B (18:26)

Stay with us after these messages. We'll be right back.

A (18:39)

Everybody. Welcome back. Today we're going to talk about this memo with someone who worked very closely with the Mueller team. In fact, lead prosecutor on the Mueller team and author of the book where the Law Ends, please welcome Andrew Weissman. Hi, Andrew.

B (18:53)

Hi. It's really nice to be back.

A (18:55)

It's good to see you and I'm so glad you're back. Maybe we can dispel rumors about where you've been for the past eight months in a little bit. But I really want to talk about this memo because as you know, I am not a lawyer. I just was, you know, dove deep into the Mueller investigation and all of this stuff. But the first thing that stood out to me when this memo was released, this memo that we're talking about March 2019 by Barr, Engel, Rosenstein and something called the pay dag, which is the principal Assistant Deputy Attorney General o', Callaghan, was that they were trying to tell us that without an underlying crime being charged, you can't obstruct justice. And that was glaringly, obviously incorrect to even me who doesn't hold a law degree. Can we talk a little bit about this and perhaps the implications implications that that being in an Office of Legal Counsel memo from the Department of Justice could have on future obstruction or current obstruction of justice investigations.

B (19:49)

Yeah. So the memo does say that they somewhat walk that back and just say at some point. They say, well, it's conceivable, but it would certainly be very, very strong proof if there was no underlying crime. There's both a legal and factual problem with that. So as Steve and Ed know and Bill Barr, this is simply not the department's position. There have been a host of cases where people are charged with obstruction and convicted of obstruction, where a case is not made on the underlying crime, where there is no underlying crime. And that happens all the time. So here's an example. You obstruct an investigation because you don't want the government, as they pursue the investigation, to learn that personally embarrassing things like you're having an affair. That doesn't mean that you can't be charged with obstructing the investigation. As many people have noted. What this would really mean is if you successfully obstruct the investigation, you can't be prosecuted for obstruction because you can't prove the underlying crime. Amy Berman Jackson made this point to Paul Manafort. She was the district judge in D.C. who had his case saying, you can hardly complain about the fact that the special counsel did not charge a conspiracy between the Trump campaign and the Russians when you obstructed that very investigation. So that's sort of one flaw legally. And of course, that will have ramifications for the department, because, you know, if I'm a defense lawyer, which I have been in my life, you know you're going to use that memo. The second is the factual issue, which is it's simply not the case that we did not find that there was no evidence of that underlying crime. We just said it wasn't chargeable. And we also, meaning we didn't have proof beyond a reasonable doubt. And we also pointed out that the investigation was not done. In other words, there were different aspects of the investigation that were still pending, for Christ's sake. We still had the Roger Stone case that was pending, and who knew if he was going to flip or not? So. And then there was Michael Cohen, and who knew what exactly he was going to give him? There were just all sorts of leads. And our report actually says that. It says this is where we are now, but we're not saying it's going to stay that way. So the predicate for their legal analysis was that we found there was no evidence, and this was conclusively established. So that is just a factual flaw. And, Alison, can I just point out two things that struck me when I read the memo, which was actually not what was in was really what was not in it. What was not in it was any discussion of whether these political appointees in the Trump Department of Justice should have referred the case back to Mueller to say, I need you to make a finding, and a second discussion of why should we at the department, who are political appointees, be making this decision when it had already been determined by the acting Attorney General that a special counsel was needed? In other words, the whole point of the special counsel was precisely so that somebody who was not a political appointee of the president who was under investigation would not be making this decision. There is zero discussion of that. And the memo makes it clear why they didn't want the answer, because they, they clearly could have told Robert Mueller, who reported to the Attorney General he was in the Department of Justice reporting to the Attorney General, that Bill Barr, any day of the week, knowing well in advance what we intended to do, could have easily just said, no, no, no, you know what? I want to know your recommendation. The memo makes clear they don't want that because as they say, when this report from Robert Mueller becomes public, the people who read it may very well conclude that the President committed obstruction of justice. So that was sort of the impetus for what they needed to do here, which was they needed to deal with that before it became public. And then the final point, I'll say is just on a personal note, this is really painful to relive because one of the worst times in my life, and I think for, I don't want to really speak for everyone else, but I know everyone else was very upset during the three week period between the time that we gave our report to Bill Barr and when the report came out, and having to see Bill Barr's alleged suit summary and his own conclusions with no explanation as to how he got them because we didn't have this memo from him. I think if we did, it would have made us even angrier for the reasons we just talked about. Anyway, I've gone long enough, and it's probably because, Allison, you can tell that it's still a little raw.

