House Judiciary Committee Democrats will try to spotlight what they say is the improper politicization of Attorney General Bill Barr’s Justice Department at a hearing Wednesday.
Two current Justice Department prosecutors whom Democrats have characterized as “whistleblowers” will appear to testify. One is Aaron Zelinsky, who worked for special counsel Robert Mueller’s team and developed a reputation as a tenacious prosecutor. Zelinsky plans to testify about interference with the sentencing of longtime Trump adviser Roger Stone — a spectacle that unfolded in public view earlier this year.
“What I heard — repeatedly — was that Roger Stone was being treated differently from any other defendant because of his relationship to the President,” Zelinsky plans to say, according to his impassioned opening statement.
John Elias, a prosecutor in the Justice Department’s antitrust division, will also testify. Elias plans to say that, under Barr, the antitrust division launched inappropriate investigations of mergers in the marijuana industry. He will also testify that the division started investigating a deal between car companies and the state of California on fuel emissions shortly after President Trump tweeted complaints about the deal.
Donald Ayer, a former deputy attorney general from the George H.W. Bush Administration, will also testify. Ayer called for Barr’s resignation in an article in The Atlantic earlier this year.
A witness invited by committee Republicans — former Attorney General Michael Mukasey — will also testify. He will likely attempt to argue that the Trump Justice Department’s actions are not so unusual. The hearing began shortly after noon Eastern, and a livestream is embedded below.
What Zelinsky’s testimony tells us
Roger Stone, a longtime political adviser to Donald Trump, was indicted by special counsel Robert Mueller’s team on seven counts of obstruction, making false statements, and witness tampering. The charges related to Stone’s alleged efforts to hide the truth about his efforts to contact WikiLeaks during the 2016 presidential campaign from congressional investigators. (Witness testimony and email evidence showed Stone attempting to get in contact with Julian Assange about potential email releases that could harm the Clinton campaign, but whether Stone had any success here remains murky.)
Stone was convicted at a trial last November on all counts, and in February, the US Attorney’s Office for the District of Columbia, then led by Timothy Shea, had to recommend a sentence for him.
The first step in that process is to calculate the range of time Stone’s offenses would merit according to the federal sentencing guidelines. After that, prosecutors can recommend a more specific sentence, though none of this is binding on the judge, who actually gets to make a decision.
In any case, Zelinsky’s team drafted a memo making the sentencing guidelines calculations. But, Zelinsky’s statement reads, “just two days later, I learned that our team was being pressured by the leadership of the U.S. Attorney’s Office” to change those calculations — with the goal of having a lower guidelines sentence range for Stone.
“We were told by a supervisor that the US Attorney had political reasons for his instructions, which our supervisor agreed was unethical and wrong,” Zelinsky says. “However, we were instructed that we should go along with the U.S. Attorney’s instructions, because this case was ‘not the hill worth dying on’ and that we could ‘lose our jobs’ if we did not toe the line.”
Zelinsky’s team refused to make the changes, though. After Zelinsky threatened to withdraw from the case, his supervisors then approved his initial sentencing memo, and it was submitted. But then Trump tweeted furiously about this alleged “miscarriage of justice,” and Barr decided that the US attorney’s office had to submit a new memo with a lower guidelines sentence calculation. The office did so — leading Zelinsky and the three other prosecutors on his team to withdraw from the case (with one resigning from the Justice Department entirely).
“The Department of Justice treated Roger Stone differently and more leniently in ways that are virtually, if not entirely, unprecedented,” Zelinsky will say. He adds that he was told by his supervisors that Shea “was receiving heavy pressure from the highest levels of the Department of Justice to cut Stone a break,” that the sentencing instructions “were based on political considerations,” and that Shea was “afraid of the President.”
As for Stone himself, Judge Amy Berman Jackson ended up sentencing him to three years and four months in prison. But many have wondered whether he’d end up serving any time — President Trump recently quote-tweeted a message calling for Stone’s pardon, and wrote that Stone “can sleep well at night!”
Still, no pardon has yet materialized, and the date Stone must surrender to federal custody — June 30 — is fast approaching. This Tuesday, however, Stone’s lawyers filed a motion asking to delay his surrender date, due to Covid-19 concerns. Jackson has not yet ruled on that motion.
Another witness will testify about politicized antitrust investigations
The hearing will also feature testimony from Justice Department antitrust prosecutor John Elias, who, according to his prepared opening statement, will say he is appearing in a “whistleblower” capacity.
“Based on what I have seen, and what my colleagues saw and described to me, I was concerned enough to report certain antitrust investigations launched under Attorney General Barr to the Department of Justice Inspector General,” Elias will say. “I asked him to investigate whether these matters constituted an abuse of authority, a gross waste of funds, and gross mismanagement.”
Elias will focus on two topics. First, he says, since Barr took office as attorney general, the antitrust division has gotten very interested in investigating mergers in the cannabis industry — nearly a third of all full merger investigations in the 2019 fiscal year were cannabis-related, Elias will say.
However, these “were not bona fide antitrust investigations.” He says that the head of the antitrust division, Assistant Attorney General Makan Delrahim, admitted in a meeting that these investigations “were motivated by the fact that the cannabis industry is unpopular ‘on the fifth floor’” of the department — where Barr’s offices are. “Personal dislike of the industry is not a proper basis upon which to ground an antitrust investigation,” Elias says.
Second, Elias will testify about an antitrust investigation into an agreement between California state regulators and four auto companies about emissions standards. President Trump was greatly annoyed by this agreement, and sent tweets criticizing it on August 21, 2019.
“The day after the tweets, Antitrust Division political leadership instructed staff to initiate an investigation that day,” Elias will say. The investigation stretched on several months, went nowhere, and was eventually closed.
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