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July 22, 2020

Scenes from the Mueller Probe (with Anne Milgram & Andrew Weissmann)

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In this special episode of Stay Tuned, “Scenes from the Mueller Probe,” Anne Milgram interviews Andrew Weissmann, a former lead prosecutor in the Mueller investigation. Weissmann reflects on the probe, shares his view on the Roger Stone commutation, and previews his forthcoming book, Where Law Ends: Inside the Mueller Investigation. 

THE INTERVIEW

  • Preorder: Andrew Weissman’s Where Law Ends: Inside the Mueller Investigation, Penguin Random House, Released 9/29/2020

THE MUELLER INVESTIGATION:

  • Karen Freifeld, “Mueller team lawyer brings witness-flipping expertise to Trump probes,” Reuters, 6/19/2017
  • Matt Flegenheimer, “Andrew Weissmann, Mueller’s Legal Pit Bull,” New York Times, 10/31/2017
  • Allan Smith, “Robert Mueller’s ‘pit bull’ is coming under intense scrutiny over perceived anti-Trump bias,” Business Insider, 12/9/2017
  • Josh Gerstein, “A look inside Mueller’s office: Moot courts, job interviews and potluck parties,” Politico, 5/14/2019
  • Sharon LaFraniere, Kenneth P. Vogel and Scott Shane, “In Closed Hearing, a Clue About ‘the Heart’ of Mueller’s Russia Inquiry,” New York Times, 2/10/2019
  • Jeffrey Toobin, “Why the Mueller Investigation Failed,” New Yorker, 6/29/2020

SPECIAL COUNSEL BACKGROUND

  • “28 CFR § 600.1 – Grounds for appointing a Special Counsel,” Legal Information Institute
  • Dick Thornburgh, Mark H. Tuohey III, and Michael Davidson, “Testimony: Attorney General’s Special Counsel Regulations,” Brookings Institution, 9/15/1999

ROGER STONE: 

  • Andrew Weissmann, “We Can Still Get the Truth From Roger Stone,” New York Times, 7/14/2020
  • Noah Bookbinder, “What Barr Did for Roger Stone Is Like Nothing I’ve Seen Before,” New York Times, 2/20/2020
  • Katelyn Polantz, “Grand jury still interested in Roger Stone and the 2016 GOP convention,” CNN, 5/31/2019
  • Kurt Eichenwald, “Special Grand Jury Zeroes In on Enron Executives,” New York Times, 4/1/2002

MANAFORT: 

  • Russell Berman, “Why Paul Manafort’s Trial Is Going So Fast,” The Atlantic, 8/9/2018
  • Josh Gerstein, “Manafort moved to Alexandria jail,” Politico, 7/28/2018
  • Rachel Weiner, Spencer S. Hsu and Matt Zapotosky, “Paul Manafort released from prison, granted home confinement due to coronavirus fears,” Washington Post, 5/13/2020

WEISSMANN’S CAREER 

WEISSMANN’S BOOK: 

  • Katie Benner, “Prosecutor on Mueller’s Team, Andrew Weissmann, Plans to Leave Soon,” New York Times, 3/14/2019
  • Katelyn Polantz, “Prosecutor Andrew Weissmann’s book on Mueller investigation already cleared by Trump administration, publisher says,” CNN, 7/13/2020

Anne Milgram:

Hi folks, Anne Milgram here. We have a special episode for you today. I’ll be speaking with my friend, Andrew Weissmann, a veteran of the Justice Department. He most recently served as a top prosecutor in the office of special counsel, Robert Mueller. He writes about that experience in a forthcoming book titled Where Law Ends: Inside The Mueller Investigation. I’m excited that he joins me today as we have much to discuss from all the recent news to a look back at his extraordinary career. Welcome to the podcast, Andrew.

Andrew Weissmann:

Great to be here, Anne.

Anne Milgram:

Let’s start. You and I have known each other for a long time, and I always like to front that. I think we met when you were running the Enron investigation when we were both at the Department of Justice.

Andrew Weissmann:

I remember that just as well. And you were, I think heading off to the Eastern District of New York where I had been a prosecutor for many, many years, and a mutual friend had us over for dinner, which I think was the first home cooked meal I’d had in about two years of working on Enron.

Anne Milgram:

I think that’s right. And I think I cooked dinner, is that right?

Andrew Weissmann:

Of course, you did, because of one thing that I’m not sure, everyone… I’ve listened to you religiously, but I’m not sure it’s come up that you are a fantastic cook, I mean, it’s scary.

Anne Milgram:

Thank you. That’s very kind. I make a lot of chicken fingers and French fries right now for my six year old. So we met years ago, this is going back to 2004, 2005, I would guess?

Andrew Weissmann:

Yeah.

Anne Milgram:

And I want to start today with the special counsel work that you completed, but then I want to work backwards in some of the other parts of your career. And there’s so much for us to talk about, but let’s just jump in. And I’m really curious to know, I think a lot of listeners won’t understand that when you joined the special counsel Robert Mueller’s team, you were sitting at the Department of Justice running the fraud section at that moment in time. The administration changed, President Trump was elected in 2016, you stayed for a period of time beyond that. Is that right?

Andrew Weissmann:

Yep, that’s exactly right. So the fraud section is part of main justice, so it’s part of the Department of Justice. It’s located principally in Washington and it’s part of their criminal division. And just like there’re United States attorneys that do criminal prosecutions and civil prosecutions around the country, the fraud section does white collar investigations based out of Washington DC.

Anne Milgram:

And when did you join the Mueller team exactly? When did you join the special counsel’s team?

