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safe, loving family, welcome to the Mccarthy report, Were I rich Larry discuss with any Mccarthy the latest easy nonsense to come up with. radar screen in the wake of impeachment this week. What else the Roger Stone Sentencing fiasco nay to a national view. Podcast you'll see the pot gas NASH. You do that, com are to have you be? They are few benefits, though he made us part of you feed at any the streaming services out there from Google play Spotify Itunes, please give this part cast an end Currently, the glowing indeed gushing five our views they deserve on Itunes and now without further ado. I welcome live here. In the end, our podcast studio at era,

as world headquarters in bustling New York City, none other than any Mccarthy Ritual, yeah good any. How are you feeling the gosh? It's great gushing before I came in here are some some folks are feeling the gush our reply considers quartered not that the hallways by reporters asking what they think of Roger Stone and that this sentencing reversal. so we are definitely in the pitched postponement environment. Now, where would have free impeachment our backing the free of yes right, the eventually for me, no ukrainian name, snow ukrainian oligarchs and need to learn about, but it is complicated to amateurs, written note a great call about it adds NASH review dot com, so, let's dive in Engulf sir from the beginning to the answer. We we get this,

I guess what story saw three days all but already feels like ancient history saw a Monday. I guess we get the sentencing recommendation from these prosecutors, seventy nine years, which sounds excessive. Are you you believe it is excessive? But technically, in keeping with the the guidelines of how you calculate this stuff, so just start with with that initial recommendation. How outline was it? was it out a line where did they get it from? It was in line a literal, correct interpretation of the federal sentencing guidelines. I think The best way to understand this, because I'm ve been argued that this is much ado about. Nothing is to explain what is actually

stay here, and that requires a little bit of background on four. How federal sensing works so in most in all federal crimes. When you violate a crime, you violate a statute, so, let's take say the federal robbery statute, simple federal robbery has a statutory exposure of your convicted of zero to twenty years exposure and what people got upset about, particularly academics in the second poured out on this legitimate concern. Was the scope of statutory penalty was so vast that what you had was p. who were similarly situated. Committee essentially the same wrong, and you would get something close to twenty years or something close to zero, depending on who the judge was so in order to try to bring some can't

transparency to why people get sentenced to what they get sentenced to and to promote unit formerly in sentencing across the country. The Congress enacted. The federal sentencing guidelines and I think they inactive him in nineteen. Eighty four, they went into effect in the late eightys and the idea is they take the two things that are most essential about every crime, which is the offence behaviour and the offenders characteristics mainly criminal history, and they plot them out on a grid and along

horizontal line. You have the criminal history categories which run from one hundred and twenty six along the vertical access you have, the offender or the offense conduct characteristics the different facets of it and that that's a numerical grade that runs from one hundred and two something over. My can't remember what the the high number is and within the offense characteristics offender character easy enough, because their bid their basically a function of what the person's criminal history is. If you have, if you have a lot of prior convictions, your closer to category six, which is the worst category first offenders in category one. So that's easy enough. Offender cat offence characteristics a different because every offence, every statutory offence itself will have a dick

base level? You know, you start with robbery, and then you ask, is it armed robbery? Was anyone heard? Was there a weapon involve, etc? So each each crime gets a numerical value and then there are enhanced or reductions, depending on the circumstances of the offence, so one enhancement, the one we're gonna talk about with respect to Roger Stone, is whether somebody got physically threatened that can up your sense. On the other hand, if you plead guilty and accept responsibility for your crime, that's a to point b, action, so any did they take all the enhancements and reductions and safer for robbery which has a base offence level of about twenty, let's say it

an armed robbery. They might add five points for, if you brandish again during the robbery which get you to twenty five. Let's say you plead guilty and accept responsibility that gets down to twenty three, if it's your second a fancy or in category two, and that comes out to roughly something like you know, fifty four to seventy one month or something like that. So that's how it works. If you plot it right out on the grid nut, and that gives you your sentence formula now. The important thing to remember about this is the Supreme Court has held that these I'd lines which were originally meant to be mandatory are just advisory as far as the court is concerned, so they do not find the judge and in Roger Stone CASE in particular, he has seven counts of conviction

