The Bulwark Podcast - Andrew Weissmann: Jack Smith Cometh

Episode Date: June 21, 2023

Special Counsel Jack Smith is racing the clock, Justices Alito and Thomas seem to be taking cues from Donald Trump's "What are you gonna do about it?" approach to following rules, Republicans are against the IRS and gun laws unless Hunter is involved, and Barr's about-face is way too little, way too late. Andrew Weissmann joins Charlie Sykes today. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Welcome to the Bulwark Podcast. I'm Charlie Sykes. It is the longest day of the year. I don't know that this will mean it will be the longest podcast of the year, but we have so much ground to cover and we are fortunate to be joined by an extremely busy guy these days, Andrew Weissman, former FBI general counsel, former Justice Department prosecutor, lead prosecutor on Robert Mueller's investigation, and now a professor of practice at NYU Law School and co-host of MSNBC's Prosecuting Donald Trump podcast with Mary McCord. So, Andrew, thank you for making time to talk with us today. It's great to be here. I've joined you in the podcast business. I know, and you guys have been absolutely killing it.

There are so many things that I want to talk to you about. I want to get your take on the Washington Post story about the Department of Justice and the FBI's slow walk. I want to talk about the plea deal for Hunter Biden, the breaking story about the latest flying justice, Samuel Alito in ProPublica, Donald Trump, obviously ignoring his lawyer's advice, going on Brett Baier, the disbarment hearing against John Eastman. But could we start with this? Because, Andrew, I am still haunted by that scene in your marvelous book, Where Law Ends, Inside the Mueller Investigation. And you begin the book by describing how you were listening on the radio and you heard Bill Barr preemptively

releasing his spin on the Mueller report. And your book is really a scathing takedown of what Barr did, and it's from the New York Times review. Mueller's fundamental flaw, Weissman says, was a persistent faith in the Justice Department headed by his old friend William Barr. The Mueller team had meticulously laid out their findings in their 448-page, antiseptically-worded report, only to be blindsided by Bill Barr's four-page self-styled summary, which Weissman depicts as a nakedly cynical distortion of the truth. We had just been played by the attorney general. Okay, fast forward to this week.

How bizarre is it that Bill Barr has emerged as one of the most forceful defenders now of the Justice Department and the Special Counsel. I'm just trying to get a sense of what your reaction is, because you dealt with Bill Barr. You know what he did. You know the role he played in obstructing justice. And now here's Bill Barr out there saying that, you know, being one of Donald Trump's fiercest critics. I try to separate the two things. So to the extent that people are using it to say that he's redeemed himself, I'm just not in that camp. And I just don't think I will ever be in that camp. What he did on a professional level to the country, what he did on a personal level to somebody who was a good friend, to me is inexcusable,

unpatriotic, and violated everything about the norms of the Department of Justice, which, by the way, I worked at for 20 years. So it was soul crushing. To the extent, though, that he is saying things now that are true about the former president and that will have an effect on getting through to some percentage of the population that's good it's obviously way too little way too late but i think you need to sort of separate the two things and have the two thoughts in your head at the same time which is what are he's saying now is accurate. And if it has an effect, great. But that is a far different thing than saying that that somehow absolves him for years of, in my view, wrongdoing. You know, you do wonder if there's some place in his head that looks back on that with some regret. Who knows? I mean, I talked with Chris Christie

about this yesterday. And, you know, it's like you look back on the defenses, the extent to which they were willing to torch their own reputation, their own legacy, and so belatedly decided, hey, that was really, really a bad idea. Because clearly, you know, Bill Barr was not really concerned about his reputation and his legacy when he was willing to throw himself in front of the train for Donald Trump. Something has obviously shifted now. Who knows what's going on, but it is certainly one of the great ironies of our time. Okay, so before we get in, I want to do a deeper dive into the Department of Justice and a variety of other things. Your thoughts on the Hunter Biden plea bargain, because of course, this has become, particularly if you're

in the right-wing media, the Hunter Biden story has been a 24-7 obsession. And of course, yesterday, we had the charges and the plea bargain, and the entire Republican Party seems to be like, this is a slap on the wrist. This is another indication of the two-tiered justice system. So your thought on all of this, because again, Hunter Biden is pleading guilty to two misdemeanor tax charges, and then will accept terms that would allow him to avoid prosecution on a separate gun charge. Is this a slap on the wrist? I mean, put this in context of how another person would be treated in similar circumstances. Sure. So let's just start with something basic that's incontrovertible and should end the discussion of whether this is fair and whether