Andrew Weissmann:

It was, I think the first week of June, 2017.

Anne Milgram:

So you’d stayed in the Trump administration at DOJ for about almost six months, and then, how do you get to the special counsel’s office?

Andrew Weissmann:

Well, I had worked with the director twice before that, I had been a special counsel.

Anne Milgram:

Let me just be clear that the director means Robert Mueller because he was the director of the FBI.

Andrew Weissmann:

I’ll tell you a funny story about that. When you’re in United States Attorney’s office, everybody is Ann and Bob and Matt, they’re all first names, including the United States Attorney. So I show up the first time at the FBI as director Mueller’s special counsel. And of course, director Mueller is like, “Just call me Bob.” And the first time I called him Bob in front of special agents of the FBI, daggers were coming out of people’s eyes. I mean, it’s a very hierarchical institution. So I’ve trained myself for two years when I was the general counsel and when I was special counsel for six months that you just say director Mueller, no matter what Bob might want to say.

Anne Milgram:

So even when you were in the special counsel’s office, did you still refer to him as the director?

Andrew Weissmann:

I joked with Aaron Zebley, who was also at the FBI with me that we just couldn’t do it. We could not switch to saying Bob, even though other people did.

Anne Milgram:

And Aaron Zebley, he was both at the FBI and he was on the special counsel’s team?

Andrew Weissmann:

Yes, he and I had the same trajectory and we just could not bring ourselves… I think at some point we were saying, “The man formerly known as the director.”

Anne Milgram:

What did everybody else refer to Robert Mueller as when he was special counsel?

Andrew Weissmann:

Sir.

Anne Milgram:

On the special counsel’s team, sir? Okay. And then if you were in conversations with them, would they refer to him as Bob or as the director?

Andrew Weissmann:

It’s funny, it reminds me of when I did a case against the boss of the Genovese family who had a rule about not using his name, people just avoided the name issue, so it was basically sir, the boss, occasionally the director.

Anne Milgram:

Also, like Harry Potter, where you don’t say the names?

Andrew Weissmann:

Yes, exactly.

Anne Milgram:

Although in a different way, the opposite-

Andrew Weissmann:

But just to be clear, Bob Mueller would have been perfectly happy to have everyone, whether it’s at the FBI or in the special counsel referring to him as Bob.

Anne Milgram:

So you start in June, what’s your official role there?

Andrew Weissmann:

There were three principal teams to do the investigation. They wasn’t very imaginative in terms of the names of the teams. There was Team R, Team M, as in Mary, and Team 600. And Team R stood for Russia, Team M stood for Manafort, which was basically everything Russia except everything related to Team M, so it was sort of a carve out. And then Team 600 referred to the part of the internal Department of Justice regulation that allowed us to investigate obstruction.

Anne Milgram:

So the whole Manafort prosecution came under Team M? Which team were you a part of?

Andrew Weissmann:

Sorry. I was the head of Team M.

Anne Milgram:

Okay. Who is the head of Team R.

Andrew Weissmann:

Jeannie Rhee

Anne Milgram:

Okay. And Team 600?

Andrew Weissmann:

Jim Quarles.

Anne Milgram:

Got it. And the cases that are brought against Roger Stone, Michael Flynn, where did they fall?

Andrew Weissmann:

Roger Stone was a Team R case, and Flynn had his own separate person, and so it didn’t fall into any of the three buckets. There are obviously, in all of these, there’s overlap. So you can develop proof and witnesses and lines of evidence that fall into multiple buckets. And then obviously, just like any other case that you and I have done, you coordinate.

Anne Milgram:

So there were two Manafort cases, right? The first was tried in the Eastern District of Virginia by Greg Andres, who was a colleague of yours also in the Eastern District. The second was going to be tried in DC. Who would have tried the second case in DC?

Andrew Weissmann:

The first case, Greg was on it, but we also had a team of really great agents and two other prosecutors who were all part of Team M. And then the second case was going to be Jennie and me, and there’s a long story about how that happened and the strategy behind it. But that was the second trial that was about four weeks after the verdict in the first trial.

Anne Milgram:

And that’s the case that Manafort ultimately pled guilty on, so you didn’t go to trial?

Andrew Weissmann:

Exactly.

Anne Milgram:

How did it come to pass that the Eastern District case went first?

Andrew Weissmann:

The Eastern District of Virginia is known as the rocket docket. It’s something that when I became a defense lawyer seemed very unfair to me, but when you’re a prosecutor, it seems great. And what a rocket docket means is that upon indictment, the court sets, in general, a very fast trial date. So even though the Eastern District of Virginia case was indicted, second, it went to trial first because of that rocket docket.

Anne Milgram:

Got it. So one of the things I noticed is there hasn’t been that much written about the offices themselves of the special counsel, and I assume that was intentional that during the time that the work was happening, you didn’t want people to be publishing your address, waiting outside, you wanted to have some privacy. But can you describe for us a little bit of… Just take us through a day, you get to the office, what does the office look like? In my mind, I picture it as like a fancy law firm office, but I also, my first job in the Manhattan DA’s office and also parts of the Eastern District were not like a fancy law firm’s.  I want to get a sense of what it was like there.

Andrew Weissmann:

So I think people may have a sense that when you work in the government, it may look like the private sector, and that’s so far from the truth. This was no different than any other office I was at. When I first started as a prosecutor, I went from a law firm in Manhattan and I suddenly was in what used to be a broom closet in the basement of the courthouse in the Eastern District of New York. You could barely fit a table, a lamp, and a chair in there. The furniture was built by prisoners, part of UNICOR, so it wasn’t the high grade quality. Even though your surroundings, weren’t luxurious to say the least, I was also never happier.