Yes, convergent, various charges that all arise out of obstruction, most of them alike, lie to Congress does an overarching obstruction charge and then there's the thing that drive these guidelines here, which is witness tampering. So the if you count up all of the statutory affair, it is, none of them has a mandatory minimum. So if the court's stacked, all of them, the minimum sentence he could get would be zero. The maximum sentence he could get would be fifty years and the judge has the discretion to sentence him to any within that damn every time somebody gets convicted in federal court, the United States attorney's office, which represents the government, the defense lawyer and the? U dot S probation department, all prepare pre sentence, submissions for the judge and all of the

submissions have to address the sentencing guidelines, because even though judges are not bound by them, most judges, I think overwhelmingly. leave in the over riding purpose of the guidelines, which is to promote uniformity. Everybody thinks uniformities is important as they should so the judges pay attention to the guidelines recommendations, but they not bound by them and what that, even though, a government

sentencing submission can be very argumentative in terms of trying to stress to the court. Whatever the underlying evils of the offence were, the application of the guidelines tends to be a pretty dry straightforward exercise. Yet these are the values, and this is how you plug a man and and so on. So here's what the Roger Stone thing comes down to the dispute here. What it comes down to is an enhancement that is in the sentencing guidelines for witness tampering cases involving cases where the victim was threatened with physical harm, and there is no doubt that Roger Stone threatened Randy protocol, this left wing radio host who was involved in this caper, there's no doubt that he threatened them. I think he said you know: I'm gonna kill you, I'm gonna kidnap your dog, and this is when Roger,

Roger is of real, the dog first yeah nap credit go then move from then came, and this was like between talking about you know: do a Frankie pen tangibly now we're like dating ourselves Does anyone even now? I guess all the godfather found advance out there. They observe many Vienna hoop Frankie five angels is right. Watergate that was the other thing started spirit of Watergate remembered Nixon, her whatever was it, he thought he said, but you know he says, he's crazy person. And he such an einstein that he actually did these threats on text so naturally took the jury. seventeen seconds taken victim of these seven charges right? So the issue comes down to what is the effect. As far as the sentencing guidelines is concerned, of this threat to credit go in these cock, a Mamie text, messages and cut and credit go testifies at the trial and also makes a submission to the court on

stones. Behalf in connection with sentencing, saying ya know what Roger said, but I never took it seriously. I never felt intimidated. You know that it's right, I was safe. I hope seconds. That's right! Right, Frankie five angels, is safely bury wreck. So the the prosecutors handle the case, who are mainly more staff, hold overs. When more hold up his shop, one of the last thing smaller dead before returning or knowing the Mulder report was to indict Roger Stone. I think that happened in February of twenty nineteen, so is like one of his last official act and after that happen, as he closed shop down it all the pending matters that they had got assigned out to. U S: attorneys offices, in the? U S, attorney's office for the District of Columbia got the stone case, as did that

I got the flint case as well, so the case is being run. I leave us attorney's office for the District of Columbia, it's really being run by the Mahler prosecutors who were on the team. And the claim here is that the Justice Department has second guessed the prosecutors in terms of what their sentencing recommendation was

And in a nutshell, if you apply this guideline for threatening harm its an eight point which had sentencing guidelines terms is significant. It's an eight point, enhancement to the sentencing level and what it means, in effect, is under the guidelines. Without the enhancement, the sentence would be thirty, seven to forty six months with the enhancement, the sentences. Ninety two one hundred and eight months, and the reason that that such a severe jump it's more than yet more than double what the what the lower end is is because this enhancement, even the literally as its written in the it applies to this case, the offender that guy

lines commission had in mine, was like some one connected to organised crime or gang so that if you made that threat, it was intimidating right in and of itself. without without even being acted on it. So yeah, here's the the issue. No one can save a no. No one can credibly say that these prosecutors just completely made something up. They didn't they actually faithfully literally applied the guidelines. Now they did it the way that was completely consistent with their approach to Roger Stone, beginning with the time that they d him, which is to treat a guy who choose a moron right as if he was also a been lotta rolling up the armoured vehicles or whatever it was when I miss Pollyanna, yes and

