The Daily Beast Podcast - Mueller Deputy: This Is Where the Special Counsel Came Up Short

Episode Date: November 1, 2020

Hindsight is always 2020, and in this case, Andrew Weissman is pretty sure where Mueller and team came up short. He was part of the team that investigated Enron. He personally promoted former FBI attorney Lisa Page and served as Special Counsel Robert Mueller’s deputy during the Russian collusion hearings. He wrote a book about the experience, but came on the newest members-only episode of The New Abnormal to share that insight with co-host Molly Jong-Fast. When it came down to it, “we didn't have sufficient proof that people in the Trump campaign were trained not to accept anything from foreigners,” says Weissman. Also, “I think we should have said whether we thought he obstructed justice or not. I didn't think we should have used very hard to understand double negatives.” Then there’s the four-eyed elephant in the room named Bill Barr, who Weissman says no one from his team anticipated “undermining the rule of law.” But it didn’t take them long in their investigation to figure out that was what was happening. Speaking of which, Weissman predicts a lot more “harm” to the justice system if Trump is re-elected for another four years. And if Trump isn’t? It won’t be gumdrops and roses just yet. Weissman has an unnerving prediction for what Trump will do if he loses. Plus! He breaks down how he got to this place and has some action items to make sure it never happens again. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Hi, and welcome to another The New Abnormal Exclusive episodes, and we thank you so much for being here. Andrew Weissman is the former chief of the criminal fraud section of the U.S. Department of Justice, as well as the deputy in the special counsel team headed by Robert Mueller, as well as author of Where Law Ends Inside the Mueller Investigation. It's funny because, you know, I did Lisa Page's first interview, And then I met with Peter Strzok right after that.

Interesting. Yeah, to try to get him to do an interview, which I was not successful at. But I did eventually get him to come on the podcast months later. But so I know a lot, you know, I know they're both huge fans of yours. So for me, it's very interesting to like square the circle. Yeah, well, Lisa, you know, you may have heard, Lisa was relatively new in the general counsel's office at the FBI. I when I was there. And then I promoted her. Oh, right. Yeah, you brought her to Mueller, right? No, I didn't bring her. She was actually, when I got there, she was there. And I had actually thought she wasn't going to be there.

So I was actually pleasantly surprised. But I was a big fan of hers when I became general counsel and sort of quickly promoted her. And then she rose further because, I mean, she was obviously a star. That is actually something I'd love to start by talking about, which is there are all of these people like Lisa who are, and Pete Strzok is a great example too, right? I mean, some huge percentage of FBI agents were trained by Pete Strach, right? He's a superstar. Yeah, the thing with Pete, though, is I knew of him, but I think I'd only met him once before the special counsel.

First, I want to know there are all of these very good government people who have had their lives ruined by Trump. You could say, well, Pete has a book now and Pete has this. But, like, ultimately, these people wanted to be just government people. They didn't want to be celebrities. And I'm curious to know, like, do you think there's a place for them back in the government if Trumpism ever goes away? And also, what kind of effect is this going to have on the federal government going forward? That's a great question.

On the first part, career people don't think about becoming somebody who's tweeted about by the president of the United States. Or, you know, I remember watching Andy McCabe. He was on, I think it was Stephen Colbert and Stephen Colbert started by saying, I bet you never thought you'd be here. And I watched Andy sort of laugh and be like, not in a million years. That's not why people go to the government for their careers. They're obviously not doing it for the money. I mean, you make it perfectly fine living.

But if you were just motivated by financial gain, that's not what you would do. And my view of people, the Department of Justice, and especially at the FBI, where everybody is a career person except for the FBI director. I mean, there's only one presidential appointee is people are incredibly patriotic and are doing it for all the right reasons. There are so many people there who I feel like at the American public, if they knew what these people did day in and day out and how hard they work and how dedicated they are, we'd be so proud of them. I had the same reaction when I listened to the people of the State Department testify in the impeachment hearings. I was so proud of the State Department and the people who were representing them. So it's not something that you relish or want.

And having been through sort of a public glare, whether it was Enron or the special counsel's office, it's really not helpful. I mean, you really just want to keep your head down and do your work. So it's just not something you think about or desire. In terms of a future in any just world, there would be a future. Obviously, Pete and Lisa, they had mistakes that they, on their personal side, and they did things that were not good judgment. But in terms of their integrity and their skill set, it's really wonderful. You know, we shall see, the one thing I can say is there are many, many, many current Department of Justice employees who can carry the flag.