So it really is divorced from those kinds of fiscal trappings. And the same thing was true in the special counsel’s office. We ended up eventually having the floor of a building on the south side of The Mall in Washington.

Anne Milgram:

Which is pretty close to the Department of Justice.

Andrew Weissmann:

Pretty close, but on the other side of The Mall and the location was called Patriots Plaza. I’d like to think that was appropriately located and housed. And pretty soon after we got there, the press, because they followed everybody constantly, there were CNN reporters, one of whom I felt so sorry for, whose job was sitting outside of our garage, watching our cars come in and out all day long.

Anne Milgram:

Just to be able to say who came in and who came out? There were not pictures. I mean, I don’t remember seeing pictures of Robert Mueller going in and out of the office every day, is that right, or?

Andrew Weissmann:

If you drove in, there would not be pictures, but if you walked outside for lunch, they would have pictures. Defense lawyers would be photographed, witnesses could be photographed. We had ways to get witnesses in without having to go through that.

Anne Milgram:

So how did you do that? Because I was just thinking, I mean, people who are listening, not everyone may understand, but this is unusual compared to… You’ve had a lot of high profile cases, but in a high profile case, you really don’t want the media guessing, like who’s the next cooperator. And they could guess that if they knew like, “Oh, so-and-so’s defense lawyer was in every day this week.” So how would you figure that out?

Andrew Weissmann:

That did happen from time to time. And I can give you one example of something that was worse, which was when I worked on the Enron investigation, the press was allowed to sit outside of the grand jury because the grand jury was in the federal courthouse. And so we were unable to put any single witness in the grand jury without the press being able to see who was going in and out and who their lawyer was, he or she.

Anne Milgram:

So every cooperator would be known, essentially?

Andrew Weissmann:

Every cooperator but also, just every witness-

Anne Milgram:

Every witness, same.

Andrew Weissmann:

… even if they weren’t cooperating. I’ve been a defense lawyer, as have you, and it’s really so unfair to subject them to that intense media glare. It’s obviously not great for an investigation, and it leads to all sorts of wild speculation as to what’s going on. So as I mentioned, there was a parking garage in the buildings so that you could drive into the building, and so if witnesses were brought into or out of the building, they could go in that way. And because the building itself was not open to the public, the press couldn’t get into the garage to see who the witnesses were who were coming in and out. So that was one way of keeping this a little bit more confidential.

As you know, Bob Mueller was absolutely clear about keeping everything as tightly held as possible.

Anne Milgram:

Yeah. He’s a guy who strikes me as would never leak or allow his team to leak, and so it feels like-

Andrew Weissmann:

Absolutely.

Anne Milgram:

… just the worst thing to someone like him. So I assume he was in the office every day you were in the office. I can’t remember exactly, how many lawyers were on the special counsel team?

Andrew Weissmann:

So ultimately, there were about 17 lawyers and many, many more agents and analysts and then some support staff.

Anne Milgram:

Who’s the first one in the office in the morning? Was it you?

Andrew Weissmann:

No. As you know, and it’s nice of you to ask that question, Anne, that’s facetious because as you know, I’m an inveterate New Yorker, or at least before I spent 10 years of my life in Washington, I used to be able to say I was inveterate an New Yorker. So I’m used to keeping New York hours, which for your audience, means that you come in late, but you stay very late, so a typical New Yorker-

Anne Milgram:

Right. Yeah. It’s very cultural in New York. Yes.

Andrew Weissmann:

You might get in between 9:00 and 10:00 and leave also between 9:00 and 10:00. For the special counsel, I didn’t do that. I would be in by 8:00, 8:30 and then I tried to stay as late as necessary, I mean, that could be, depending on what’s going on, 11:00 or 12:00 at night. But I can say director Mueller was always there before I was.

Anne Milgram:

And how about the agents? Usually in my experience, they’re the ones that get there the first.

Andrew Weissmann:

Crazy. It’s crazy.

Anne Milgram:

Like 4:00 in the morning.

Andrew Weissmann:

It’s like out of nowhere, honestly they could be there at 5:00 AM for all I know, but when I showed up, the agents were all there busy.

Anne Milgram:

I know we’re not going to talk about the inside of the investigation. And obviously, I hope all the listeners will understand. At this moment, everybody is saying, “Uh.” But there are a couple of things I think are worth just touching on. At some point, you’re sitting in the office and the President of the United States starts tweeting about you. And really, it’s not just you, there was just a huge amount of criticism that was directed at the Mueller team and at the investigation from the president. I’m just really curious to know, what does that feel like? You’ve handled a ton of high profile cases, you’ve done Enron, you’ve prosecuted very serious mob cases. This felt different to me, but I want to hear from you, what was that like?

Andrew Weissmann:

One of the things that when you’re a lawyer, you usually don’t think of yourself as part of the story, you have a client and you are advocating for that client, whether you’re a defense lawyer or whether you work for the United States government. And I still remember the very first time that I personally was attacked or certain tribes made me part of the story, and that was when I started as a young lawyer in the organized crime and racketeering section in the Brooklyn US attorney’s office. And that’s a standard part of a defense strategy, which is to attack the prosecution.

