Andrew Weissmann served as a lead prosecutor in Robert Mueller’s Special Counsel’s Office. His new book Where Law Ends: Inside the Mueller Investigation gives the only such inside account and explores the prosecutors’ key decisions and hurdles, their successes and their failures. According to press notes for the book, “No other account has done that or is in the works.”
Through a mutual friend, I was able to arrange an interview with Andrew to speak about the book. In an effort to give the conversation maximum exposure, I reached out to Josh Marshall, and he agreed to host the interview on The Josh Marshall Podcast. Josh’s team at Talking Points Memo was one of the leading news organizations investigating the so-called “Trump-Russia” scandal, and TPM has a small stake in Crime Story. Josh and I are joined in the interview by his TPM colleagues Kate Riga and David Taintor. Part of our agreement was that Crime Story would publish the transcript of the interview.
You can stream the podcast interview with Andrew Weissmann here:
And here is the transcript of the podcast:
Hi, this is John Marshall, and this is The Josh Marshall Podcast. We have a special episode today. We have a different lineup and we have a special guest, and a very important and, I think I can say, a juicy book, certainly for a lot of us who spent much of the last four years following this one investigation, even before it was the Mueller investigation. Obviously, it had a prehistory before that and still looms over the country, looms over the Trump presidency. In any case, we are going to talk to Andrew Weissmann, who has a book out called Where Law Ends: Inside the Mueller Investigation. And it is that. It is his account of the Mueller investigation. So we’re going to get right into that.
We’re also joined by my friend and co-conspirator, I’m getting conspiracy on my mind since this is what we’re getting to talk about, Kary Antholis. We have all sorts of projects we’ve worked on over the years. In any case, we want to get right into it.
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Andrew, let me start by asking you this, which is a big meta-question that we’re going to get into in a bunch of subsidiary questions over the course of this episode. I think that a lot of people in this country who were following this investigation had this idea, given Bob Mueller’s professional background, what we learned over the course of that time about his personal background, character, all these kind of things, that this was going to get to the bottom of the whole thing. I think we all understood that President Trump had some powers at his disposal that could maybe allow him to shut the whole thing down, to just fire everybody, but if that didn’t happen, we were going to get to the bottom of it, nothing held back.
I think that since the investigation ended, and particularly in recent months, we have learned a lot that has made it seem like that was not really the case, that there was prosecutor… Restraint is part of being a prosecutor, but that there was a lot of restraint and some things that just were not really pushed into, some basic facts about the president’s finances, business deals, taxes, without which the context of a lot of the basic questions probably couldn’t be unearthed. You get into your book about there were certain ways that the report was written. There was what Bill Barr did with the report, spun the report after the fact. But on this basic point, what did we get wrong about Robert Mueller? I say we. I mean the collective commentariat observer class. What did we miss? Or did we miss something?
Well, I think it’s important to look at that in terms of what we got right and what was answered, and then we’ll turn to what are open issues. It’s important within that really excellent question first to consider what was done really well. I always talk about the two Russia indictments, particularly because those were on a part of the team that I was not on, so it’s not self-congratulatory. But I also think they are the two things that are the most important in terms of the lasting legacy of what we did.
Those were two indictments that proved with really hard, concrete evidence what Russia was up to in terms of hacking into the DNC, then weaponizing that information, about election interference. And it wasn’t, as Bill Barr said, just to “sow discord.” It was to actively promote Donald Trump in the primary and in the general election, and to depress the vote of black voters, brown voters, and Bernie Sanders voters, and I’m not saying those are all mutually exclusive, so they would not support Hillary Clinton. That was amazing detailed work that was done in record speed. There was a lot that was done right.
One of the things when I wrote this book is I realized it was going to be easy to write a book where I talked about all of the problems that the president posed to our investigation that Attorney General Barr posed, but I also wanted to write a harder book about, well, how did we meet those challenges, and what did we do that I thought was really good, but also what we could’ve done better? Sometimes it’s just a question of a disagreement. I try and lay out why Robert Mueller made the decisions he did, and then where I disagreed with it, to point out why I disagreed. Then the reader can decide which way they would’ve gone on those issues.
