us that he was very surprised and “kind of stunned” when he

saw the media reports because it was not the direction that he understood Shea was going

to take. According to DuCharme, before the filing, Shea had never expressed an intent to

recommend a Guidelines sentence. DuCharme told us that he thought Shea had adopted

DuCharme’s suggested position and expected that Shea would state in the sentencing

memorandum “in one form or another” that a sentence below the Guidelines range would

be sufficient. DuCharme said that after scrolling through the media reports on his phone,

he expressed concern to Shea that possibly the prosecutors had gone “rogue or

something.” According to DuCharme, Shea “looked at [him] in surprise, and he said, no, no.

Like, what do you mean?” DuCharme said he then told Shea, “They're asking for the

Guidelines range sentence,” and Shea responded, “Yeah, no, I know. I approved that.”

DuCharme told us that he then looked to Shea for assurance that Shea had

discussed his approach with Barr, and Shea told him that he had. According to DuCharme,

Shea said that the sentencing memorandum had carried out the plan discussed with Barr

and separately with DuCharme because it had signaled to the court that a sentence below

the Guidelines range would be “okay.” DuCharme told us that while Shea was speaking,

DuCharme stared at a quote from the sentencing memorandum in an article he was

reading and thought to himself that “if that’s what he had intended to do, it was pretty

subtle.” DuCharme said he was left wondering what exactly Shea told the Attorney General

he was going to do in the memorandum and expressed some uneasiness to Shea on the

walk home from dinner as to whether Shea and Barr truly had a meeting of the minds.

According to Shea, when DuCharme expressed surprise at the media reporting,

Shea told DuCharme that he thought the approach he took in the sentencing

memorandum “was the right thing to do.” Shea explained to the OIG that he believed that

there were two ways to carry out the approach he discussed with Barr. He said that one

way was the approach he had taken in the first sentencing memorandum he filed, referring

to the comparable cases that had sentences below 7 to 9 years and adding the new

paragraph at the end of the § 3553(a) analysis referring to mitigating factors. He said that

the other way was the more explicit way that Barr directed the next day. Shea said that he

chose the first approach because he could get the trial team to agree to it, and because he

thought the judge would impose “a lot less” at sentencing regardless of which approach the

government took in its memorandum. Shea said that he was surprised, however, by the

amount of media attention the filing received, which he said was an “underestimation” on

his part.

According to Department email communications and phone records, at 7:55 p.m.

that evening, the OPA Director received a news alert email containing a news story about

the government’s sentencing memorandum recommending 7 to 9 years, and, at 8:08 p.m.,

the OPA Director called Barr and had a brief conversation with him. Minutes later, at 8:12

p.m., Barr called Rabbitt and asked him about the sentencing memorandum. Barr and

Rabbitt had another call regarding the sentencing memorandum about 30 minutes later.

Rabbitt’s February 12 notes memorializing the discussions he had with Barr on February 10

state:

Approx. 8:12 PM: [The Attorney General] calls me. Asks why media is

reporting DOJ recommended 7-9 years for Stone. Tell him I don't know, I

haven't really been involved, have not read filing, but that doesn't sound like

what Shea described.

Approx. 8:40 PM: [The Attorney General] calls again. Asks if I know anything

more. Tell him I don't have filing, don't know what's going on, haven't done

any follow up. [The Attorney General] says that if filing isn't as we discussed,

we need to fix it. Tells me he is calling Shea. I say OK. (I do not speak to [the

Attorney General] again that night).

Approx. 9:00 PM (or later): Obtain filing online and read. Note that it is

different than what was discussed with [the Attorney General].

Rabbitt told us that at the time of these calls, it did not appear that Barr had access

to the actual sentencing memorandum that had been filed because Barr seemed “very

much in the dark” about what the memorandum said. Rabbitt told us that he did not

realize during the first call that Barr had wanted him to investigate further. According to

Rabbitt, when the Attorney General called him a second time, Barr was a little “frustrated”

and “miffed” that Rabbitt did not have more information.

The OIG asked Rabbitt about what Barr told him that evening regarding “fix[ing]” the

filing. Rabbitt told us that he did not remember what Barr’s exact words were on the call,

including whether the Attorney General used the word “fix” to describe what they may

need to do with the filing. Regardless of the exact words used, according to Rabbitt, Barr

conveyed during this brief conversation that if the media reports were true about what the

government recommended, then the sentencing memorandum would need to be

corrected. Rabbitt told us that he did not understand at the time of these calls that there

was a “concrete” plan of action about what to do because they were still trying to figure out

what had happened and what was in the filing. However, Rabbitt told us that after he read

the entire sentencing memorandum online later that evening, he thought to himself that

they were “going to have a problem in the morning.” He told us that “it took reading the

whole thing to realize that it was not what [they] had discussed” earlier in the day.

Phone records reflect that Barr attempted to reach Shea on his work cell phone at

8:45 p.m., almost immediately after ending his second call with Rabbitt. The records

suggest that Barr did not reach Shea, leading Barr to call the OPA Director; the OPA

Director thereafter reached Shea on his personal cell phone. According to the then

Assistant Attorney General for Legislative Affairs (OLA AAG), the OPA Director told the OLA

AAG the following morning about her communications with Barr on the night of February

10 and said that Barr was very angry that the Stone sentencing memorandum had been

filed in a manner that he had not approved and that Barr had called the OPA Director

several times in the evening and had tried to reach someone else, who the OLA AAG

thought may have been either Shea or DuCharme, in an effort to get someone to do

something about the filing.

Phone records reflect that Shea called Barr around 9:18 p.m. Shea said that Barr

asked him what was in the sentencing memorandum and, specifically, what the

recommendation was. Shea said that he told Barr that he added language to address the

concerns that they had talked about earlier in the day, but he also confirmed that he

decided to keep the recommendation of a Guidelines sentence. According to Shea, as he

explained the contents of the memorandum, Barr seemed surprised but was mostly silent

and said that he wanted to see a copy of the filing. Shea told us that he did not remember

Barr asking him for anything else that evening, and Shea said he did not recall whether

Barr indicated during this call that he wanted the memorandum revised or some other

action taken.

Email communications reflect that immediately after his call with Barr, Shea emailed

DC USAO managers asking that someone send him the final version of the sentencing

memorandum. Before midnight, Shea emailed the filing to DuCharme, stating that the

Attorney General “was looking for this. For your information as well.” Shea told us that he

sent the filing to DuCharme because he (Shea) never used email to communicate with Barr,

and he assumed DuCharme would be seeing the Attorney General at the senior staff

meeting the following morning.

In the hearing before the House Judiciary Committee in July 2020, Barr testified that

he made the decision on Monday evening, February 10, to “fix” the sentencing

memorandum after confirming that the government’s sentencing position did not reflect

what he had decided earlier in the day.

Specifically, Barr testified:

I made the decision that we shouldn't take a position as to the precise

sentence but should leave it up to the judge, and we should not affirmatively

advocate for 7-to-9 years. And I made that on Monday, the 10th, and that—

that night we filed—the Department filed and it didn't reflect what I had

decided. So, that night I told people we had to fix it first thing in the morning.

So, we did. As soon as I got in, we [went] forward with the plan to file.

A few hours after Barr’s February 10 calls to his senior staff, President Trump posted

the following tweets criticizing the government’s sentencing position in the Stone case.

Specifically, in the early morning hours of February 11, President Trump tweeted:

12:57 a.m. Disgraceful!

1:48 a.m. This is a horrible and very unfair situation. The real crimes

were on the other side, as nothing happens to them. Cannot

allow this miscarriage of justice!

Phone records do not show any calls or texts to or from Barr or Rabbitt on

Department phones after these tweets and before Barr’s senior staff meeting on February

11 at approximately 9:00 a.m. We also did not find any email communications regarding

the President’s comments or the government’s sentencing memorandum during this

timeframe.

B. Attorney General Barr Meets with Senior Staff the Next Morning and Directs

the Filing of a Second Sentencing Memorandum

On Tuesday, February 11, Barr held a regularly-scheduled senior staff meeting that

began at approximately 9:00 a.m. Before others arrived, Barr had a brief conversation with

Rabbitt about the sentencing memorandum. According to Rabbitt’s notes and his OIG

testimony, Barr told him that: (1) the final memorandum did not take the approach Shea

Barr, “Oversight of the Department of Justice.”

Barr made similar statements in a media interview on February 13, 2020: “I was very surprised. And

once I confirmed that that’s actually what we filed, I said that night, to my staff, that we had to get ready

[because] we had to do something in the morning to amend that and clarify what our position was.” See ABC

News Interview. As noted previously, Rabbitt told us that Barr expressed to him on Monday evening an intent

to fix the sentencing memorandum in the event the government’s sentencing position did not reflect the

approach the Attorney General and Shea had discussed earlier in the day.