there was sort of a political fix that was in. This decision was made by a Trump appointee. This was a U.S. attorney who was held over by Merrick Garland and given complete autonomy to decide what to do or not to do. So that's just what is called an inconvenient fact for those people who want to say that this was somehow improper or Merrick Garland weighed in or the White House weighed in, of which there's no evidence at all. In fact, you have the US attorney saying that's not what happened. So that's just baseline. The second thing that I find just so hypocritical is you have the Republicans who are criticizing this, having wanted to completely defund the IRS and defang them and take as much of the additional money to revamp the IRS and are gutting it. At the same time, I know from a whole, not just

publicly, but also when I was at the FBI, it's impossible to get Republican support for the enforcement of gun laws. After Sandy Hook, I was at the FBI as the general counsel, and we were coming up with a whole variety of measures that could be taken, including additional enforcement with respect to false filings that were made where somebody was a felon, for instance, and wanted to apply for obtaining a gun. And those cases just are not routinely prosecuted. And so you have the irony of Republicans in a case where a Republican appointee has brought tax and gun charges

saying you should have done it more when they're only doing it and saying this when it comes to Hunter Biden, when in general, they're against either of those things. And the fact of the matter is that both of these types of crimes are generally not prosecuted at all or treated in an incredibly lenient fashion. Should that be the case? That is a legitimate, debatable question about how these cases should be treated. But in terms of our likes being treated alike, there's nothing that I have heard about this deal

that made me think that it was in any way, shape, or form a sweetheart deal. And the fact that it came from a Trump appointee only suggests that that would be true. And it's one that, if anything, seemed a little bit harsher than what I would typically expect. So those are my quick takes on that deal. I really think for those people grounded in reality, this is nothing. It is really only something as political fodder. You also pointed out, I mean, the DOJ tax division had to sign off on it, which they did. And this Trump-appointed U.S. attorney had ultimate authority over the investigation. He wrote a letter to Congress saying that he had the ultimate authority. I'm also just intrigued by the tax charges. I noticed that you retweeted Dan Goldman pointing out that Roger Stone had failed to pay

$2 million in taxes and use shell companies to hide the money, and he was never criminally charged. Not to mention the tax fraud charges against Trump Incorporated and Donald Trump. It is interesting that Republicans have now decided they want much more aggressive indictments involving taxes. So let's move on to some of the other things that are going on right now. And again, I want to get into the Trump trials, but your initial reaction to the latest story about Supreme Court Justice accepting favor, Samuel Alito, this was a story published in ProPublica. And the justice was so upset about it that he wrote a pre-buttle basically saying, hey, I was asked to fly on this private jet because the seat would have been otherwise vacant. So give me your take on this latest story of

a billionaire lavishing favors on a Supreme Court justice who apparently did not disclose it. Two takes. One from my colleague at NYU, Melissa Murray. it takes a certain amount of gall to spend your time criticizing the article about what he disclosed and didn't disclose when he still has not filed his financial disclosure forms. So better that he take the time that he took to write the op-ed in the Wall Street Journal by getting his financial disclosure forms in. Those are required, and they're required to be truthful. So he still has not filed those, and yet he has enough time to criticize something, which, by the way, as far as I can tell, he is not actually disputing the facts. This goes to my second point. He's basically saying, I didn't really need to disclose this because it's generally understood that you

don't have to disclose personal trips and accommodations. And he appears to suggest as long as those accommodations wouldn't have been used anyway, it's okay to take them, which the idea that this is a Supreme Court justice whose judgment on constitutional and statutory interpretation we're supposed to have respect for, that interpretation that you can accept gifts as long as it otherwise wouldn't go to use. I mean, I'd love to see that in a bribery case where a defendant says, hey, I took the bribe because otherwise that money wasn't going to go to use. It is just a preposterous argument. And yet this is somebody whose judgment on cases affect the course of the nation, including a woman's right to choose. And to me, it is a huge problem that we are facing. I do think that the chief justice should be addressing this because it so undermines public

