Andrew Weissmann Thinks Donald Trump Can Be Held to Account

0:05Welcome to The Political Scene from The New Yorker, a weekly discussion about the big questions in American politics. I'm Evan Osnos and I'm joined as ever by my colleagues Susan Glasser and Jane Mayer. Good morning, Susan, and good morning, Jane. Hey there, so great to be with you. Hey, guys. Well, we're in the heart of summer. Washington is a bit sleepy these days, but politics sleeps for no one, as we know. So we wanted to take this moment to step back and look at some of the bigger issues in Washington and in our politics today, especially as we head into the heart of the midterm season. This week kicks off our summer interview series.

0:46For the next three weeks, Susan and Jane and I are each going to sit down with a special guest for a longer conversation than usual. There are a handful of themes we'll be digging into, things like the AI economy and the future of work, the state of national security in America's military, and also the way that Trump's approach to foreign policy has changed our standing in the world. But today we start somewhere else. Jane, for your interview, you chose to sit down with Andrew Weissman. As a lot of our listeners will probably know, Weissman is a former DOJ prosecutor. He was a lead member of the special counsel team led by Robert Mueller, and he's a frequent MS now legal analyst.

1:29Jen, why did you want to talk to Andrew Weissman? What was it about this moment that leapt out to you? I mean, I was really interested in hearing what someone who is such a fable prosecutor would say about what can be done in terms of what appears to be the growing lawlessness and corruption of Trump and his administration. And I had some other questions that were sort of bigger questions about whether prosecutions of politicians really work at all. We've seen that there was a backlash against the prosecution of Trump and what kind of avenues there are to hold people in power accountable at this point.

2:07He's out with a new book called Liar's Kingdom that has his own ideas about how to go after politicians who don't tell the truth. Jane, did you find that there are any avenues of accountability? I mean, I have to say that, you know, in the post-Biden-Trump 2.0 era, it's hard to envision anything that comes next that's not even more free of guardrails. I know. I mean, the thing about Trump is he has beat the rap at every turn. It's just kind of incredible. It's like Houdini-like. So actually, what was interesting was Weissman, I mean, he's quite cautious. He's a real lawyer's lawyer, so he's not going to say something rash.

2:51But he did actually show a flash of sort of wanting to go for it on one thing in particular. He said that the thing that he thought was really low-hanging fruit was to go after the deal that Trump claims to have struck with his own Justice Department, giving him and his family immunity against any kind of prosecutions on his past tax problems. That's fascinating. And what's interesting about that case, too, is it's one of the examples of an issue that resonates with prosecutors and with the public. This is one of those moments in which even a public that is tuned out in many cases from Washington politics or trying to, you know, put their fingers in their ears, there was something about the accumulation of Trump's, call it self-gratifying funds and legal changes during the second term that have just been so flamboyantly over the top that that we are seeing reflected now in polls.

3:51And I'm curious, if you're somebody like Andrew Weissman, how much do you think about the public mood? Because if we learned anything from the first term, it's that even things that seem like open and shut cases get complicated when Trump takes them into the public arena. Yeah, I mean, I think, you know, the thing about lawyers is they don't tend to think about the public aspect of this. In fact, he's had a very strong criticism of the Mueller investigation, which he was a big part of. And he certainly, you know, he came away respecting Mueller, but his criticism was they didn't play any kind of public role in terms of explaining what they were doing or explaining their findings.

4:31And the traditional role of lawyers is to stand back and let the filings tell the story and let the court decide. And that's been a problem because they're not speaking out loudly for the rule of law. They're letting the law do the job. And he felt that at any rate that Mueller was really, you know, outfoxed on that. One of the things also that I thought he was most passionate about was he is so critical of the legal profession where they have bent the knee to Trump. And he really spoke out strongly about his peers in the legal profession. And so he really, really put out a call for people to show some backbone.