See https://twitter.com/realDonaldTrump/status/1227109357726445568?s=20 and

https://twitter.com/realDonaldTrump/status/1227122206783811585?s=20 (accessed May 17, 2024).

explained the day before; (2) he did not understand Shea to say that he would be

recommending 7 to 9 years; and (3) the Department needed to “fix it.” Thereafter, others

entered the room, including DuCharme, then Deputy Attorney General Jeffrey Rosen, and

the then Principal Deputy Associate Attorney General (Principal Deputy Associate AG).

Although the OPA Director and OLA AAG attended part of the meeting, the OLA AAG told us

that his impression when he and the OPA Director entered the room was that they had

joined the “tail end” of the discussion about the sentencing memorandum.

Rabbitt, DuCharme, and the Principal Deputy Associate AG, all of whom attended

the meeting from the beginning, provided consistent testimony regarding key aspects of

the discussion, namely that Barr: (1) expressed surprise and strong disagreement with the

approach taken in the sentencing memorandum; (2) expressed frustration that Shea

proceeded with an approach that was different from the approach the two discussed the

day before; (3) expressed his desire to correct the government’s position; and (4) conveyed

all of these points before anyone in the room mentioned the President’s tweets. According

to Rabbitt, Barr was in the middle of listening to what others thought about the idea of a

second filing when someone mentioned the tweets, and then “the air almost went out of

the room.” Rabbitt told us that based on Barr’s reaction in the meeting and what Barr later

told him, Barr had not seen or been informed of the President’s comments until it was

mentioned in the middle of this meeting.

According to Rabbitt, DuCharme, and the Principal Deputy Associate AG, after the

President’s tweets were mentioned, the group discussed how the tweets complicated the

situation because they expected that people would say that the Attorney General’s actions

were in response to the President’s criticism. DuCharme told us that he suggested

“modulat[ing]” the government’s position at the sentencing hearing instead, but this

approach was “flatly rejected.” According to Rabbitt, the group briefly discussed not

revising the sentencing memorandum, but Barr rejected that idea, stating that Stone

should not receive negative or favorable treatment because of tweets. Similarly,

DuCharme said that he had a very clear memory of Barr reacting strongly to the idea that

the tweets should be relevant to his decision making. According to DuCharme, Barr “got

visibly angry and he said, ‘you don't understand. If we don't [submit a second filing], it will

be because we're reacting to the tweet. I don't care about the tweet. We're ignoring the

tweet.’” The Principal Deputy Associate AG told us that she recalled that the tweets gave

everyone in the room pause but that Barr was of the view that the sentencing

memorandum needed to be “pulled” despite the President’s tweets.

The Principal Deputy Associate AG told us that before having her recollection refreshed during her

OIG interview as to the timing of the President’s tweets, her memory of the tweet discussion was that the

President posted the tweets while they were having the senior staff meeting, and that everyone in the room

reacted to the effect of, “shoot, now what?”

Barr gave similar testimony to the House Judiciary Committee in July 2020, stating

that he “hesitated” with the plan to file a second sentencing memorandum after learning of

the tweets because he knew that people would argue that his actions were in response to

the President’s criticism. He testified that he decided “at the end of the day that [he] really

had to go forward with [the second] filing because it was the right thing to do.”

Rabbitt’s notes reflect that Barr said during the senior staff meeting that a 7 to 9

years recommendation was “ridiculous” for the conduct at issue and expressed concerns

that Stone was being singled out because he was high-profile and the trial team was too

invested in the case. During his OIG interview, Rabbitt said that he did not recall whether

Barr’s concerns were based on specific information that the Stone trial team was unduly

influenced by the high-profile nature of the case or too invested in the case. However,

according to Rabbitt, Barr believed generally that prosecutors have a tendency to let the

high-profile nature of a defendant “creep” into their analysis, and, for that reason, certain

decisions are reviewed by the Department’s supervisory structure.

DuCharme told us that Barr expressed some frustration during the senior staff

meeting that Shea had brought the Stone sentencing to his attention in the first place.

According to DuCharme, Barr had not been looking for opportunities to affect the direction

of the case but expressed that once the sentencing issue was elevated to his attention, and

he thought he had reached an understanding with Shea on the approach, Barr believed he

then “owned” the decision and needed to have the record accurately reflect what his

position was.

Towards the end of the senior staff meeting, the group discussed whether to

contact the White House or the media to update them on the situation. Rabbitt’s notes

state the following about this discussion:

Agree that we need to not talk to anyone at the [White House] about

situation and that [the Attorney General] cannot talk to [the President.] [The

Attorney General] tells [the OPA Director] to let press know that DOJ will be

making supplemental filing so that they aren't surprised later on.

According to DuCharme, Rabbitt expressed in the meeting that communicating with

the White House before filing the second sentencing memorandum would aggravate the

“optics issue.” Rabbitt told us that there was broad agreement in the meeting that—as a

general matter and particularly in light of the President’s tweets—they needed “to be purer

than the driven snow” in terms of White House contacts and, therefore, needed to “firewall”

themselves from any such contacts until after the second memorandum was filed. Rabbitt

Barr, “Oversight of the Department of Justice.”

said that sharing information with the media about the Attorney General’s plan was not

ntended as a way to communicate the plan to the White House indirectly.

Phone records show that after the senior staff meeting, Barr, Rabbitt, and the OPA

Director each called the White House before the filing of the second memorandum.

Although we have no information regarding the substance of Barr’s and the OPA Director’s

calls, according to these records, Barr called then Senior Advisor to the President Jared

Kushner at 10:13 a.m. and then White House Counsel Pat Cipollone at 12:06 p.m. and 1:28

p.m. The records show that these calls were very brief, and, therefore, it is unknown

whether Barr spoke to Kushner or Cipollone. According to these records, between 12:18

p.m. and 3:13 p.m., the OPA Director called Principal Deputy White House Press Secretary

John (Hogan) Gidley four times and a Special Assistant to the President once. Between 2:32

p.m. and 3:16 p.m., the OPA Director also emailed them and Deputy White House Press

Secretary Steven Groves the information about the Stone sentencing recommendation that

she had shared with the media.

Rabbitt told us that he did not know about Barr’s or the OPA Director’s calls to the

White House on February 11 until we asked him about these calls during his interview.

According to Rabbitt, he was “a little surprised” to learn about Barr’s calls because Barr had

endorsed, if not initiated, the idea of avoiding contacts with the White House until after the

filing of the second memorandum.

According to Rabbitt’s contemporaneous notes, OIG

testimony, and phone records, Rabbitt had left a phone message that morning for Deputy

White House Counsel Kate Todd and spoke to her at approximately 3:00 p.m., which

Rabbitt said was about matters unrelated to Stone. Rabbitt told the OIG that “maybe” he

“should have just kept those calls to the next day,” but he stated that Todd “had a very

narrow lane, which was nominations,” and they had been trying to connect for a while.

At the end of the meeting, it was DuCharme who was tasked with carrying out Barr’s

direction and making sure that the second sentencing memorandum was prepared quickly

and implemented Barr’s desired sentencing approach. Instead of directing that the DC

USAO prepare the new memorandum under DuCharme’s supervision, Barr assigned

drafting responsibility to DuCharme with assistance from Shea’s Chief of Staff who, as

At approximately 11:40 a.m., the news media began reporting that the government’s 7 to 9 years

sentencing recommendation in the Stone case was changing because, according to an unnamed Department

official, that was “not what had been briefed” to the Department and was “extreme and excessive and is grossly

disproportionate.” According to Rabbitt’s notes, at approximately 12:30 p.m., he received a phone call from

Deputy White House Counsel Patrick Philbin. Rabbitt told the OIG that he believed Philbin was calling because

of the media reports, and Rabbitt was cognizant of the decision to not have conversations with the White House

about the Stone sentencing recommendation. According to Rabbitt’s notes and testimony, Philbin started to

talk, but Rabbitt interrupted him and said that they should not talk then but that Rabbitt would call him that

evening, which Philbin said he understood.

Rabbitt told us that on February 11, Barr had a number of issues that he wanted to discuss with

then President Trump, but the issues were unrelated to any pending cases, including the Stone prosecution.

discussed in the next section, was asked to report to Main Justice on February 11 for this

purpose. According to Rabbitt, Barr did not instruct the DC USAO to draft the new filing

because the DC USAO had not carried out the Attorney General’s wishes the first time, and

Barr wanted to make sure “it was done right the second time.” Rabbitt said that the

Attorney General chose DuCharme because of his extensive prosecutorial experience and

Shea’s Chief of Staff because, having recently left the Deputy Attorney General’s Office to

become Shea’s Chief of Staff, he could serve as a bridge between Main Justice and the DC

USAO.