A (25:14)

You have some feelings. So do I. I spent a couple of years on a, on a, a podcast only about this investigation. So we were all waiting with bated breath to see what was going to happen with it. But, you know, you're right, Appendix d had what, 14 ongoing investigations. Well, two of them, I think had been resolved and the rest were still redacted. So those weren't addressed. And of course, you know, we talk about this, particularly what I, you know, I was picking out of the D.C. circuit Appellate Court's decision to release this memoir, along with the lower court's decision to release this memo, Judge Jackson, that this was, you know, why are you engaging in this hypothetical exercise? You know, regardless of constitutional concerns, as Mueller put in his report, his reason was, you know, hey, I can't charge the President because of this OLC memo that says you can't charge a sitting president. And if I can't charge him, I can't accuse him of a crime because he won't be able to face his accuser, et cetera, et Cetera, constitutional considerations, leaving the door open for Barr to come in and make this declaration. One of the things that I wish Mueller hadn't done or would have done differently, but of course, I'm not, I'm not, I don't have that sort of level of expertise. But again, like you said, the bar should have put, put the question back to Mueller saying, hey, constitutional aside, because we're, we're going to put the constitutional considerations aside. You put the constitutional considerations aside and come to a conclusion because that was your job as appointed special counsel. I'm not supposed to do that. You are. That's why we put you in this job.

B (26:50)

Yeah. I mean, just to be clear, I, too, and I wrote about this in my book, disagreed with the decision by the special counsel not to come to a conclusion. And I think respawn people can kind of, you know, can take to both sides of that. It is really important to remember that although I disagree with the decision Robert Mueller was motivated by, essentially, it's like the anti. Jim Comey, you don't disparage somebody. You don't say somebody committed a crime as a prosecutor unless they can have their, they're being charged and have their day in court. That's where it came from.

A (27:30)

Well, and that's why we don't want to release this affidavit on the search warrant for Mar? A Lago. That's one of the main reasons.

B (27:36)

That is one of the. That is, I think that is the most principled reason. I mean, obviously there's the concern about, you know, harm to national security and witnesses and the criminal investigation. But this is what I was taught when I was a young prosecutor, which is essentially put up or shut up. I mean, I, I was in the Brooklyn office, so you can understand that sort of, they would come up with that kind of very direct phrasing. But the reason I can say, by the way, I disagreed with Mueller's decision is under the regulations that govern the special counsel, what we were providing was a private report, just an internal Department of Justice memo to the attorney general. The decision about whether that would be made public or not made public was the attorney General's decision. So I thought that Mueller was anticipating that decision, which wasn't his to make. In other words, that decision about whether somebody should be, whether somebody should be suffering the opprobrium of being accused of having committed a crime without the ability to charge that person was for the attorney General to make. And my point was, you know what, Robert Mueller, stay in your lane, which is Your special counsel. The rules say you should do X, just do that. That was my reasoning. But as I said, although I disagreed with Robert Mueller, the. What he was trying to do was say, look, everyone knows this is going to become public. I don't want to be the person who causes somebody even. Even in this situation where they're, you know, extenuating circumstances, to be accusing somebody of wrongdoing when they're not being charged.

A (29:23)

Mm. Yeah. And there's a lot of things wrong with this memo. So let me ask you, a lot of people have been saying, where are the obstruction of justice charges from the Mueller report, from this doj?

