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January 29, 2024
Federal judge criticizes ex-IRS tax leaker (and DOJ) when imposing five-year sentence
I flagged today's notable DC sentencing in this post last night, and this lengthy CBS News accounting of the sentencing highlights that there were some notable comments from the judge. Here are snippets from the press report:
The Internal Revenue Service contractor who pleaded guilty to leaking the federal tax records of former President Donald Trump and some of the nation's wealthiest individuals was sentenced Monday to 5 years in prison, 3 years supervised release and a $5,000 fine. The sentence brings an end to a criminal case that exposed the source of a number of high-profile tax information leaks in recent years.
Charles Littlejohn, 38, pleaded guilty to one count of unauthorized disclosure of tax returns and return information in October and faced a maximum sentence of 5 years in prison. Investigators said he used his position as a contractor with the nation's tax collector to illegally obtain and then disperse the financial records of the former president, which resulted in "numerous articles" based on the information.
Before sentencing Littlejohn on Monday, federal District Judge Ana Reyes called his conduct "an attack on our constitutional democracy." "He targeted the sitting president of the United States of America, and that is exceptional by any measure," Judge Reyes said. "It cannot be open season on our elected officials."...
Littlejohn's explanations did not appear to sway the court's sentencing decision. Reyes said courts must be an "unbreakable bulwark" for American democracy in the face of increased threats. The court's job, the judge said, was to make sure that others never viewed "this type of conduct as acceptable or justifiable or worth the trade-off…We are a nation of laws."...
The Justice Department's court filing revealed that the other tax returns Littlejohn admitted to acquiring dated as far back as 15 years, and they belonged to thousands of the nation's wealthiest Americans. Investigators alleged he mailed a storage device containing the information to another unnamed news organization, identified by CBS News as ProPublica....
The judge appeared frustrated at times with prosecutors as she wrestled with a guideline sentencing range of just 18 months and a crime that she said warranted serious punishment and deterrence. Reyes asked prosecutor Jonathan Jacobson for information on any additional charges Littlejohn may have faced if he had opted not to enter the guilty plea, but the government attorney did not provide further detail. "The fact that he did what he did and he is facing one felony count, I have no words for," the judge said, with exasperation in her voice.
Especially in light of some recent blog comment discussions about plea deals and DOJ transparency, I find it interesting that the DOJ apparently rebuffed the sentencing judge's efforts here to find out any more information about DOJ's notable charging and bargaining decisons in this case. I guess what happens inside DOJ, stays inside DOJ.
UPDATE: The comment thread here started a discussion of the terms of plea deal in this case. Attorney Webb Wassmer kindly sent me a copy of the (public) plea agreement agreement (which was filed back in October 2023), and other case documents accessed from the court website. I have posted the plea agreement below, and here is a snippet of his helpful summary:
[The agreement calculated] him at total offense level 11, CH I, for a range of 8-14 months with a further reduction possible, [but] there was no agreement as to actual sentence, with the Government stating that it would seek an upward departure and/or variance.
[T]here is a limited appeal waiver. Most significantly, defendant reserved the right to appeal if the Court granted an upward departure or variance above the advisory guideline range identified at sentencing. Thus, he can appeal the five year sentence. As others have noted, that type of appeal almost never succeeds.
January 29, 2024 at 01:30 PM | Permalink
Comments
Most interesting were the judge's comments about the improper influencing of an election. Such an indictment of the Dem party. No senior Dem ever called out the actions of one of the party's donors.
Posted by: federalist | Jan 29, 2024 2:17:18 PM
The sentence was correct and deserved. This time it was Trump and other big shots. Next time it will be you and me.
Posted by: Bill Otis | Jan 29, 2024 3:07:04 PM
Bill, the deserved sentence was LWOP. He did this to influence an election; this crime struck at the heart of democracy. Just like the DOJ did when it suppressed the truth about Hunter's laptop. Obviously, the judge couldn't give him that, but the DOJ had to hook up a friend here. One count? Really?