DuCharme told us that he did not receive very specific instructions in the meeting

about what to include in the new filing. DuCharme said that he generally understood that

the second memorandum should make clear that the Department believed that a sentence

below the Guidelines range would be reasonable but ultimately defer to the court to

determine the appropriate sentence. He said that he also understood that the material

points supporting Barr’s sentencing position included the defendant’s age, the nature of

the threat to Credico, and whether application of the enhancement would serve the spirit

of the 8-level threats SOC.

According to DuCharme and the Principal Deputy Associate

AG, during the senior staff meeting, the group discussed whether the 8-level threats SOC

even applied, but DuCharme told us that he argued strongly that the second sentencing

memorandum should not change the Guidelines calculation set forth in the memorandum

filed the day before. According to DuCharme, he told the Attorney General that he had no

reason to doubt that the trial team had reasonably calculated the Guidelines range and

expressed the view that even if the 8-level threats SOC only arguably applied, the

Department should not create confusion about the Guidelines. According to DuCharme,

he advocated for focusing instead on the factors under § 3553(a) to make Barr’s points, and

Barr agreed.

Sometime during the discussions that morning, possibly after DuCharme left the

Attorney General’s Office to begin work on the second sentencing memorandum, DOJ

leadership discussed removing Shea as Interim U.S. Attorney due to his handling of the

sentencing memorandum. Although Rabbitt was not sure whether the topic came up

during the senior staff meeting or afterwards, the Principal Deputy Associate AG told us

that she had a specific memory of Barr bringing it up during this meeting.

According to

the Principal Deputy Associate AG, at some point in the discussion about the sentencing

memorandum, Barr said in a very sad tone, “I guess [Shea] is going to have to go.” The

Principal Deputy Associate AG told us that she remembered that Barr did not elaborate or

explain his reasoning. However, Rabbitt told us that he and Barr quickly realized that the

According to DuCharme, these and other arguments made in the second sentencing memorandum

came into greater focus during the drafting process, described later in this report.

The Principal Deputy Associate AG told us that she recalled that she was still in the Attorney

General’s office when he brought up the topic, but that the group had moved to a table in his office, possibly

after the OPA Director and OLA AAG had joined the discussion.

anticipated controversy over the new filing was going to negatively impact Shea’s ability to

eceive the President’s nomination and Senate confirmation for U.S. Attorney, and earn the

trust and support of the district court.

According to Rabbitt, they determined that they

needed to figure out a way to get someone else in the position so that a new interim U.S.

Attorney would have enough time to stabilize the office, develop a track record, and

hopefully receive nomination from the President and confirmation from the Senate or, if

not, to at least receive a new appointment from the district court until the vacancy was

filled.

Email communications reflect that shortly after 12:00 p.m. on February 11, the then

Assistant Attorney General for the Office of Legal Counsel (OLC AAG), sent an email to

Rosen and the Principal Deputy Associate AG describing the Attorney General’s options for

removing and replacing the Interim U.S. Attorney for the District of Columbia. Minutes

later, the Principal Deputy Associate AG forwarded the email to Rabbitt. The email did not

expressly state what prompted the OLC AAG to send the email. The OLC AAG told the OIG

that he believes Rosen came to see him that morning, after the senior staff meeting,

seeking to determine the Attorney General’s options for firing Shea. The OLC AAG told us

that he did not recall his conversation with Rosen, including whether Rosen specifically

mentioned Shea and what happened in the Stone case or whether he (the OLC AAG) put

“two-and-two together.” According to the OLC AAG, after he sent his email to Rosen and

the Principal Deputy Associate AG, no one ever came back to OLC on the issue.

C. Second Sentencing Memorandum Is Drafted Under Close Direction of DOJ

Leadership

After the February 11 morning meeting with Barr, DuCharme called Shea and told

him that the Attorney General decided to file a second sentencing memorandum that

deferred to the court on Stone’s sentence, and Shea accepted this decision. At DuCharme’s

direction, Shea’s Chief of Staff went to Main Justice and met with DuCharme. DuCharme

told Shea’s Chief of Staff that the government’s sentencing memorandum did not reflect

the Department’s position and a corrected memorandum seeking a variance below the

advisory Guidelines range needed to be filed quickly. DuCharme tasked Shea’s Chief of

Staff with drafting this second memorandum and, according to the Chief of Staff, provided

An interim U.S. Attorney appointed by the Attorney General may serve for 120 days, after which the

interim U.S. Attorney vacates the position unless he or she receives nomination from the President and

confirmation from the Senate, or the district court appoints the interim U.S. Attorney to serve until the vacancy

is filled. See 28 U.S.C. § 546.

Rabbitt told us that he began the process of identifying potential replacements, but that the plan to

replace Shea was not executed before Rabbitt left the Attorney General’s Office to become the Acting Assistant

Attorney General for the Criminal Division in early March 2020. Shea told the OIG that he was never asked to

resign his position as Interim U. S. Attorney. On May 19, 2020, Barr publicly announced that Shea would be

leaving his role as Interim U.S. Attorney to serve as the Acting Administrator of the U.S. Drug Enforcement

Administration.

“specific instructions” on the content. This content included an argument about the

mitigating effect of Credico’s letter and a citation to a well-known quote from a Supreme

Court case involving prosecutorial misconduct,

Berger v. United States,

295 U.S. 78, 89

(1935), which stated that a prosecutor’s responsibility is to ensure that justice is done.

Shea’s Chief of Staff told us that he then began drafting the second memorandum with

DuCharme “literally working over [his] shoulder” and with Rabbitt repeatedly checking on

the draft’s progress.

uCharme said he spoke to Barr “a half a dozen” times throughout the day and

communicated indirectly through Rabbitt to update the Attorney General on the second

memorandum’s content and manage expectations regarding when it was going to be filed.

As described earlier in this report, according to DuCharme, in the conversations he had

with Barr the week before, the Attorney General had “an immediate reaction” to how high

Stone’s Guidelines range was given Stone’s age, but DuCharme said that they did not

engage in “super rigorous analysis.” However, on February 11, DuCharme recalled that he

and Barr looked “much more closely at particular facts,” including Stone’s threats against

Credico and Stone’s personal circumstances, to determine if there was support for the

Attorney General’s position. According to DuCharme, as the memorandum was being

drafted, Barr provided some “input…reinforcing the strategy” decided that morning,

concluded that the facts supported a sentence below the Guidelines range, and found no

reason to deviate from the prior position that he had taken with Shea. Rabbitt told us that

he “periodically” provided updates to Barr on the second memorandum’s status, but

Rabbitt did not recall discussing the content with the Attorney General or receiving

feedback from him.

DuCharme told us that he was “pretty confident” that Barr reviewed the second

memorandum before it was filed, but Rabbitt said he did not recall the Attorney General

reading any version of the memorandum. Rabbitt said that he did not remember

reviewing the final version himself before it was filed, but Shea’s Chief of Staff told the OIG

that at some point, Rabbitt “gave the thumbs up,” which the Chief of Staff communicated to

Shea. At 2:55 p.m., Shea’s Chief of Staff emailed the latest draft of the second

memorandum to Shea and the Principal AUSA for filing, with Shea, the Criminal Chief, the

FPC Chief, and Prosecutor 4 listed in the signature block.

This draft version of the second memorandum stated that the first memorandum

did not accurately reflect the Department’s position and, while imprisonment was

Shea’s Chief of Staff said that he did not consider himself to be the second memorandum’s author

because “substantial” edits were made, initially by DuCharme and then later by Rabbitt. DuCharme recalled

sitting in front of the computer and said that he may have drafted or edited parts of the memorandum.

However, DuCharme described Shea’s Chief of Staff as the memorandum’s “principal drafter” who received

“real time oversight” from DuCharme and to some degree Rabbitt to ensure that the memorandum was

consistent with what the Attorney General wanted. Rabbitt recalled providing non-substantive, “organizational”

feedback on a draft of the memorandum.

warranted, “t

he range of 87 to 108 months presented as the applicable advisory Guidelines

range would not be appropriate or serve the interests of justice in this case.” Quoting

Berger

, the second memorandum then stated, “It is well established that the prosecutor ‘is

the representative not of an ordinary party to a controversy, but of a sovereignty whose

obligation to govern impartially is as compelling as its obligation to govern at all; and

whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that

justice shall be done.’”

Berger

295 U.S. at 88. Although the second memorandum did not

include a different Guidelines calculation, it stated that the sentencing enhancements

calculated in the first memorandum were “perhaps technically applicable” and the total

offense level was “arguably 29,” which “typically applies in cases involving violent offenses.”

The second memorandum concluded that a sentence of 87 to 108 months “could be

considered excessive and unwarranted under the circumstances,” and a sentence “far less”

than that range would be reasonable. Rather than recommending a specific sentence, the

second memorandum deferred to the court as to what sentence would be appropriate.