B (29:35)

Why?

A (29:36)

You know, once you leave office, you know, Mueller was pretty clear in his. In his congressional testimony. Can. Can he be charged with obstruction of justice after he leaves office? Yes, he can. Is this OLC memo possibly what's tripping them up?

B (29:49)

No, I mean, the OLC memo, I think that. Oh, well, the first, obviously there was the two LLC memos that say you can't charge a sitting president. Those are just internal Department of Justice guidelines. No court has ever actually said that. But I don't think that the reason that you haven't seen the department go forward is because of this memo, because the law and facts are so thin. And it's also, I think, maybe important to note that the current Solicitor General of the United States was one of the four legal members of the special counsel team. So she's well aware of and in accord with the special counsel's position on the law and the facts. And I just don't think she would have read this memo and found it persuasive. And so I just don't think that was the issue. I think it was more, to put it bluntly, sort of let bygones be bygones and we're not going backwards. I also disagree with that. I disagree with it because if you believe that a president is not above the law, but you have a Department of justice policy that says you can't indict a sitting president, then if you don't take their crimes seriously when they are no longer the president, then, and say, you know what? We're always going to be saying, let's bygones, bygones, then you really are saying that the president is.

A (31:22)

Well, he's obstructing justice now with 15, 19. And it happens again.

B (31:27)

Yeah, Adam Schiff said this directly in one of the impeachment trials. He just said he's going to do it again. He is not correctable.

A (31:36)

Now, do we know they're letting bygones be bygones. Do we know that or are we sort of speculating?

B (31:41)

We don't. But you know, my view of while it is true that the department speaks through its filings, et cetera, in Washington, there are enough defense lawyers who receive grand jury subpoenas for their clients and people going to the grand jury and being interviewed that I won't say everything leaks out, but enough would leak out that you would know about it. And we've seen it. You know, we, we heard when people are going into the grand jury who were former Trump White House officials, there's just, again, I won't say that we would know everything, but I think if they were locking down that evidence as potential proof at a trial, that we would have heard it.

A (32:29)

Yeah. And this DOJ is actually doing a really good job of not leaking anything. I mean, we had all those subpoenas and grand jury with Philbin and Cipollone back in the spring about what was at Mar a Lago. But something else I wanted to ask you about this doj. Boy, they really half assed this keeping the memo under seal case, because first of all, it was Barr's argument that, you know, well, we have to keep it under seal because it's deliberative process privilege and attorney client privilege. And the Garland DOJ took up that mantle, just took up the Barr argument, dropped the attorney client privilege part, went forward with deliberative process, and made the same deliberative process privilege arguments that Barr made without adding an argument that would have let them keep the whole thing under seal, which was we were actually deliberating a decision about what to tell the public. That's what the DOJ was. And so then when the appeals court came out with their decision, they didn't fight it, they didn't appeal on bonk, they didn't put in a stay pending appeal, they didn't appeal to the Supreme Court. They were just kind of like, okay, and, and, and the Citizens for Responsibility and Ethics in Washington, by the way, hat tip to them for all the work they do, got this memo. It just didn't. I don't feel like they, this DOJ really took up a strong mantle forward to try to actually keep this thing under seal with a lot of gusto.

B (33:51)

Yeah. I think many people were surprised that this administration continued the litigation on this.

A (34:01)

I was angry about that.

B (34:02)

And, you know, I'm all for, when there's a principle involved, you need to uphold it, regardless of whether, you know, the outcome is something that would help or hurt a particular administration. So if something's deliberative process or attorney client, you know, you have to, you have to uphold it, even if it, you know, might hurt this administration, that administration, because it's. You're talking about sort of systemic issues. What, what happened here was so deplorable because Amy Berman Jackson insisted on seeing the actual memo. DOJ was fighting her on that. She saw it and basically, in the vernacular, had a cap and said, you've been lying. The whole first part of the memo doesn't even address what you're saying. And the second part of the memo has nothing to do with the decision to charge the President because that wasn't even a possibility.

