Andrew Weissmann on How to Prosecute Trump

Trump is “very, very street-savvy,” says Andrew Weissmann. Photo: Brendan Smialowski/AFP via Getty Images

It would have been hard to imagine in April 2019 that two years later, we would barely be talking about the investigation into Donald Trump by Special Counsel Robert Mueller.

Once the subject of nightly news coverage and the object of liberal fantasies, the Mueller investigation is now viewed by many as a tragically missed opportunity and, to some, a failure. That view got a considerable boost last September when Andrew Weissmann, one of Mueller’s deputies, wrote a book that reflected on the office’s work in remarkably frank terms — arguing that the team had pulled its punches both during the investigation and in completing its report. Two years later, Trump still faces legal headwinds like no other former president, including a growing number of civil cases and ongoing criminal investigations by prosecutors in Manhattan and Atlanta.

When I first met Weissmann, he was interviewing me for a job as a prosecutor in the Justice Department’s Fraud Section, which specializes in white-collar crime and which Weissmann led from 2013 to 2017. Weissmann already had an outsized reputation in the legal profession and an unparalleled résumé: an assistant U.S. attorney in Brooklyn, a deputy and eventually director of the Enron task force, and general counsel of the FBI under Mueller. With his work on the Trump-Russia investigation, Weissmann has become perhaps the most consequential federal prosecutor of his generation (whether you like those consequences or not).

I recently spoke to him about the legacy of the Mueller investigation at its two-year anniversary, and about what to look for in those ongoing criminal investigations.

A lot of people think you should have subpoenaed Trump; you share that view. A lot of people think there should have been a financial investigation.

I think there should have been a financial investigation within the scope that we were allowed to do. We could not do what the Manhattan District Attorney’s office apparently is doing. By all accounts, they seem to be just doing a classic case to see whether there’s bank fraud, tax fraud, money laundering, those kinds of things.

We didn’t have that full scope, which I actually think is just a general criticism of the special counsel rules, and also Rod Rosenstein. As a prosecutor, once there’s a legitimate basis to look at somebody — so it’s not just some arbitrary investigation — one of the ways you get a toehold is if they committed some unrelated crime. And again, in my book, I gave a lot of examples of how that worked. Whether it was an organized-crime case or an Enron, the way we got our first cooperator was looking at crime that we discovered unrelated to Enron.

What do you think would have actually happened if you had subpoenaed Trump early on?

Well, I think there obviously is a chance that he would not have been able to be talked out of firing us because we didn’t know at that time just how close we came to being fired. But that also, that’s one where, who knows what would have happened? We could have been fired.  And the other is, it would have just played out that we would have gone to court. And I think we would have won that argument on whether he would have been required to testify pursuant to a grand jury subpoena. I think that’s the high watermark of DOJ having a basis and having the ability to put somebody in the grand jury.

You also share a lot of the most widespread criticisms of the report itself, some of which you’ve touched on — the vagueness in certain places and the equivocation on the question of whether or not Trump obstructed the investigation.

I have this long argument about why we should have just said what we thought. Because that’s what the special counsel rules said. Just imagine, the special counsel rules are written this way, “Ankush is an AUSA, you are tasked with investigating something and reporting to the attorney general your conclusions.” You don’t get to say, “Oh, by the way, I’m not telling you, because you may decide — the attorney general — to make this public later and that would be unfair to whoever you’re going to talk about.”

That piece is true, that what you say publicly could be something that the attorney general really is supposed to think about and care about. Of course, the attorney general had permission from the White House to publish the report.

So, why we were muzzling ourselves thinking ahead of what the attorney general’s conundrum would be seemed really wrong, especially since the attorney general had the ability to resolve that issue, either by saying, “Well, we’re not going to talk about it,” or as is happened, have the consent of the president to make it public.

One of the most famous threads dangling is this question of whether or not Trump obstructed the investigation and whether he should be prosecuted. You wrote an op-ed for the New York Times last November saying that the investigation had “amassed ample evidence to support a charge.” It’s a little strange for a prosecutor who didn’t charge someone, for whatever reason, to publicly be lobbying for those charges. 