confidence in the Supreme Court and judiciary that this can happen. And one of the dazzling details in this story, of course, is this flight on the private jet to Alaska was with hedge fund billionaire Paul Singer. And as the report mentioned, Singer has repeatedly asked the Supreme Court to rule in his favor in high stakes business disputes. Singer has come to the court at least 10 times since the 2008 trip. And Lito never recused himself from a case involving Singer's hedge fund that ruled in Singer's favor. And in that case, the hedge fund was paid $2.4 billion as a result of the ruling. And of course, there's also the Leonard Leo aspect of this. Federalist Society President Leonard Leo helped

organize the trip. This does seem to be this sort of pattern of indifference to the rules and indifference to the appearance of it. But this specific fact that he was, in fact, a litigant before the court, I mean, that strikes me as moving this to a different level. Well, you could make the analogy to Donald Trump and being in the sort of post-fact world where it's all about power and not about principle, where it's like, well, what are you going to do about it? So with Donald Trump, it's like, what are you going to do about it? You can try and impeach me twice, but I have the votes in Congress. That's why, to my mind, it's so useful to the rule of law that he's being finally held to account. And he obviously will

be entitled to due process in his day in court. But I think you are seeing something in a very different context. And I don't want to equate the two in terms of who they are as people and what they've done to the country. But this idea that I'm not beholden to the rules of the law, to me, is very similar to what you're seeing, both with respect to Clarence Thomas and to Justice Alito, where they're just not adhering to the rules. And notably, neither of them has actually filed their financial disclosure forms. Hey, folks, this is Charlie Sykes, host of the Bulwark podcast. We created the Bulwark to provide a platform for pro-democracy voices on the center right and the center left, for people who are tired of tribalism and who

value truth and vigorous yet civil debate about politics and a lot more. And every day we remind you folks, you are not the crazy ones. So why not head over to thebullwork.com and take a look around. Every day we produce newsletters and podcasts that will help you make sense of our politics and keep your sanity intact. To get a daily dose of sanity in your inbox, why not try a Bulwark Plus membership free for the next 30 days? To claim this offer, go to thebulwark.com slash charlie. That's thebulwark.com forward slash charlie. We're going to get through this together. I promise. Let's move on to the Donald Trump cases. And I want to get your take on this big Washington Post story that really documents the way that, you know, going after Trump was taboo during the first year of the FBI DOJ January 6th investigation. You know, there had been a lot of, you know,

speculation is Merrick Garland, you know, working behind the scenes? It certainly sounds as if they signed off on a very, very cautious approach. They were self-deterred. I think that it certainly looks like Merrick Garland was really concerned about being perceived to be partisan. But your take on all of this, and the reason I'm asking you this is, I wonder if you're having a little bit of flashbacks to kind of the asymmetry between the Mueller investigation and Donald Trump's tactics, and then watching the Department of Justice in the first year. There is a certain asymmetry, a caution, a concern about appearances that certainly does not exist in Trump world. So your thoughts on, did Merrick Garland drag his feet on this? And will there be negative consequences? I think it's important in answering this to be a little

nuanced, because for those people who think that the Justice Department wasn't doing anything, I'm not in that camp. By all accounts, they were doing something. But there's a big but here. I don't think they were doing enough, and I don't think they were doing enough and I don't think they were doing it fast enough. And I think there's incontrovertible proof of that. For those people who are my former colleagues in the department, there are a lot of them who I think are very reticent to criticize the department and obviously the department's had to weather quite a lot. There are all sorts of rationalizations for it. And the concern about the politicization of the department that happened under Attorney

General Barr is it's certainly important to have the department have a steadier keel. And I do think that that's something that the Attorney General was trying to accomplish. That being said, you're paid the big bucks. That's a joke. The reason you're in that position is to make a tough call. And in deciding that you have to treat likes alike and deciding that it's not enough to go after foot soldiers when there's clear predication with respect to the former president involved in the January 6th and the run-up to January 6th, I do think that it was important to act sooner and not have to be goaded by the January 6th committee. I mean, I do think that, for instance, the Cassidy Hutchinson testimony,

he played an enormous part in sort of goosing them and embarrassing them and also giving them sort of political cover to actually focus on the White House and not just the foot soldiers who went into the Capitol. And so I think that was really important. And in terms of the harm, there is harm. There is current harm. To the extent that people are concerned about Donald Trump being held to account and having his day in court, that has been delayed. That could have happened sooner. And there is a race against the clock in terms of trying to have a trial and having the public