Posted by: federalist | Jan 29, 2024 3:34:34 PM
Don't forget also that the 'rats in Congress released Trump's tax returns also. Littlejohn should have made that argument, lol.
Posted by: federalist | Jan 29, 2024 4:20:26 PM
federalist --
I should have said the sentence was correct given what was legally available. It was a very serious crime because, among other things, it's going to shake people's faith that all the private financial information they have to share with the IRS stays within the agency. Having to pay gargantuan taxes is bad enough, but thinking that every last thing about your financial life can get broadcast to the world makes it that much worse.
Posted by: Bill Otis | Jan 29, 2024 4:28:35 PM
The DOJ really dropped the ball here. What he did was worse than Manning. Certainly worse than Pollard. Certainly worse than the Proud Boys.
Posted by: federalist | Jan 29, 2024 4:38:44 PM
Doug, what are the odds of a successful appeal? Does this guy have any good arguments?
Posted by: federalist | Jan 29, 2024 6:18:09 PM
I'd have to see the full sentencing record, including what might be a sealed presentence report, before bring in any position to make any thoughtful appeal predictions. I wonder if anyone might seek to leak his PSR as a kind of retributivist justice.
Of course, his plea deal might include an appeal waiver, so he might not even be able to bring an appeal. Agreeing to an appeal waiver might have been how this guy and his lawyer cajoled DOJ to only bring one charge for all his crimes. But, because DOJ does most charging/bargaining in secret, I do not expect to get much transparency or accountability for its charging/bargaining work here.
Posted by: Doug B | Jan 29, 2024 6:41:20 PM
Doug,
Would plea bargain deals be available via an Open Records Request?
Posted by: TarlsQtr | Jan 29, 2024 6:58:02 PM
federalist --
The chances of a successful appeal are zip. Under Booker, judges are much more free to depart than they had been before. The crime here was very unusual and, as the judge pointed out, pregnant with a lot of mischief. If he takes an appeal, it's going nowhere.
Doug --
Actually, this illustrates the benefits of a sentencing appeal waiver. The defendant has no chance of successfully appealing this (charitable in the scheme of things) sentence. If he had insisted on preserving his right to appeal, he would not have obtained whatever concessions the government gave him for the waiver, and the government would have had to spend the time and money to answer an appeal that has no chance. Looks like a win-win to me (as, obviously, it did to both parties).
Posted by: Bill Otis | Jan 29, 2024 7:00:20 PM
Master Tarls: Bill would know better than I would if all plea deals are always available to the public. I know many plea deals are made public, but some may be filed under seal. And, critically, most of the reasoning and rationales behind the deal-making is not put on paper. Sometimes this is because the "real deal" gets made prior to indictment/charging --- which seems to be part of the story here given the paucity of charges. Moreover, even for post-indictment deals, exactly what any defendant gets in exchange for an appeal waiver or other terms is always opaque because the deals often provide little background or context.
Bill: to the extent a key goal of the system, especially in a case like this one, is deterrence, an appeal here would have brought ever more attention to the crimes and the punishment. This one-charge deal is a one-day news story that 99.99% of the US fails to see. An appeal would not change that much, but still would be worthwhile for deterrence value alone, in my opinion. But, of course, I do not have to do the government work, which must be exhausting in these easy cases.
Posted by: Doug B | Jan 29, 2024 7:40:05 PM
Doug --
To be honest, most government cases are easy. If something is marginal, it tends not to get brought. Of course the fact that most defendants are D.O.A. the day the indictment gets handed down is exactly the reason -- and not extortion or bullying -- that defendants opt for a bargained guilty plea. They and their lawyers know they were going to be toast at trial, and a deal gives them a better outcome.