Well, so first, the unusual part of that is that the Department of Justice had permission to make the report public. So, normally, you wouldn’t be in that situation.

My point was that it’s really important to deal with the issue of a president — divorce it from Trump — who obstructs a special counsel, knowing that you cannot prosecute a president under current DOJ rules at the time. If you just say, “Let bygones be bygones,” please think about what is going to happen the next time we’re appointing a special counsel when you’ve now set a precedent for, “Well, you really don’t have to worry about ultimately being prosecuted for this. You won’t be prosecuted while you’re in office. And don’t worry, once it’s over, there’s going to be a huge political impetus to just be like, ‘Let’s move forward, even when the evidence is very strong.’”

But in terms of ramifications, is it okay to just obstruct an investigation and there’s no sanction? Imagine that in just the normal criminal law; a prosecutor would be outraged, saying, “Are you kidding me?” You need those tools in order to actually uncover the truth. If people can lie and obstruct and that is not itself a crime, everyone’s going to do it.

Have you been in touch with the Biden transition or the new administration on this question?

No.

Have you tried to lobby them?

No. My view on that is: I made my views public and there are some wonderful, wonderful people there, and I think they’re really smart. And there are a lot of things to consider.

What do you think the odds are that anyone actually criminally prosecutes Trump?

If it’s going to happen, it’ll be in Manhattan. That seems like the one that has the most legs. But you and I both know, it’s really hard. I’ve been on the inside and listened to people on the outside. It’s really hard unless you’re inside to know whether they’re really going to be able to make the case.

And I think a really important piece is going to be flipping the CFO, Weisselberg. I think that is going to just be so critical in terms of being able to deal with Trump’s defense of, “I didn’t know,” or “Weisselberg was signing off on things, so I had no criminal intent. Who am I to second-guess accounting and legal issues?”

That is really important — unless you have tapes or a paper trail — to have an insider. I just think it’s too early to really speculate until you know whether he’s flipped or not. If he flips, I think that this case is going to be made. I mean, you and I can also say, “You know, FTI is on the case. Mark Pomerantz is on the case.” Those are all superficial signs that there’s something there.

What I would say is that’s a sign that they are going to really try to find anything that is there. But whether they’ll get there? We don’t know.

This is not the first time the government has retained an expert consulting firm for a case. I think the business about Mark Pomerantz is a little interesting, because I see it as sort of a litmus test for how read into the white-collar space some of the commentators really are. Because Mark has not been actively working for a long time.

That’s not really the issue. Mark is a really, really good lawyer. I’m not one of his big believers in, “Oh, he prosecuted John Gotti Jr.” Because first of all, he didn’t. It happened under his watch. But he is a very experienced prosecutor. But the main thing is, he’s a very experienced white-collar defense lawyer.

I totally accept your point, which is that he may very well have been looking for something meaningful to do. And this was something where he could make a difference. But I still think it’s a huge sign. Not only would he, I think, not join something that he thought was just sort of a mess, but I also don’t know that Cy would have brought him on if he didn’t think it was really going to be a real value add, especially since there are some morale issues in bringing an outsider in.

Let’s talk about the financial investigation that the DA’s office may or may not be conducting. One of the things that I find a little vexing about the public discussion on this question is that, I think you know as well as anyone, what a “financial investigation” entails can mean a million different things. So, if this were up to you, how would you come at this investigation?

Well, I certainly would do one of the things that they’re doing, which was to fight like crazy to get the accounting records. But what you do if you’re trying to build a financial case in these circumstances — I actually think of it in terms of what we did with Paul Manafort.

You want to see whether the people you’re investigating took action on some financial incentives they had. If you are seeking loans from banks, you may want to increase your income and lower your debts.  It’s particularly useful if you are seeing that they’re reporting diametrically opposed and inconsistent things at the same time.

But then you really have to make sure that you can bring it home to the person under investigation. And that is the reason for Weisselberg. The prerequisite is whether something is reported incorrectly, but that doesn’t tell you whether it was intentional or not. Lots of people can have incorrect tax returns without committing a tax crime. And it’s not necessarily the case that the person knew about it in any way.