The second memorandum included four arguments in support of its position that a

sentence far less than the Guidelines range would be reasonable. First, although Credico’s

“subjective beliefs” were “not dispositive” regarding the 8-level threats SOC, he “did not

perceive a genuine threat” from Stone, which could be considered “when determining

whether to apply the enhancement—particularly given the significant impact that the

enhancement has on the defendant’s total Guidelines range.”

Second, regarding the 2-

level obstruction adjustment, Stone’s obstructive conduct “overlap[ped] to a degree with

the offense conduct” and the extent to which it “actually prejudiced the government at trial”

was unclear. Third, the sentences imposed in other cases involving the same charges as

the Stone case “constituted a fraction of the penalty suggested by” Stone’s Guidelines

range, although the second memorandum acknowledged that these cases “involved lesser

offense conduct.” Lastly, the memorandum noted Stone’s “advanced age, health, personal

circumstances, and lack of criminal history,” and asserted that a sentence in the range of 87

to 108 months was more typically imposed on defendants who had “higher criminal history

categories or who obstructed justice as part of a violent criminal organization.”

Between 2:31 p.m. and 2:47 p.m., Shea’s Chief of Staff emailed Shea and the Principal AUSA three

other versions of the second memorandum. In one of these earlier versions, it was stated that a “significant

sentence of incarceration” was warranted, but the word “significant” was not included in the version emailed to

Shea and the Principal AUSA at 2:55 p.m.

The second memorandum noted that Stone’s Guidelines range would have been 37 to 46 months

without the 8-level threats SOC, which “is more in line with the typical sentences imposed in obstruction cases.”

D. Members of Trial Team Withdraw from the Case, Prosecutor 1 Resigns in

Protest, and DC USAO Criminal Chief Signs the Second Sentencing

Memorandum

The Principal AUSA, the Criminal Chief, the FPC Chief, and the trial team first learned

about the Department’s plan to change the sentencing position in the Stone case after

media inquiries and/or news reports on Tuesday stated, among other things, that the

Department was “shocked” by the position taken in the sentencing memorandum and was

planning to clarify the Department’s position later that day. The Principal AUSA told us that

after he learned about the second memorandum, he spoke to Shea who seemed to be

“realizing that he had not done what the Attorney General had expected him to do.”

According to the Principal AUSA, Shea said to him that DuCharme had told Shea to do what

Shea thought was right or reasonable. The Principal AUSA said he did not know when this

conversation between Shea and DuCharme occurred, but, as described earlier, Shea and

DuCharme discussed the Stone sentencing recommendation on multiple occasions before

the first memorandum was filed.

Prosecutor 1 told us that in the early afternoon, the FPC Chief confirmed that the

Department was filing a second memorandum and also told Prosecutor 1 that the DC

USAO planned to refer the media disclosure to DOJ’s Office of Professional Responsibility

(OPR).

Prosecutor 1 shared this information with the team, and he, Prosecutor 2, and

Prosecutor 3 then withdrew their appearances from the Stone case before the second

memorandum’s filing. Prosecutor 3 told us, “[I]t would be very strange for us to maintain

an appearance in this case, where they filed a thing saying that our prior filing was wrong.”

With respect to the timing of their withdrawal, according to Prosecutor 1, Prosecutor

2, Prosecutor 3, and other evidence, they wanted to withdraw before the second filing

because they were concerned that the Department was planning to criticize them in the

filing and involuntarily withdraw their appearances. Prosecutor 1 told us that he did not

have an understanding from the FPC Chief at the time about the second memorandum’s

content. However, Prosecutor 2 said that he learned from the FPC Chief, possibly through

Prosecutor 1, that the DC USAO’s front office was considering stating in the second

memorandum that the Stone sentencing recommendation was being reassessed because

of the media disclosure and implying that the team was responsible for the disclosure by

removing them from the case. According to Prosecutor 2, the FPC Chief could not promise

that the trial team would see the memorandum before it was filed, so Prosecutor 2 felt like

a “sitting duck” not knowing what the memorandum would say about the team. Prosecutor

2 told us, “If they're going to file something that says…we have withdrawn these attorneys

from the case because of the leaks yesterday and smear my reputation, I want[ed] to make

clear that I'm out of the case before that happens.”

The DC USAO ultimately did not refer the media disclosure to OPR.

In addition to withdrawing his appearance from the case, Prosecutor 1

simultaneously resigned from the Department. Prosecutor 1 told us that he resigned

because Department decisions are not supposed to be based on a defendant’s identity,

political beliefs, or connections, and he believed the Department was “completely walk[ing]

away from that principle” here and taking “unprecedented steps to benefit” an

unremorseful defendant who had “essentially thumbed his nose at not one but two

branches of government along the way.”

Before receiving a draft version of the second memorandum, the Principal AUSA

emailed proposed language to DuCharme and Shea’s Chief of Staff stating that the

government had reevaluated its sentencing recommendation due to the “improper

disclosure” of information to the media about non-public, DC USAO deliberations regarding

the government’s sentencing recommendation. The proposed language also referenced

the possibility that trial team members had “caused” this disclosure.

DuCharme told us

that, with the Attorney General’s concurrence, the media disclosure was not addressed in

the second memorandum because the issue was a “distraction“ and “wasn’t material to the

position” being taken.

As noted previously, Shea and the Principal AUSA received a draft of the second

sentencing memorandum shortly before 3:00 p.m. In an email to Shea’s Chief of Staff,

copying Shea and the Criminal Chief, the Principal AUSA proposed three changes, two of

which affected the final version of the second memorandum. First, the Principal AUSA told

us that he disagreed with the second memorandum’s statement that “the range of 87 to

108 months presented as the applicable advisory Guidelines range would not be

appropriate or serve the interests of justice in this case” because the language was “too

strong.” The Principal AUSA suggested the following alternative language, which mirrored

existing language in another part of the memorandum: “the range of 87 to 108

months…could be considered excessive and unwarranted under the circumstances”

(emphasis added). However, the original language was retained in the final version of the

second memorandum without this edit. Second, the Principal AUSA proposed an edit to

the argument regarding the “significant impact” of the 8-level threats SOC. Rather than

stating that the court could consider Credico’s subjective beliefs “when determining

whether to apply the enhancement,” the Principal AUSA suggested stating that the court

could consider such beliefs “when determining the impact of the enhancement.” This

language was changed to “when assessing the impact of applying the enhancement” in the

The FPC Chief drafted the first version of this language, which stated that the Department would

reevaluate and file its sentencing position by February 14 due to the media disclosure, but the FPC Chief’s draft

did not reference the trial team potentially being responsible for the disclosure. According to the FPC Chief, the

purpose of his language was to buy more time to convince the Department that the first memorandum’s

position was correct but, in hindsight, he said it was a “bad recommendation” to suggest this language. The FPC

Chief’s language was ultimately not included in the version the Principal AUSA emailed to DuCharme, which the

Principal AUSA said he did not remember editing.

second memorandum’s final version.

Lastly, the Principal AUSA removed the FPC Chief’s

and Prosecutor 4’s names from the memorandum’s signature block, which is reflected in

the final version.

ccording to Rabbitt’s testimony and notes, Barr asked at different points that day

what was taking so long and who would be signing the second memorandum. Rabbitt told

us that he called Shea, who indicated that the DC USAO was in the process of figuring out

who would sign the memorandum. According to several witnesses, Prosecutor 4 was given

the option to sign the second memorandum, but he declined. The FPC Chief told us that he

was asked to review and sign the memorandum, but he also declined to sign because he

believed the DC USAO had done “the right thing” in the first memorandum, he had

concerns about what was motivating the change in position, and the memorandum’s

citation to

Berger

, a

prosecutorial misconduct case, suggested the “team did something

wrong.” According to the Principal AUSA, the FPC Chief suggested that it would be better if

he (the FPC Chief) did not sign because it would impact his relationship with the section he

still had to run, and people there were very upset and supportive of Prosecutor 1.

Ultimately, the Criminal Chief agreed to sign the second sentencing memorandum.

According to the Criminal Chief and other evidence, he first consulted with DC USAO

colleagues, including the DC USAO ethics advisor, to determine if it would be improper or

unethical to sign the second memorandum. They advised the Criminal Chief that they did

not believe it would be improper or unethical if there had been a miscommunication

between the Attorney General and Shea regarding the sentencing position, which resulted

in a filing that needed to be corrected. The Criminal Chief told us that he did not agree with

the second memorandum’s position and was very troubled by what was happening,

including the appearance that the position was being changed for political reasons and the

intense time pressure to file the memorandum with little time for review and no ability to

edit. The Criminal Chief told us that he had changes that he wanted to make to the second

memorandum, but he was told “it wasn't going to happen.” Like the FPC Chief, the Criminal

Chief said that he was “profoundly concerned” by the second memorandum’s quotation of

Berger

, which he felt was “a veiled, at best, and maybe not even a veiled, shot at the trial

team” by suggesting they had acted in “bad faith.”