see all of that proof at a trial. One way or the other, whether there is an acquittal or a conviction, the electorate should be able to decide that, whether it's Republicans deciding on their nominee or the general election where everyone can see what happened and whether it's proved in court. So I do think there is real harm. You know, there's obviously the truism that justice delayed is justice denied. And in this situation, that very much could be the case because if these trials happen after the general election, both you don't have the information that I think the electorate should have. And the other is if you have a Republican who goes into the White House,

you could end up never seeing the evidence because the case could be dismissed, at least the federal cases. It's not just justice delayed is justice denied. It's justice might be obliterated here. You said on MSNBC the other day that if you have what you think is a noble intent of trying to make sure that the department is restored and you're trying to depoliticize what Attorney General Barr did to the department, the answer is not appeasement. So was Merrick Garland trying to appease the critics, at least early on? I remember his first remarks when he was named attorney general, and clearly he was thinking of himself as kind of an Edward Levy, right? Someone who would come in as attorney general and restore the integrity of the department.

In retrospect, that turns out to be the wrong framing of the historic importance of that moment, do you think? I do, because this is a point that Nicole Wallace has made sort of repeatedly and passionately on air, which is, who is he speaking to? Who is that supposed to be providing assurances to? So if you think about the two most recent cases, you have Jack Smith, who is a special counsel. You have David Weiss, who is, for all intents and purposes, a special counsel, who is a holdover Trump appointee, and who made the sole decision about what to do in the Hunter Biden case. And in neither of those cases does this sort of offloading the responsibility to a supposed independent actor, neither of those

is satisfying sort of the MAGA Republicans or even just Republicans that both of these decisions are on the up and up and depoliticized. So I just don't know what you're buying through doing that. In other words, why not just make the right decision and take the heat yourself? Because one, you can just make the right decision yourself. You can live by it. You can stand by it for better or worse and take the heat for it. Because trying to say this is going to give some people assurances, I don't think that works. And I also feel like at the end of the day, just treat him like anyone else that if you go down the road of special accommodation, because you want to bend over backward to a peer fair, in many ways is politicizing the process because you are taking

that into account. And it's better to just bite the bullet and explain to people why you are treating him no better and no worse than anyone else. Well, there's a couple of really important points there, including the fact that we knew that the January 6th Select Committee was important, but I think all of this now underlines that, that it looks like they prodded, embarrassed, shamed the Justice Department to being more aggressive. I mean, that appears to be the case, that they were way ahead of the Justice Department dealing with the other actors. As to the delay, I was with Nicole Wallace the other day, and I was very clearly frustrated. We are coming up on 30 months. Now, I understand that justice can move slowly,

but now we're also up against this calendar. And to your point, that is now less and less likely that this trial will be resolved before the election. I think Jack Smith is obviously very aggressive, but he can't change the calendar, can he? And so, you know, delaying this for 30 months and now being right up against a presidential election is not a good scenario for anyone. Absolutely. You know, I would have a different view if I was confident that the department was looking at this assiduously from day one. By the way, the whole second impeachment was about what happened on January 6th, and everyone was very aware at the time what the

then president and soon-to-be former president was doing. So there was ample predication from what we all saw. And if someone had said, you know what, it just takes a long time to do this and we're proceeding really diligently, I think I would have been the first person to say, you know what, I agree. These cases take a long time. You want them to be strong. It's a sprawling case. But that's not where we are. That's not the situation. Jack Smith had to come in with a short amount of time and a race against the clock. I think the documents case shows that he's really up to the task because that was done in relatively short order from his perspective. He obviously

inherited some work that was done, but he has clearly moved that ball quickly. I, by the way, suspect that the exact same thing is happening on the January 6th side, but he was dealt the hand he was dealt, and I think he's going to play it extremely well in terms of his responsibility to the public to bring the case quickly if there is sufficient proof, which I think there is. So what do you think that timeline is? You have a pretty good track record of predicting these things. Yeah. Well, I have definitely on record saying there will be a federal January 6th case. I just don't see how that's not possible, given the proof that we've all seen, and given what I understand about Jack Smith, who I've known, by the way, for years,

when I started out in the Eastern District of New York, which is here in New York as in Brooklyn and other boroughs. And Jack is a really terrific prosecutor and thorough and aggressive. So it just seems impossible to me that he won't bring a case when so many foot soldiers have been prosecuted. The timing's obviously a little harder to tell. If I had to sort of wager sort of educated guess, I would think that it would be at or around the time of the Fannie Willis case. One, because of the clock that we're talking about. And two, I could see his wanting to have his case go first. Now, he obviously could bring his case after Fannie Willis and it could proceed faster than her case.

