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Regarding the ABA’s Statement on Judicial Independence and Sound Exercise of Prosecutorial Discretion

January 17, 2020

Dear Ms. Martinez: 

Lawyers Defending American Democracy appreciates your statement about judicial independence and the proper exercise of prosecutorial discretion. The statement, however, makes no reference to what apparently prompted its issuance: the President’s attempt to interfere with the sentencing phase of the President’s friend and political supporter, convicted felon, Roger Stone, for his actions promoting the President’s election campaign. 

Your statement and others like it need to identify with precision the cause for concern because many might not otherwise fully understand what is at stake: a threat to America’s basic principle of impartial justice by the President’s call for leniency in the sentencing of Roger Stone. 

There is little question that the President of the United States and his Attorney General are entitled to set general policies with respect to such things as enforcement priorities and punishment in a given class of cases, such as those involving drug dealing, perjury, terrorism or violations of the anti-trust laws. It is quite something else, however, for the President to single out a given criminal case and attempt to affect its outcome, especially to benefit a friend and political supporter, as here, or to harm a perceived political enemy. This is a huge threat to the principles of impartiality and evenhandedness, which are essential to our system of justice. Interference here was particularly indefensible because the original sentencing recommendation, which the Attorney General overrode, was strictly within the applicable sentencing guidelines. 

Lawyers Defending American Democracy is a group of more than 1,000 lawyers, judges and legal scholars from around the country who believe that forthright acknowledgement of the crisis America faces requires an acknowledgement of the circumstances constituting the crisis. Facts matter as much as principles. As Oliver Wendell Holmes observed, the life of the law is experience. 

We, therefore, urge you to amplify your statement of general principles by identifying the factual basis for its promulgation and clearly explaining the harms, so that the American people can better grasp what is happening and why it really matters. 

Signed:
Scott Harshbarger, Chairman – Former National President of Common Cause and two-term Attorney General of Massachusetts

Charles Baron – Emeritus Professor Boston College Law School; Westport Point, MA

Robert Dell – Retired Attorney

Fernande (Nan) R.V. Duffly– Former Justice of the Massachusetts Supreme Judicial Court

Ivan Espinoza-Madrigal – Executive Director, Lawyers for Civil Rights

Evan Falchuk – Former independent gubernatorial candidate for Massachusetts and founder of the United Independent Party

Nicholas Fels – Retired partner, Covington & Burling LLP

Eugene Fidell– Counsel at Feldesman Tucker Leifer Fidell LLP, Washington, DC, and Florence Rogatz Visiting Lecturer at Yale Law School

Ruth Ellen Fitch – Retired partner, Palmer & Dodge; retired President/CEO The Dimock Health Center

Carmen F. Francella – Boston, MA

Charles Fried – Former United States Solicitor General in the Reagan Administration, 1985-89*

Fred M. Lowenfels – General Counsel Emeritus at Trammo, Inc., New York

Stanley Marcuss – Former Counsel to the U.S. Senate’s International Finance Subcommittee; former Senior Deputy Assistant Secretary in the U.S. Commerce Department; former partner, Milbank, Tweed, Hadley & McCloy; former Senior Fellow at Harvard’s Kennedy School; retired partner, Bryan Cave Leighton

James F. McHugh – Former Associate Justice, Massachusetts Appeals Court

Thomas Mela – Former Director of the Children’s Law Support Project; former General Counsel for the Massachusetts Office for Children and Chief Attorney for the New England Office of the U.S. Department of Education Office for Civil Rights; Newbury, MA

John T. Montgomery – Ropes & Gray, former managing partner (retired)

Gershon M. (Gary) Ratner – Founder and Executive Director, Citizens for Effective Schools; former Associate General Counsel for Litigation, U.S. Dep’t of Housing & Urban Development

Emanuel L. Rouvelas – Washington, DC

Lois Schiffer – Former Assistant Attorney General, Environment and Natural Resources Division, US Department of Justice and former General Counsel, NOAA

Laurence H. Tribe – Carl M. Loeb University Professor of Constitutional Law, Harvard Law School*

Lisa Weissler – Retired Assistant Attorney General of Alaska

Lucien Wulsin – Founder and retired Executive Director, Insure the Uninsured Project (ITUP). Los Angeles, CA

*supporter and signer of the attached; not an official Steering Committee member