Posted by: Bill Otis | Jan 29, 2024 9:04:55 PM
I agree that guilt determinations are often easy in federal cases, Bill, and that largely accounts for why there are lots of pleas and lots of deal-making. But sentencing is ALWAYS hard, which is why I find it so interesting. And that's also why I think maximum transparency and accountability and review in sentencing decision-making is so important. Plea deals, especially those with appeal waiver, generally function to minimize transparency and accountability and review.
Posted by: Doug B | Jan 29, 2024 9:24:43 PM
Doug --
The decision whether and what to charge is left to the political branches (in particular the executive, with legislative oversight). So I get the judge's frustration; had it been me as the AUSA, it's likely from what (little) I know that this guy would have faced more music. Still, even though courts are not in the charging business, perhaps we both can hope that Chairman Durbin will ask the AG why this defendant got such apparently light charging. I'd be real interested in the answer.
Posted by: Bill Otis | Jan 29, 2024 10:44:17 PM
I’d also like Congress to seek an answer, but DOJ has never been forthcoming on these fronts (or many others). My sense is Congress has not gotten to the bottom of the Hunter plea deal mess. And, ever more worrisome, DOJ makes obscure charging and bargaining decisions in lower profile cases 1000+ times every week without any real explanation or review. Congress cannot even hope to explore more than .001% of cases. DOJ chutzpah is not surprising under a paradigm of almost no real checks and balances.
As I mentioned before, when we see DOJ acts in ways that look so shady even in the highest-profile cases when it surely knows the whole world is watching closely, we can hardly have any confidence that they do better in cases in which nobody is paying attention. But at least you invented for DOJ how to regularly evade that pesky appellate review Congress wanted and authorized.
Posted by: Doug B | Jan 29, 2024 11:07:57 PM
Doug --
There's a blockbuster check and balance on the behavior of Mr. Biden's DOJ (among others) coming up on November 5.
And I'm all for checks and balances, but with separation of powers as well -- another essential part of the Founders' plan. For example, neither Congress nor the courts has a check or balance on the President's decision whether and whom to pardon. They have no check or balance about whom he chooses as his running mate, or who is White House Counsel, or the National Security Advisor -- all very important and powerful positions.
Posted by: Bill Otis | Jan 29, 2024 11:39:43 PM
The plea agreement is available to the public. I have emailed a copy to Doug since I don't know how to add it to the post. Here's the salient points.
First, prosecution was by Information, not Indictment, indicating that it was worked out in advance. There is an agreement that the Government will not bring any additional charges other than the one count charged for unauthorized disclosure of tax records under 26 USC 7213(a)(1).
Second, the agreement on Guidelines calculation was for a base offense level of 9 under USSG 2H3.1(a)(1), +2 for abuse of a position of trust or use of a special skill under USSG 3B1.3, +2 for obstruction of justice under 3C1.1, and -2 for acceptance of responsibility under 3E1.1(a). There is also an agreement that he is criminal history category I with zero points and that if Amendment 821 takes effect, then a further reduction would apply. That put him at total offense level 11, CH I, for a range of 8-14 months with a further reduction possible.
Third, there was no agreement as to actual sentence, with the Government stating that it would seek an upward departure and/or variance.
Fourth, there is a limited appeal waiver. Most significantly, defendant reserved the right to appeal if the Court granted an upward departure or variance above the advisory guideline range identified at sentencing. Thus, he can appeal the five year sentence. As others have noted, that type of appeal almost never succeeds.
Fifth, defendant agreed to pay restitution as ordered by the Court and to forfeit a couple of computers and other devices, as well as his email, iCloud, Twitter, and Dropbox accounts.
Posted by: Webb Wassmer | Jan 30, 2024 5:10:56 AM
Many, many thanks, Webb. I have now posted the plea agreement with a snippet of your helpful analysis. Let me know if you'd like me to tweak anything I added to the main post.