But, you know, I think filing sort of first in time will help that. And his case is going to be bigger and have more evidence because it's not as limited in scope as her case. So if I had to wager a bet, I'm not as confident in terms of saying this is when it's going to happen. I would say, you know, at the latest, August. Yeah, she's going to drop her charges in August, reportedly. So that would certainly sort of circle the date of the first week in August or something. I just don't know. You know,

if it's ready, he is going to bring it as soon as possible. I mean, if it's ready before then, it's going to happen before then. But I would think that he would try to do it at or around the same time, if humanly possible. And am I right in assuming that there's no question that he would be bringing this in DC, there would not be a venue issue? None. I mean, for the same reason that the documents case is in Florida, because that's where it's sort of all the action occurred. And that's sort of the natural place to bring everything, even though some of the charges could have been brought elsewhere. I think there's no question that we'll be in DC, where, you know, there also are extremely good judges. Obviously, the judges have had a lot of

experience trying January 6 cases. Before we get to the Brett Barron interview, you had a really provocative piece in The Atlantic last week, you and Ryan Goodman about what you call Jack Smith's backup option, which was, you know, if things go totally sideways down in Florida with the judge down there, that he could bring charges in New Jersey. So let's talk about this, you know, because there are questions about why Trump is not facing steeper charges. I mean, he's allegedly showed, you know, classified documents to the ghostwriters for Mark Meadows' memoir. Now he's now telling Brett Baer that he was just waving around newspaper. So how serious is that as a backup option to actually, and what would the trigger be

for Jack Smith to say, okay, I'm bringing charges in New Jersey as well as in Florida. So first, kudos to Ryan Goodman, my co-author, another professor at NYU. As someone asked me how I'm able to do all this stuff on MSNBC and write these articles, I joked that it really helps to have a co-author who's got insomnia. You know, he's very prolific and really, really smart. I mean, basically, Ryan and I, when we read the indictment, which was incredibly well crafted, had the same sort of reaction to the two paragraphs that talked about the most serious potential crimes, which was that these two paragraphs deal with Donald Trump actually showing or disseminating classified information to third parties who didn't have clearance. That obviously is more serious than just retaining the information, which itself is illegal.

But one has the risk of dissemination, and the other is actual dissemination. And that, from the intelligence community perspective, which I used to be part of, that's exactly what you're worried about, which is the actual dissemination. And those two paragraphs both occurred in Bedminster. As you mentioned, one of them is the subject of tape recording that's recounted in the indictment and the transcript of it. And the other is to somebody in a political action committee who appears to be cooperating with the investigation. And so it just struck us that while those instances are described in the indictment, they're not actually charged because you can charge dissemination separately. And

obviously it could come up at sentencing. You could still bring it up if Donald Trump is convicted. You can point out this information. But it struck us as unusual that it wasn't charged. And we were trying to speculate about what are the potential reasons that Jack Smith would have. One of them was potentially venue because they were in New Jersey, but the case that he brought was in Florida. But there's an argument for, you know, that he potentially could have brought it in Florida. And then one of the ideas was Jack Smith certainly knew that there was a distinct possibility that his case, if he brought it in Florida, would end up before Aileen Cannon. So for instance, if she were to play games with the case, if she were to delay it improperly, she obviously famously did that in connection with the investigation, something I've never, ever heard of, which is a district judge enjoining an investigation. She was reversed not once but twice by the 11th Circuit, in part based on that. Rather forcefully.

Very forcefully. As a friend of mine said, I'm not sure I would have gotten out of bed that morning. Yes, exactly. I mean, it was so embarrassing. So I'm not saying that I think it's a lively prospect, but it certainly is tantalizing because it is out there that there are these potential charges. So I just think that's a useful thing for him to have in his back pocket if needed. Hopefully, it won't be needed. And so far, the signs are good, but I don't put a lot of stock in her orders to date, which is sort of a pro forma

