The Bulwark Podcast - Andrew Weissmann: The DOJ and Trump's Attempted Coup

Episode Date: January 2, 2023

The clock is ticking down on whether to bring charges against Trump for what was essentially a "simple" scheme — a president wanted to stay in power even though he lost the election. Former DOJ prosecutor Andrew Weissmann joined Charlie Sykes for this encore episode from July. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Just fill out a brief questionnaire to get matched with a licensed therapist, and switch therapists at any time for no additional charge. Take off the mask with BetterHelp. Visit betterhelp.com today to get 10% off your first month. That's a new year and the window for holding Donald Trump accountable is closing quickly. In this final selection from our best of 2022 list, Andrew Weissman, former prosecutor with the Justice Department, says Trump acted with premeditation in the days leading up to January 6th and on the day itself. And he warns of the danger of placing the presidency above the law.

Here's my interview with Weissman from last July. We are very fortunate today to be joined by Andrew Weissman, a former Justice Department prosecutor. He was the lead prosecutor on special counsel Robert Mueller's investigation of Russian interference in the 2016 election. Also, the author of a critically important book, which I strongly recommend, Where the Law Ends Inside the Mueller Investigation. Andrew is now a professor of practice at NYU Law School and a legal analyst for NBC and MSNBC. So thanks for joining me today, Andrew. Appreciate it very much. Thanks for inviting me. So you wrote that Mark Short's testimony is relevant to a lot of different things, including the Inspector General investigation into Clark and Eastman, the pressure on Pence to not testify. The Department of Justice is trying to make a seditious conspiracy case against Trump that requires proof that there was obstruction of Congress by force, right?

So the evidence of that threat of violence is key. And I think you made this point. If Mark Short knew the day before on January 5th that Pence could be in danger, and that the Secret Service knew that, you said it would be laughable to suggest the president did not also know. Yeah, absolutely. He obviously would be important in this case as well. Yeah. I mean, so, you know, this is one of those things that if in the grand jury, they are really pressed for everything that they have evidence about. So one would be this issue of being aware of violence

beforehand, before January 6th. And obviously we've heard from the January 6th. And obviously, we've heard from the January 6th committee, various people testifying about that, but you could have short and Greg Jacob could both testifying about being aware of that and who else was aware of that and what was being done or significantly what was not being done, as Cassidy Hutchinson testified quite remarkably. They may also have evidence about the so-called fake elector scheme and what was being done there. They can have evidence about the scheme to replace the then acting attorney general with Jeffrey Clark. So there are a whole host of things that they could be aware of. And then maybe finally, the transcript of the president's statements on January 7th was released what he said and what he crossed out and didn't say. But one of the things that was in that speech and was not crossed out was just a damn lie, which is on January 7th, the president says, you know, I immediately called in the National Guard and law enforcement on January 6th. That's in the speech. It was not crossed out. And that 6th and knowing that they were not getting any assistance from the president.

So there are many, many ways that they could be helpful. So just sort this out for us, for those of us who are laypeople. If it is the inspector general who is pushing this, is the inspector general pursuing criminal charges? Yeah, that's a great question. So the inspector general has limited jurisdiction. The inspector general is there to examine DOJ or former DOJ officials, as well as people who may have aided and abetted or conspired with them. So the inspector general would have the ability to conduct an investigation of Jeffrey Clark, since he was a DOJ official. And they could also investigate, and it appears they are

investigating John Eastman on the theory that he was conspiring or working with Jeffrey Clark. That investigation can be criminal. They have that authority to do that. Very often, the inspector general will do an investigation. If it's a significant criminal investigation, they will pair up with another agency such as the FBI. When I was in the department and running the fraud section, we actually had a corruption investigation and involved the FBI and the inspector general. We just worked together and coordinated the investigation. It's not clear at all that that is what's going on here. You know, we just have breadcrumbs and tea leaves to read because of the information about the Jeffrey Clark search and the John Eastman seizure of his

