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Former Mueller prosecutor injects himself into Jan. 6 probe despite checkered career

Andrew Weissmann has been accused of misconduct in past prosecutions.

Published: July 19, 2022 7:59pm

Updated: July 20, 2022 11:09pm

One of the lead prosecutors in the Trump-Russia investigation is now playing armchair (attorney) general in another highly contentious and politicized probe — despite a checkered history of overturned convictions and accusations of misconduct.

This time it's the Justice Department's prosecution targeting those involved in the Jan. 6 Capitol riot and efforts to challenge the outcome of the 2020 presidential election.

Andrew Weissmann, 64, penned an op-ed for the New York Times and sat down for an interview with Politico last week in which he criticized the Justice Department for adopting a "bottom-up" criminal investigation by focusing primarily on Jan. 6 protesters rather than former President Trump and his top allies.

"A myopic focus on the Jan. 6 riot," wrote Weissmann, "is not the way to proceed if you are trying to follow the facts where they lead and to hold people 'at any level' criminally accountable, as Attorney General Merrick Garland promised."

Weissmann argued House Democrats' committee investigating Jan. 6 has presented evidence at a series of recent hearings that should "transform" the Justice Department's probe.

"The evidence gathered in the hearings describes a multiprong conspiracy — what prosecutors term a hub and spoke conspiracy — in which the Ellipse speech by President Trump and the Jan. 6 attack on the Capitol were just one 'spoke' of a grander scheme" to cause an insurrection by overturning the results of the 2020 election, said Weissmann.

The country will "be a banana republic if we ignore an illegal coup by a former president," Weissmann added on Twitter.

Weissmann's public condemnation of the Justice Department for not being tough enough in going after Trump as part of a more ambitious probe dovetails with his reputation as a smart and tenacious prosecutor who will keep pushing to get results — even if that means going too far.

In the early 2000s, Weissmann helped lead the government's prosecution of Enron, the giant Houston-based energy conglomerate that collapsed in 2001 amid a massive fraud scandal. The FBI called the case the "most complex white-collar crime investigation" in its history.

Weissmann, who ended up heading the Justice Department's Enron Task Force, oversaw dozens of prosecutions on charges of fraud, perjury, and obstruction, including against top executives.

However, three of the executives — Jeffrey Skilling, Kenneth Lay, and Richard Causey — filed a joint motion to dismiss the criminal charges brought against them, arguing the Enron Task Force engaged in several incidents of prosecutorial misconduct.

One of the listed incidents was Weissmann writing an allegedly threatening email to compel a witness, Ken Rice, not to cooperate with the defendants. Weissmann justified his note by arguing he believed Rice's attorney had a conflict of interest by communicating with Skilling's lawyers while representing both other Enron-related defendants and a witness simultaneously.

While the court found the email didn't represent an "improper threat," it said Weissmann "would have done well to have brought the issue to the court's attention" instead of sending the email.

Affidavits unsealed in 2019 revealed multiple lawyers also claimed FBI agents working for the Enron Task Force overseen by Weissmann made veiled threats against their clients to pressure them not to talk to the Enron defense team.

There were several additional allegations of witness intimidation by prosecutors.

Under Weissmann's leadership, the Task Force also came under criticism for naming 114 people as unindicted coconspirators — a tactic that defense lawyers charged was used to hold the threat of indictment over many potential witnesses in an effort to block testimony that could've helped the defense.

"I have never seen defendants in a major public trial, especially a white-collar trial, so completely ostracized by witnesses with pertinent information," said prominent law professor Michael Tigar, who served as an expert witness in the Enron case. "This level of silence [from witnesses] is not normal."

Tigar also said he had never seen such "unfair pressures brought to bear on the adversary system in a single case."

Another controversial aspect of the Enron prosecution concerned the financial firm Merrill Lynch, which worked with Enron.

Weissman oversaw the prosecution of four Merrill executives, who went to prison for being part of a scheme to improperly boost Enron's earnings.

However, the Fifth Circuit Court of Appeals later overturned the bulk of the convictions, saying they were "flawed" and the government failed to prove the executives were solely seeking personal gain as the indictment had alleged.

Sidney Powell, who represented one of the Merrill executives during his appeal, has said Weissmann "creatively criminalized a business transaction between Merrill Lynch and Enron" to score a prosecutorial win.

Perhaps even more so than for his prosecution of Enron, Weissmann has been criticized for his prosecution of Enron's major outside auditor, Arthur Andersen.

Weissmann argued the venerable accounting firm covered up financial losses at Enron and shredded documents to hide what it did. The firm was convicted of obstructing justice in 2002 and effectively went out of business, leaving tens of thousands of employees — most of whom had no connection to Enron — out of work.

Three years later, however, the Supreme Court unanimously overturned the conviction, finding that Arthur Andersen didn't have criminal intent and that the federal judge presiding over the trial gave the jury faulty instructions. Weissmann had helped persuade the judge to tell the jurors they could find the firm guilty without the government needing to prove it knowingly broke the law.