5:15Well, that's the natural place to queue up this conversation. Without further ado, Jane Mayer and Andrew Weissman.

5:24So, Andrew, there's so much I want to get into with you today. But to begin with, I'd love to hear what it's been like to be one of the first stops on Trump's revenge tour. Trump has called you scum and a bad guy. You were named in two executive orders. One was revoking security clearance for people like Joe Biden, Hillary Clinton, Kamala Harris, and you. The second targeted the law firm where you work, Jenner and Block, for employing the unethical Andrew Weissman. Can you talk about what this was like? Yeah. So I had an original publisher, and they were on board to publish what became Liars' Kingdom.

6:10And when the second executive order came out with respect to the law firm I used to work at, where I was very much being targeted, and Donald Trump said so when he announced it, my publisher called my spectacular book agent and said, we're out. And so I got another publisher and I had a spectacular editor and sort of things turned out okay. But that's an example of fear working. And that's just, you know, what I would say is a minor example in the scale of things. But, you know, it was a personal one to me. And your lawyers backed away as well, right? Yeah. You know, one of the things that's gotten a lot of press is there are four law firms that challenged executive orders with respect to each of those law firms, and each of them won immediately.

7:00There were judges of all stripes, which is really one of the great stories. That's one of the bright spots here is judges appointed by Democrats, Republicans, including Donald Trump himself, all taking their oath of office seriously. It shows that the way the Constitution was framed and the way they thought that the three branches would work is functioning as to the judiciary. But there are many firms that have quietly capitulated, and you see small and midsize firms stepping into the breach. And that's where the story is, that those people are carrying the burden that used to be shouldered by the Paul Weisses and Sullivan Cromwell and Davis Polk.

7:45And I could go on and on and on. Big law. Big law, exactly. and big law has quietly capitulated. I mean, you're somebody who has been directly targeted. Are they right to feel so afraid? I mean, is this something they're imagining? What are they so afraid of that they can't stand up? So, you know, first, I don't think they are imagining things. We have seen targeting. You've seen it with respect to law firms. You've seen it with respect to large media companies. You've seen it with respect to universities. There's no question there is targeting. But I have zero, zero sympathy for firms where you might say, okay, the average partner income this year is$8 million.

8:35And you know what? It might become six. Firms can take the hit. You know, we have seen our parents' generation and we can look around the globe that people who sacrifice or are willing to sacrifice their lives for the sake of freedom and democracy. And, you know, this is something that, yes, they are victims in the sense that they're very, I think, really concerned about being targeted and victimized. But that's not an excuse. Actually, this gets me to another subject that I really would love to hear you talk about. I mean, you are as expert in the subject of the Justice Department as anybody.

9:15Are you surprised at the transformation of the Justice Department, how quickly it has become just a weapon for the personal vengeance and enrichment of the president? What has changed and how has it changed? And are those customs that they had before so flimsy that they could just be overturned overnight like this? So I think it's a complicated story. I do think it's important to note the number of people who have voted with their feet and have left, the people who have sort of quietly resisted. So an example of that is in James Comey's first indictment in the Eastern District of Virginia, where Letitia James was also indicted.

10:08You did not see any career people on any of the filings. And that, to me, spoke volumes. So there is a fair amount of pushback. There are people leaving. By the way, it's hard to explain to people how unusual that is. That doesn't happen in any administration. People at the Department of Justice understand that elections have consequences. And as long as you're not being asked to do something illegal or unethical, unless it violates your own personal views about what the department should be doing so much that you decide you're going to leave, people don't leave. You understand that people can change priorities as to you're going to prosecute more immigration than drug cases or vice versa, depending on the politician.

10:52Having said that, Donald Trump has very much realized that money and power and cowardice and there are all these sort of human traits that he takes advantage of. And lawyers at the Department of Justice are humans like everyone else. In fact, lawyers tend to be fairly risk-averse. I'm risk-averse. And people have families and bills to pay. And so there are all sorts of pressures. And not everyone is in the same position to stand up and can think, you know what, I can sort of close my eyes or quietly resist. And to be fair, there also are lots of jobs at the Department of Justice where you could continue doing sort of routine low-level cases and try and keep your head down and wait for this to pass.