So many federal cars outside that CNN almost couldn't find a place to park. It was terrible, and then you have the Justice Department under BAR, on the other hand, whose now let it let's look at what is being said about the Justice Department. They say the basically, they do in the president's dirty work and he's using the Justice Department as a political tool if he is he's doing a crappy job of it, because the president wants the Roger Stone case too, appear. The justice department is not disappearing, the stone case. What they're saying is this? Sixty seven year old man in failing health, whose crimes real didn't have any impact didn't actually obstruct the investigation whose witness hampering wasn't serious, even by the testimony of the victim himself that he merits something around food

for three to four years in prison, rather than seven to nine years in prison, but rich it jack I'll, finish this and then I'll sup gasping and put that thing that people need to understand about this is it's all advisor it doesn't bind the judge in any way. Number one and number to the judge. lots of ways of knowing what the sentencing guide and calculation is in this case. So that's not like by superseding the first recommendation. They heavy the bound the judge to do something or told the judge something new that the judge us now the judge in depth

and of the. U S: attorney is getting a neutral. The probation department essentially works for the court. They are getting a probation department, analysis that tells the judge here's what the sentencing guidelines say. So, yes, I think it's much ado about, not oh, so it's stick with this initial decision. So is contested right with certain reporting that there is an argument at the Justice Department, Queen the officials, whether this should be the recommendation, rather box or not correct yes, so what we ve heard and reporting is that the acting? U S attorney. Who is who started on the job on January thirtieth guy now TIM Shea, who was a long time. He was an adviser to bar and bore was first attorney general in the early nineties. Nineties sees like it.

Capitol Hill hand litigator at a big Washington, firm, Sarah accomplished guy. He, and Rosen, who is the deputy attorney general, are said to have had a problem with the seven to nine year recommendation by the four prosecutors in the case, but it looks like it. These things that was a real management failure. It's like, if you called me and said she. I M, really kind of uncomfortable with this argument that you have made. You should really think about that. But you don't tell me to change it. Will you don't tell me to take it out or you don't tell you just so to leave it out there and Need to cycle back- and I say well I like this argument. I think it meant you know, and maybe riches having a bad day, and I believe it in and for some we get a past ever ready to resign and goes out.

The way I wanted it. And then, after its published, you decide. I told him. I didn't like that argument, but you have to say I didn't tell me, couldn't make it. So I think this is the kind of then I don't mean to suggested that we have management failure rich. I'm sorry about the three sorry on visa to learn, but the young is somehow most things get published at national, but a pair Lay these guys may have indicated to the prosecutors that they were uncomfortable and and thought that objectively or is absurd. do as they could be that nine years was but an over. We had he soon. Then it is that a normal given take yes, my prosecutors and under supervisors. Ok, that's that's good cause Two horses, too lenient, rightlier, shoot emphasising this earth and in this case the fact that the Justice Department is involved, which is

One of the things that a number of people are looking at an complaining about it. You know I I need to remain, people that number one. This started out as a special council prosecution. The the Trump Justice Department has never wanted to get too deeply involved in Malta cases and in this instance, so that that means that the special council to begin with reports to the after the attorney general and the attorney general. So it is not well that unusual that- and in this case the typically given its national prominence, even though its importance is something else for the Justice Department to be aware this, after all, the Justice Department, gonna, get hammered Anyone gets hammered by the way these cases get handled one way or the other. So I don't think it's unfair for the Justice Department either be told about it or to have input. and in this instance the disk