And by the way, I’m not in any way denigrating that, that’s just what happens, and it’s very uncomfortable at first. So I think that was in some ways a very good training in developing a tough exterior and that outer shell. Enron obviously took that to a very different level. And then when I thought that was the worst I would ever have to be subjected to, and obviously this was a level more than that. And I guess the only thing I can say is my initial reaction, other than feeling this incredibly queasy feeling in the pit of your stomach is, I just was thinking, “I’m such nobody. Doesn’t the president of the United States have something better to be doing with his time than then engaging in that kind of behavior?”

Anne Milgram:

One thing I noticed when I went back and read some of the articles announcing that you were joining the Mueller team is that almost every single one called you a legal bulldog.

Andrew Weissmann:

Pit bull.

Anne Milgram:

Sorry, sorry. I’m confusing my dogs.

Andrew Weissmann:

You’ve to really work on your…

Anne Milgram:

I don’t have a dog, you do.

Andrew Weissmann:

I do. I’m very focused on breeds.

Anne Milgram:

Okay. So Mr. Pit bull. How did that feel?

Andrew Weissmann:

It’s really interesting. Of course, everyone’s the hero of their own novels, so I don’t really think of myself as a pit bull, but I have to say one thing that’s useful about that is it’s really useful for defense counsel and witnesses to think you are a pit bull, even if you’re not, because it’s useful for them to think that you’re going to be over the top and aggressive and completely on top of the facts. I tend to think I’m really, really meticulous, and I’m also kind of a dog with a bone, just to continue the metaphor, but that’s something where… I think that’s a trope, and I think there can be a variety of reasons for it, but it does have its benefits.

Anne Milgram:

Yeah, I could see that. And persistence is obviously often synonymous with thinking about somebody as a pit bull as well. Not to contrast this too much, but all of this press is about you as a pit bull. At some point, the press does a Freedom of Information request for your calendar, which in my view does not show you as much of a pit bull as someone who attends potlucks and moots within the office, so let’s just talk about this for a second, and birthday celebrations. First of all, I’ve never seen the media actually go after… It was a conservative organization, actually, so it wasn’t the media, but it was a Freedom of Information request done by, I think it was the American Conservative Union, but it was one of the conservative organizations.

And so you had to go through your calendar, this all gets released eventually publicly. And aside from the fact that I didn’t know you liked potlucks, I would say that the thing that I was struck by and wanted to just spend a minute on were the moots that you were doing before arguments. And so can you explain a little bit, again, not the substance, but just what’s the process you were going through and why did you do… What’s a moot and why did you do them?

Andrew Weissmann:

Before I just answer that directly, let me-

Anne Milgram:

Yeah. You want to, you want to answer the potlucks?

Andrew Weissmann:

Yeah, exactly, because that’s like really throwing down the gauntlet. This wasn’t summer camp and there wasn’t a lot of team building exercises, but around certain key holidays, there would be a potluck. One thing that the Freedom of Information Act requires is that when you’re in the government, you have to turn over any and all communications notes, calendars, anything. And so I took a vow-

Anne Milgram:

Just so people know, nothing related to the internal investigation, that’s secretive, but as long as it doesn’t reveal something related to the inner workings of the case, is that sort of-

Andrew Weissmann:

There are certain exceptions, but if you have appointments with people, I remember there was my calendar would say haircut. I had to go through four years of calendar entries. And it comes from a very good place. I mean, the point of FOIA is to have a transparency in government. And many of your listeners, I think, would think, particularly right now, that it’s a very, very useful statute.

Anne Milgram:

Yeah, exactly.

Andrew Weissmann:

So even though on an individual basis, it’s a pain in the butt to go through all of that-

Anne Milgram:

What did you bring to the potlucks? Do you have a potluck dish?

Andrew Weissmann:

You have to remember, I really am not a cook. like you said. Let me just think what I brought. Oh, yeah. So I brought, this is going to be just pathetic, so you’re going to start laughing, but I would drop my dog off at his doggy daycare and there was a liquor store right next to it, so I would get sodas and tonic water and things like that. I can’t remember if we ever had alcohol, and I don’t think we did because our office, almost all of the office was a skiff, so you can’t have that.

Anne Milgram:

Can you just explain what a skiff is?

Andrew Weissmann:

It’s like sensitive compartmentalized information facility, and our entire office, except for the lunch room and one conference room and two bathrooms, were inside a skiff, and that meant that it was like going back to the 1970s because you had to leave outside every electronic device. So we all started wearing watches. We couldn’t bring in iPhones, Fitbits, laptops, iPads, anything like that couldn’t go inside, and so we all stayed in that area.

Anne Milgram:

So like you come into the office, you drop all that stuff, and then you would go inside the skiff, or you’d be in the lunchroom where you have access to the devices?

Andrew Weissmann:

Exactly. And so if you needed to check your personal email, everyone be huddled in the kitchen space by the window, which was the one area where you could get some reception.

Anne Milgram:

So you brought soda and tonic. One last question on this, what did Robert Mueller bring to the potluck?

Andrew Weissmann:

Himself.

Anne Milgram:

He didn’t Baker or cook for the potluck?

Andrew Weissmann:

No.

Anne Milgram:

No? Yeah. So tell us about the moots.

Andrew Weissmann:

In addition to the three teams that I mentioned, we had a legal team that was led by the phenomenal Michael Dreeben, who like me was on detail from main justice. I was just coming from the fraud section, he was coming from the solicitor General’s office. And he basically has overseen every criminal appeal to the Supreme Court in like the last 25 years. And then he had three people as part of that team. And they were so meticulous. They argued everything that was certainly in the court of appeals and a few things that were court level, in addition to lots of legal work. For instance, there was a series of motions in the Manafort case that they argued, and each person would have a certain issue.