And they're a wonderful, wonderful people in the future I teach now. And one of the great things about teaching is you get to see a new generation. And it's not to be on a soapbox, but it really is heartwarming. I spend a lot of time thinking about how we unravel Trumpism, if that even happens, which it may not. And I wonder about this sort of rot in the places in the federal government where Trump has sort of picked out people who did the right thing expressly because they did the right thing. And I wonder now what you think about the federal. government right now. Like, for example, a good example is Postmaster DeJoy, right? This is a very partisan person who basically was brought in to destroy the mail and has worked really hard to do that.

The people who have kind of saved things have been these quiet whistleblower types. And so I'm curious to know, is the federal government functioning right now? I mean, I know that takes a bit of supposition, but I'm curious to know what you're saying. My general sense is that it is functioning in pockets. It doesn't help when a senior member of the organization is sending all of the wrong signals. Wait, are you talking about our good friend, William Barr? Actually, I was thinking of William Barr and the president. And here's my analogy.

And my analogy is when I was investigating Enron, I remember we sat down with the head of compliance at Enron. I mean, that sounds like it might be a joke, but it's not. One of the things that he said is he was like, Andrew, you know what? Whatever we tried, it didn't. really matter. We wanted to have an ethical company. We had very good compliance people, but you know what? It's not going to work. When you have Jeff Skilling and Ken Lay running the company, the message is there. So I do think that at the department, there are many people who are,

you can see visibly that during the right thing. You've seen career people write letters to the editor and op-eds. You've seen people withdraw from cases. That is completely unheard of. And I mean that in a bipartisan way. I mean, I've worked for so many different administrations. But to say something sort of optimistic, and I'm usually not that optimistic, I actually think whenever we get to a post-Trump era, you know, whether it's in a couple weeks or whether it's in four years in a couple weeks, you know, I think there'll be much more harm done to the Department of Justice in that case. I do think that there is enormous interest amongst right-minded people on the left and the right to try and figure out how there can be better safeguards,

better rules of the road that, so we don't just have norms. One of the things that I tried to do at the end of my book is really talk about how the special counsel rules don't really work and that it's a good time to rethink whether what was put in place in light of Ken Starr went too far. Yeah. And they didn't anticipate, I mean, of course they didn't anticipate

because who could have anticipated this, you know, a president and an attorney general who are going to completely undermine the rule of law. So that's just one example of, I do think that there's going to be a lot of interest in trying to figure out how our checks and balances can work better. So we had prete on the pod earlier and we were talking about this idea of how I have a theory that because there was insufficient legislation after Nixon and that some of that is how we got here. Do you think there's an opportunity now to write that? And do you agree with me?

Am I completely not? If you're focusing just on how do we investigate the executive? Clearly there has been an accountability issue at the executive branch. And how do you write that chip? So pulling way back, I think there's two issues. One, just in terms of how do you examine the executive, which is a complicated issue. The independent council law really was, I won't say the gold standard because it has its downsides, but that was trying to deal with the Saturday Night Massacre. So I wouldn't say

post Nixon is the problem. I would say post-Kenn Star is the problem. But if you pull it way back, one of the things that we've seen post-9-11, and this is something, you know, I teach national security law at NYU. Post-9-11, you basically have seen a huge growth in executive power and a real diminution of congressional power, some of which Congress actually gave away themselves, right? Exactly. Because Congress realized, you know what, we don't want to vote on the war powers of the president. Let the president take that risk. And so they have ceded so much ground to the executive. And now, you know, you're seeing the Congress basically be a lap dog to an enabler. And again, just to focus again on Enron. The analogy to me is when people think back to Enron,

you might think, oh, it's about Ken Lay and Jeff Skilling and Andy Fasto and aren't they just corrupt people? That's one way to look at Enron, but the other way to look at it is where were the guardrails? Where were the lawyers, the accountants and all of the people within Enron who were supposed to make sure this didn't happen? And that is a really good analogy to where we are now because it's very easy to focus on the president and all of his flaws. But there are many guardrails that have fallen down that should have been a check on what he's doing. And just to take one that's close to home is having worked at the Department of Justice for 21 years, the rule of law and the independence of the Justice Department, which is what separates us from autocracy, has really been undermined by the Attorney General. You don't say. I first want to talk about Durham. It seems as an outsider that Bill Barr, and again, tell me if I'm wrong, tell me what you can talk about this.