At 4:44 p.m., the Criminal Chief filed the second memorandum.

The Criminal Chief

said that he decided to sign and file the memorandum because, as a supervisor, he

The Principal AUSA told the OIG that he suggested this edit because he understood from DuCharme

that the second sentencing memorandum would not question the Guidelines calculation in the first

memorandum. However, according to DuCharme, the original and final language in the second sentencing

memorandum was intended to question the applicability of the 8-level threats SOC.

The Criminal Chief signed the second memorandum as a representative of Shea, the U.S. Attorney,

which is how USAO documents are typically submitted to courts. Shea told us that he thought the Department

“would get the same result” with the first memorandum, but the second memorandum “wasn’t offensive” to

him, and he did not think there was “anything wrong” in it “with respect to the law or the facts.”

required AUSAs to take positions with which they did not agree, and he believed that if it

was not improper or unethical to do so, he had to do what he expected of others. In

retrospect, the Criminal Chief said that he thought he had “made a mistake” by not

demanding more time to determine whether all the arguments were “legitimate.” The

Criminal Chief described the memorandum to us as “poorly reasoned and written.”

At 5:30 p.m., Prosecutor 4 withdrew his appearance from the case, but, according to

several witnesses and other evidence, Prosecutor 4 first met with Shea to determine if

there would be any consequences in the event he withdrew. Prosecutor 1 and Prosecutor

2 told us that Prosecutor 4 told them that Shea expressed that he would not fire

Prosecutor 4, but that Shea could not promise Prosecutor 4 that Main Justice would not do

something. According to Shea, he told Prosecutor 4 that Prosecutor 4 would not lose his

job as long as Shea was the U.S. Attorney, but Shea had no control over what would occur if

Shea got fired.

On the evening of February 11, it was reported that President Trump had rescinded

his nomination of Jessie Liu to the Treasury undersecretary position. Between the evening

of February 11 and the early morning of February 12, President Trump posted tweets that

criticized the DC USAO trial team and judge, and supported the Department’s change in

sentencing position, including a tweet in which the President stated, “Congratulations to

Attorney General Bill Barr for taking charge of a case that was totally out of control and

perhaps should not have even been brought.”

In a media interview of Barr, which was

broadcast on Thursday, February 13, Barr said that the President’s public comments about

the Department, Department employees, pending cases, and judges made it “impossible”

for Barr to do his job and assure the courts and Department employees that the

Department’s work was done with integrity.

V. Sentencing Hearing and Subsequent Events

Stone’s sentencing hearing occurred on February 20, 2020. The Criminal Chief and

the FPC Chief appeared for the government, with the Criminal Chief addressing the court.

The Criminal Chief apologized “for the confusion that the government has caused with

respect to this sentencing” and clarified that “this confusion was not caused by the original

trial team.” The Criminal Chief added that the trial team was authorized to file the first

sentencing memorandum, he knew of nothing that was “incorrect” in that filing, and that it

had been filed “in good faith.” The Criminal Chief told the court that Shea had approved

the first memorandum, and it was the Criminal Chief’s understanding that “a

miscommunication” had occurred between Shea and Barr “as to what the expectations

were from the Attorney General and what the appropriate filing would be.” When the court

See https://twitter.com/realDonaldTrump/status/1227561237782855680?s=20 (accessed May 17,

2024).

See ABC News Interview.

asked if he wrote the second memorandum, the Criminal Chief stated that he was unable

to discuss the internal deliberations of the DC USAO or the Department. The Criminal Chief

told the court that the government stood by each of the sentencing enhancements

identified in the first memorandum and explained why the government believed each

applied. The Criminal Chief told the court the government believed “the court should

impose a substantial period of incarceration” but deferred to the court as to “what the

specific sentence” should be in the case.

The court sentenced Stone to 40 months of incarceration. The court concluded that

each of the enhancements applied—except for the 2-level extensive SOC—and calculated a

Guidelines range of 70-87 months. In addressing the § 3553(a) factors, the court

specifically observed, among other things, that the 8-level threats SOC “while applicable,

tends to inflate the guideline level beyond where it fairly reflects the actual conduct

involved.” The court also noted the need for the sentence to be “proportionate” with

comparable cases as a reason for the below-Guidelines sentence.

On July 10, 2020, before Stone surrendered to begin service of this sentence, Stone’s

sentence was commuted by an Executive Grant of Clemency by President Trump.

December 23, 2020, Stone received a full and unconditional Presidential pardon from

President Trump.

VI. Analysis

The Department’s handling of the sentencing in the

United States v. Roger Stone

case was highly unusual—filing a sentencing memorandum recommending that the court

impose a Guidelines sentence of 87 to 108 months of incarceration and then, the following

day, submitting a “supplemental and amended” sentencing memorandum to the court

stating that (1) a sentence within the Guidelines range of 87 to 108 months was “excessive

and unwarranted” and “would not be appropriate or serve the interests of justice,” and (2) a

sentence “far less than” 87 to 108 months would be reasonable under the circumstances.

Further, the Department’s second sentencing memorandum was submitted just hours

after a tweet by then President Trump criticizing the Department’s first memorandum, and

the subsequent filing resulted in all four members of the Stone trial team withdrawing

from the case and one resigning from the Department. This sequence of events resulted in

serious allegations being raised, including that: (a) improper political considerations

influenced the Department’s handling of the Stone sentencing recommendation; (b) the

public comments of then President Trump influenced the Department’s second

memorandum; and (c) then Attorney General Barr intervened in the sentencing proceeding

as a result of White House pressure. Further, one of the members of the Stone trial team,

See https://www.justice.gov/pardon/page/file/1293796/download.

See https://www.justice.gov/file/1349096/download.

Prosecutor 2, testified before Congress that, among other things, DC USAO management

had contributed to the improper political pressure imposed on the trial team and made

statements acknowledging that political considerations played a role in the Department’s

decision making. During his testimony, Prosecutor 2 identified three supervisors in the DC

USAO—two by name and one by title—as having made these statements or been involved

in the relevant discussions. In response, all three supervisors alleged that Prosecutor 2’s

testimony was false.

As discussed below, the OIG considered these allegations as part of this

investigation. We determined, based on our assessment of the documentary evidence and

the interviews we conducted of approximately two dozen individuals, that the sequence of

events that led to the extraordinary filing of the second sentencing memorandum was

largely the result of Interim U.S. Attorney Timothy Shea’s ineffectual leadership, which was

marked by indecisiveness and poor communication. For example, we determined that

after raising concerns about the proposed sentencing memorandum, Shea still had not

decided what to do by the morning of the filing deadline, February 10. Then, just hours

before the filing deadline, Shea went to Barr, who until that point in time had no

involvement in the Stone sentencing, discussed the sentencing issue with Barr, and left

Barr with the understanding that the government would defer to the court on the

appropriate sentence. However, later that day, Shea authorized the U.S. Attorney’s Office

to file a sentencing memorandum that did not defer to the court and that recommended a

Guidelines sentence that was actually

harsher

than the Guidelines sentence the Stone trial

team and the FPC Chief had proposed recommending—without advising Barr of the

reversal.

Shortly after this filing, Barr learned from media reports that Shea had filed a

sentencing memorandum that was inconsistent with what he and Shea had discussed

earlier that day. Barr had several conversations that night with his staff, and his Chief of

Staff told us that Barr discussed correcting the filing during at least one of those

conversations. The following morning, Barr had his staff begin drafting the second

memorandum, consistent with his discussion with his Chief of Staff the prior evening, and it

was filed later that day. This “supplemental and amended” filing sought a below-Guidelines

sentence. We found that Barr first expressed his intention to correct the DC USAO’s initial

filing before then President Trump’s tweets shortly after midnight.

We also found that the FPC Chief’s speculative comments in meetings with the trial

team about the political motivations of DC USAO and DOJ leadership in connection with

their handling of the Stone sentencing contributed to an atmosphere of mistrust in the DC

USAO, which unnecessarily further complicated an important decision in the case. Lastly,

we determined that the FPC Chief’s speculative comments to the trial team, combined with

internal discussions regarding the sentencing filing, formed a substantial basis for the

testimony Prosecutor 2 provided to the House Judiciary Committee on June 24, 2020. We

therefore concluded that the evidence did not support a finding that Prosecutor 2 provided

false testimony to the House Judiciary Committee.