Posted by: Doug B | Jan 30, 2024 6:12:23 AM
OT as hell, but as an academic, Doug, you might be interested in this:
https://freebeacon.com/campus/not-just-claudine-gay-harvards-chief-diversity-officer-plagiarized-and-claimed-credit-for-husbands-work-complaint-alleges/
Posted by: federalist | Jan 30, 2024 11:19:21 AM
Back on topic--it will be interesting to see what the appeal looks like. My guess is that the DC circuit, no matter what, isn't going to disturb the sentence. Littlejohn has already made his contribution to the cause. He's expendable now.
Posted by: federalist | Jan 30, 2024 11:28:25 AM
Though I have not looks closely at recent DC Circuit jurisprudence, the number of above-guideline sentences of less than decades deemed unreasonable over the past 20 years is likely less than 0.001% (that's a guess of less than 10 out of 1,000,000).
Going a bit off-topic, federalist, have you seen this: https://www.newsfromthestates.com/article/morris-county-womans-imprisonment-facebook-posts-sparks-free-speech-fight
Posted by: Doug B | Jan 30, 2024 1:28:58 PM
The process is the punishment. 35 days in jail. The judge should be ashamed of himself.
Posted by: federalist | Jan 30, 2024 1:52:24 PM
Webb Wassmer --
Thank you for doing the work to dig this out and for putting it up here. A big contribution. The readers in the comments section owe you.
Doug --
Just FYI: When I originally wrote the waiver, it had exceptions for (1) ineffective assistance of counsel claims, (2) significant upward departures (and no, one or two months did not count with me as significant. The one in this case would have), and (3) illegal sentences, that is, any above the statutory maximum.
Time to get straight on what the actual problem is in this case. It's not that the government was secretive -- both the agreement and the Rule 11 proceeding at which the plea was taken are fully public. And it's not that the defendant was screwed out of a meritorious appeal -- he can go take his appeal, which is in any event not only not meritorious but absurd. As federalist points out, he's lucky he didn't get jammed with a great deal more.
I'll bet $500 here and now that the sentencing appeal loses. Any takers?
No, the problem is, as usual, the defendant's rotten behavior -- divulging information he had no business divulging. The only reason the Left is not all over him is that the disclosures were aimed to hurt Trump.
Posted by: Bill Otis | Jan 30, 2024 2:39:42 PM
Bill, the problem is nobody knows why this defendant, in your words, "didn't get jammed with a great deal more." You say he is "lucky." I doubt you mean DOJ spins a big wheel and the number of counts is determined by the luck of the wheel. So how does anyone know why this guy --- or anyone else --- gets lucky or unlucky as to the number of counts from DOJ or why/how the exact terms of a plea deal is put together. That's the "secret" that bothers me, and I sense bothers federalist as well. DOJ served as a sentencing decision-maker by capping his sentence at 60 months for no explainable reason. That's what I mean by a DOJ star chamber.
Posted by: Doug B | Jan 30, 2024 3:55:01 PM
Doug, you don't have to be a weatherman to know which way the wind is blowing.
OT, but interesting: https://www.nationalreview.com/news/sotomayor-admits-every-conservative-supreme-court-victory-traumatizes-her/
Posted by: federalist | Jan 30, 2024 5:02:24 PM
https://www.crimeandconsequences.blog/?p=9979#more-9979
Here's a stinker.
Posted by: federalist | Jan 30, 2024 5:44:03 PM
Doug --
Actually, Littlejohn's getting a sweetheart deal, if that's what happened, is the exact OPPOSITE of the Star Chamber, which operated to INCREASE punishments, sometimes to the level of barbarity (but short of the death penalty, which the Star Chamber could not impose). In other words, it ratcheted up, not down. It was the Star Chamber's cruelty and excess, not its operation in private, that gave rise to our Constitution's ban on cruel and unusual punishment.
If you want more transparency in the system, fine with me. Should I be waiting for the key actors, Chairman Durbin and AG Garland, to move forward? They've had the ball for three long years. If it's not happening to the extent you want, I think you can find their addresses.