A (34:58)

Yeah. And this DOJ was like, hey, we're sorry, we didn't want you to think we were doing anything in bad faith. It almost felt like we're just making the argument that the DOJ before made because we're the doj. Like, I felt like they were just sort of like kind of stuck between a rock and a hard place of just letting it go or trying to carry this baton. This terrible reasoning, this bad faith reasoning to keep it under seal from the previous DOJ so that they could, you know, look like, hey, we're the doj. We should make the same DOJ argument that the DOJ made before. Institutional situation. Yeah, I wouldn't have done, I wouldn't have done it that way.

B (35:35)

You know, it's sort of interesting. Part of it is just sort of. They didn't have a sort of come to Jesus within the department to say, you know, what, if we're going to defend this, we have to call it like it is and just be super candid with the court that this was just deliberations on the issue of how to spin the report. And the Court of Appeals said, you know, if you'd gone with that, you might have been protected. Leave aside that there's a whole issue about whether the decision had been made. And this was not really deliberations. This was just something for Barr to have in his file to say, oh, I relied on olc.

A (36:14)

Yeah, it should be, look, hey, this was a thing to spin, how the report was going to be. We don't want to make that argument here at the Department of Justice. We're going to go forward with deliberative process privilege argument, or we don't think that argument holds water, therefore we have no argument here, so we're withdrawing our, you know, opposing this. Something other than. And what they did. It just, it struck Me as odd. Yeah.

B (36:40)

I mean, they did try in the district court when it. When it was the sort of new Biden administration to say. To apologize and say, we understand how you could have had that impression. And the court of appeals had great. Lied saying about the misimpression, which, you know, is. Is polite talk for you. Lied. And I do think it's that lie at the outset that really colored the whole thing. And this is a good lesson for young lawyers who might be listening. Just be candid with the court and don't lose your credibility. And if the result is that it's going to cause you to lose, so be it. But you have to be really candid about what's going on and then make your legal arguments based on that set of facts. So this wasn't the department's finest day.

A (37:36)

No. So why not appeal it? Why just let it go? I mean, and I don't think they put out any sort of a thing that said, yeah, you know, you're right. We're sorry, we're out. We're not going to file an appeal. They didn't put anything out after this.

B (37:48)

Yeah, I mean, they didn't, but they sort of de facto did. Just by saying, we're releasing the memoir. You know, I think the idea of going en banc, where the argument, the only argument that they had on banc was, oh, you should have given us a fourth bite at the apple in the district court. That's a pretty hard issue to go en banc with.

A (38:09)

I mean, especially if the circuit court already said, dude, you had five chances and an application for a stay without bringing any of this new legal theory, which we handed you up. So, you know, it's not our job to do your job.

B (38:22)

Exactly.

A (38:22)

Yeah.

B (38:23)

So I could see them going, you know, in any case like this, it's like, it's just embarrassing. I mean, to go en banc when it's your fault is, you know, you have to make a lot of discretionary calls. And that's one where it's like, you don't lose credibility. And that's where, you know, Merrick Garland, you know, sat on that court for many, many, many years. He probably has a very good idea of what would play and what would not, and also what's appropriate for the department.

A (38:51)

He should have known not to make this, to not make Barr's argument. I mean, it was. It's so. It was so terrible. There couldn't have been anyone who was like, there's no decision attached to this deliberation. This is the dumbest argument ever. And I guess that's why they apologized up front. And, you know, I don't know, it just seemed like a whole weird exercise, and why even bother?

B (39:11)

Yeah. I mean, but part of it is that, you know, now that we have the benefit of seeing the memo, you can understand Judge Jackson's reaction when she saw it, and it. And sort of what she had been told versus what's in the memo. Plus, she knew all of the facts because she had handled a number of the special counsel investigations and seen so much. So she was very aware of what was going on. As I mentioned at the outset, she had that comment to Paul Manafort about, you don't get to criticize the lack of a charge for volume one when you obstructed that investigation. And, you know, she could have read this memo and said, you never even dealt with that issue.