"It is striking how little culpability the [judge's] instructions required," then-Chief Justice William Rehnquist wrote in the court's opinion. "For example, the jury was told that, 'even if [Andersen] honestly and sincerely believed that its conduct was lawful, you may find [it] guilty.'"

Rehnquist noted that defense lawyers had "vigorously disputed" the jury instructions.

Despite the ruling, Arthur Andersen never recovered.

Weissmann abruptly resigned from the Enron Task Force two months later in 2005 amid jury deliberations in another trial involving former Enron executives.

At that trial, the government elicited false testimony from Rice based on prosecutors presenting an inaccurate version of a video that was central to the government's case. Two other witnesses also indicated in testimony they felt threatened they might be indicted if they testified on behalf of the Enron defendants.

While Weissmann's aggressive approach has led both critics and supporters to agree he is a prosecutor to be feared, it has also led some lawyers to question his involvement in major, politically charged cases such as the Jan. 6 probe.

"Andrew Weissmann is not fit to practice law," Powell previously told the Los Angeles Times. She has often referred to Weissmann as "the poster boy for prosecutorial misconduct."

Powell also excoriated former Special Counsel Robert Mueller for tapping Weissmann, a longtime colleague of his at the FBI, to be a senior prosecutor in the probe into now-debunked allegations of collusion between the Trump campaign and Russia during the 2016 presidential election.

"We all lose from Weissmann's involvement," Powell wrote in 2017. "First, the truth plays no role in Weissmann's quest. Second, respect for the rule of law, simple decency, and following the facts do not appear in Weissmann's playbook. Third, and most important, all Americans lose whenever our judicial system becomes a weapon to reward political friends and punish political foes."

Mueller's investigation ultimately found no evidence of collusion. Weissmann later wrote a book calling out his colleagues for being too cautious during the probe — earning Weissmann rebuke from some former federal prosecutors for "violating the norms about how prosecutors should behave."

During the investigation, Weissmann came under fire for previously donating thousands of dollars to the presidential campaigns of Hillary Clinton and Barack Obama and to the Democratic National Committee. He also received scrutiny for reportedly attending Clinton's election night party in 2016.

Critics then blasted Weissmann for sending Sally Yates, the acting U.S. attorney general, a supportive email in January 2017 after then-President Trump fired her for refusing to enforce his ban on residents from seven African and Middle Eastern countries entering the U.S. over security concerns.

Weeks before joining the Mueller investigation, Weissmann, then a senior Justice Department official, met with Associated Press reporters in April 2017 one day before the AP published a story highlighting former Trump campaign chairman Paul Manafort's business dealings with Ukrainians. Critics have argued the meeting may have been a means to improperly leak information to the press.

Perhaps most striking, Weissmann was briefed in August 2016 on the Democrat-funded opposition research behind the infamous Steele dossier, which contained several salacious and since-debunked claims about Trump and his alleged ties to Russia.

The government used the dossier to obtain a Foreign Intelligence Surveillance Act warrant to surveil the Trump campaign. It's unclear how credible Weissmann found the document at the time.

During the Mueller investigation, former Trump campaign adviser George Papadopoulos suggested Weissmann was linked to an alleged entrapment scheme against him in the early months of the probe.

Papadopoulos, who was in the government's sights for alleged Trump-Russia ties, received a $10,000 cash payment in Israel in the summer of 2017 from a man identified as Charles Tawil, whom the former campaign adviser believed was a foreign spy, according to reports, court documents, and Papadopoulos' book. The money was presented as a retainer for future consulting work.

Rather than keep the $10,000, a suspicious Papadopoulos gave the money to an attorney in Greece before traveling back to the U.S, where he was arrested at Dulles International Airport on a return trip from abroad. Prosecutors had no warrant, indictment, or criminal complaint ready.

Papadopoulos has accused the government of entrapping him, arguing that Tawil had worked with the CIA in the past and that the money was meant to set up a charge of violating the Foreign Agent Registration Act against him. U.S. Treasury laws also prohibit bringing $10,000 or more in cash into the U.S. without reporting it.

"Something tells me that sleaze bag Weissman was behind the $10,000 entrapment scheme," Papadopoulos tweeted in 2019. "Mueller was terrified when [then-Republican Rep. Devin] Nunes brought it up yesterday [at a congressional hearing.]"

Documents obtained through Freedom of Information Act requests revealed Weissmann had conversations concerning "Money Laundering and Asset Recovery" and the "Cyprus Mutual Legal Assistance Treaty" on June 13, 2017, four days after Papadopoulos, according to his book, flew to Cyprus with the $10,000 before ultimately giving it to his lawyer.

While the timing and subject of Weissmann's conversations suggest he could've been aware of the payment to Papadopoulos, court filings indicate they may have been related instead to investigating Manafort, who had bank accounts in Cyprus.

Just the News reached out to both Papadopoulos and his lawyer during the Trump-Russia probe for comment but didn't hear back.

Weissmann didn't respond to a request for comment for this story.