So, with Paul Manafort, what was great is he was having direct communications with his accountants, who were asking him the critical key questions. When we got those, it was a real eureka moment of, “Okay, the person whose intent we are interested in, we can show that he is representing things that are incorrect.”

And then, you put the timeline together and essentially, you end up with a paper case. Obviously, you can put the accountants and people who are dealing with the defendant in the grand jury and lock them in. Because Paul Manafort used email, it really wasn’t necessary for us to have Rick Gates. It became sort of a nice icing, in terms of having someone tell the story.

But we also knew there’s a downside to put somebody like that on and he becomes the target where people say, “That’s the key witness.” That will happen with Weisselberg if he flips. It’ll be like, “He’s saving his skin or he’s saving his children,” or whatever it is. And that’s sort of a standard defense, which is tried and true. And that’s what you do as a defense lawyer and there’s nothing wrong with that as an argument, and the government has to deal with that and find enough corroboration as to why he’s telling the truth.

Well, one of the big problems, I think, that has not been discussed in the media as much is that there is a wrinkle to the New York grand jury process that is not present elsewhere. Can you just get into that?

Yeah, so New York has this rule where if you put someone in the grand jury, they’re immunized automatically unless they waive it. Now, I don’t know why in God’s green earth you would waive it if you’re not fully cooperating. At the time, you basically are like, “Hey, you want to put me in the grand jury and I get immunity. Great.”

Now, the other wrinkle is, if that happens and you’re flipping somebody that way, or you’re sort of cold-putting them in the grand jury, and they automatically get immunity — which is not an ideal way to flip somebody — if they were to lie and obstruct, that can be separately prosecuted.

You really want to flip somebody in the traditional way where you build a really good case. And then, you have what’s called a “come to Jesus” meeting with them and their counsel. That’s what we [did with] Rick Gates. We said, “Here are the binders of evidence that we have, knock yourselves out, read whatever you want. And this is why your best course is to flip.”

What the Manhattan DA’s office, though, has that we didn’t have is that they don’t have to worry about the governor pardoning anybody or their being fired. Both of those were impediments to our flipping people.

Some of the challenges, though, that you folks faced — that other people have faced — do persist. I mean, Trump famously did not use emails, right?

Yeah, I mean, look, that is true in mob cases. It was true in Enron with Ken Lay and Jeff Skilling. So, in those situations, those are why in almost any complicated investigation I’ve done, you need a cooperator. I mean, you have to have cooperating witnesses. People in Manhattan know that. Mark Pomerantz knows that. I mean, that is just part of a skill set of sophisticated prosecutors and white-collar defense lawyers.

Trump also has this skill — I don’t know if you call it a skill — of being elliptical in his verbal conversations. He constantly has this deniability about what was or wasn’t said.

I actually view that as something that the prosecution can use. I am not a subscriber to “Donald Trump is not smart” or “is an idiot.” He may not be erudite and come off as particularly educated, but I think he’s very, very street-savvy. And I think because he has sued and been sued so many times, I think he has a very good idea about where the line is.

And so, a classic example of that from the first impeachment is, “I am not asking you for a quid pro quo. Just to be clear.” I’m just paraphrasing. “I am just saying, if you don’t do this, you’re not getting that.” To me, it’s a little like what he did in Georgia. He knows what to say or what he says [to the rioters] on January 6, which is “go peacefully.” But every single act and action that he took before, and on the afternoon of January 6, while it was going on, belied that statement.

And I think it’s because he has a very good sense of where the legal line is. So, he throws in some statements. And that is something that you see in white-collar and organized crime cases, where people who are used to being up against law enforcement oversight think about how something’s going to read.

Yeah, I mean, in the case of the Georgia investigation into the call he had with Georgia Secretary of State Brad Raffensperger and all of the efforts to overturn the election — I think that there’s been sort of an outsized focus in some respect on the call that he had with Raffensperger. It’s undeniably remarkable and it should draw a lot of attention, but it’s definitely not the four corners of the evidence that one could bring to bear.