P.S. I'm very glad you've visited US Attorneys Offices and courtrooms. That means you're sure to know that the picture of fascist thugs forcing their malevolent will on helpless (and innocent) people is an exercise in fiction.
Posted by: Bill Otis | Jan 31, 2024 2:26:12 AM
Bill, I used the (lower case) “star chamber” term in this context to mean govt decisionmaking that is secret and arbitrary and sometimes excessive in harshness. Sorry you misunderstood my use, though it still serve to capture some of my concerns with DOJ decision-making more than the term “corrupt.” And that’s in part because DOJ has long been effective at resisting transparency reforms from other branches (see eg Armstrong).
Posted by: Doug B | Jan 31, 2024 4:54:10 AM
Bill, I don't think you can look at some of the actions of the DOJ and not think fascist thugs. Yes, there are tons of people in the DOJ, the vast majority, but to pick one example, the revisions of the 302s with the help of Lisa Page, was appalling. She should have been prosecuted.
Posted by: federalist | Jan 31, 2024 9:38:30 AM
"the vast majority are good people"
Posted by: federalist | Jan 31, 2024 10:56:16 AM
federalist --
As is often the case, I largely agree with you. I went over the competing considerations (and major problems) in the Trump prosecutions in my talk at Berkeley Law School about three months ago, in a pretty friendly debate with two Berkeley law professors, https://www.youtube.com/watch?v=KxFrRyC1Quk
Feel absolutely no need to watch, but it's there should you be interested.
Posted by: Bill Otis | Jan 31, 2024 12:41:51 PM
Thx for sharing. The 302 thing with Flynn was just appalling, and the District Court Judge let the DOJ get away with it. For doing such a thing, their lives ought to be completely ruined. McCabe, by the way, is scum.
Posted by: federalist | Jan 31, 2024 1:03:14 PM
We need more whistleblowers to expose these wealthy tax cheats of either party.
Posted by: william delzell | Jan 31, 2024 6:49:36 PM
Doug,
I would love for you and federalist to give your views on this and DOJ corruption.
The entire video is linked within. The largest crime might be Catholics singing Protestant hymns.
As far as I know, no one is getting arrested for blocking streets in our cities because they want more Jews to die. I believe the worst of the BLM rioters are averaging 27 months.
https://www.catholicnewsagency.com/news/256692/six-pro-life-activists-convicted-of-federal-face-act-charges-face-over-a-decade-in-prison
Posted by: TarlsQtr | Jan 31, 2024 11:16:33 PM
They don't want more Jews to die; they want more Palestinians (and Jews) to live in safety! The Israeli government and its overseas supporters pose a far greater threat to Jews (and Arabs) than the Palestinians do!
Posted by: william delzell | Feb 1, 2024 9:54:20 AM
Tarls--you point up a problem. I am pro-life, but I don't support trespassing to protest. But it's plainly obvious that the DOJ is playing politics with who gets the hammer. That's a problem.
John Brown may be reincarnated.
Posted by: federalist | Feb 1, 2024 10:21:55 AM
Thanks for the link to an interesting story, Master Tarls, that I have not followed closely. I do not use the term corruption to describe much of anything I've seen at DOJ, but my brief review here serves, for me, as just another example of DOJ star chamber dynamics. I only had time to review a few links and watch a bit of the video, but I already have so many questions about DOJ decision-making (and apologies if my quick read means I have missed or misunderstood basic facts):
--- to begin, this happened in March 2021 with videos that would seem to make the case pretty easy to bring. And yet indictments did not come down until Oct 2022, mostly after Roe was overturned. Why the delay and did changes in abortion law impact the execercise of prosecutorial discretion? Were there pre-indictment neogiations with all (some? a few?) of those arrested? What were the terms of any and all pre-indictment negotiations?
--- seems like there were dozens of people involved here, how did DOJ decide who would be prosecuted and subject to what charges? Do we know if any of the protestors had alerted authorities prior to their activities? (The video and signs kept making references to getting arrested.)