11:42And you can say to yourself, as long as I'm not doing something and being asked to do something illegal or unethical, it's probably better for me to stay than to free up a position to some operachnik who's going to do whatever it is that the administration wants, even if it's completely improper. But, you know, you are seeing the resistance. The head of the lawyer at the IRS resigned just shortly before Todd Blanche signed the general lease absolving Donald Trump and his family and companies of tax liability. So you are seeing all sorts of people say no when push comes to shove, that their reputation and what they can stomach is not something they're going to sacrifice their bar ticket to.

12:31And so it's a mixed bag. Just to answer your question about am I surprised? I'm not. I mean, I'm surprised that the president has gone that far with respect to the department. But, you know, I think it's because I see resistance and I see some capitulation in many ways. it's, you know, I think you could say, if I asked you that question about the media and journalism, you might be able to give me the same kind of answer that you see. You know, CBS appears by all accounts to have capitulated, but, you know, The Atlantic and The New York Times has not. And so, you know, you would come up with different examples.

13:10You know, I was thinking of Trump's just relationship to the Justice Department seems different from that of other presidents, And that there seemed to have been an effort after Watergate to really reform the relationship between the president and the Justice Department and make it independent pretty much from top to bottom. So somebody like Eric Holder was very good friends with Obama but did not talk about cases with him. And yet, when you see in the news that Trump demanded to see the interview that the Secret Service did with Comey, you realize the president is really in these investigations.

13:48And that seems different to me, is it not? Absolutely, 100%. Just to give you an example from a Republican administration, when I worked on the Enron case, the head of the Justice Department overseeing us because the attorney general recused himself because he thought there was an appearance of conflict. There's John Ashcroft. So the deputy attorney general was the most wonderful, apolitical leader. And there was zero effort that we ever, ever felt that the White House was reaching in to have us prosecute somebody or not prosecute somebody. Todd Blanche at his confirmation hearing made it abundantly clear that he does not view his role as anything else than any other cabinet official.

14:43And if the president has the power to do it, he's going to do it. And it seemed clear that Todd Blanche in his testimony, at least to his credit, he was not pretending. He was like, that's not who I am and that's not how I see it. Which is exactly the opposite of every administration post-Nixon. And just to make it clear that people understand, I'm saying every administration, Republican and Democratic, has nothing to do with party. It has to do with the idea of the limits that the White House should have in terms of deciding the specifics of who gets prosecuted and who doesn't, as opposed to deciding big policy issues about what we should do with respect to terrorism or drugs or immigration and those kinds of things, which are appropriate.

15:33Andrew, to people like you, it probably seems really obvious what the costs are if the Justice Department becomes an instrument of personal power in the hands of a partisan president for either party. But just spell it out. What's lost when we lose that independence in the Justice Department? There's so many harms, but I think for any dispassionate person in this country, if you said person A has done the following terrible crime. Think of the worst crimes you could think of. One of the cases when I was in the fraud section was a doctor who told his patients that they had cancer when they didn't.

16:17So he could overbill for chemotherapy and think of the psychic cost of all of that. It was so incredible to think about that. I kept on thinking the judge who ultimately sentenced him. I don't know that I could be dispassionate enough to be the judge in that case. Should that person be treated differently depending on what party they're in or depending on whether they give a million or two million dollars to get a pardon? Shouldn't they be treated the same no matter what their political party is and how wealthy or not they are? that goes back to the Greeks of the Aristotelian notion that you treat likes alike.