We recognize that Shea’s and Barr’s involvement in the Stone sentencing, given their

status as Administration political appointees and Stone’s relationship with the then

President, resulted in questions being asked and allegations being made about the

Department’s decision making, including by members of the trial team. However, absent a

law, rule, regulation, or Department policy that prohibits their participation (none of which

exist here), whether the U.S. Attorney and/or the Attorney General should personally

participate in such a matter is ultimately left to their discretion and judgment, including

their assessment of how such involvement will affect public perceptions of the federal

justice system and the Department’s integrity, independence, and objectivity. With regard

to the actions of the U.S. Attorney and the Attorney General, our investigation found no

documentary or testimonial evidence that improper political considerations or influence

affected either the DC USAO’s or DOJ leadership’s decision making. The available evidence

is that all the discussions between Shea and Barr, and between Barr and his staff,

concerned whether the advisory Sentencing Guidelines range was just and whether the

Department should support a variance from it. We noted that even career lawyers at the

DC USAO believed at the time that reasonable minds could differ about the sentencing

recommendation.

A. We Found No Evidence That DOJ Leadership’s or Shea’s Handling of First and

Second Sentencing Memoranda Was Affected by Improper Political

Considerations or Influence

We found no documentary or testimonial evidence that the actions and decisions of

DOJ leadership (i.e., the Attorney General, the Deputy Attorney General, and their senior

staff) and Interim U.S. Attorney Shea in the preparation and filing of the first and second

sentencing memoranda were affected by improper political considerations or influence.

We therefore concluded that DOJ leadership and Shea did not engage in misconduct or

violate Department policy in connection with the Stone sentencing.

Rather, we found that

Shea’s ineffectual leadership set in motion a sequence of events that contributed to the

trial team viewing his actions with suspicion and resulted in DOJ leadership taking the

extraordinary step of changing a filed sentencing recommendation.

As noted previously, the court determined that the applicable Guidelines range was 70-87 months

and sentenced Stone to 40 months of incarceration.

As described in Section II.B.1., Department policy requires attorneys for the government to make

sentencing recommendations “without improper consideration of the defendant’s…political association,

activities, or beliefs.” See Justice Manual 9-27.730.

1. DOJ Leadership

We did not find documentary or testimonial evidence indicating that DOJ leadership

discussed the Stone sentencing with Shea or his Chief of Staff before they joined the DC

USAO, and Shea and his Chief of Staff told us that they did not receive any directive or

understanding from DOJ leadership about how to handle the Stone sentencing when they

joined the DC USAO. According to then Principal Associate Deputy Attorney General Seth

DuCharme, no one in the leadership offices had been tracking the upcoming sentencing

before Shea called him during Shea’s first week as Interim U.S. Attorney. DuCharme’s

testimony is consistent with testimony from Shea’s predecessor, former U.S. Attorney

Jessie Liu, who told us that she did not recall receiving a response after advising DuCharme

in January 2020, when she was still U.S. Attorney, that the government’s sentencing

memorandum would be due in February.

The OIG also did not find evidence indicating that, after Shea became Interim U.S.

Attorney and before the first memorandum was filed, DOJ leadership exerted pressure

upon Shea or the DC USAO, or otherwise inserted itself into the internal DC USAO

discussions about the sentencing memorandum and recommendation. Instead, we found

that Shea, unsure of what to do, decided to seek guidance from DOJ leadership. Shea first

reached out to DuCharme at least twice during the week before the filing deadline. The

testimonial evidence shows that Shea contacted DuCharme not simply to notify the Deputy

Attorney General’s Office of an upcoming event in a significant matter, but also, as

DuCharme described, because Shea was “looking for a steer” from DuCharme on how to

approach the sentencing recommendation given Shea’s concerns about the Guidelines

range and the impact of the 8-level threats SOC. According to DuCharme, DuCharme

advised Barr of his conversations with Shea, including that Stone’s sentencing was coming

up and that the Guidelines range was “kind of high,” but Barr appeared only “mildly

interested” and did not direct that any particular action be taken. Similarly, Shea’s Chief of

Staff told us that although Shea raised the upcoming sentencing with Barr’s Chief of Staff,

Brian Rabbitt, during the week before the filing deadline, Shea’s Chief of Staff did not recall

Rabbitt reacting to the description of the Guidelines range as “inordinately high.”

The OIG did not find evidence indicating that after Shea raised the Stone sentencing

with DuCharme and Rabbitt, that DuCharme, Rabbitt, or anyone else from the DOJ

leadership offices reached out to Shea or the DC USAO before the day of the filing deadline

to give direction or further discuss the sentencing memorandum. Later, on the day of the

filing deadline, after Shea brought the matter directly to Barr due to his concern about

possible resignations by trial team members, Shea ultimately did not take the approach he

and Barr discussed, i.e., stating to the court that a sentence below the Guidelines range

would be appropriate and deferring to the court on the ultimate sentence. Instead, the

sentencing memorandum that Shea authorized advocated for a Guidelines sentence.

Phone records and testimonial evidence indicate that shortly after the media began

reporting on the evening of February 10, 2020, that the Department’s sentencing

memorandum recommended that the court sentence Stone to 7 to 9 years, Barr initiated

several calls with members of his staff and Shea. According to Rabbitt, Barr was looking to

confirm whether the media reports were accurately reporting the Department’s sentencing

recommendation and told Rabbitt that if the reports were accurate, they needed to “fix” the

Department’s filing. It was not until more than 4 hours later that President Trump posted

his first tweet criticizing the government’s sentencing position. Thus, we found that Barr

had articulated his position about the sentencing recommendation both before and shortly

after the first sentencing memorandum was filed, and before the President’s tweets.

The OIG sought to interview Barr after he had resigned as Attorney General. He

declined our request for a voluntary interview, and because the OIG does not have the

authority to subpoena testimony from former Department employees, we were unable to

compel his testimony. Barr had previously testified before the House Judiciary Committee

in July 2020 about the Stone sentencing and told the Committee that he “hesitated” with

the plan to file a second sentencing memorandum after learning of the then President’s

tweets because he knew that people would argue that his actions were in response to the

President’s criticism. He testified that he decided “at the end of the day that [he] really had

to go forward with [the second] filing because it was the right thing to do.” In his July 2020

testimony, Barr also said that he “had not discussed [his] sentencing recommendation with

anyone at the White House…[o]r anyone outside the [D]epartment.” As noted earlier in this

report, Department phone records show that Barr, Rabbitt, and the then Director of the

Department’s Office of Public Affairs made calls to the White House on February 11. As

noted above, Rabbitt told the OIG that his communications with the White House were

limited to nominations issues, and he produced contemporaneous notes supporting his

testimony. We do not know whether the Stone case was a subject of either Barr’s or the

OPA Director’s communications; however, the evidence indicates that these

communications occurred after Barr had already instructed his staff to file the second

sentencing memorandum deferring to the court on Stone’s sentence.

Barr’s decision to file a second sentencing memorandum, changing the sentencing

position the DC USAO took the day before, was an extraordinary step to take, and it was

even more extraordinary that it was written at Main Justice under the direct supervision

and control of DOJ leadership. The fact that the defendant, Stone, was a friend of President

Trump raised further questions and perceptions about DOJ leadership’s involvement.

However, no law, rule, regulation, or DOJ policy, including those related to conflicts or

ethics, prohibited Barr’s participation in the Stone sentencing, and, therefore, the decision

whether to participate was ultimately a discretionary one left to the judgment of the

Attorney General. Further, in the absence of evidence that Barr’s decision was affected by

improper political considerations or influence, we found that it was within the Attorney

General’s discretion to correct what he viewed as an unjust submission and one that was

contrary to what he and Shea had discussed the day before.

2. Interim U.S. Attorney Timothy Shea

We did not find documentary or testimonial evidence that improper political

considerations or influence affected Shea’s decision to raise concerns about the proposed

sentencing memorandum and recommendation. Shea told us that he was concerned

about the “harshness” of the Guidelines range as compared to other cases, and he thought

the basis for the 8-level threats SOC was “kind of…weak.” He also told us that he was

concerned that the DC USAO would lose credibility with the court if it requested a sentence

that was too high and not “proportional” to comparable cases. Shea denied that Stone’s

relationship to then President Trump, or the possibility that Trump could publicly react to

Shea’s decision making, was a factor in his thinking on the Stone sentencing.

The Principal AUSA and the Criminal Chief told us that they believed at the time that

reasonable minds could disagree on whether the sentencing position should be a

Guidelines sentence or something less. Further, the FPC Chief told us that his statements

to the trial team that Shea was “afraid of the President,” and to the trial team, the Principal

AUSA, and the Criminal Chief that politics was driving Shea’s decision making, were not

based on any actual knowledge as to Shea’s motivations.