phone and the litigation over that. But it appears that it's solely the inspector general that is looking into that. So I want to get to the whole question about whether or not Trump should be charged, because obviously there's a lot of debate about whether he should be charged, what he should be charged for, and all of the missed opportunities we've had in the past, and this may go back for decades now, to hold Donald Trump accountable. That on so many occasions, there were opportunities to basically draw a line and say, okay, Mr. Trump, you have violated this law, this statute, you need to be held accountable. And time and time again, prosecutors in New York, local prosecutors, federal prosecutors, whatever, passed on it, obviously, the Mueller investigation, the two impeachments. Talk to me about just the frustration and the danger of all of this, because it feels as if every time there is an effort to hold Donald Trump accountable, and it fails, that he feels emboldened. And therefore, in some ways, the danger increases. Do you know what I'm getting at here? Yeah, I agree. I do think it is important to parse out the specifics on that.

But I do think that there is an emboldening of him and also a concern about the precedent you're setting for those people enabling him and those people around him where he would think that I can do this because I'm surrounded by a bunch of yes men or yes women. I think it's both. But the reason I think it's important to maybe parse this out is, you know, as far as we know, the Manhattan District Attorney's Office that did an investigation into financial dealings, did an investigation, did as much as they could. I mean, we're told it's still continuing, but it may just be that there either was nothing there or there was not proof beyond a reasonable doubt. And so the system may have operated, unfortunately, for people who want to see an indictment the way it should.

I think the Mueller investigation is somewhat different because there the findings were laid out sort of ad nauseum, if anything, sort of 400 pages of pretty turgid prose about various issues concerning the then president that included obstruction of justice. But as you know, under Department of Justice guidelines that we had to follow, we were not able to bring an indictment. But there was a decision that had to be made about what would happen when the president left office. And so I think it is fair to ask why that wasn't picked up after President Trump left office. My own view is that if you truly believe that the president and the presidency is not supposed to be above the law, that it's very, very dangerous when you do have sufficient proof of a serious crime committed while the president is in office, that it really cannot be the case that once he's out of office or she's out of office that you say, oh, let's just let bygones be bygones. If you do that, the message you're sending

is that the presidency is really above the law. And also when you have something like obstruction of justice, what's the point of appointing another special counsel? Because the message to the president is you can actually obstruct and you're not going to be held to account. So I do think it is fair to see that as a missed opportunity. And with all of that history, I can understand why the public and me included are really concerned at this point that the prosecutors who are charged with investigating criminality relating to the events on January 6th are really doing a thorough job with sufficient backbone to go after any criminality. See, this is a really important point because one of the lessons that Donald Trump has internalized is the fact that justice can be obstructed, that obstruction

of justice works, that it can be successful, that cover-ups can work, that he can successfully cover up the crimes. And so it's sort of turned around that old adage that it's not the crime, it is the cover-up. Because, I mean, we are seeing a cover-up in real time of the former president's behavior involving, you know, the big lie and in January 6th. And as you just pointed out, the evidence was laid out rather extensively about obstruction of justice, which I'm guessing that Donald Trump is sitting there going, well, you know, I'm glad I did that because it unfortunately, if it's not prosecuted, does work. And the message is to continue trying it. You know, a good example is we don't know yet this whole story of what happened with the Secret Service texts. on January 6th at the White House. But it is conceivable that one or both of those things involve obstruction of justice by some person, maybe not every person, but some people, for instance, deciding we do not need those documents and it's nothing good comes from them. And, you know, very often the beneficiary, you know, is going to be, you know, the beneficiary was going to be the target because that evidence is not there anymore. So I personally, when I was a prosecutor, always thought that what was deemed, quote, process crimes are very, very important to prosecute when you have obstruction or lying to investigators because you have to deter that behavior if you're going to have a successful