First, the report itself that we wrote does point out limitations, and that happens all the time. Journalists have that all the time. You interview people, and you don’t always get to the bottom of it. You end up with, unfortunately, unanswered questions. Our report does point out things where we just couldn’t get to the bottom of it.
One example of that is this figure named Konstantin Kilimnik, who was identified recently by the bipartisan Senate report as essentially a Russian spy. We don’t know what he did with the internal Trump campaign data that was given to him at the direction of Paul Manafort. We’d love to know what happened to it once he got it. We know that it was intended to go to Ukraine and Russian oligarchs, but we don’t know if it did and then how it was used if it went to them and to other people.
But there are other areas where we didn’t explore things that I think really goes to the heart of your question. For instance, we’ve all looked at the New York Times reporting from 10 days ago, which in this media environment-
10 years ago.
… seems like 10 years ago. That’s an area where I discuss the initial decision, which, just to be clear, I agreed with, the initial decision when we first subpoenaed Deutsche Bank. We got a call from the White House saying, “Are you essentially crossing the red line and investigating the president’s finances?” That subpoena was actually about Paul Manafort’s finances, as to which I was doing, with a great team of agents, a traditional financial investigation, which is ironic since that was for Paul Manafort, who is a lesser figure, obviously, than the president.
The decision was made to not cross that line at that point, and I agreed with that because you really had to balance at that point, do you risk being fired and the plug being pulled and never revealing what had happened, what Russia was up to, and never getting to those investigations and proof? We didn’t even realize at that point just how close we had come to being fired. We didn’t yet know about what Don McGahn said was happening in June of 2017, just a month after the appointment. My issue is that I thought that needed to be revisited.
Now, to get very much in the weeds, it is important to know that the appointment order, in other words, the document that Rod Rosenstein signed that set us up, didn’t say, “You can investigate any and all things and all financial transactions of the president.” For instance, as a hypothetical, if the president did a transaction in India that had nothing to do with Russia, that was off limits. That wasn’t something that was within the scope of what we could do. People may say that’s outrageous or wrong, but that wasn’t a Bob Mueller issue. That is a question of the appointment order. So we had to stay within that document or we would have to go back to Rod Rosenstein and have a good reason for why we thought the appointment order needed to be expanded. I hope that answered… A long way of answering your question.
I have one quick follow-up on something you said about you guys trying not to get fired during this process. How did you determine or decide where that line was, what you could go up to that wouldn’t make the president explode, because he was pretty clearly unhappy with all of this?
That was kind of going to be my follow-up, too, but from a slightly different angle, that it sounds like in that initial decision that maybe could’ve been revisited later, that it was not only or maybe even primarily an investigative or legal decision per se; it was a strategic decision of we need to preserve this investigation because the president might just fire us. To Kate’s point, too, how were you gaming out what was in the president’s head?
Those are excellent questions. It’s worth noting something that’s really atypical about investigating the president of the United States that doesn’t exist in any other investigation, and honestly was new to everyone, except for maybe one team member who had been, as a very young lawyer, on Watergate. When I investigated organized crime figures in New York or Enron executives, those are complicated cases, but the people we were investigating didn’t have the ability to do two things. They couldn’t pull the plug on our investigation and fire us. Two, they couldn’t dangle pardons or actually pardon people who we wanted to cooperate with us. Those were two huge powers that the president had.
The question of “how did you game this out?” it’s not a science. It is sort of an art. My view was at the outset of the investigation, where we hadn’t gotten a toehold, we hadn’t done any investigation, and there still was the ability to do a financial investigation and look at financial motives and links, there was less reason to cross that line and risk, even though we didn’t know how big a risk it was. Obviously, once Don McGahn came in and talked to us about what was going on in the White House, it was clear that was a big risk. That came and went for 22 months. I recount in the book just what it’s like to show up at work not knowing if you’re going to be there the next day, and just how much we did to try and preserve our work and to make sure it didn’t go anywhere, having read about Watergate.