We did not find the descriptions of the meetings and discussions that occurred

before Shea ultimately agreed to accept the Guidelines calculation and recommend a

Guidelines sentence sufficient to support an inference that improper political

considerations or influence affected Shea’s initial desire to lower the sentencing

recommendation or his initial questioning of the Guidelines calculation. We believe it was

entirely reasonable that a U.S. Attorney would weigh in on a sentencing memorandum in a

significant case before it was filed, particularly since USAO court filings are made in the

name of the U.S. Attorney. According to Liu, it was common practice for her as U.S.

Attorney to review and edit a sentencing memorandum in a significant case. We believe it

was also entirely reasonable for a U.S. Attorney new to the office and to the case to request

further information about the evidence and raise questions about the legal arguments. As

described in this report, even the trial team’s Guidelines calculation and sentencing

position were not settled from the start but evolved over time through research and

discussions. We credit Prosecutor 1’s testimony that Shea seemed to Prosecutor 1 to be

looking for any way to lower the sentencing recommendation, which contributed to

Prosecutor 1’s concerns about how the sentencing was being handled. We were unable to

conclude on this basis, however, that Shea’s motivations were improper and not based

upon a sincere belief or concern that 87 months would be an unjust and unreasonable

sentence.

Shea’s first week in the DC USAO coinciding with a looming filing deadline in the

Stone case was unfortunate timing for Shea, who had a demanding schedule of meetings

in his first few days and no prior involvement in the Stone case. Additionally, as we discuss

later, the FPC Chief’s speculative statements about Shea’s motivations and Main Justice

pressure, without actual knowledge, unnecessarily further complicated an important

decision in the case. At the same time, we believe Shea’s indecisiveness and actions in the

days and hours before the filing deadline only exacerbated the difficulties of the situation

and, later, led the Attorney General to make the highly unusual decision of filing a second

government sentencing memorandum.

According to Shea’s testimony, after raising concerns about the sentencing

memorandum, his “procrastination kicked in again,” and he still had not made a final

decision on what to do by the morning of the filing deadline, February 10, when he

elevated the matter directly to Barr. Based on DuCharme’s and Shea’s descriptions of their

conversations during Shea’s first week in office, and the testimony of other witnesses, we

believe that Shea’s lack of recent federal sentencing experience likely contributed to his

indecisiveness.

As discussed previously, after Shea raised the sentencing issues to Barr, he

ultimately did not take the sentencing approach he and Barr discussed and failed to

communicate his change in position to DOJ leadership. Although, according to Rabbitt,

Shea told Barr at the end of their meeting that he was still going to try to sell the approach

to the team, Shea told us that he was “sure” that at the end of their meeting Barr thought

the DC USAO’s sentencing memorandum was going to defer to the court on the

appropriate sentence. Given these circumstances, we agree with Rabbitt that, having

involved the Attorney General and left him with that understanding, Shea should have

updated Barr before the filing that he was not going to take the approach they had

discussed.

Shea suggested during his OIG interview that the first filing did not represent a

change in position from the approach he discussed with Barr, asserting that there were at

least two ways to carry out that approach: the way he did it in the first sentencing

memorandum on February 10 and the more explicit way Barr directed the next day. We

disagree and note that the first memorandum speaks for itself. At the end of the first

memorandum, Shea added one paragraph acknowledging certain mitigating factors, which

was wholly inconsistent with the memorandum’s explicit and repeated Guidelines sentence

recommendation.

In short, we believe the first sentencing memorandum shows that as between the

two very different positions of the trial team and FPC Chief, and what Shea discussed with

Barr, Shea in the final moments decided to support the trial team and FPC Chief’s position

and, by changing the recommendation to a sentence within the applicable Guidelines

range (i.e., 87 to 108 months), made the recommendation actually harsher than the

proposed recommendation of 87 months. Although Shea told us that he did not think the

change made a “major difference,” the change increased the Department’s recommended

sentence from 87 months to a sentence of up to 108 months. Whatever the reason for

Shea’s decision—whether he was ultimately persuaded on the merits to support a

Guidelines sentencing recommendation or whether other reasons may have influenced

him—we did not find evidence that his decision was affected by improper political

considerations or influence.

B. We Found No Evidence that Prosecutor 2 Provided False Testimony to the

House Judiciary Committee

We found no evidence that Prosecutor 2 provided false testimony to the House

Judiciary Committee. After reviewing all available information, we found that the events

described in this report demonstrate that, as a result of Prosecutor 1’s description to the

trial team of certain events, and speculative comments made by the FPC Chief, Prosecutor

2 formed a belief that the team was being pressured by DC USAO management—including

Shea, the Principal AUSA, the Criminal Chief, and the FPC Chief—to lower the sentencing

recommendation and make other changes to the sentencing memorandum that were

motivated by political considerations. Although we did not find evidence sufficient to

establish improper political considerations or influence, we found that Prosecutor 2’s belief

that he (and the rest of the trial team) had been pressured to revise the memorandum for

political reasons was not unreasonable given the testimony we received from Prosecutor 2,

Prosecutor 1, the FPC Chief, and Prosecutor 3.

In particular, according to both Prosecutor 1 and Prosecutor 2, Prosecutor 1 shared

with Prosecutor 2 and the rest of the trial team his experiences during Shea’s first week in

office, including that DC USAO management had tried to pressure Prosecutor 1 to make

changes to the memorandum, and his concerns that what was happening was unethical,

based not only upon what Prosecutor 1 observed during meetings with DC USAO

management, but also based on his experience that the DC USAO Fraud and Public

Corruption Section had never before sought a sentence below the Guidelines after a

defendant was convicted at trial. Given that Prosecutor 1 was not only a member of the

trial team but also held a senior role in the Fraud and Public Corruption Section, we believe

In comments Shea’s counsel submitted after reviewing a draft of this report, Shea’s counsel asserted

that the OIG’s finding regarding his leadership is unfair and not supported by the evidence. In particular,

counsel argued that Shea inherited an environment that was immediately hostile to him, including a trial team

that made “baseless” assumptions about his motivations and an FPC Chief who repeated those baseless

assumptions with the trial team as if they were fact. According to Shea’s counsel, it was the FPC Chief’s

statements, not Shea’s leadership, that fueled the environment that led to the trial team giving him an

“ultimatum” to go along with what they wanted or else they would resign. Although we concluded later in this

report that the FPC Chief’s statements about Shea’s motivations and Main Justice pressure added further

complication to an important decision in the case, we concluded that Shea, as Interim U.S. Attorney, bears the

most responsibility for the manner in which the government’s sentencing recommendation in the Stone case

was handled. We believe Shea’s apparent weak command of federal sentencing practice, indecisiveness, and

procrastination only heightened concerns that his motivation for lowering the sentencing recommendation was

political. Later, Shea only had himself to blame for failing to carry out what he and Barr discussed or at least

advising Barr in advance that he had decided to take a different approach, after which Barr decided to file the

second sentencing memorandum.

it would have been natural for Prosecutor 1’s concerns to carry considerable weight with

Prosecutor 2.

Further, we found that the FPC Chief’s speculative comments to the trial team

validated these concerns expressed by Prosecutor 1. With one exception, the FPC Chief

told the OIG that he said or may have said some iteration of the statements Prosecutor 2

described to the House Judiciary Committee. Specifically, the FPC Chief told us that he may

have told trial team members that Stone was being treated differently than every other

defendant, and he said that if he did, he would have made this statement in the context of

agreeing with the trial team that that would be the outcome if the office filed the version of

the memorandum that the Criminal Chief forwarded on Sunday, February 9, incorporating

Shea’s edits. The FPC Chief told us that he believed that he acknowledged to trial team

members that he thought Shea’s desire to lower the sentence was being influenced by

politics, that Shea was “afraid of the President,” and that he (the FPC Chief) may have

agreed with the team that a decision based on politics would be unethical. According to

the FPC Chief, he was trying to validate the concerns that the trial team expressed, as well

as acknowledge his own suspicion that Shea was acting out of fear of then President Trump

and, more particularly, fear of the consequences of not seeking a lower sentence for an

influential friend of then President Trump. The FPC Chief told us that he may have also

conveyed that Shea was under pressure from Main Justice because he had thought

throughout the relevant events that Shea must have been under pressure from Main

Justice officials who wanted a lower sentence recommendation. The FPC Chief told us that

these statements were based in part on his experience in other matters and that he did not

have any actual knowledge as to Shea’s motivations or Main Justice pressure. Even so, we

found that the FPC Chief’s speculative statements validated the concerns Prosecutor 1

shared with Prosecutor 2 and the rest of the team and helped reinforce the belief that

improper political considerations or influence were fueling the efforts to lower the

sentencing recommendation.

