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A Former Mueller Prosecutor Takes Merrick Garland to Task

Few people know complex federal criminal investigations as well as Andrew Weissmann does.

Over the course of his career, Weissmann has worked as an assistant U.S. attorney in Brooklyn, as a deputy and eventually director of the Enron task force, as general counsel of the FBI under Robert Mueller and as the chief of the Justice Department’s criminal fraud section (where, full disclosure, he hired me). He is probably best known for being one of the senior prosecutors on Mueller’s Trump-Russia investigation — an effort that he has written and spoken about extensively.

After the Mueller investigation wrapped up, Weissmann reentered private practice and has kept a relatively low profile in the media since Joe Biden’s inauguration. That changed on Monday, when Weissmann penned an op-ed for the New York Times that sharply criticized the Justice Department’s investigation into the siege of the U.S. Capitol. It was an essay that captured the frustrations of some legal observers and former Justice Department prosecutors, but it drew immediate attention because it came from one of the most prominent and well-respected prosecutors in the country.

In particular, Weissmann took issue with the department’s “bottom up” criminal investigation and its apparent preference to focus on the Jan. 6 rioters over the former president himself. Drawing on his own experience, Weissmann wrote that this “is actually the wrong approach for investigating the Jan. 6 insurrection” and that the public hearings of the Jan. 6 select committee “should inspire the Justice Department to rethink its approach.”

“A myopic focus on the Jan. 6 riot,” Weissmann wrote, “is not the way to proceed if you are trying to follow the facts where they lead and to hold people ‘at any level’ criminally accountable, as Attorney General Merrick Garland promised.”

Weissman argued that the evidence from the hearings “describes a multiprong conspiracy — what prosecutors term a hub and spoke conspiracy — in which the Ellipse speech by President [Donald] Trump and the Jan. 6 attack on the Capitol were just one ‘spoke’ of a grander scheme.” He went on to explain that “what I have seen in this inquiry is not typical behavior from the Justice Department.” And in light of news reports indicating that prosecutors were “astonished” by the testimony of Mark Meadows aide Cassidy Hutchinson, Weissmann expressed serious doubts about whether the department is doing what it should be doing and pursuing “a robust investigation into the facts.”

As it happens, the New York Times on Monday published a news account that dovetailed neatly with Weissmann’s concerns. In it, the Times reported that Hutchinson’s testimony had “jolted top Justice Department officials into discussing the topic of Mr. Trump more directly, at times in the presence of Attorney General Merrick B. Garland and Deputy Attorney General Lisa O. Monaco,” and that department officials “talked about the pressure that the testimony created to scrutinize Mr. Trump’s potential criminal culpability and whether he intended to break the law.” It was not a reassuring account for those of us who have long harbored concerns about the scope and pace of the department’s investigation.

I spoke to Weissmann on Tuesday morning, before the Jan. 6 committee’s latest hearing, for nearly an hour. We talked, among other things, about why he wrote the op-ed, about how he would have designed an investigation of Trump’s conduct and the riot on Jan. 6 if it had been up to him last year, and about what the department should be doing now. We also talked about whether it is too late for the department to shift gears — a year and a half after the start of its investigation and on the cusp of potentially major political changes in Washington.

This interview has been edited for length and clarity.

Ankush Khardori: The language in your piece was rather pointed, and it’s directed at some people in the Justice Department who you know well and you’re friendly with. I can’t imagine that you took the decision to write this lightly. What spurred you to write it?

Andrew Weissmann: Reading about the reaction of federal prosecutors to the testimony of Cassidy Hutchinson, and the reports that were pretty widespread, which was that they were surprised and were sort of learning along with the public was — I won’t say “shocking,” but I was surprised by it and disappointed.

The department has a lot more tools to investigate than Congress. We’re in a very unusual situation where you see Congress doing a really, really good job and being out in front of, by all accounts, the federal government in many ways in terms of understanding and investigating what happened in terms of trying to undermine the last presidential election. And so I thought it was important to try and send at least my voice out there as to what I thought they were doing right and what I thought they were doing wrong.