My issue was, in gaming that out, there was a point where Jeannie and I… Jeannie led one of the teams, Team R. We had very inventive names. Team R was Russia, and Team M was Manafort. At some point, the mantra that we kept on saying is, “Better to get fired,” meaning at some point it was like, “Okay, we’ve shown this. We’ve proved that. We’ve flipped Rick Gates. We have indicted two sets of Russian actors. Manafort has been convicted.”
At that point, it was like, if we don’t do it, we’re letting down… I’ll take it from my perspective. I felt like I was letting down the public because I felt like there was more to do, and at some point I was like, “If we get fired, we get fired, but that’s then on the president who fired us, and whatever repercussions there are politically in terms of doing that, so be it. That’s his choice. But we shouldn’t self-censor at a certain point.” There’s no good answer to… It’s not like a science experiment where you know here’s the exact risk and here’s how much more of a risk it is if you go into this area.
Andrew, if I might jump in, there’s a moment in the book where you very dramatically describe watching a split screen, essentially, of, on the one hand, getting the verdict in the Manafort trial that you oversaw and, on the other hand, seeing the prosecutor in New York announce a plea agreement with Michael Cohen. Then in the aftermath of that, Jeannie, I think, says to you, “It’s time to pull the trigger,” which meant it’s time to pull the trigger on subpoenaing the president. Then that was, I think, perhaps the great blowup in the tensions between the two of you on the one hand and Aaron Zebley, who was kind of Mueller’s gatekeeper, on the other. Could you describe the dynamics of that dramatic day, and then the aftermath of your trying with Jeannie to pull the trigger?
That was definitely the high point in terms of our having the most momentum and seeing our investigation just accomplish so much. We’d indicted these two Russian cases. And it was very cinematic because obviously it wasn’t in any way coordinated. No one knows when a jury is going to come back. It just so happened that the jury came back within the same hour. The jury in Virginia that was trying Manafort was coming back at the same time that Michael Cohen was pleading guilty. He ended up pleading guilty in connection with both Russian things and non-Russian things. We had a piece of it and the Southern District of New York had a piece of it.
Also, there was a little bit of a flip because for so long we were a closed box, and we would see on TV journalists speculating about what we were doing. Here, of course, we were all glued to the TV to see what was going to happen in the verdict in Virginia, because Virginia is notorious because that courthouse, there’s no equipment that’s allowed in, no phones, nothing. We knew that the first way that we would hear is not from our team, which would be in court and couldn’t just run out, that we would hear it from reporters. It was interesting that we were waiting for reporters on this one. The details of it also were quite dramatic because you’re getting notes from the jury about what they had found and what they hadn’t, but not whether it was guilt or not guilt.
So that happens, and everyone is in my office and outside of my office waiting for this. It was a big test of our office, obviously, as to whether we would be able to convince a jury of Paul Manafort’s guilt. That happened, and there was guilty on all of the… Eight of the 18 counts were all guilty, and hung, meaning no decision, on the other 10. Terrible result for Manafort because he was also then awaiting another trial that was going to happen in a month.
Then Michael Cohen was pleading, and the way it’d been pled by the Southern District of New York, Individual 1 was clearly the president of the United States, and so you had the conviction of a campaign manager. That hadn’t happened since, I think, John Mitchell. There obviously was a lot of pressure then on Paul Manafort then to cooperate because he was convicted, facing a lot of time, and facing yet another trial. You had Michael Cohen giving information and pleading guilty, and in a way that seemed to indicate that the crime he had pleaded to, one of the conspirators was the president of the United States.
Internally, we just knew, if you’re ever going to pull the trigger and actually going to subpoena the president, and stop the incredible effort that Bob Mueller and people under him were engaging in to accommodate the president… I would say to accommodate the presidency, which I think is appropriate. There have always been those kinds of accommodations. When George Bush gave evidence in the Scooter Libby investigation, he did that, and it was accommodated so he could just be interviewed. Bill Clinton was accommodated. But this was going back and forth, and back and forth. We just thought, “Okay, you are either going to send the signal to the president that you’re going to subpoena him or not.”