I know you weren't involved in it because it's cooked up in the recent. But it seems to me like Trump sort of tried to cook up another Benghazi. And what has happened has been that career people have continually resigned and been like, we're not going to do this for you. That's my reading from the outside. I don't know that to be the case, but when Nora Denehy, who many of us know, and certainly even more know by reputation, she's a career federal prosecutor, she came back to work with John Durham on that investigation. She was the number two.

Her husband is the number two in the Connecticut U.S. Attorney's Office where John Durham is the U.S. attorney. So she has really close ties to John Durham and is a good friend of his. when she resigned with no explanation, that clearly meant that it was not for personal reasons. I mean, you don't, the number two, you don't resign like that and leave that kind of speculation. To me, that was a sign that she was saying, especially since she had said it publicly, I'm not taking a political step this close to the election. And what I would hope is that between that and the enormous pushback that John Durham,

got for issuing his press release and the IG issued his report that tried to undermine the IG report that found no political interference in connection with the Trump investigation and Russian investigation. That sent a real signal to John that he just and sort of I think maybe underscored for him that this was the line he really shouldn't cross if he really was going to be a career prosecutor. At least I'm hoping that's what the story is. Yes. And that seems to be what it is. Now, I want to talk to you about Mueller. I know we'll be very careful. You feel like you can tell me whatever you want to tell me. But my biggest question is, how did it feel when Bill Barr came out with that letter? There was the reason I started my book with that moment. Yeah.

where I was in a car driving back to Washington on the sort of the last weekend of the investigation. And at that time, if you remember, I think we and many people in the public thought that Bill Barr would just essentially be a sort of more experienced, very smart Jeff Sessions. In other words, he was going to understand the institutional need for the department to be independent. And we now knew internally to the, after working 22 months on a. investigation, we now knew that he was a partisan who was willing to not just bend, but break for the president of the United States. There were places where he was completely misleading and other places where it was outright false what he was saying about our report. And to make it just a little bit more poignant for people, this was somebody who was a

friend of Robert Mueller's, when Barr testified at his confirmation hearing, he stressed that and talked about how he couldn't imagine that Robert Mueller would engage in a witch hunt and his respect for him. So this was a betrayal of the rule of law, but also a personal betrayal. It was devastating because we all, I think, we're taking our mission very seriously and trying to do the right thing and be fair to the facts and the law and the people we were looking at. And then to be met with something that was really what you would expect from somebody who was not at the Department of Justice who was a politician and not even an honorable politician. Did you think about coming forward then? I wouldn't have been able to. I had to go through pre-publication review with respect to

my book. And that's something. that, you know, I took an oath to do that. I swore to do that in connection with joining the Department of Justice. So obviously we've all seen what the department can do with respect to people who allegedly at least don't follow those rules. And I'm referring to John Bolton. I have to say that's like one of the few bright spots. Them torturing John Bolton.

Yeah, it's sort of, you know, I'm sort of of two minds on it. You know, it's like because I can sort of think it's not that I'm. Right. I know it's wrong, but it's also fun. Exactly. It's sort of, I mean, the problem is, just to put it into my, my world, we're so used to investigating defendants who have done terrible things. And we've organized crime figures and child predators and, you know, just terrible, terrible criminals.

But they still get all of the rules and protections and we don't get to respond in kind because they've done something terrible. And so with Bolton, it's, I feel the. same way, which is, you know, I have my personal views as to what I think he should have done and how he should have behaved. But that doesn't mean that the department gets to politicize the pre-publication review process. And so anyway, what I did is I made a difficult decision that I was going to write about what happened. I really thought it was important for the record to not have it just come from outsiders where they would get it wrong and to have a record from inside or at least one view from inside as to what happened and then wrote as fast as I could and tried to push

the department for the pre-publication review process, which, you know, took longer than I would have liked. Right. They did do it. Pete Strick also went through that. I know. I'm curious to know, one of the things I think that's been really cool that you've done is you've talked about what went wrong with Mueller.

Or I feel like you've sort of opened the door to like, what do you think? Because I think, like, we know he did a lot of crimes, and we know, I mean, I think about, like, junior being deemed too stupid to collude about once a day. Yeah. So on that issue, you know, that is one of the areas where the criminal law requires that you be aware that you're doing something at the very least wrong. At times, you actually need to know that you broke the law. So that's one where it may feel outrageous.

but that's actually required in the criminal law. So that I think was a correct assessment because we didn't have sufficient proof, which is shocking, but we didn't have sufficient proof that people in the Trump campaign were trained not to accept anything from foreigners. I mean, that's the law.