And so we would do practice moots, which as you know, that that’s pretty common in court of appeals arguments. It’s unheard of not to have them in a Supreme Court level, but at the district court level where you and I have practiced, it’s a little bit more rough and tumble. That’s not how they approached things. I mean, everything was thought through. It was just remarkable how thorough they were.

Anne Milgram:

And did you do moots for opening statements or closing statements in the cases that went to trial?

Andrew Weissmann:

But that’s pretty typical.

Anne Milgram:

So this is something only happens at the Department of Justice. When I was in the DA’s office, we never did a moot on anything. Often really, you don’t have time, but then I got to DOJ and it was really the practice that everyone had to get up and practice their opening statement, their closing argument, and get feedback from the team. And Preet and I talk a lot when we do CAFE Insider about lawyering and how important it is to just do the work and practice and work hard. And so I found it really interesting to see all this in your calendar that people think of you all as such elite lawyers and you are in the special counsel’s office, but there’s something I think really important about the fact that you’re doing it, just to make sure you have all this opportunity to practice and get input from one another. I really like that.

Andrew Weissmann:

That’s one of the luxuries of being at the federal level, is that you have more time, you have a much lighter caseload in general, and so you have the time and the luxury to do that. And that’s not to take anything away from ADAs. I remember when I was starting out, I realized I just couldn’t be an ADA because I don’t have that personality to be able to deal with that volume. I just don’t get comfortable unless I feel very, very on top of everything. And so I think it takes an incredible skillset to be a really good ADA because the volume, frankly on the prosecution and the defense side is so staggering that you really have to be able to juggle in a way that you don’t usually have to do. It’s not as comparable on the federal level.

Anne Milgram:

So now that the investigations ended sometime ago, the special counsel’s office shut down, but the cases continued. And then in the past couple of weeks, we’ve seen a number of things happen, we’ve seen the president commute the sentence of Roger Stone right before he was about to go in to serve his sentence after he was convicted by a jury, we saw Paul Manafort being released from incarceration. And I think it’s worth noting that because he did not fit the BOP guidelines. The Bureau of Prisons released a lot of folks, but there was certain guidelines they put out, Manafort did not fall within those, but he was released anyway. Obviously, I think it’s important that no one be in a position of being exposed to COVID and getting sick, but there’s a process that they set out that they didn’t follow with Manafort.

And then obviously, Michael Flynn’s case, Attorney General Barr moved to have that case dismissed. And so if I think about this all together, there’s just been a real… I want you to describe how you feel about it, but I see it as, it’s all part of one effort by the current Department of Justice and the Attorney General, Bill Barr to take action related to the special counsel. But how do you view this?

Andrew Weissmann:

So as you noted at the outset, because of the pre-publication review process, I have limits on what I can say about what happened of substance during the special counsel, but that doesn’t apply to your question, which is really what happened afterwards. The way I view this is a question of unequal justice, and I’ll give you a silly example. Paul Manafort was charged after we prosecuted him twice. He was charged by the Manhattan DA’s office, and he was moved from his federal prison to New York. And one of the first acts of the deputy attorney general was to intercede on his behalf to have him housed, not in the local New York prison, where absolutely the conditions are not as good by all accounts as a federal prison, to have him housed in a federal prison.

In and of itself, that is wonderful. I mean, there’s no reason that prisoners should be subjected to bad treatment in prison. And having a policy of having people stay in federal custody would be great if it applied to everyone. It’d be nice to know that that applied to every drug dealing defendant, every African American defendant, every Latino defendant, but this was treatment that was being accorded somebody who was politically connected. And I think it’s a small microcosm of the problem. And the Roger Stone sentencing submission that led to the four prosecutors, wonderful, wonderful career servants withdrawing from the case, one of them withdrawing and resigning from the department altogether, was exactly that.

That it had nothing to do what the ultimate sentence should be, it was that those attorneys followed the Department of Justice guidelines about the sentence and how to apply them. And the judges know that, the judges every single day see submissions where the government is taking consistent uniform positions, which is, when you think about it, it goes to the heart of what you want our Justice Department to be, that you’re going to treat likes alike. That’s I think the basis of the Aristotelian notion of justice. And that it shouldn’t matter on race, it shouldn’t matter on class, it shouldn’t matter on gender, and it certainly shouldn’t matter if you’re politically connected.

So that is how I see this, which is that there needs to… If you’re going to do this, and if the attorney general is going to do this, he needs to announce a policy that is going to be applying to everyone.

Anne Milgram:

Yeah. One of the things you just said, I think people may not understand what a big deal it is for someone to step off a case or to resign from the Department of Justice. And I thought a lot about this because I’ve been involved when I was at the Department of Justice, when I was assistant DA, when I was AG, there are times that you can legitimately disagree about what the right thing to do is. And within sentencing guidelines, one person can think you should add a two point enhancement, someone should feel very passionately that you shouldn’t, and those are very legitimate discussions and debates, and they’re within the heart land of what’s fair, and what the guidelines and the process is that these are things you can add or cannot add.

So the difference here feels to me, to get to that point where you would actually step out of a case or you would resign from the department, it’s just staggering to me and it is a sign of feeling that there is just something unjust and unfair that’s happening in a way that someone feels they can’t personally be affiliated with a matter. I don’t think people understand how much, like for you and I having been at the department, it says so much to me that people would step off a case or step out of the department, which everyone goes because they believe you’re going to be able to do justice and do the right thing.