17:04There are other costs because you're seeing so many career experienced people being chased out. I was at the FBI, what's called the seventh floor, the sort of the assistant directors, people just below the directors. That's what I was as the general counsel. Those are the people who keep this country safe. Director Mueller, who was the FBI director when I was there, I was just so impressed that there was such a stream of terrorism, intelligence that needed to be followed up. And I was so impressed as to how he and the other leaders in the national security space would figure out, who are the ones to look at, what looks most imminent.

17:48And that comes from intelligence and experience that you develop over decades of having done this work. The idea that Donald Trump also would get the PDB, the presidential daily brief, and he would not be thinking, how do I get the most experienced people with the best judgment in that job? And that's why the idea that you have Kash Patel or Hegseth, I mean, could anyone in their right mind say those are the best people for the job? We're going to take a quick break. But when we come back, the weaponization of the justice system. More with Andrew Weissman. The political scene from The New Yorker will be back in just a moment.

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19:05Andrew Wiseman, if the Democrats take control of the House of Representatives and maybe even the Senate, do you see as someone who's a really experienced prosecutor some avenues that seem promising for them to pursue in terms of the corruption in the Trump administration? So, you know, the Congress has all sorts of powers that we're not seeing being used. They have the power of the purse, and they could use it. And they could also deal with or try to deal with decisions like the slaughter case, which is, you know, the president has the power to fire without giving a reason. And they can say, fine, guess what?

19:43You're not going to get any money. So there are lots and lots of powers that they have simply not been using. I'm going to go, though, directly into what I call the capillaries of, I wrote about this in a piece for the Times, and it is something that I actually think should have bipartisan support because it's a way of greatly reducing the problem. And notice I didn't say eliminate, but greatly reducing the problem of the weaponization of DOJ. In order to have a felony indictment of a federal crime in this country, you have to go to a grand jury. The grand jury standard is very low. It's just probable cause.

20:27And no court gives the exact percentage, but think of that as about 20%. And the grand jury only has to fine that by a bare majority of the grand jurors. So my proposal is that Congress, which has the absolute power to do this, should change the standard for how you can bring a federal criminal case so that the grand jury is instructed either that they have to find more than just a majority or that the standard is not just probable cause, but it could be, for instance, clear and convincing evidence, which is much, much higher, or both. And it would make it not impossible, but it would make it a lot harder to indict James Comey for 8-6-4-7 because that grand jury is going to have to hold it to a much, much higher standard than, okay, well, I think it may have happened and maybe 12 out of 23 jurors find that.

21:28You could imagine, let's say we have a Democratic president. This might be the kind of proposal a Republican Senate would be like, let's go. Like, we want to restrict the power of the president now because we now see that the shoe is on the other foot. And so this should have bipartisan support, and it's a way of restricting legitimately the power of the executive. You know, one of the questions that I think everybody has now, and I am not a lawyer, so I want to ask a lawyer, is whether in trying to hold Trump accountable in particular, in the wake of the Supreme Court's immunity decision, is it still possible to hold a president accountable for many things?

22:12It looks like the bar has been completely raised so high to try to be able to take on a president at this point. I wonder, you know, what do you think of the immunity decision and how has it changed the potential for accountability when a president is lawless? So the answer to the question of is it possible, the answer is yes. And I'm going to give you an example. Is it much harder than it was before the Trump immunity decision? Yes. And what do I think of that decision? I think it's horrendous. And assuming that you have the proof, in other words, that there is a real case, and assuming it is for a crime that is routinely prosecuted so that we're not talking about a show trial.

23:03I think that one of the lessons from the Mueller investigation, I think one of the lessons from looking at other countries, which I've done, is the idea that when you take over the White House, you think, well, we're only going to look forward and we're not going to look back, is a recipe for disaster. If you have the view that no one gets prosecuted while they're in office because of the DOJ policy and that once you're out of office, the sort of de facto rule is we just look forward, then that is the person is above the law. That has no deterrent effect whatsoever. In fact, it's encouraging the kind of lawlessness.