of Colombia. U S, attorney's office, is in a state of flux, because president try, had nominated Jesse LEO. Who was the? U S, attorney, to take a high ranking job at the Treasury Department and, as a result, she had kind of one foot out the door while all of Sentencing stuff was being prepared in the new EU. Us attorney. Shea only was in the office for ten or eleven days. At the time the thing got guts file, so you have an office. That's in a state of flux. You have a case that that the Justice Department would be involved in any way, and I think that's why they have therein. So how unprecedented is because this a lot further than just Barman, to go back and come up with a new sensing recommendation, gotta lotta critics of this say I've never heard of such a thing. This is

this is our rageous I'd. Think rich, that it it's it's unprecedented because of the if it is unprecedented and probably only has a handful of exit exceptions, but its mainly because this is a special council case, which the Justice Department has a kind of a funky relationship to, because you're only supposed to have a special council if there's a conflict to begin with, so everybody's happy about it. But if the question is change, two is just the kind of thing that goes on the prosecutor's office, all the time where there's internal debate in the office about a what the law is in terms of how did the regular or the guidelines apply and be if we're literally right about that, is this affair prosecution that is does its? Does it dumb? Does it meet with the general purposes of federal sentencing are

so the narrow dispute between the Justice Department in these prosecutors. If we could do if we could strain off politics out of it, I mean what happened here. Is We are fully the sausage get made, but it the sausage gets made all the time. You just don't say it. That's why the narrow dispute is nobody, including the Justice Department in it advised submission denies that this enhancement literally applies to this case. The prosecutors that stone was a really bad guy and This literally applies, therefore, he should be stuck with it. The Justice Department says that in every case, aside from the literal application of the guidelines, you always have to look at whether the guidelines sentence is just under the circumstances, which means sometimes you recommend to the court that there be an upward departure, meaning the guidelines as they come out. Don't work

like the seriousness of the offence, and sometimes s or a downward departure for the for the opposite reason and what they said is in this instance, given that the the guy's asian state of health, given that the victim didn't take it seriously, given that we have a bunch of case law that about what this application, or this enhancement applies to and given that, most obstruction cases, including obstruction cases in the more investigation we only about sentences and in the range of like between six and thirty months, and now we're saying hundred eight months for this guy, that the Justice Department thought that that was objectively ad aware. But understand they are now saying that stone is guilty that the court shouldn't. Give him any sentence time. What they are saying is that instead of nine years, it should before your dress. So now,

What do we know about Ag Barr's involvement and the decision to come out the new sentencing guidelines, because you had Trump no pounding way out on this on on twitter and and one of these tweets a day or two ago said you know congrats, I'm so glad the attorney general's taken responsibility for this case it's his travesty excetera is that You know, I think we could probably assume- and we won't know until Bore- testifies to a blue. I guess we'll talk about that. All that borrowing to testify next month, so we'll get. You will get the nuts and bolts Andrea. What actually happened here But just so people know how the chain of command works in the Justice Department. The ninety four United States attorneys throughout the United States, their direct report. They report directly to the deputy attorney general and he

was the Justice Department Day to day. The attorney general makes the yellow main decisions, but doesn't do the day to day monitoring of things in general. You obviously can get involved day to day, and I think he wants to get and but so I would assume that what happened here was that the law, boring or was the deputy attorney general rose and income junction with Shea, who was somebody who bore has a good relationship to begin with, and that one, The decision was made to revise the submission bar would have had to sign off so I am sure he wasn't like involved. I be surprised if he was involved in the nuts and bolts of the first review, but I'm sure that before they decided we're gonna take the controversial step of telling this judge

that we don't stand behind that submission and we're gonna make another right by Sundown, I'm sure he had to have been involved in them and then what about trumps, raw and just the appropriateness of his commentary on this chaos? It I'm sorry and appropriateness of his commentary on ongoing commentary, and this case inveighing against it yeah. I I think it's inappropriate now we ve talked about this in a number of other contacts, and I've been broken record about the fact that the president should comment on pending cases we had like- probably five or six of them over time, that we ve talked about appropriate,