--- how many protesters may have been threatened with prosecution unless/until they were prepared to testify against compatriots? There seems to be one who was charged with a felony who then decided to cooperate. I assume the deal she got from prosecutors will be revealed at some point, but is she getting charges dropped or just a good sentencing outcome? (This is DOJ prosecution 101, and here I assume we do not have an example of DOJ/FBI agents/informants actually pushing folks into crimes as in the stash-house sting setting.)
--- did DOJ offer plea deals to those who were brought to trial? What were the proposed terms of any proposed deals? (I assume it would include all sorts of waivers so that's there would be no way to challenge the prosecution or sentence after any deal.)
--- how will DOJ decide what sentences to recommend? Will it offer a post-conviction deal in order to try to get rid of appeals (these are rare, but high-profile "political" cases can often trigger unique DOJ deal-making).
I could go on and on and on, but I trust you get the point. DOJ has extraordinary powers to ruin people's lives (same goes for state prosecutors), and when and how they use these powers are almost always shrouded in some mystery. Because DOJ power is so broad and far-reaching, it would really be impossible to get total transparency / accountability for all their decisions, especially declinations --- eg, imagine if DOJ had a write a memo (each month?) about why it was not prosecuting every state-legal marijuana dispensary or not investigating whether everyone shown possessing a gun on social media was violating 992.
And so we must speculate: here I speculate that anti-abotion litigation and legislation nationwide after Barrett's SCOTUS appointment led DOJ superiors in 2021 to say it was important to protect abortion access consistent with what the new Prez pledged. So that means enforcing the FACE Act more robustly, and I have no idea if this served as an easy/effective example in which to do so. I did see this DOJ page flagging recent prosecutions in this space: https://www.justice.gov/crt/recent-cases-violence-against-reproductive-health-care-providers. Kudos to DOJ for this collection of info, but we get only a few details on outcomes and limited background on prosecutorial decision-making in these or other cases.
I will speculate, even without knowing anything about any of the defendants, that DOJ will not ask for much more than a year-and-a-day for these now-convicted felons in the absense of any evidence of violence or threats of violance. And, in all likeihood, no matter what sentence gets imposed, the fact of having a felony record could harm these persons' lives more than any formal punishment that they get (eg, they can no longer possess firearms, will be excluded from many jobs and government benefit programs, may be excluded from some housing/loans, etc). I wonder if the next pro-life Prez might be inclined to grant clemency.
Posted by: Doug B | Feb 1, 2024 10:58:09 AM
Though you are changing names, federalist, you have still not defined what you mean by "MAGA." And, I would think MAGA means failing to hold Trump at all accountable for the "corrupt" work of his agencies, which is what you do (but not me or Master Tarls). And it is curious that Bill thinks it an unfair attack when I speak of the "DOJ star chamber," while you think that's an example of "provid[ing] cover." And, of course, you are the one who lacks the courage of convictions by having no proposal for doing anything significant about a DOJ that you claim has been entirely "corrupt" under at least the last 3 presidents.
DOJ is always "playing politics," that's what a political agency always does (and, to some extent, has to do). The fact that we flip agency leadership (and often US Attorneys) with each new chief exectuive is a tangible example that we expect our agencies to reflect our politics. DOJ "plays politics" when it decides whether and when to pursue the federal death penalty (or even federal prosecution at all) for mass shootings. DOJ "plays politics" when it decides not to go after state marijuana businesses and to only rarely enforce 922(d) and laws against child porn possession/distribution. DOJ "plays politics" when it prosecutors tens of thousands of drug crimes and only a few hundred homicides each year. DOJ "plays politics" when it embraces or limits the use of waivers in plea deals. Many folks dislike many of DOJ's choices --- where the politics is sometimes quite salient, but often mostly latent --- but I cannot think of many prosecutorial decisions that do not reflect some form of "playing politics."
Posted by: Doug B | Feb 1, 2024 1:01:03 PM