Andrew Weissmann:

Yeah, there’s certainly our supervisors and up to the attorney general where I’ve disagreed with policy judgements that they’ve made, but unless you find that so morally repugnant, that’s part of the job, there are going to be those kinds of disagreements. This was different when it’s a question of applying the law differently or ignoring clear facts to pretend they don’t exist in order to get to a result. Those are things where I think you and I were both trained the same way, which is, I remember Mary Jo White, revered figure the way Robert Mueller is, she trained me that there is no opprobrium in resigning if there’s something that you just can’t stomach personally.

And it is a difficult decision to decide what is the right thing to do and whether you should stay or whether you should resign. And I have to say, I thought a lot about that in the last few years, and watching Dr. Fauci, I think complicates that question. I know there are a lot of people who say you should always be willing to resign and make a statement and make sure people know what’s going on, but I think obviously it’s very fact specific, but if you look at just how much Dr. Fauci has done in the countervailing interest, which is to try and have some influence of tethering the government’s COVID response to the science, it makes it very hard for him to just say, “Well, I personally find this distasteful, I’m going to resign,” when he can still have an effect on, or hopefully have some effect on policy.

Anne Milgram:

Yeah. I think you’re right. It is also fact specific. And Dr. Fauci is at the top or near the top of the department. And so I think he also has an independent microphone that he’s allowed to use sometimes and is giving speeches, and so it does feel a little different. But I do think you’re getting at the right question here, which is… It’s a very difficult question for somebody to make this step and walk out. Look, you stayed in the frauds division under the Trump administration when they started, you chose to stay and to try to do what you could do. And they’re not only fact specific, but they’re also, they depend on so many other pieces. Let’s talk about Stone just for a second and step out of some of this bigger question.

You wrote a piece that I thought was really interesting saying that Stone should be hauled into the grand jury. And you cited some precedent for this, an example in Enron. Can you just talk us through a little bit of your thinking on that?

Andrew Weissmann:

One of the things that you and I do in investigations is you start at the bottom and you try and get people to cooperate and you try and work your way up the ladder as far as the facts will take you. And with Roger Stone, as is his right, he decided to get a trial and he decided not to cooperate, and that’s fine. And there’s no legal requirement whatsoever to cooperate. On the other hand, the government is trying to get at the truth of what happened. And my point was trying to educate the public about the tools that are available to prosecutors to get at the truth, and they exist, whether somebody is convicted or acquitted, you still have the ability to put that person into the grand jury and ask them questions.

Now, Roger Stone had been convicted of lying to Congress and obstructing a witness in connection with Congressional testimony among other things. And the question was, why? Why did he lie? The court in sentencing had said that he had committed the crimes to cover up for the president. And so, one of the questions the government could have is, “Well, what’s behind that. Is there something nefarious or not?” The grand jury can look to see whether there is something criminal there.

Anne Milgram:

With an eye toward potentially prosecuting someone else like the president?

Andrew Weissmann:

The president, or it could be other people.

Anne Milgram:

Someone associated with WikiLeaks or a member of the campaign?

Andrew Weissmann:

Absolutely. So this was a way of saying, “Look, there still is an avenue that is available.” We had done this in the Enron case. One of the people who’d turned out to be just a fantastic government witness was the former treasurer named Ben Glisan, who was a brilliant, brilliant man, who had pleaded guilty and decided not to cooperate. But then we put him in the grand jury and he realized at that point that he didn’t want to lie and face more time for potentially being prosecuted for perjury. He didn’t want to just refuse to testify because that itself is a crime. And so he came clean and said, “Look, essentially, you’ve got me. What do you want to know?”

And he became one of the best witnesses. So that’s all a way of saying that may or may not be the choice that Roger Stone takes, but it doesn’t mean that the government doesn’t have the ability to try.

Anne Milgram:

And to ask the questions. Yeah. So, if we think about all of this together, and I know we’re doing this very high level, but again, if I think about Stone, Manafort, Flynn, it feels to me like a systematic undoing of the special counsel’s work, like an effort to completely undercut even the initiation of the Russia investigation, where we’ve seen attacks on the Pfizer, some of which may be fair, some of which are certainly not part of the special counsel’s work. But the question I come to is that the Department of Justice is headed by Bill Barr right now, and his involvement has been documented now, his involvement in the Flynn matter is very clear, his involvement in the Stone sentencing memorandums upfront, regardless of his feelings, it was reported he was against the commutation, but he had written in to basically talk about the length of the sentence and is exerting control.

And so I feel like part of the conversation we need to be having is, how do we protect ourselves? Or how do we think about this? Because it does feel to me like there was a process in the Department of Justice to have the special counsel appointed. And now what we see the following attorney general doing is attempting, in my view, and I want to know what you think about this, really just whitewash it, go beyond whitewashing and actually say it wasn’t legitimate, to dismiss the Flint case with an argument of misconduct and such. And so how do you think about this? And how do you think about sitting here today, Bill Barr, and how we should be thinking about, how do we protect America from the person who’s supposed to be the head of the Department of Justice?

Andrew Weissmann:

I remember when I was in law school, I spent a summer working at the ACLU in New York, and I remember there was a quote from Roger Baldwin saying that the constitution is only as good as what’s in the hearts of the men and women in America. And at the time, I was young and that I didn’t resonate with me, I was just like, “What does he mean?” I just thought law was the answer for everything and structure was the answer for everything. And that’s a long preamble to, I think that this last three years has put an enormous spotlight on how much in America, and it’s fundamental to how we think of the criminal justice system and just how the government should run, is a question of norms and not a question of laws.