I recount in the book Bob Mueller’s view that it was both unnecessary and that it would drag the investigation on for much longer to do that. My disagreement was that I thought that, and this is one where I expressed it at the time, was that I thought it was a really bad precedent to set for the next investigation, that this would be throw in the face of, God forbid, we have another special counsel or independent counsel. Even in a case where the crimes under investigation are so serious, where the president’s intent is so central to those crimes, that even there, the most we ended up doing was getting some written answers to some part of the investigation. I thought that was not going to sit well going forward.
Obviously, if you compare it to Bill Clinton, you could say those crimes under investigation were of lesser import to a democracy. I’m not trying to say they’re not important. I’m just saying that they were less important to the country as a whole, and he was required to give testimony under oath. If it was up to me, I would’ve made the trade-off differently, and if it had led to our being fired, so be it. That’s where I came on that.
I’m always struck that, with Bill Clinton, not only did he give testimony, he gave blood. I don’t know how… I’m not sure there’s a precise legal calculus to compare these things to, but talk about a deeply invasive investigative tool. That’s it.
Let me follow up on the point that you just made. After Paul Manafort is convicted, and as you say, a lot of pressure on him to make a deal, to cooperate, which he eventually did and then did not do. Here is a basic question. I think I understand the logic, but I’d like you to elaborate on it if you could.
My basic understanding is, okay, so these convictions are secured, it’s a lot of jail time, there’s another case, a lot of pressure on Manafort, there is a deal, you start the process of cooperation, and then even after months of either not talking or lying about things that had happened, after he starts cooperating, you find out he’s still lying. He’s still lying. At that point, again, as I understand it, the investigation makes the decision, “This guy can never be credible, and this guy is never going to level with us, so there’s no point. We are done with trying to get the facts from Paul Manafort.”
Now, my question there is, as this lines up, Paul Manafort, in many theories of this total case, is the only one who the facts can be gotten from, in just a factual sense. You don’t have Kilimnik. He’s not gettable. So in some sense, deciding you’re not going to get the facts from Paul Manafort means deciding you’re not going to get the facts. But, again, at a certain point you just say, “This person is a liar. They are never going to be credible. He may tell us that Trump and Putin had a secret hideout in Antarctica. It doesn’t matter, because he’s a liar.” But walk us through, how does that decision go?
Yeah, that’s a really good question. After Paul Manafort is convicted in Virginia, he is facing, a month later, a trial, the proof is very strong, in Washington, D.C. We also were ready for that trial, so that when Manafort made a motion to have that trial put off, the judge basically gave him a week. We wanted to make sure he felt the full weight of having… He made the decision to face two trials. He could’ve faced just one. So the second trial was then going to happen.
Personally, I think it was actually to our advantage that it was happening in September of 2018. If you remember, the midterms were coming up six, eight weeks later. Manafort had actually said to us through counsel that he wanted to put the trial off until after the midterms, so I’d say A for candor on what he was seeking to do. But I always thought his calculus was he might be truly cooperating and truly decided that, “I’m going to throw in the towel, and I’m going to just put my eggs in the basket of cooperation,” or he could be deciding, as I recount, and I had very strong suspicions this is what he was going to do, “I need to avoid at all cost having a monthlong trial,” where every single day there is going to be the drip, drip, drip of really hideous evidence about what he was doing in Ukraine.
I recount some of that, and the stories he made up about Hillary Clinton, about his really using subterfuge in connection with lobbying in the United States, of senators, of the president of the United States, President Obama, of just really devious conduct. I just thought he would’ve thought, “I’m never going to get a pardon if this all comes out and this is the news for the next several weeks.”
On the other hand, as you said, normally once you blow trial, which is the term that you use as a prosecutor, you usually don’t cooperate somebody at that point unless there’s unusual reasons to go forward, because you don’t want to create an incentive for people to say, “Well, why don’t I first go to trial, see what happens, and then I’ll cooperate?” They should do that beforehand. But here, the calculus was, look, he was going to admit everything he did. He was going to forfeit so much. Also, I was insistent that he forfeit in a way that, even if he got a federal pardon, the government still had civil forfeiture, so that we would get more than a criminal conviction, and we had the possibility that he would tell us the truth.