which is exactly the right question to ask, is unfortunately very freighted word in this context, so that yet again, constitutional law, one or one right all executive power under our constitution is reposed in one single official, the president, so all prosecutor, real power is executive. The president is the executive and you can't say that it is that the president can weigh in on price fusion course prosecution is undertaken under his power. Now the reality is if the criminal, just system is going to have legitimacy. It has to be accepted by the public as legitimate. The only when that happens is if the public believes the rule of law. Not the fiasco of the chief executive is what calls the tune

we don't want people indicted on the basis what the president thanks, we want in evidence, driven law driven system. So when the president comments on pending cases, it deals legitimizes the system, even if he has the power to do it, and I think it should, excited because it even undermines the president's own objectives in terms of the criminal justice system, and and what I mean by that? No more concrete way is take the Thee, Durham investigation which were all on

Their hopes waiting for what's gonna happen with that. If the president conducts the law enforcement system in a way that convinces the public that what's relevant, is the president's political determinations of who ought to be prosecuted and Anne who shouldn't as opposed to what professional law enforcement people think, is admissible evidence in court in what they have sufficient evidence to prove in a trial, neither the case nor the system will have any credibility. So if the president really wants the dorm investigation to achieve something in the end, whether it's just accountability terms of. We now know everything that happened in a credible way or the possibility that people get charged with crimes that in

astrogation is not going to be accepted as a good faith law enforcement exercise if people think that its being driven by politics and that's the problem, so what you make the critique folks, a LA fair or making us the other day, the obviously serious distortion of system. The distortion you be most worried about is trying to leverage investigations against your opponents. The way he did in Ukraine and then trying to making sure the justice system goes easy on your friends. The way is here, so these things are of of peace and and go to how he is, is shaping the entire system to malign and corrupt ends. While I think it's nothing to be concerned about, but what I

where I part company with the law, fair guys, many of whom I have a lot of respect for, even though I think that become much more political than the last three years. The name previously were you know Barack Obama, eviscerate the Hillary Clinton case, she made it in part. He made it impossible to bring the case the fact that they ultimately didn't charge. Her is proof of thing because they put so many inhibitions on the Justice Department, investigation of it, and that was after the president publicly announced that he didn't want or charged flesh forward three years billboard, arguably acting. Let's say he was acting on the present. I don't think he was

acting, they say they didn't communicate, and I take them at their word that they want. But let's say he did. Billboard took a case. The president wants to disappear and gave a recommendation to a judge that instead of nine years in custody, us aging sixty seven year old man and ill health should get four years or about for years in jail. The case is not going away. If the case is gonna, go away, Trump has to issue a pardon which Obama never did, because the Justice Department did, in the Hillary Clinton case exactly what the law fair guys say that they are worried about Trump doing that is the president made it clear that he didn't want somebody prosecuted and that somebody didn't get prosecuted. So do I think this stuff is bad yeah. I think it's really bad and I think he should stop accepted like a million times. I would oddly enough, the president doesn't listen

listen to our pod gas. It's an excellent podcast, but you know, let's have some perspective right. Let's not act like trumpet persons do this now, he's doing it in a way that never seen done before and he doesn't have any compunction about it and I think ultimately, where it's really gonna bite is is in connection with something he cares about. In fact, I would argue that that's already happened the notorious case that that I'm thinking of is among the young. the disaster in the Taliban case. Walker know now argument about right, Borg, Dahlberg, where when he was when he was prosecuted, the judge essentially gave him a slap on the wrist and the reason that happen is because there was a command

thirty issue. In the case, because Trump had talked about the case and talked about, Burma dawn. How awful we was an ass. result. The judge, the military judge, felt like a basically had a walk, the guy in order to demonstrate that the case hadn't been prejudice, I trumps running commentary about it, so you have a guy who should have gotten more time and didn't get one because of the president's commentary. I'm worried that that could happen in connection with the the jihadist who ran up on the street in lower Manhattan. Remember, that's a hold. This halted in that case about the death penalty. While you know when the president goes out and campaigns for the death penalty, it undermine