But we didn't have sufficient proof to be able to meet that intense standard. But to get to your bigger question of, you know, what do I think, you know, if I, were the special counsel, what I would have done differently, just to put it in context,

I try to outline the best case and why Robert Mueller did what he did and certainly he acted in good faith. Oh, clearly. And what I tried to do is lay out where I disagreed and why, and then the reader can decide what they think.

So the book is called Where Law ends, which is it comes from a John Locke quote that is actually inscribed in the department. of justice, which is where law ends, tyranny begins. And it seems very appropriate for this particular time, given the president and attorney general bar. But the three things that I think the big picture items are, I think that we ultimately

needed to do a more comprehensive financial investigation. And I have to say, I feel somewhat not vindicated, but I feel like there's been an illustration of why when we've learned about, from the New York Times, the financial information that that came to light. The second is, I think that it was important to subpoena the president. I'm really concerned about the precedent that we set for the next time, you know, God forbid, but there will be a next time that the executive is examined and someone's going to be able to throw back in that person's special counsel or independent counsel's face, you know, that didn't happen here. And it's hard to imagine a better case for it than here, given how central the

president's intent was and also how serious the crimes are that were under investigation. And then the third thing, which you've alluded to, is I think that especially since the special counsel rules had us writing an internal report to the attorney general, I think we should have said whether we thought he obstructed justice or not. I didn't think we should use very hard to understand double negative. And I think that that's where I try to talk about where I think the special counsel rules really need to be revised, that there has to be a better balancing of the public education function of the special counsel, that this needs to be envisaged as a report that's going to go public, that it's going to be more like a 9-11 commission report where people

understand what we looked at, what we didn't look at, and what our reasoning is, and that it shouldn't just be in writing. It should involve also talking about it, answering questions. And I think that just needs to be in the rules so that the next special counsel has really clear guidance. And it, I think, better aligns with what people expected and should expect from such an investigation. I have two questions here. Would you take a job back in the federal government? You know, you never say never. But, you know, I'll tell you a story, which is, you know, I grew up in New York City. You know, I remember telling my friends, I said, well, you know, I'm an inveterate New Yorker. And a friend of mine said, not any longer.

So, you know, the last time I went to the department, I was head of the fraud section and then went on detail to the special counsel. I didn't think I was ever going to go back. You know, I'm not a real Washington person. So I don't want to ever say, you know, never, but I really feel like I've done my tour of duty there. And I'm extremely happy at NYU Law School. It's just a wonderful institution. I love the students there. and I love teaching.

So I don't see that in my future. But I do said you had another question. Yeah, I have one more question and then I promise we will let you go. So my husband's a very smart academic and he, you know, whatever. But he always, he's like, Trump is going to go to jail. And I'm like, no, he's not because we don't jail our presidents in this country. That's just a precedent. Do you think there's a place in our democracy for a commission to sort of,

unspool all this corruption and what do you think it might look like? Well, one, I think it's really important for the courts to actually have an opportunity to address the issue of whether you can indict a sitting president because that issue has not been resolved by the courts, by any court, actually. It's only a Department of Justice policy. So that's something that needs to be resolved. And I don't actually think there's going to be a commission on that, on the sort of presidential, you know, conduct. I think people are going to feel like that's a redo of the special counsel's investigation. I hate to be in the prediction mode, but I actually think that if the president is not reelected, he's going to pardon a lot of people, including himself. Oh, yeah. That seems

inevitable. Yeah. And so I think all eyes are going to turn to the state at that point because the pardon power won't want to apply to them. And I think everyone's going to be looking very closely at the Manhattan DA's office and also whether Lettisha James is New York Attorney General's suit, which is civil, whether that obviously could also go criminal, depending on what they find. So I think that's where the so-called action is going to be. So nuts. Thank you so much for joining us. This is so interesting to me. I mean, I just, it's like very, it's great to get to like finally square the circle and meet you. So great talking to you. On that note, We'll wrap up this episode of the new abnormal from The Daily Beast. In future episodes, we'll be talking with smart folks from The Daily Beast and beyond from media, culture, politics, and science who will help us understand what's happening to our country and the world.

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