A (39:59)

Yeah, it's like, oh, you're saying that there was no underlying crime. It. It was because of your obstruction, that probably that. That, you know, we couldn't make that.

B (40:08)

Well, it's one of those things. Either it's because of it. If it doesn't really matter. It's like, it's. So that's just obviously the reason why their statement of the law has to be wrong. Subsequent obstruction is not prosecutable, but inept obstruction may be prosecutable.

A (40:26)

And another thing, too, you actually did have, I think, a chargeable, prosecutable crime for conspiracy with Manafort, that there was a prosecutorial discretion not to go forward with that. And so a lot of things get left on the cutting room floor because you went forward with all the tax fraud and business fraud stuff, that it's impossible to say that there wasn't an underlying crime. You just. There was. You just didn't charge it.

B (40:47)

And plus, there's the whole issue. Exactly. There's a whole issue about what. What is the standard of proof of that underlying crime. I mean, for God's sake, we did have the campaign manager of the Trump campaign providing repeatedly internal confidential polling data to the Russians. And, you know, when our investigation was over and the Biden administration came in, they actually confirmed that when it went to. To Constantine Kilimnik, who was Paul Manafort's right hand, that he then, of course, as we knew, but didn't have proof yet, gave it to the Russians. And of course he did. I mean, he would have been killed if he didn't. I mean, the idea that he would have kept this and not passed it.

A (41:30)

On to the G, that was his loyalty test. Because he owed, he owed Deripaska what, $19 million or something. They needed to be made whole. I remember the whole thing. I remember the whole thing. Andrew. Well, I appreciate your time today talking to me about this. Inquiring minds want to know. We just want to dispel a few rumors. Where have you been the last eight months? Because we've missed you. You've come back at a wonderful time. We're glad you're here. But where, what were you doing?

B (41:55)

So it's actually more than eight months. It was, it was almost a year. I was the general counsel of a private company. And during that time I didn't think it was appropriate to be speaking publicly because it was too hard to divorce and, you know, and say, oh, this is just me personally versus my position as general counsel of the company. But I left that position so it made it easier to. And the timing couldn't have been better in terms of all of the things that are going on that merit a lot of legal analysis.

A (42:30)

Yes. It's super important to have your voice, especially with this bar memo having been so close to it. And you know, Room Raider is very excited that you're back as well. So thank you for having such a wonderful mid century modern decor, my friend.

B (42:44)

Thank you so much. Thanks for the invitation. It's so great to talk to someone who's so knowledgeable about these areas.

A (42:50)

Oh, that's very, very nice of you to say. I appreciate that. We'll have you back soon, everybody. Check out the book Where Law Ends. It's going to make a lot more sense now if it didn't make sense before. And we're going to dive into this bar memo, you know, it's not going to end. So thank you so much. Andrew Wiseman, appreciate your time.

B (43:07)

Thank you so much.

A (43:09)

All right, everybody, thanks so much for joining me today. This was just, it was such a good news day. We didn't need to do the good news. We're going to save your good news. Don't worry, we won't skip you. We're going to save it for Sunday so it'll come out Monday morning. And look for the bonus Mueller She Wrote episode this weekend. It could have Mar A Lago search warrant affidavit stuff in it. It will definitely have me going over the bar memo and I will repeat the Andrew Weissman interview. So don't want to miss that. That's for patrons only. Patreon.com Muller she wrote. You also get the Daily Beans ad free if you sign up for that man. It's been a heck of a week. I don't expect it to slow down much. We will see you this weekend for Mueller, She Wrote Patrons. And, of course, Monday morning, back on the beans. Until then, please take care of yourselves, take care of each other, take care of the planet, take care of your mental health. Vote Blue over Q. I'm AG and them's the beans.

B (44:00)

Refried beans. I like refried beans.