investigation. You wrote this widely discussed op-ed piece in the New York Times critiquing the way that it appears that Merrick Garland is going about this investigation. And you wrote that you thought the Department of Justice was handling the January 6th investigation with a myopic focus that you thought the DOJ was treating the day as a single discrete event separate from other efforts to overturn the election. And you wrote that Garland was operating in a bottom-up approach, you know, prosecuting the lowest-ranking members of a conspiracy and flipping people as a procedure, which is traditional. So your main case, and again, correct me if I'm getting any of this wrong, was that you were advising the Department of Justice, they should be pursuing a multi-pronged conspiracy, a hub and spoke conspiracy. So talk to me a little bit about that, and why that might be a more effective way of prosecuting this case than just focusing on the

details of what happened that day. So the reason I wrote that piece is after Cassidy Hutchinson testified before the January 6th committee, there were widespread reports that prosecutors at the Department of Justice were surprised by her testimony and were learning what she had to say at the same time that we in the public were. And as somebody who is a prosecutor, that raised a lot of concerns as to why they did not know that either from her or from other people who prosecutors would have interviewed in the White House, because what she said was something that other people knew various pieces of. And it was concerning to me that what we were told was an investigation that was diligent and thorough had not gotten to that point for one reason or another. So that was

the impetus for the piece. And if you compared what the department was doing with respect to the actual attackers, the people who were rioting and went into the Capitol, and they've done an amazing job prosecuting that and making cases, including against the Proud Boys and the Oath Keepers, that seemed like a sort of narrow view because I wasn't sure how that was going to quickly or at all get to all of the other things that were laid out by the January 6th committee, because I thought one of the incredible things about the January 6th committee is they approached the task as what was the plan that was going on in Donald Trump's mind to overturn the election. And they looked at all sorts of aspects, whether it was creating fake electors, putting pressure on

various state officials, whether it's in Arizona or Georgia or other states, pressure on the vice president, a scheme to behead the leadership of the Department of Justice to put in a crony who would come up with a false statement that there was fraud in the elections, that it could be used to undermine the counting of the votes, whether it was a scheme by Rudy Giuliani or Sidney Powell or Mike Flynn to seize the ballots. I mean, there was a whole range of things that the president was trying to do that culminated in the events on January 6th as the last hurrah, because that's when the vote was actually going to take place. But it wasn't looking at that event in isolation, nor was it saying we're going to first start and only look

at the low level people who entered the Capitol. It really looked at it more holistically. And I thought, as a prosecutor, that made a lot of sense. Basically, all I was saying is I hope the Department of Justice is going to follow that same approach and was concerned that they weren't. Okay, again, for us laypeople, define hub and spoke conspiracy. imagine that you have Donald Trump as the hub, and the various spokes could be the Department of Justice scheme, the attack on the Capitol, the pressure on the vice president, the pressure on state election officials like Brad Raffensperger. So those would be all sorts of schemes that emanating from the hub. So that seems really big, really complex. You seem to suggest in some ways that would be easier to do than just focusing on some small aspect. I mean, because it would eliminate certain defenses. But I mean, that seems like a sprawling, comprehensive kind of indictment that would take a great deal of time for the

department to just put together, or am I misreading that? Well, I do think that it is broader and thus could be more time consuming. But if I were a prosecutor, I would definitely want to include as many of the schemes as I could prove up. But also, I guess I'm going to disagree with you in terms of is it possible? I mean, you know, the department has a lot of people and it has a lot of agents and investigators and you can walk and chew gum. And frankly, we've seen the January 6th committee do a pretty amazing job. Now, granted, they're a different audience and a different level of proof, and they can rely on hearsay. But I don't think it's all that complicated. I mean, I've worked on Enron, and I've worked on the special counsel, I actually think the scheme is pretty simple. It's a

president who wants to stay in office, even though he lost the election. Yeah. And they were in a very fairly short period of time, there were various steps. And yet you have a lot of people to interview. It's not a terribly complicated. I'm not disagreeing with you, really, because I actually completely agree with you on all this because a lot of this spade work has already been done. I mean, a lot of this has already been laid out. So what has been this relationship between the January 6th Committee and the Department of Justice? It seems as if the Department of Justice was taken by surprise by some of the things they have come up with, that the committee has effectively nudged the Department

