In the past year, we have seen the Department of Justice (DOJ), under the direction of Attorney General William Barr, present arguments in several cases that implicate the conduct of either President Donald Trump or his close advisors. In this article, we consider certain positions taken by DOJ in cases involving Roger Stone, Michael Flynn and the subpoenas duces tecum issued by the New York District Attorney's Office in connection with its investigation into the Trump Organization. In each instance, DOJ has taken positions that diverge from the positions usually taken by DOJ prosecutors in ordinary criminal prosecutions.

This has led to understandable criticism: Why should DOJ treat President Trump or his advisors differently than other defendants are treated? Equal justice under law is the highest value of our legal system, and no one should receive preferential treatment because they are friends with the president. This is why bar associations and former prosecutors have spoken out against these steps. Rather than insist that the president's associates be treated more harshly, we offer this modest proposal: Remedy the unequal treatment by affording to all criminal defendants the same consideration accorded to Stone, Flynn and the Trump Organization. Defense lawyers should cite to DOJ's positions in these three cases and ask courts to give ordinary defendants the same treatment.

'United States v. Roger Stone'

Roger Stone, a longtime Republican operative and a friend and advisor of President Trump, was convicted of crimes relating to the obstruction of the Mueller investigation into Russian interference with the 2016 presidential election. Before Stone's sentencing, on Feb. 10, 2020, the government initially proposed that Stone receive a sentence within the Sentencing Guidelines range applicable to his offense, which was 87 to 108 months' imprisonment. This is consistent with the position that the government ordinarily takes at sentencing, where it typically advises the court that a within-the-range sentence is reasonable under 18 U.S.C. §3553(a). Shortly after the government filed its brief seeking a Guidelines sentence, President Trump tweeted on Feb. 11, 2020, that the sentencing recommendation was "horrible," "very unfair," and a "miscarriage of justice." Later that day, on February 11, the government filed a "Supplemental and Amended Sentencing Memorandum" in which it took the exact opposite position: that a within-the-range sentence "would not be appropriate or serve the interests of justice in this case." United States v. Stone, No. 19-cr-00018, Dkt. No. 286 (D.D.C. Feb. 11, 2020).