In other words, we really wanted to know, what did he know, for good or bad, whatever it is. I recount the conversation we had at the time about, what are we going to do if he’s just playing a game and comes in and says, “This is a witch hunt, and Donald Trump is innocent of everything. I don’t know of any crimes that anyone has ever committed except me”? Obviously, if he said that in a credible way that we could corroborate, great, but we were suspicious about that.
We did all sorts of things. We interviewed him a lot. We followed up various leads. We worked with his excellent counsel to explain to them why there were issues and his story kept on changing, which they recognized, and they were pushing him because they were good defense counsel and you want to make sure your client doesn’t get into trouble with the government at that point.
That’s why, I assume, just make the most of cooperating.
You’re trying to protect yourself.
Absolutely. At the end, this is now public, we put him in the grand jury. We thought maybe if he’s under oath and there was a written transcript of what he said, that might have some effect on his being more candid. He wasn’t going to be able to say, “Well, those are just FBI notes of what I’m saying.” There’s a written record being kept by a court reporter who’s unrelated to the U.S. Attorney’s Office. We thought that might help, and it didn’t. At that point, you have no more cards.
I’d say there’s one other thing that I think, especially for lawyers who are listening, was that Bob Mueller had a really good idea, which was he said, “Look, to the extent that Paul Manafort is worried about and is thinking, ‘I might get a federal pardon from the president,’ that could only affect federal charges.” A presidential pardon does not affect any state case. We obviously can’t tell a state what to do in terms of who they should investigate or where they should bring charges, but we can coordinate with them.
The Manhattan D.A.’s office, I was told by Director Mueller to talk to them and see if they needed and wanted our Manafort evidence, which they did, because it related to crimes that he committed in New York, for which the jury in Virginia had not reached a result. In other words, the hung jury allowed Manhattan to potentially go forward. The reason that was useful for us is that way Manafort would understand, if Manhattan went forward, that he couldn’t put all his eggs in a presidential pardon because he still would face potential criminal exposure in Manhattan.
I make that call, and later in the day I’m talking to Director Mueller’s deputy to make sure he’s up to speed on what’s going on. He says, “Wait, wait, wait, you have to stop,” because Rod Rosenstein, the acting attorney general, his office had requested that we not coordinate with any state law enforcement so we wouldn’t interfere with a potential presidential pardon, and the deputy had agreed to that. To me, that was… It still is. It was at the time and it still is something I don’t understand why you would… I don’t understand why Rod Rosenstein would ask that, and I don’t understand why we would agree to it.
Let me just give you one reason. There wasn’t even a pardon on the table. This was about not doing something that would help our investigation, encourage Manafort to be truthful, and could only have a potential downside if there were a pardon, but that hasn’t happened to date. So we ended up not using a tool that… Again, it may not have worked, but our job is to run down leads and use the tools that are available to us.
That’s, I guess, a long way of answering what the arc was. But there is no question once Manafort was just continually lying to us, that we had to do something. We were not going to write him what’s called a cooperation letter that tells the judge, “Oh, look at all the great ways he cooperated.” You can’t do that. Your obligation to the court is to be honest. At that point, we had a hearing and set out our evidence, and the court found that he had lied in a whole series of ways to us.
Kary, let me just get one… I’m going to hand this off to Kary, but I have one more thing I wanted to ask.
Presumably, at some level, Manafort was hoping, maybe still hoping, for a pardon. President Trump has at least a few months left of that plenary power to do anything he wants on that front, almost anything he wants, but it certainly seemed from the outside, and still seems to me, that there were other things motivating Paul Manafort beyond the possibility of a pardon.
As I think you suggest, it’s never seemed that these guys were tight, that Paul Manafort had any particular devotion to Donald Trump, or certainly that Donald Trump had any particular devotion to Paul Manafort. How he conducted himself does not seem to make sense rationally, given his age, given his sentence, all that kind of stuff. Do you have any… This goes beyond legal analysis. What did your gut tell you about what was happening here? He could’ve done very well by himself, assuming he had other things he could’ve shared, so what’s your sense of what happened there?