Khardori: The notion of a “bottom up” investigation based on the actual riot at the Capitol — one that would also reasonably address all of the concerns about conduct by Trump and others in the White House as we knew it early last year — never made a whole lot of sense to me.

Weissmann: Yeah, I don’t think that was the goal. I think the problem is that I don’t think that there was any interest to have that be the goal. I think the D.C. U.S. Attorney’s Office, with assistance from Main Justice, was tasked with looking at the riot and prosecuting the people who participated in it.

And yes, the Attorney General said, “we’ll follow where it goes,” which of course you’re going to say. And it’s true. I don’t doubt that. But that’s one type of investigation. That is not an investigation into “Was there anyone in the White House, up to and including the former president, who was orchestrating a plan to undermine the democratic vote in the last election?” Which would have multiple prongs to it.

It’s not like the department didn’t know that. There were various aspects that they eventually got involved in, such as the fake electors. But there was so much that was left aside, so I don’t think that the goal was, “Oh, have D.C do this bottom up, and eventually it’ll sort of blossom into this longer thing.” I think that wasn’t part of the plan.

I think part of that is Washington isn’t a place that’s particularly conducive to bold action or conduct where you do something where you can be a lightning rod. It’s a place where there’s a lot of pressure to just keep your head down.

Khardori: Just to try to take that apart a little bit, it sounds to me like you think that the Justice Department’s investigation was kind of set up to begin with to exclude these areas of inquiry that should have been encompassed in the investigation — things like Trump’s call to Georgia Secretary of State Brad Raffensperger. Is that fair?

Weissmann: Yeah, I think that’s right. And by the way, I’m not trying to personalize this. Obviously, Merrick Garland is the Attorney General. He’s responsible for everything that goes on in that department, whether he’s personally involved or not. And I think the idea of saying the bromide of, “we’re just going to take our time and we investigate crimes, not people” is like a meaningless statement.

First of all, people commit crimes. So you ultimately are investigating people. I think that phrase — “we investigate crimes, not people” — is an important sentiment, but what it means is that you have to have factual predication to investigate a crime or a person.

Nobody in their right mind could say there’s not factual predication to look into efforts to undermine the election. The department itself admitted that by looking at the fake electoral scheme, and now the DOJ scheme, the Georgia scheme — in other words, there’s no question there’s factual predication. So to say we’d look at crimes and not people is not a terribly useful comment. I think we should expect more from public officials in terms of responding in either a meaningful way or just not saying anything, but I just don’t think that’s a particularly helpful way to look at this.

Khardori: I want to ask you about the concept of predication for an investigation. I think most people hear that word, and it sounds kind of complicated and weighty. It’s not actually a terribly burdensome concept.

Weissmann: That’s right. I worked at the FBI, where predication is actually used a lot more in terms of what you do, because there are specific rules within the FBI — they’re not laws, they’re internal FBI rules — that in order to do certain investigative steps, you need to have certain factual predication.

So here’s a really good example. In order to make sure that the FBI isn’t just looking at anybody in the United States with no reason, in order to do this sort of low level first step of an investigation, which is called an assessment, there has to be some articulable reason that you’re doing that. It can’t just be, “Oh, you know what, I want to just take a look and see what Ankush is doing today because I think he might be up to some wrongdoing.” There has to be something more than that. You have to be able to articulate why you are going to be taking some investigative step.

And then the more intrusive the step, the more factual predication you need. So if you were to open a full investigation of someone, you need more factual predication. All that means is — it’s very, very low level, it’s not proof beyond a reasonable doubt, it’s not even probable cause — some facts that would lead you to tend to think that there’s wrongdoing.

There obviously isn’t going to be a lot of factual predication, because the whole point is to do the investigation to get to be able to decide whether there’s proof beyond a reasonable doubt and whether someone should be charged. So I think that it is an important principle. It’s really important for civil liberties that that exists. At times the FBI gets criticized because people say, “Why weren’t you looking at something?” And usually, the answer is — sometimes its incompetence, unfortunately, or a mistake or an oversight — but sometimes it’s because they were just applying that rule.

But it is a pretty low standard in the canon of rules that applies to prosecutors and agents.