order scheduling a trial date, which, you know, is definitely going to slip given all the motions that have to be made. Yeah, there's no chance that the trial date of August 14th is going to hold. I think that that's pretty clear. So Donald Trump facing these multiple counts, facing 71 counts in state and federal court, sits down with Brett Baier and has some thoughts. So I'm going to get you, because there's so many things that he said there. So from the point of view of a lawyer, a law professor, and a prosecutor, what did you think of what Donald Trump said this week, and whether or not we're going to hear it again, say, I don't know,

in court? You know, the only reason to be making those statements at this point is looking at it from a political track as opposed to the legal track, from a legal perspective, that is just not a smart move. I mean, there's no defense lawyer who says, hey, I have a really good idea. Why don't you just go on TV and confess? So, you know, his counsel has to be just pulling their hair out. Of course, they knew what they were getting into representing him. So, this has to have been done on a political track. And it's hard for me to look at this terribly objectively, because, I mean, I looked at that and just thought, who is this actually persuading him? It just seems so completely implausible and inconsistent with so many other

things that he has said. For instance, all the documents are planted. It seems really inconsistent from these are my documents and I was looking through them. Or I was triaging personal from government documents when he previously said they're all personal because I had determined they are all mine. It's just been so inconsistent. So I'm not really sure he helped himself on the personal track or the political track. I think at this point, he has to be thinking that his salvation in this case is going to be delay and a Republican winning the presidency so that the case can go away. Because otherwise, I mean, if he really were innocent, somebody in his position might say, I want an immediate trial because I want to clear my name and I want to run

for president without this cloud over my head. But I think that the Brett Baer interview makes it really clear when you couple that with the facts alleged in the indictment that there's a reason he's not doing that, which is that he's guilty. Well, he did essentially confess that he was obstructing the investigation, didn't he? I mean, he did not push back on the fact that he had been subpoenaed to turn over the documents and decided that he didn't want to do that, correct? Well, Charlie, it's, you know, his defense is that I was busy and it was going to take more time to take my golf shirts out of the boxes. This is what you're entitled to do when the government issues a subpoena. You're entitled to say, I need more time, or I can partially comply, but I still need more time to produce the other documents.

He didn't do any of that. Instead, he had his lawyer issue a statement to the government saying, we've produced everything. I mean, let's just get serious for a moment. I mean, this is obvious what happened. He kept classified documents, he'd do it, it was intentional, and he obstructed the investigation into that because he got a grand jury subpoena and he lied to the government and said he produced everything when he didn't. This is not a complicated case. No, and from a legal point of view, the interview was disastrous. You know that Jack Smith is taking notes on it. And even conservative legal scholars are saying this, this was a reckless thing to do. And he hurt his case in court. But I think that the key point that you

made is that Donald Trump has decided that he's not offering a legal defense. He's deciding that he's putting all of his chips on a political defense, right? That he is, he's going around the court, attempting to go around the court to public opinion and figuring that either he can drag this out or get one juror who's going to vote to acquit, which would be a hung jury, or I think it's obviously central to his strategy that he will be elected or an ally will be elected president and make all of this go away. So he's pursuing this on a completely different track. I mean, his lawyers may be trying to get him off in court. Donald

Trump is going off in his own direction, which has its own consequences, doesn't it, for the rule of law and the criminal justice system. I mean, there are larger implications here that I think are going to succeed Donald Trump. I'm sorry, I'm getting ahead of myself. But I do think that that's the key, is that he's not offering a legal defense. And if you evaluate in that, it makes no sense. But it's all political now. And he is going to make this central to the 2024 campaign. I've said before, I think that because Donald Trump is running up against the judicial system, federal and state in this country, and the court system, and the idea of the rule of law, those are and those will continue to be under attack by him. And something that is certainly core to me and what I think of in terms of what America stands for.

And the real issue is going to be, does that hold? Is there, for this country, enough support for our legal system and the rule of law to withstand that kind of scrutiny? If it doesn't, we will not be an America based on the rule of law and a nation of laws, not men and women. I just think that's going to be the fundamental challenge in the same way that when Trump was president, there was an attack on all other types of structures, whether it's the fourth estate, that was the reason for the sort of fake news attack, because that was a challenge to his authority. It was the reason for an attack on the Mueller investigation, because again, it was some independent check on his authority. But now it's going to be in that other arena that is so, to me, so core to what it means to be in America. So this is almost a sideshow, but in the category of delayed accountability, there is the hearing in California this week about disbarring John Eastman,

who is really one of the architects of the fake collector scheme, etc. This is going to be a rather high-profile hearing, unusually high profile for a disbarment hearing. It's going to be online. So your thoughts about this, do you think that John Eastman should be disbarred for the role that he played in trying to steal the election? I do think that lawyers should be allowed to make good faith arguments that are creative, that test settled law. But I stress the word good faith. And the reports are, for instance, that John Eastman in his conversation with the staff of the vice president admitted that his theories that a sitting vice president is the one who can decide an election that would lose