Well, there’s no question that Paul Manafort has been treated differently than Roger Stone. Roger Stone was given clemency so that he never had to go to jail after his conviction. With Paul Manafort, I’m not sure he will, or I don’t know what will happen in terms of whether he will get a pardon. The fact that he has been released from prison and is in home confinement takes some of the pressure off of that decision. That is not to say that he isn’t under restrictions, but it’s just not the same thing, being in prison versus staying at home. In fact, the attorney general has likened staying at home to slavery.
I don’t know the answer to why that is, why there is that difference. You do have the fact that there was no love lost between Paul Manafort and the president. By all accounts, and this is in our report, that was not a close relationship. Roger Stone was a longtime friend of the president, and that seems like a very interesting relationship between the two of them. Also, Paul Manafort’s crimes of conviction were much more substantial and went back longer. I think there may have been a greater political cost if there was a pardon, given what Paul Manafort was convicted of.
Third, it is possible Paul Manafort didn’t have information that was going to be as damaging or as credible as the president was worried about with respect to Roger Stone. The speculation with Roger Stone, which no one knows, is why did Roger Stone lie to Congress? It was clear he was covering up… As the court found, he was doing his crimes for the president. I’ve written about this, which is Roger Stone still to this day can be put in a grand jury and asked that question, which is, “Why did you lie to Congress?” If there was nothing bad, why not just tell the truth as to what happened in terms of your coordination with Wikileaks and your conversations with people on the campaign, up to and including Donald Trump?
My speculation is that Paul Manafort was never going to cooperate. It was clear that he wasn’t intending to do that, and he just needed to avoid having a trial that would’ve made it harder for him to get a pardon, because it would’ve been more damaging to the president. He wanted to keep that possibility alive. And the fact that he was found by a court to have lied so many times, I think, neutralizes him, from the president’s point of view, to the extent that the president is worried, and again this is speculation, as to something that Paul Manafort might know.
Unless he has it in writing or on tape, it’s hard to say that you’re going to just believe Paul Manafort at this point. Just remember, one of the things that Paul Manafort lied to us about was basically skimming money from a pro-Trump PAC. It was clear the reason… I recount how we uncovered this. It was pretty clear that this was something that was not going to endear him to the president, that he was taking money that should’ve been used to help get the president elected.
Did you ever consider, both with Manafort and with Gates, that they might be in fear of their own safety or the safety of their families from folks affiliated with Deripaska and Putin?
We did consider the problem of danger. A lot of us have organized crime cases in our background and worry about that. Certainly, in organized crime cases, there is a way to deal with that, and it’s a big deterrent to cooperation, and you have a witness protection program.
What I would say is it’s speculative. In other words, what you try and do in a normal case is you build a very strong criminal case and then you approach somebody. In organized crime cases, sometimes that works and sometimes it doesn’t. Here, to the extent that was at play, you also had the problem of a pardon. I don’t know to what extent that would hurt us in getting American cooperators. I think I was more concerned about that in terms of getting people who lived overseas to cooperate.
Can you also reprise for us your assessment of the attorney general, William Barr, in going into his tenure this time around as attorney general? You write about it very eloquently in the book, but one thing that I’d like for you to add to that is your assessment of Rod Rosenstein and his role in the transition from Sessions to Barr.
Those are great questions, and I think of them in different buckets. I open my book on the moment on March 24th, 2019, where we see what the world sees, which is this purported four-page summary letter. It’s not a summary. At the end of the book, I go back to it because everyone understands then all the facts, and you see all the ways that the attorney general misled the American public.
The reason that date of when I learned about the four-page letter is so important and stands out, I think, for all of us, and certainly for me, is that was the moment where somebody who you thought was going to be an institutionalist supporting the independence of the Department of Justice, we knew internally, the Special Counsel’s Office, what we were now dealing with, which was somebody who was a political actor, who was distorting what we had found. The public didn’t know that yet because they didn’t have the report.
Now I think it’s kind of commonplace. We’ve all lived through the attorney general doing things that, in my view, have completely denigrated the rule of law. I’ve worked at the Department of Justice for over 20 years, and it’s really hard to watch. This is not political. I’ve worked for Democrats and Republicans at the Department of Justice, and I’ve never seen anything like this. It has nothing to do with his policies. It’s the fact that the rule of law is something that he’s undermining.