Khardori: Obviously, an investigation involving Trump is a unique thing, but prosecutors open investigations, including grand jury investigations, on the basis even of news reports. If there’s a Wall Street Journal story about some potential malfeasance at a company, that can be sufficient for prosecutors to open a criminal investigation.

Weissmann: Yeah, it can be. Just to be clear, sometimes news reports are not sufficient — if it’s too speculative, if it’s too hearsay, if there’s reasons to question the veracity of what’s being said. But yes, there are news articles that can provide sufficient factual predication. And usually, there are ways to do some quick public verification to get to the very minimum threshold that you need to open an assessment.

Khardori: I want to try to take you back to last March, which is when Merrick Garland took office. If you had been in charge of crafting an investigative plan at that point in time, coming into a newly run Justice Department, to address all of the concerns that you would have had at that time — not just what happened on the day of Jan. 6, but the potential misconduct within the White House — what would you have recommended?

Weissmann: I have no problem with the U.S. Attorney in D.C. being appointed to lead. That’s certainly one way to do it. I do think that you want to focus on what that person’s remit is, and I think, to me, the issue was, yes, it is fine that they’re going to focus on the enormous undertaking of holding people to account for what happened at the Capitol.

But you can also look at all of the other things. The fake electors, the DOJ scheme, the Georgia pressuring, the vice president pressuring, to name just a few, and then you have to figure out a plan for doing all that. And it doesn’t mean that you prejudge the issue as to what you’re going to do when that investigation is done in terms of who’s going to get charged.

And obviously, the very weighty decision that if you get to the point where you think you have enough proof that you can charge the former president — you obviously have the second thing, which all prosecutors need to think about, which is whether you should prosecute. But that’s all for a second step.

The first issue is doing the investigation. And I think that you need to have a really good point person who has got the skill set and the sense of alacrity and the backbone, and then has the backing of the attorney general, to undertake that investigation. And I don’t think that happened.

Khardori: Would you have set up or proposed setting up distinct teams, perhaps reporting up to a single person?

Weissmann: I think there are different ways to do it. Obviously, I just finished — you know, the last thing I worked on was the special counsel investigation, and we did have separate teams, and then the teams coordinated where we saw overlap or potential overlap. We also made sure each team knew what the other teams were doing. And we had daily meetings, weekly meetings. There was a lot of coordination.

I also thought, just as a technical matter, one thing that was extremely useful is the prosecutors and agents and analysts all sat together. That was a particularly fruitful exercise in terms of getting things done.

But I still think the key to me is having a really good leader who has the full backing of the attorney general, so that you have that sense of mission and purpose and a sense of alacrity in terms of getting to the end of the investigation as quickly as possible — that there isn’t any sort of second guessing as to whether this is something that the leadership is supporting or not supporting.

Khardori: I think this is something about the Mueller investigation that is not well understood, despite the fact that you publicly wrote and talked about the internal organization of the team. I think a lot of people think the investigation was akin to the “bottom up” framework, where you get people on low hanging fruit, and then kind of hope to flip them. And it was partially that, but it also had this structure in which there were multiple investigative streams. Was that decided very early on?

Weissmann: Yeah, it was really early on that there were going to be these three main teams, which, you know, we were not imaginative. We had a Team M, Team R, and Team 600. “M” was for Manafort and “R” was for Russia. And “600” named after the statute that dealt with obstruction. Those were the three basic building blocks. There was a lead prosecutor and lead agent for each team. And then there were prosecutors and agents and analysts within each of those structures.

Team M was much more like a pretty routine economic crime case. I mean, there were aspects of it that were unusual — the fact that the president could pardon people, the president could fire us. Obviously, you know, I never dealt with that before.

But in terms of what we were investigating, by and large, it was just an economic crime case. And so we put that together. And yes, I was thinking about, “Oh, here’s the right hand man to Manafort, it’d be great if we could flip him.” That’s sort of a classic going from low to high. On the other hand, it’s not like we waited to investigate Manafort. But we did sort of look at who around Manafort, who’s below him who could flip. So there was, for instance, a very low level person who cooperated early on and allowed us to do a search of his home because he had been inside and to give us the factual predication necessary to get a search warrant.