of Justice into doing something that it was reluctant to do. Is that the way you see it? Yeah. So, you know, one thing I do think it's important for people to know is what is going on is really unusual. When I've been in the department and on high profile matters, I want to go first at the department. I don't want Congress or a state prosecutor to go ahead of me. I want to be the person who first interviews witnesses for a whole host of reasons. It's also really important for when I was doing cases to make sure we spoke to witnesses and we also didn't let witnesses to the extent we could know what other evidence in the case was so that there couldn't be Committee raising publicly their concern about where the department is, is because experienced people on the Hill are aware that this is an unusual situation. They don't usually get to go out so far ahead of the department if there was an active investigation. Having said that, that's all looking backwards. I do think that the January 6th Committee and the excellent work and the public hearings have nudged the department forward and also in some ways given them political cover to be more aggressive and to rethink what they're doing. And I have zero issue with the credibility and

bona fides of the Attorney General. And I do think his recent statements are really positive and a good sign. Obviously, he has to live up to those. And we'll all wait and see what he does. The reality is that as much as we think that it's important that the former president be held accountable, that presidents are not above the law, there are tremendous risks in bringing criminal charges, even if Merrick Garland thinks there's sufficient evidence. You were on NPR last week and said there was ample evidence to investigate the crime of obstructing Congress. I'm trying to be sympathetic to Merrick Garland. I mean, I share frustration about how slow this has gone. But he's got to know that this is going to be the defining decision of his entire tenure in office, if not his entire career, whether or not to charge a former president of the United States. And there are multiple risks here, aren't there?

There are risks that he would bring charges and Trump would be acquitted, or he would bring charges, Trump would be convicted, but the conviction overturned. And it seems almost certain that if he brought charges, it would further divide America. So try to get into the heads of the people in the Department of Justice, because they have to know that even if it's the right thing to do, that this will take a divided country, and it will pour kerosene on the situation. And it may be worth it, but the reality is you have to go into it with your eyes wide open, that this is going to create a massive, unprecedented political firestorm.

So I think that is all true. I think it somewhat jumps the gun in terms of where we are. You know, I'm a sort of very linear, boring lawyer. And so, you know, what I do is I think of this as right now, the question before the department is having a thorough, competent investigation. Where that will lead and the decision that comes at the end of that is it's not really ripe. But because we're in this forum where we can start thinking about what if and what if hypotheticals, there's no question that it'll be a tough decision. But I guess there are a couple things I would point out. One, it also can be useful to have a trial in a court of law with a judge where evidence has to be presented and tested where people can see what's going on. Essentially, it would be like the January 6th committee, but with many more rights

to the accused to really test if this is going on, and for the public to see and make their own judgment. And then the final point is, while all of those risks, something that you mentioned at the outset, it's important to remember the risk of not going forward. If you have significant evidence of a president trying to undertake a coup and undermine democracy, what is the risk of not going forward? And to me, if the department gets to the point where they have a significant case, to me, that would be the overriding principle to my mind. If they don't go forward with charges, if they decide that it's just too heavy a lift, and Trump is returned to the presidency, what would Trump 2.0 look like, do you think? I don't know that I have enough alcohol at home to even fathom that. The abuse of the pardon power, which we already saw, I think would create a completely lawless

society. He could essentially engage in crime and have other people engage in crime and then pardon them. I think he has learned to make sure he's surrounded by lackeys. The article recently in Axios about essentially getting rid of civil service, which is to put in only political appointees in various agencies, I think would be incredibly harmful so that you don't have a sense of people being loyal to the law and the Constitution as opposed to a person. It would be truly frightening. I don't think that's an exaggeration, by the way. What would his Department of Justice look like? I guess the question would be, we've gotten this picture of members of the Department of Justice look like? I guess the question would be, we've gotten this picture of members of the