The one comment that the FPC Chief unequivocally disputed, which Prosecutor 2

specifically attributed to him, was the allegation that the FPC Chief threatened the trial

team with job loss or otherwise told the team that they could lose their jobs if they did not

go along with what Shea wanted. However, we did not conclude that Prosecutor 2

provided false testimony to the House Judiciary Committee on this issue, or, for that

matter, that the FPC Chief was untruthful to the OIG in his denial, because the people who

participated in the conversation at issue all came away with differing recollections and

interpretations as to what the FPC Chief said. According to the FPC Chief, at most, he may

have asked the trial team: “Why would we put ourselves in a position where, over some

lines in a sentencing memorandum, or [by] not trying to work this out, we’re all going to

quit our jobs? Because that’s where this is headed.” Prosecutor 1 and Prosecutor 3 told us

that they did not recall the FPC Chief specifically stating that the trial team “could lose their

jobs,” as Prosecutor 2 recalled, but both Prosecutor 1 and Prosecutor 3 said they recalled

the FPC Chief saying that jobs were on the line, or words to that effect, during a phone

conversation on February 8, 2020. Prosecutor 1 told us that he understood the FPC Chief

to be conveying that the trial team could lose their jobs or be demoted if they did not go

along with a lower sentencing recommendation, an interpretation similar to Prosecutor 2’s,

while Prosecutor 3 told us that he found the FPC Chief’s statement ambiguous as to whose

jobs were on the line. According to Prosecutor 3, after the trial team’s call with the FPC

Chief, members of the trial team discussed whether the FPC Chief had threatened their

jobs on the call, and at least Prosecutor 3 was not sure what the FPC Chief meant.

ter considering all the available testimony, particularly that Prosecutor 1’s

interpretation of the FPC Chief’s job comment was similar to Prosecutor 2’s, we concluded

that Prosecutor 2 did not provide false testimony to the House Judiciary Committee in

violation of 18 U.S.C. §§ 1621 and 1001.

C. We Found No Evidence that DC USAO Supervisors’ Handling of the First and

Second Sentencing Memoranda Was Affected by Improper Political

Considerations or Influence

During his OIG interview, Prosecutor 2 told us that he identified the Principal AUSA,

Criminal Chief, and the FPC Chief during his testimony before the House Judiciary

Committee to explain, in response to questioning, who were the DC USAO supervisors

(besides Shea) known to Prosecutor 2 to be involved in the sentencing discussions and to

have applied the pressure on the trial team that Prosecutor 2 described to the House

Judiciary Committee. Prosecutor 2 told us that he also identified the FPC Chief because the

FPC Chief made the statements he attributed to DC USAO supervisors in his House

Judiciary Committee testimony; according to Prosecutor 2, he did not have any direct

discussions with the Principal AUSA and the Criminal Chief about Stone’s sentencing and

did not attribute any of the specific statements he heard from supervisors to either of

them.

We found no documentary or testimonial evidence that the actions and decisions of

the Principal AUSA, the Criminal Chief, and the FPC Chief in the preparation and filing of the

first and second sentencing memoranda were affected by improper political considerations

or influence. We therefore concluded that the Principal AUSA, the Criminal Chief, and the

FPC Chief did not violate Department policy or otherwise engage in misconduct in

connection with the Stone sentencing. However, given the sensitivities of the case, we

believe that certain statements the FPC Chief made to the trial team about Shea’s

motivations and Main Justice pressure before the first memorandum was filed—which the

As noted earlier in this report, we were unable to compel testimony from the fourth member of the

government’s trial team, Prosecutor 4, who declined our request for a voluntary interview after he had left the

Department.

During the course of our investigation, and consistent with the OIG’s usual practice, we presented

information concerning Prosecutor 2’s testimony to a U.S. Attorney’s Office for a prosecutive decision. After

reviewing the matter, the USAO advised the OIG that it declined prosecution.

FPC Chief told us he based on his experience in other matters, Stone’s relationship with

then President Trump, and Shea’s relationship with Barr, but not based on any specific

knowledge—were not well considered. For example, as described earlier in this report,

both Prosecutor 1 and Prosecutor 2 told us that, in explaining Shea’s motivations, the FPC

Chief told them that “this is coming from Main Justice.” The FPC Chief told us that he would

not be surprised if he had conveyed to the trial team that Shea was under pressure from

Main Justice because he had thought throughout that Shea must have been “getting pinged

frequently” or otherwise under pressure from Main Justice officials given the amount of

questions and time spent discussing the recommendation. As detailed in the report, we

found no evidence that anyone from the DOJ leadership offices reached out to Shea or the

DC USAO before the filing of the first sentencing memorandum to discuss the Stone case

or give direction. Additionally, Prosecutor 1 and Prosecutor 2 told us that the FPC Chief

told them that Shea was “terrified” or “afraid” of the President. The FPC Chief said that he

would not question having stated that Shea was afraid of the President, even though he

was not aware of specific evidence to that effect. Although the FPC Chief may have had

good intentions in seeking common ground with his trial team, we believe that in the

period leading up to the filing of the first sentencing memorandum, these statements—

which were in fact speculative but made in a form that suggested the FPC Chief possessed

specific knowledge—contributed to an atmosphere of mistrust among those involved in

the discussions, unnecessarily complicating further an important decision in the case. As

noted above, we found that the FPC Chief’s speculative statements helped reinforce

Prosecutor 2’s belief that improper political considerations or influence were fueling the

efforts to lower the sentencing recommendation and became an important basis of

Prosecutor 2’s congressional testimony.

In comments the FPC Chief’s counsel submitted after reviewing a draft of this report,

the FPC Chief’s counsel stated that the FPC Chief’s statements were not entirely speculative

but instead were informed by his experience as a prosecutor in public corruption cases, his

role as “guardian” of the Fraud and Public Corruption Section’s sentencing policy, and the

circumstances of Stone’s relationship to the President and Barr’s appointment of Shea as

Interim U.S. Attorney. The FPC Chief’s counsel also stated that our conclusion about the

FPC Chief’s speculative statements would inappropriately chill future Department

discussions and expressions of concern about the improper politicization of sensitive

cases. Our conclusion is not intended to discourage deliberative conversations in which

concerns about political considerations or influence are raised and considered by

Department personnel. We do not take issue with the trial team or the FPC Chief

discussing concerns that political considerations or influence may have been affecting the

handling of the government’s sentencing memorandum. Further, we do not find that these

concerns were unreasonable given the information known to them at the time, as well as

the information they did not know, such as, for example, that DOJ leadership did not exert

pressure upon Shea or the DC USAO, or otherwise insert itself into the internal DC USAO

discussions about the sentencing memorandum before the first sentencing memorandum

was filed. However, we believe that speculative assumptions by a supervisor that political

considerations or influence are necessarily affecting a matter, and then communicating

such assumptions to subordinates in a manner that could be construed as factual, is not

well considered. We believe this is particularly true where, as here, the supervisor was

acting as a conduit between the decisionmakers and the subordinates such that it would

have been reasonable for the subordinates to believe that the supervisor’s statements

were based in fact, without a statement from the supervisor to the contrary.

VII. Conclusion

Our role in this investigation was not to second guess discretionary judgments by

Department personnel in connection with the positions taken in the government’s first and

second sentencing memorandum, but to determine whether the personnel involved in the

sentencing deliberations complied with Department policy and any applicable law, rules, or

regulations. In determining whether actions and decisions of Department employees were

affected by improper political considerations or influence, we reviewed thousands of pages

of documentary evidence and considered the extensive testimonial evidence we obtained.

After reviewing all such information, the OIG did not find evidence that the actions and

decisions of DOJ leadership or DC USAO officials in the preparation and filing of the first

and second sentencing memoranda in the Roger Stone case were affected by improper

political considerations or influence, in violation of Department policy, or otherwise in

violation of applicable laws, rules, or regulations. We also concluded that Shea’s failures in

leadership prompted the events leading up to the filing of the second sentencing

memorandum.

We further concluded that the evidence did not support a finding that Prosecutor 2

provided false testimony to the House Judiciary Committee on June 24, 2020, when he

alleged that DC USAO supervisors placed improper political pressure on the trial team. We

found that Prosecutor 2’s statements that he (and the rest of the trial team) had been

improperly pressured by DC USAO management and DOJ leadership to be consistent with

Prosecutor 2’s understanding and not unreasonable given the testimony we received from

Prosecutor 2, as well as testimony from Prosecutor 1, the FPC Chief, and Prosecutor 3.

Finally, although we did not take issue with the trial team or the FPC Chief discussing

concerns that political considerations or influence may have been affecting the handling of

the government’s sentencing memorandum, for the reasons described above, we

concluded that the FPC Chief’s speculative statements before the first sentencing

memorandum was filed about Shea’s motivations and Main Justice pressure were not well

considered and unnecessarily further complicated an important decision in the case.