I totally agree with you. I completely agree.

Plus, although the call itself is remarkable, it’s definitely complicated because the president at the time had lawyers and people at the White House who clearly were giving him information. And so, that case, you need to really understand what he has been told, because his intent is going to be critical. And if he’s just repeating what he has been told, you need to be able to show that he, the president, knew that it was not true.

Now, I think there are ways you can deal with that. But you have to be prepared for all of that, because all of those people who are with him and briefed him before the call are potential defense witnesses, and you need to know exactly what they’re going to say and what they’re not going to say.

Yeah. And I think that there are witnesses, there are documents, briefing papers, I think you can tell if you listen to the call closely that he’s reading from talking points.

Exactly.

And this is actually one of the worries that I have, frankly, about leaving this to local investigators — Vance in New York and the Fulton County DA — and this is not to disparage anyone at either of those places, but it’s going to be harder to pursue some of those investigative avenues, right? It’s hard for me to envision the Fulton County DA getting White House briefing papers.

Yeah. I don’t know enough about that office, but I will say, in defense of Manhattan, first, that office used to have a real history of doing sophisticated white-collar matters and their handling of the legal issue and being tenacious in terms of getting the accounting records was masterful. I mean, they looked incredible. I thought the briefing for getting the financial records was beautifully written and argued, and they were, correctly, a dog with a bone in terms of pursuing that.

Of course, I always like to think Feds are the best and we’re the greatest, but you know — as you know — there are really good and sophisticated federal prosecutors and not. And there are really good and sophisticated state DAs and not. So, to me, it’s more about making sure you have a really good team.

Cy Vance is, at this point, extremely experienced. And I just can’t imagine he doesn’t have his best folks on this.

There was the Trump Soho case; it’s like a classic fraud case and it was not brought under Vance. The Weinstein stuff was sort of bubbling and was not brought to fruition soon enough.

And these are hard cases under even the best of circumstances with the best people, right? You guys had what many people regard as one of the best teams historically, and you had a lot of difficulties.

The one thing I will say is there’s no office — federal or state — that hasn’t had its issues and had various triumphs and things that are mistakes. But from the outside, looking at what we know being publicly done, it all seems right to me and well-done. And even when you look at things like the Weinstein case — in areas where they have gone back to something — there’s definitely some criticism that you could have about what happened earlier. But then, the Weinstein case was a matter that was really difficult. And that was a tough case that they ultimately — now I’m talking about the second time — and they really did a great job.

I don’t want to be knocking them or perceived to be really nasty toward the DA’s office, but I see this way in which the public narrative and the press and the media’s treatment of the Cy Vance case is almost like one-to-one tracking the Mueller investigation to the point where like Pomerantz is you in this —

Yeah. Look, that is totally fair and right. And I remember at the time when our team was being described as, what was it, it was like some …

“The dream team”?

Yeah, exactly, some lazy journalism. And that’s just ridiculous. The only dream team that we had was — the agents on the case were the single best agents I’ve ever worked with in my entire career.

But I do think at this point, it’s a little speculative. That’s all I’m saying, because we just don’t know enough. And I think as you and I know, the way that you really can judge how the defense and the prosecutor is doing is if you are part of that team and you really know what choices they had and what choices they didn’t have. And you can really understand all of the intricacies. It is difficult to get all of that from the outside, especially now.

I think a really difficult thing for people to understand is that there can be ample grounds to investigate someone and you may even have a strong predisposition about what that investigation will show, but you have to be completely open-minded about the reality that more often than not, criminal investigations do not lead to criminal prosecutions. And that’s the way it should be.

Yeah, and especially white-collar matters can be particularly difficult. And proving intent, particularly if it’s a tax charge, it’s going to be really hard. I mean, it’s not like a murder where you don’t to have to sit there and say, “Gee, I wonder how we’re going to prove that Andrew knew it was wrong.” It’s a much more complicated area and you need to be ready for the defenses of, “Lawyers approved things, accountants approved things, or I just didn’t even know things that were going on.”

This interview has been condensed and edited for clarity.