But other parts were not at all like that. I mean, the Russia part, you know, they didn’t really have that ability to do a sort of “bottom up” [investigation]. They went right to being able to see into what was happening in Russia in terms of active measures.

Part of the reason I wrote this article is I thought, the way DOJ is going about this is they’re truncating the evidence of a large conspiracy by examining one small piece and a piece that’s going to be particularly fraught when it comes to the president because of First Amendment issues, instead of looking at the whole pie.

And, as you know, the defense in a case, and I’ve been a defense lawyer, is always to isolate the proof and to try and separate each piece and not have it looked at in context of all the other evidence. So to me, it was really not a good way to proceed. You need to be looking at all of the aspects.

It’s not like in the Special Counsel [investigation] we said, “oh, let’s just look at Manafort. And we’ll look at Russian and obstruction later.” You can do all of these things at once.

Khardori: Yeah, I mean, this has always been one of the big problems with the “bottom up” plan or thesis, which is that these are not mutually exclusive paths. You can prosecute all the rioters and work that aggressively, and you can also conduct an investigation focused on the Trump White House and campaign.

Weissmann: Of course. Right. But to me, it’s a question of will — of somebody sitting down saying, “I’m going to own this, we’re going to have this kind of investigation.”

I do think things are changing. I mean, for instance, after the hearings started, there were two searches done. One was the search of Jeffrey Clark’s home. And the other was — it really was a seizure more than a search at this point, was this seizure of [John] Eastman’s phone. So, you know, that is a sign of an expansion. It’s fairly late in the day in terms of when it came, and it doesn’t give confidence that this was sort of thought through and given direction at the outset.

Khardori: You said in the piece that you think it’s still possible for the country to get a “thorough, fearless, competent and fair criminal investigation.” I have to say that seems perhaps overly optimistic. The midterms are coming up, the House is likely to change hands, Trump may at some point announce that he’s running in 2024, and this has not been a particularly politically adept Justice Department. Are you concerned about the loss of time and changing political conditions?

Weissmann: Well, you know, the department — that is not changing hands after the midterms, and the department still has the ability. And my phrasing was that there still is time. It doesn’t say it’s going to happen.

And, you know, obviously, it’d be a very different issue if I said that the Jan. 6 committee has the ability — I mean, it likely has a time imperative. But that just to me puts more pressure on the department to do the right thing.

Khardori: Better late than never, right? But it is not going to look good if an investigation begins, or is expanded into the upper region — whatever terminology they want to apply to doing what I think they should have been doing a year and a half ago, which is investigating Trump, the Trump White House and the Trump campaign — it’s not going to look good for that to happen in a midterm season, perhaps immediately after a midterm loss, potentially in the midst of Trump actively running. It’ll look like it was a response to political conditions — a potential effort to head off Trump politically in 2024.

That shouldn’t be dispositive, but I am not confident that the Justice Department would be able to manage that set of circumstances any better than our current circumstances.

Weissmann: Those are fair concerns. You know, those are fair concerns. Implicit in what you’re saying, is those are reasons why things should have happened already. Because it would have been easier to do that, but there still is time. And I mean, you know, both of us are on the outside now, and we’ll see what happens.

Khardori: I want to talk a little bit about today’s hearing, which as we speak hasn’t happened yet. But I was intrigued by a quote from committee member Jamie Raskin, who said that today’s hearing would show “the moment when one sees both the convergence of efforts at a political coup with the insurrectionary mob violence. We see how these two streams of activity become one.”

The word “convergence” is an interesting one. As a legal matter, what do you make of the language and the concept?

Weissmann: Convergence doesn’t have any particular legal meaning. To me, I took that to be something short of a conspiracy. You can have parallel action that is separate and distinct. And each piece could, by the way, be illegal, or each piece could be legal, or one piece could be illegal, one piece could be legal. And you can have a convergence and parallel action.