And I know there are lots of people working on how the system should change going forward to help protect against what’s happening, but ultimately, I think those things help, but I don’t think they’re the ultimate answer. I think almost no matter what you do, you can have a rule for instance that says that the White House cannot legally weigh in on an individual criminal case. As you and I know, when we were at the department, there was a norm of not doing that. There was so-called MOU, a memorandum of understanding where that did not happen, and people didn’t weigh in on those things.

But that doesn’t mean the attorney general couldn’t, right? So that’s what’s happening now, is you have the attorney general, and the attorney general can weed into what they think the president wants and then she, or he can then take action. And I think it has to be something that’s so instilled in being a red line that isn’t going to have the problem we see now where it seems like one outrage after another happens and it makes people inured too what is-

Anne Milgram:

Yeah, we’re almost numb to it.

Andrew Weissmann:

Numb to fundamental challenges to what it means to have a constitutional democracy.

Anne Milgram:

You and I can imagine the President Trump may be reelected, Bill Barr may stay as attorney general. But if President Trump is not reelected, if Joe Biden is elected and there’s a new attorney general, what do you think that attorney general’s… That’s a big job in my mind to be the next attorney general who comes in to clean up the department. Clean up may not be a fair word, but reset it.

Andrew Weissmann:

It’s one of those things where I think it’s a huge challenge, but I also think it could be incredibly rewarding for the next attorney general. The one thing that when I think about what’s going to be needed is I think it’s going to be necessary for the department to go above and beyond where it might normally go in terms of transparency and fairness in terms of explaining everything it’s doing and being as solicitous as they can be to public concerns and to spelling out how it has addressed those. It reminds me very much of something that I lived through when I was at the FBI with director Mueller, which was the Edward Snowden revelations. And one of the things that I was very proud of was some of the ways in which the intelligence community responded to that.

For instance, there was uniformity in the general counsels being supportive of having outside amicus, having outside lawyers, being able to weigh in on novel legal issues before the court, that he was national security matters, meaning there needed to be another voice. And I think that mindset is going to be required in the next administration, whenever that is.

Anne Milgram:

One of the points on the amicus, which I really liked, you’ve written recently about expanding it even beyond where it is today. And I think that’s a really interesting way to think about how do we make systems… It’s just the instinct in the system is to keep things closed and to keep things private. And I think that to your point, the next attorney general in a new administration would have to push really hard to ask why are we keeping it private and have much more of an inclination to show their math because it’s a lot now to ask the public, even if they do the right thing, it’s a lot now to basically…

Part of what we’ve been seeing is really an attack on institutions, including the FBI, including the intelligence community. And so even having a very honorable attorney general, I think doesn’t necessarily right the public perception of the institutions as potentially having been harmed.

Andrew Weissmann:

I agree. I’m a huge fan of director Mueller, but one of the things that I don’t think gets enough attention is the way he ran the FBI is I think a very good model for what needs to be done in the next administration, which was, I remember going to him with a problem soon after I got there as the general counsel, and I said, “Look, I have to report something to you.” And he said, “Look, there’s no such thing as bad news, there’s just news.” And what was drilled into you was, diagnose the problem, meet it head on, don’t spin, don’t color it. You have to be absolutely clear if there’s some public statement that needs to be made. It’s got to be owning the problem, come up with a system to figure out, how are we going to solve it and then come up with a system to audit that solution to make sure it’s working, and just be completely transparent to the extent you can be about what happened and what you’re doing.

Anne Milgram:

Yeah. When you think about director Mueller and the next AG, one of the questions that I think is going to be really important is the existing special counsel regulations, which essentially put the special counsel within the Department of Justice so the AG remained the boss over the cases. And we can all, I think, obviously see now that the president appoints the attorney general, and that it’s a very complicated situation. That was in reaction to the prior Special Counsel Statute, which created an independent office outside of the Department of Justice, gave that individual a lot of power. And at the time, after Ken Starr, Whitewater, there was a bipartisan feeling that that office might be too powerful.

And so it pushed back, and then we ended up with the regulations under which you worked with director Mueller. What are your thoughts on how should this be thought about, even what’s the process to think about this going forward?

Andrew Weissmann:

It is a tough problem. So you definitely have the history right, after Watergate, it was understood that we needed to have an independent counsel law to insulate the prosecution from the Saturday Night Massacre. Then you had Ken Starr and the concern of the independent counsel almost upon an election, you immediately had an independent counsel and that it just becomes a huge distraction, and that that investigation could start on Subject A, but ended up having an investigation on Subject Z. And so after Ken Starr, the independent counsel law lapsed, and this was an effort, and I’m not in any way denigrating that effort because they were reacting to what they thought was something that isn’t a [inaudible 00:44:14] or it can be an abuse.

So they were trying to mitigate that risk. The problem is, as you’ve identified, that if you house the special counsel entirely within the Department of Justice than you are just another DOJ employee. And I think America didn’t understand that, because when you appoint a special counsel, I think America, what you’re really thinking about is that this is going to be like a 9/11 commission, there’s going to be an independent report and someone’s going to independently tell us what happened. I mean, you may disagree with it, you might think there’s bias, etc, but that’s the nature of the structure, but that’s not what the special the counsel is.

The special counsel rules have somebody within the department just reporting privately in the way any other prosecutor would with some protections, but just reporting privately to the attorney general. And then he, or she can decide what to do with that report and recommendation. It doesn’t have to be public, it doesn’t have to go to Congress. You can write a four-page letter about it. There are all sorts of things that you can do.

Anne Milgram:

Hypothetically.