the integrity of the Justice Department process by which they decide whether to seek the death penalty or not so, there's a million ways that his commentary herds pending cases. He should stop and I think he's undermining the cases he cares about. So let's talk a little bit about bars pending testimony, so he is agreed. up? It's been awhile, Wyatt, wise, it's been awhile and what we expect well, it's been awhile because there was a big dispute post, the more investigation about bores, not turning over too, The house, the grand jury material in Moors Investigation, which, under the statute is no exception to give the material to Congress that's now being litigated in the DC circuit. There's a district court decision that says the Congress should get the information and now that case is going to be decided by the day,

he circuit. So there were lot back. Then there are a lot of threats that were made, including threats to hold boring contempt, and it had got so heated and so political in connection with thumb, with the Mulder report that I think that bar thought that it really didn't advanced the ball to show up and testify, although I think he would have if Congress head subpoenaed him or had otherwise. You know made a serious case the why he needed to come up and appear. I think you're pretty quickly decided to take this invitation yesterday and he did it under circumstances where this controversy over stone has blown up. So I think that's a good sign an I think its March thirty first, if I remember it is, is one he supposed to be up there.

And what? What what kind of stuff you gonna get? Well, it clearly they're gonna go through the, so this Roger Stone, stuff and depending you know, I think, by March thirty. First, we should have a a decision from the from the DC circuit on the on the more material. So the next question will be depending on how that comes out whether the case goes to the Supreme Court or whether, if the Justice Department gets ruled against, I just comply and then there been a number of other controversies that have come up. You know, over the months in particular bars name came up in a number of contexts:

the Ukraine investigation. I am even though you and I tried to put this to bed last week rich. I am unfortunately, of mine that we haven't heard the laughter of that, so I think it probably most controversially, especially if they continue to be interested in boltons testimony which I think they are is the reported revelation again. We need to understand where we haven't seen Bolton's book yet wheat. This is reporting. We don't know if it's true that Bolton hadda discuss with bar in which bar supposedly expressed reservations or nervousness about the president's dealing with thus some autocratic.

governments. Turkey, I think, was one of them. I can't remember what the other one was: maybe China I'll maybe North Korea, maybe all of them, so I think they're going to want to ask the one to ask bar about that. They will want to ask for when he first learned about the Ukraine. You know the discussion between Zelensky and Trump, because I think the truth of this From what we heard from the Justice Department is that bar didn't know about the conversation until it got reported and that even though Trump mentioned him to Zalewski, he had never discussed Ukraine with the President end

had the fertility for him that there was so much on his plate when he came on board that he hadn t had any occasion to deal with Ukraine stuff that might might be of interest to the Justice Department which, by the way for people who are you, I think forest I too, to put some distance between himself and Durham Investigation, but I'm sure he's been briefed on it from time to time. certainly would be. If I were attorney general, I want to know in the big investigations and in my department what was going on in them. But the fact that bar didn't have Ukraine on the front of the brain probably is an indication that Ukraine hasn't been very prominent in dorms investigation for what that's worth. But I think that want to ask him about that, and I think rich though. Want to ask him about the withholding of the money, like did the justice Department? What what's the deal

just apartments evaluation of what that all means, including the GEO report that claims that it violated a statute and there's other aspects too. Like the whistle blower, I think what you know they want. They want to ask about how the Justice Department handled the whistle blowing. I bet bar is anxious to talk about this, because but one day, the whistle blower statute, I'm sure, he'll, make clear- does not apply to this particular person and what Ship has said again and again, which is that the Justice Department looked at this and gave them a clean bill of health. Is simply not I think what bar would say is the Justice Department looked at this in terms of did the conversation itself suggests a violation of the campaign financed laws and entirely consistent,

we will, though, the lengthy discussion of it in the year of campaign finance law in the mall report, the Justice Department thought no there's no campaign finance violation there, but that's not a clean bill of health. That just means there's no group in fine as violation. Ok, that's all the time we have this week. This international, you pod Cassis pot, guess it introduced by the incomparable, sir shooting thanks everyone for listening and thank you any Mccarthy thank Rich