But in order to have a criminal conspiracy, there has to be some meeting of the minds. That’s one of the reasons if I were in the department, I would be particularly interested in things like the people who seem to be connective tissue between the Oath Keepers or the Proud Boys or other groups and the White House as something to pursue. So, for instance, the conversation that Cassidy Hutchinson described on Jan. 5, I believe, where the former president asked Mark Meadows to speak to Michael Flynn and Roger Stone of all people, and we also know that there’s a connection of Roger Stone and Michael Flynn to these groups. That is a conversation I’d be particularly interested in getting.

And then there are various ways the department can get at that through grand jury subpoenas and, if necessary, immunity. Immunity, just to be clear, is not a free pass. [If] the person lies after they’re given immunity, they can still be prosecuted for that.

So there’s a lot of tools you could use to try and get at what happens. You may not be able to, but the point of my op-ed was that you have to do a thorough investigation before you can say, “Okay, we’ve gone as far as we can go.”

Khardori: I think that one of the reasons why this particular issue has struck a chord is if Trump was involved in actual planning of violence that day, that would be highly significant for prosecutors and observers. Violence kind of solves, if you will, some of the problems with the criminal investigation here because some defenses that might ordinarily apply either fall away or are not as potent when violence is involved. So when I heard this convergence concept, I have to say I saw shades of “collusion” kind of all over again.

And you know this better than I do, because I learned it on the job you hired me for, convergence does have a meaning in the law. It’s just totally irrelevant here. It has a meaning in the wire fraud setting.

I don’t want to read too much into this one comment, but it does kind of seem like: OK, we kind of are trying, through media or political channels, to see if we can develop a concept that isn’t quite a legal concept but seems to fit the facts, and we hope it allows us to cross this legal threshold.

Weissmann: You know, both of us are lawyers and both of us have been criminal lawyers. It is also important to remember that there’s a different audience for this. It’s not just the Department of Justice.

The moral culpability of somebody who is aware that armed people are coming to the Capitol, does nothing to prevent it, is aware of who they’re for and who they’re against. And then when violence erupts completely condones it, you know, that has a political consequence, even if it doesn’t have, strictly speaking, a legal consequence.

And by the way, it may. One of the things that I am a big believer in is that you can look at some of these reactions as the events unfold, and it doesn’t tell you dispositively what they intended before, but it certainly is evidence of what they were intending. If the reaction, as has been reported, is essentially “the vice president’s getting what he deserves,” that gives you a state of mind.

That’s one of the reasons I think it’s important — if you’re going to do a competent criminal investigation — to look at it more expansively, because it tells you what the president’s intent was, in thinking about the change of control at the Department of Justice, in calling Brad Raffensperger and coming up with fake electors and all of the other components. You’re not getting pigeonholed in this First Amendment problem of just looking at the Jan. 6 riot.

Khardori: I think a big part of what has motivated this thinking is people correctly understand or may have learned that in order to have a criminal conspiracy, that agreement doesn’t have to be explicit. It can be implicit or tacit. I wonder if you can talk about what sorts of pieces of evidence you would be looking for in order to establish a tacit agreement involving Trump to engage in violence on Jan. 6, which I think most closely approximates this “convergence” notion.

Weissmann: When I was in the department, Michael Dreeben, who was a senior member of the solicitor general’s office, used to say, and I took it to heart: “Gray is not for criminal prosecutors.”

And that would be particularly true if you’re going to indict the former president of the United States. So if it were me, it is true that there can be an implicit agreement. For instance, in organized crime cases, a standard instruction that went to the jury was, “Don’t look for an indentured agreement of all of the members saying, you know, where they sat down with lawyers, and they said, here’s the conspiracy agreement.” It can be implicit in the way they behave in their actions and their words. You can look implicitly at them joining a group and their conduct.

But in this situation, you know, you would want to make sure that there is clear evidence of what the president was planning and intending, and if it was a conspiracy, who he agreed to do that with.

Obviously, it doesn’t have to be a conspiracy. Many of these things are crimes in and of themselves that he can commit. He doesn’t need another person to agree to do it.

But I think that I would want very strong evidence if I was relying on sort of this implicit agreement, understanding in this situation, like many situations, the president isn’t going to sit down and say, “I’d like to have an agreement to overthrow the democratic election.” That’s just not how things work.

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