9-0 in the Supreme Court for obvious reasons. Because guess what? The vice president will be like, hey, I've got a good idea. I win. So that just obviously cannot be the rule. And so I would be very interested in knowing what his good faith argument is, because so far, I just don't see it. And, you know, I think he and Jeff Clark have a lot to answer for. And they did a lot to help fuel the insurrection and give cover to the former president and his allies to take action that was just inconsistent with the constitution and our democracy. I mean, just to be clear what they were doing, just to make it sound, be a little less academic about it, was the idea that you're going to provide some bad faith cover to undermining a democratic election, there's nothing more serious.

So you mentioned Jeff Clark, of course, who is Trump's choice to take over the department. He tried to install him as acting attorney general. He's still around, it seems, and he is writing justifications for the complete weaponization of the Department of Justice, which of course is a little bit ironic since, of course, that's Trump's complaint. Their argument is that the Department of Justice is not really independent and shouldn't be independent. And Trump's made no secret of the fact that if he gets in, he's going to use the Department of Justice to go after his political opponents. So this is another thing that seems to be in the balance is how far is Donald Trump and his allies prepared to go in turning the Department of Justice into a political weapon while, of course, complaining that that's what's

happening with Joe Biden? I mean, this is a little bit of projection, but talk to me a little bit about this, that Jeff Clark is still providing the intellectual justification or the alleged intellectual justification for stripping the Department of Justice of any pretense of independence. Yes. So first, the irony. I mean, the idea that you're attacking the Justice Department now saying that they're weaponized against the Republicans, and your solution is not to say they should be independent. The solution is to say, I want to weaponize it on my side. I mean, it's just ridiculous. There is no question in our system of government that the Department of Justice is part of the executive branch and that the president has the power under the constitution to direct

the Department of Justice. Post Watergate, and actually even before Watergate everyone understands how important I shouldn't say everyone every right-minded person understands that the Department of Justice has to be independent of the executive branch that's why you constantly hear Biden and by the way other presidents it'd be true of the Bush presidencies, that you do not direct the department to go after certain people or to not go after certain people. That is antithetical to the rule of law and that politics are not supposed to have any role in those decisions. That's the reason that although the president has the power to do it, they don't exercise it. So it's not novel for Jeff Clark to say, well, the president has that power. The issue is, why on God's green earth would you want a system where somebody gets

to do that with their Justice Department? That is not the rule of law. Just imagine, is that what you really want to live under, where the Department of Justice and a decision about who gets prosecuted and who doesn't is decided by the president of the United States about his or her political adversaries? I mean, you know, President Trump famously said, I don't know why we're not going after more Democrats. I mean, that's just completely misunderstanding principles. But that is sort of President Trump to a T, which is sort of naked power. I can do it, so I'm going to do it. If I can take down my adversaries by bringing a prosecution, great. But even, for example, Bill Barr, who wants to sort of even now trot out the issues involving Hillary Clinton, you know, one of the things about cases is you do need to

have facts and you do need to have law. As judges have famously said during the Mueller investigation, Amy Berman Jackson said to Paul Manafort, you know, this is a place where facts and law still matter. is music to Donald Trump's ears, but it should be something that sets off alarm bells for people who want a country that really follows the rule of law. Andrew Weissman is former FBI general counsel, former district department prosecutor. He was the lead prosecutor on Robert Mueller's investigation of Russian interference in the 2016 election. He's now a professor of practice at NYU Law School, co-host of MSNBC's Prosecuting Donald Trump podcast with Mary McCord, also the author of the rather extraordinary book, I've been rereading it, Where the Law Ends Inside the Mueller Investigation. Andrew Weissman, I know you're extremely busy. Thank you so much for taking time to talk with us on the Bulwark Podcast. My pleasure. And thank you all for listening to today's Bulwark Podcast. I'm Charlie Six.

We will be back tomorrow and we will do this all over again. The Bulwark Podcast is produced by Katie Cooper and engineered and edited by Jason Brown.