23:46That is not how other so-called first world countries operate. There are significant countries and examples where leaders are prosecuted and not in show trials, in real trials. In France, Sarkozy, I think, is up to three convictions now. Marine Le Pen, who is a leading candidate, was convicted of fraud. Bolsonaro, who's probably the person most comparable to Trump in terms of his conduct, was both civilly barred for a term because of his election lies and criminally convicted for his insurrection activities. These are all ways that countries have figured out how to deal with a problem that we are not dealing with.

24:29But in terms of could you still prosecute somebody who is president? Yes. So let's assume that Donald Trump, and this really is a hypothetical, let's assume that he is engaged in personal tax fraud or his companies or his family. Really, I'm not suggesting that there is because this is, you know, we don't know what an audit would reveal, etc. That's going to be personal behavior. That is not covered by the Trump immunity decision. There's some limits on what kind of proof you could put on in that trial. But if you have personal behavior, you know, if you went out and, you know, ran somebody over or committed fraud as a personal matter, not as president, that is something that the immunity decision does not cover in any way, shape or form.

25:17And so that is something that still could be obviously civilly enforced. It could be criminally enforced. There are vast problems with the Trump immunity decision because you could have fraud that's sort of engaged in as part of your official office. That was the allegation that was in Jack Smith's indictments, which was fraud in connection with what was happening in Georgia. And as Amy Coney Barrett said, that's one that seems like she has a great footnote saying, sometimes it's hard to tell whether somebody is acting as president or whether they're acting as a candidate in their personal capacity.

25:49And she says, sometimes that's hard. That one's not. That's an easy one. And so there are all sorts of problems with that decision, but there still is a avenue that can be pursued. In particular, though, it appears that one avenue that's closed is going after Trump for personal tax issues because he's now got a special side immunity deal from the Justice Department that gives him immunity for this long, long audit that's been going on into the Trump finances. And I'm curious what you make of that as someone who's a prosecutor. Does this mean that he can't be touched if he's committed tax fraud up until today?

26:39I have good news, which is I think that the general release is not worth the paper it's printed on. Let me just explain. Donald Trump brings this suit against the IRS for$10 billion. It is quote-unquote settled for$1.776 billion. dollars, you know, so he has sued himself and has decided that's the amount of money he's going to get. And then as part of that alleged settlement, I'll come back to why I keep on saying that, alleged. In addition, Todd Blanche and Todd Blanche alone signs this general release saying that all of these prior audits are gone as to your tax liability, your companies, and certain family members.

27:20The judge who was overseeing that has described the settlement as not a settlement. in fact said that the parties cannot refer to it as a settlement, that it's entirely bogus, and that the president, and frankly, Donald Trump himself said when he brought the case, he said, you know, this is really weird because I'm on both sides of this. Exactly. By the way, I want to go back to your question of what could Congress do if they get their act together, they could decide something really simple, which is that when you are president of the United States, you cannot bring a civil suit against the government while you are in office.

27:54If you If you have a real case and you want to vindicate it, let's say you really were hurt and you want your day in court, you can do that, but not while you are in control of that part of the government. You have to wait until you're out of office. This is one of those things which is I can't really fault them for not having done it before because this falls into the category of who in their right mind ever thought this would come up. So if someone had proposed this even a year ago, you would have said, okay, talk about wasting time. Who would ever think of doing that? But now we need it. So you have this judicial decision saying that the settlement is completely bogus.

28:28This is not a settlement. This is not real. It was entirely fictitious. And the piece of paper signed by Todd Blanche, if I am the next head of the IRS and I make an independent decision, and let's assume that there are enough facts there because I'm assuming that you meet that factual predicate, I'd be like, you know what? Donald Trump wants to litigate the validity of that, be my guest. Fine. You and Todd Blanche get to talk about all of the detailed adversarial process that went into the IRS suit, which I think is going to be non-existent. And obviously, the federal judge who oversaw this thought it was non-existent.