Andrew Weissmann:

Yes, hypothetically. I do think that there are ways to stiffen the protections of a special counsel provision. And I know there are lots of academics who are focusing on that. In the book that I wrote, I talk about ways that I think it could be stronger, but ultimately, the ultimate call is whether there should just be an independent counsel. Again, understanding by the way that you could have that structure-

Anne Milgram:

Where do you fall on that? Would you favor that?

Andrew Weissmann:

I don’t. I don’t favor it. And it’s, to me even bearing all of the scars and seeing the ways it could be abused, I think that if you have an independent counsel, you’re guaranteeing a high risk of the reasons why we got rid of that system. And I do think there has to be, to me, again, I don’t think that structure is the total answer, I think that there has to be ways to stiffen up this special counsel to see if that works, but I don’t think that that is where I would make the changes.

Anne Milgram:

Just to your point about the 9/11 commission model. I mean, this is a question and I think it comes back to you, you mentioned Dr. Fauci and the situation we’re in right now with the coronavirus and COVID-19. And I have been thinking a lot about this and I think it’s really important thinking about, how do you create institutions that can minimize politics when things really matter, and just have people who are in the room who are making decisions and providing information to the public in a way that puts bipartisan people in that room to begin with or takes the politics out? Which obviously is very hard.

Andrew Weissmann:

It’s so sad though, to have that discussion. I mean, you look at the Federal Reserve and you say, “Okay, there’s this institution that works.” But we’re supposed to be a democracy. That’s not a knock on the Federal Reserve, it’s that it’s unusual to be having a conversation to say, “How do we create a system where the abuses of democracy don’t play out?”

Anne Milgram:

Right. Because the actual politics of democracy is part of our system?

Andrew Weissmann:

Exactly.

Anne Milgram:

I agree with that. What we’re talking about is how do you deal with the extremes? And I think to your point, I think a lot of it was norms that we never felt like we were in this position of feeling… I always think about, are the processes and the piping strong enough to withhold an abuse of authority? And I think that’s the conversation right now, the underlying foundation of the democracy.

Andrew Weissmann:

Yes. Stephen Breyer asked that question when he said he was concerned in one of the subpoena cases about giving Congress too much power, and he harked back to the McCarthy era. And I kept on thinking, nothing you do is going to forestall another Joseph McCarthy. The answer to your question is not the way you rule in this case, it’s not going to stop another red scare and all of the abuses. What the standard was for a congressional subpoena isn’t going to be the answer.

Anne Milgram:

The deciding. Yeah. Before we end, let’s talk about your book. So you finished your time at the special counsel’s office, you come to NYU School of Law as a senior fellow, you take on a number of different projects, and you decide to write a book. What is your book about?

Andrew Weissmann:

The book is about the special counsel’s investigation, and it took about a year to do. I have to say I learned a lot. It was a very interesting process. One of the questions that my editors had was whether I had enough distance on what was happening to write the book objectively, and I think one of the things that the process did was it allowed me to get that distance and perspective on what happened.

Anne Milgram:

Did you have to go through the process? I mean, we’ve all heard a lot about John Bolton had to go through this clearance process with the White House to make sure that nothing was sensitive. Obviously, the special counsel’s investigation, we talked about the skiff, there was a lot of sensitive material. Did you go through that, is it pre-clearance, it’s called?

Andrew Weissmann:

It’s called pre-publication review, and yes. So I was very aware of that process, and the only reason I can actually talk now at all about this is because I’ve gone through that process. So it was submitted to both main justice and to the FBI, they read every word of the book and gave me comments. So that has now happened and I have in writing that it has been cleared.

Anne Milgram:

Terrific. And when does the book come out?

Andrew Weissmann:

End of September, September 29th.

Anne Milgram:

And obviously, we’d love to have you back to talk about some of the details in the book. I know that we couldn’t talk about everything today. But what’s the title of the book for folks who are looking for it?

Andrew Weissmann:

The title is Where Law Ends. That is part of a quote from John Locke, which is, “Where law ends, tyranny begins.” And this is obviously not an uplifting title, but that phrase, “Where a law ends, tyranny begins,” is inscribed into the limestone walls of the Department of Justice that you and I spent a lot of time at.

Anne Milgram:

Yeah. I mean, in some ways, it’s not uplifting, but in other ways it is. It’s such a statement of the power of the rule of law and the importance of it.

Andrew Weissmann:

Yeah, absolutely.

Anne Milgram:

Let me ask you a very, very important question about your book. Are you hoping that the president tweets at you about it?

Andrew Weissmann:

I can honestly say I really hope that the most powerful person in the world has other things to focus on-

Anne Milgram:

Understood.

Andrew Weissmann:

And not to be on a high horse, but right now, given COVID, I really would hope that the president of United States is spending all of his time worried about life and death issues and not an issue about my trying to record for history what happened.

Anne Milgram:

I’m not going to make you take the over or under on that. I don’t know how I would bet actually. Preet and I was talking about, we don’t want to make predictions. This one, maybe more likely than not, a preponderance of the evidence standard that the president tweets, but it’s impossible to know. And I agree with you very much. Thank you so much. It’s such a pleasure to have you here with us and to be able to talk with you about all of your experiences and just really the wealth of information you have and your service to the country.

Andrew Weissmann:

And it’s my pleasure.

Anne Milgram:

My conversation with Andrew Weissmann continues for members of the CAFE Insider community. To hear the special bonus insider for free, head to cafe.com/brief and sign up to receive a link, that’s cafe.com/brief. Thank you to all the Insiders, thank you for supporting our work.

 

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Scenes from the Mueller Probe (with Anne Milgram & Andrew Weissmann)

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