Riot Act

If we needed even more evidence of the Trump administration’s contempt for the courts, we got it last week.

On Wednesday, the Justice Department airbrushed essential facts from a memo recommending a sentence for January 6, 2021, rioter Taylor Taranto – and put the memo’s authors on ice. Taranto, like all Capitol attackers, received the president’s clemency for his transgressions that day but was found guilty two years later of showing up near former President Barack Obama’s home with a couple of guns and a ton of ammunition – after Trump posted Obama’s address online.

In the memo, two prosecutors recommended a stiff sentence – 27 months in prison – for Taranto, arguing that his zeal among “a mob of rioters” and promotion of conspiracy theories about the attack showed the gun conviction should be “viewed with the backdrop of political violence in mind.” His protests, in other words, made plain what he planned for Obama.

It is a sin in Trump world to cast the Capitol attack in a negative light, however, so the DOJ put the prosecutors on leave, withdrew the sentencing memo, and filed a new one that stayed mum about January 6 – or Trump’s posting of Obama’s address.

Now, the bounced prosecutors surely deserve our sympathy, the feckless Justice Department our outrage, and the White House our ridicule for pretending a Trump-inspired insurrection never happened. But our fears should arise from the damage this behavior, this disregard for the facts and truth, inflicts on the courts and their ability to do justice.

Ask most any federal judge what the hardest part of the job is, and he or she will say sentencing. “It is the most important event in a [convicted] man’s life,” Judge Jed Rakoff in New York has told me, “and it should be one of the most important events in your life because you’re determining this person’s entire future.”

In 1987, the weight of that task and the risk of getting it wrong helped lead to the federal sentencing guidelines, mandatory formulas for ensuring that like criminals committing the same crimes would get similar punishments. In a way, the guidelines made sentencing easier – feed the facts into the formula and a sentence pops out – but failed to account for the obvious differences in people. Judges could no longer tailor punishments to the individuals before them, and they rebelled, prompting the Supreme Court in 2005 to make the guidelines nonbinding.

With federal criminal laws growing in number and complexity, sentencing became even more challenging – and creative. In 2006, Rakoff knocked down to 42 months a sentence that, under the guidelines, would have meant life in prison for a minor participant in a financial fraud. In 2015, Judge Carlton Reeves in Mississippi prefaced the sentencing of three teenagers convicted of a horrific, racially fueled murder with a long and extraordinarily moving lesson, speaking as if he were a stern father about how “a toxic mix of alcohol, foolishness, and unadulterated hatred caused these young people to resurrect a nightmarish specter of lynchings and lynch mobs from the Mississippi we long to forget.” From 2017 to 2022, Judge Martha Vazquez in New Mexico, determined not to “throw away” the life of a drug addict struggling to recover, tried three times to sentence a bank robber to five years in prison and intense rehab rather than the mandatory 15 years – and was reversed by an appeals court three times before the Supreme Court finally agreed with her reading of the law.

These judges and countless others have labored to learn what makes the criminals before them tick, to delve into their lives and see them as humans with vastly different experiences before condemning them to prison. Many of the criminals deserve harsh punishment. Others do not. But the best judges, the judges kept awake at night as they seek to tell the difference, gather as much information as they can about every life in their hands.

In that task, they get help from lots of sources. An important one is the pre-sentence report, a document that summarizes a federal probation officer’s investigation into a defendant’s background. Another is sentencing memos – one each from the defendant and the government. When one of those sources omits essential facts, leaves out, say, a defendant’s background of violence against political figures, judges are being deprived of what they need to make a just decision. When a sentencing memo first includes those facts and then scrubs them from a revised version, the judge is being treated with contempt.

It may have made little difference in Taranto’s case. Judge Carl Nichols knew of the DOJ’s shenanigans – he called the revised memo “extremely late breaking” and said he would unseal the original one – and both memos called for the same 27-month sentence. Nichols even gave Taranto a break, sentencing him to 21 months in prison, essentially time served.

The debacle, though, makes clear that prosecutors in this Justice Department will knuckle under to a ham-handed White House, even lie for it, despite the damage done to the rule of law. That’s not news: They lied to judges and ignored court orders in the several cases involving deportation of Venezuelan immigrants. What’s different this time, though, is how blatant and laughable the prosecutors’ behavior was. It’s evidence of this administration’s venality, but also of something more – a willingness to play judges and the rest of us for fools.