Department of Justice who are Trump appointees in Trump 1.0 standing up against him before January 6th. But in Trump 2.0, who would be there? Who would be in the Department of Justice? Who would take those jobs? And what would happen to the career employees? Well, I think one way to think about that is that Attorney General Sessions was essentially booted out because he understood that the role of the Attorney General in the Department of Justice was to be independent of the White House. And for instance, when the president said that we really need to go after more Democrats and essentially fewer Republicans, he knew that that was just completely, in my view, improper and unethical, providing him a benefit that was not being provided to anyone else and taking a position on the law that the department was simultaneously saying was not the law in other cases. They sought a lower sentence for Roger

Stone when they never would have done that for anyone else. So Barr really took the department down the road of just being a lackey. But as we've seen, even he had his limits, and that he was unwilling to engage in the overthrow of a democratic election. There was some limit on what he would do. I'm afraid that if you follow that pattern, that sort of Trump 2.0, essentially the Attorney General will be people like Jeffrey Clark or Sidney Powell or Michael Flynn, where even that limit that Bill Barr had and Jeffrey Rosen had would not be in place. Well, I think that's one of the lessons that Trump would probably think that he had learned, that he has to have the loyalists, that he can't have anyone who has any sense of independence

in those positions. And of course, in 2.0, he would never face the voters again. He would know that he would never really have to face legal consequences because he could use the pardon power. I'm just interested in the kinds of lawyers who would staff, and I think you're right about this, who would staff the Department of Justice and the willingness of Republican Senate to confirm those nominees. I mean, there is, of course, the check and the balance, but we really haven't seen a willingness on the part of Republicans in Congress to exercise a veto. And you can imagine what the political environment would be like in 2025 with a return Donald Trump and a Republican majority in Congress. I agree with you. And we're really just talking about

the Department of Justice. And while I would say that's very dear to my heart, and it strikes at a fundamental tenet of our democracy. I mean, it unfortunately is not hyperbole to say that if he is reelected, I think it'll be hard to know why we're not now an authoritarian government and we'll really see the end of a sort of American experiment in democracy. So give me your gut sense now. Will Donald Trump be criminally charged by the Department of Justice? What do you think? I am fearful that they're not going to be able to get to where they need to be on the investigation before time runs out. I have every reason to think that Merrick Garland is serious and that what he's currently saying is true. I'm concerned about the clock. And when does the clock run out in their mind?

So I think the clock is for, you know, they're not a congressional committee, so they don't have to worry about the midterm elections in terms of the investigation. But I also think that the investigation can continue and we heard will continue even if the former president announces that he is going to run again. On the other hand, there is a Department of Justice policy that, you know, 60 or even 90 days before an election that you sort of stand down on bringing any charges. So that means that we're really talking about sort of the summer before 2024. Now, that's quite some time, but as we've talked about, there's still a lot to do and a lot of people to interview and, you know, potentially a lot of people to flip.

And I'm going to put in a plug for something, which is if I were in the department, the two people who I would be putting in the grand jury sooner rather than later are Mark Meadows and Kevin McCarthy. I think they both have significant evidence. You know, it's not at all clear that they would take the Fifth Amendment. I also think the department could, if they couldn't make a criminal case on, let's say Mark Meadows, they could also immunize him and get his testimony. And I just think if you're trying to advance this and you're worried about the clock, both of them have significant evidence if you are thinking about a case against Donald Trump. Andrew Weissman, again, thank you so much. Andrew Weissman's book,

Where the Law Ends Inside the Mueller Investigation, really a must read for that period. Former Justice Department prosecutor, now professor of practice at NYU Law School, legal analyst for NBC and MSNBC. Andrew, thank you so much for coming back on the podcast. Thanks for inviting me. Thank you for listening to the Bulwark Podcast and happy New Year, everyone. Tomorrow, we'll be back with a new episode to kick off 2023. And we'll do this all over again.