With Rod Rosenstein, I think I can give him a pass on the so-called Rosenstein memo that was used by the president as the rationale for firing Jim Comey, and then quickly the president had to backtrack and say, “Well, I was going to fire him anyway.” That’s one where I can say, “Gee, he had just gotten into that office. He got played. There but for the grace of God.” I know that other people have different views, but I can give him the benefit of the doubt on that.
Certainly, that led to his appointing Robert Mueller, and you don’t get a better choice than Robert Mueller. He’s such a straight shooter. If you remember when he was appointed, Democrats and Republicans were saying he’s a wonderful choice. That was before what I call the standard presidential playbook of denigrating the special counsel. We’ve seen that before. Trump is not the first person to have done that.
Where I find Rod Rosenstein harder to give credit to is one story I recounted about his office asking us not to coordinate with any state law enforcement. I don’t think that was an appropriate thing to ask.
The other is I don’t understand how Rod Rosenstein signed off on that summary letter and stood up at the press conference with the attorney general. It was so misleading. He had appointed us, and he knew everything that we were investigating. Our indictments had to be signed off by the Department of Justice when we were doing national security matters or tax matters. All of that had to be approved. I don’t understand how he was able to stand there. It seemed really hypocritical to me.
There was no explanation for, for instance, why they concluded there was no obstruction of justice. It’s really hard to read volume two and think that, just taking the Don McGahn evidence where he said, “I was asked by the president to fire Mueller, I was then asked to deny it to the press, and I was asked to record that in a memo for the ‘file,'” and while our investigation was going on.
As well as just throwing in another thing, which is what’s the innocent reason to dangle a pardon? I understand there could be an innocent reason to give a pardon, but the only reason you dangle a pardon is because you’re trying to thwart cooperation. If you’re trying to get at somebody’s intent, that is a very useful thing to look at. So I have a lot of trouble with Rosenstein’s actions towards the end of the investigation.
Can I jump in with one question? Maybe in the 10 minutes or so we have left, Andrew, I wanted to ask about some news that broke last night from CNN which centers around this, I think about three-year-long grand jury subpoena fight to an unknown foreign entity. Here at TPM, our colleague Tierney Sneed has written a lot about it. The CNN story last night revealed that it was a state-owned Egyptian bank that was, I guess, subpoenaed, and it had to do with a last-minute influx of cash in Trump’s campaign in the 2016 election, something like $10 million or something like that. Is there anything you can tell us about this story, any light you can shed on this saga?
Unfortunately, that’s one where I can’t, and I have two reasons I can’t. One, my book had to go through prepublication review, meaning I couldn’t just leave the government and be like, “Hi, I want to just talk to you about everything that’s in my book.” I wanted to write down everything that happened, but then it had to be vetted by the Department of Justice. Everyone knows and has followed, I think, what happened with John Bolton. Well, I didn’t take that route. I gave it to them, it took months, and it got cleared. That material that-
Andrew, just for our listeners, so they know, that is a standard process in previous administrations. It can be abused, but the process itself is a totally… You sign in advance, all that kind of stuff.
Absolutely. I had agreed to do it, and there could be real consequences to me if I didn’t. But I’d also agreed to do it, so I was going to do it. That was part of the deal.
By the way, I need to say, other than that it took longer than it should have, I was treated very fairly in the prepublication review process. I really don’t have any complaints other than I wish it were faster, but I’m pretty sure I fall into a lot of people who wish it was faster. So that’s nothing I have prepublication review to talk about.
The other is, and again, just reading the story, and I can’t confirm whether it’s true or not true, but if it were true, it seems to me that it discusses grand jury material. I have no grand jury material in my book. To the extent that there’s anything that I refer to as being in the grand jury, it’s because that then became public pursuant to a court order. For both of those reasons, I’m really sorry, but I don’t have anything I can tell you.
That’s understandable. I had to give it a shot.
Oh yeah. Of course.
Can I ask a quick question about the Trump Tower meeting and the discussion on Air Force One about Don Jr.’s response to the New York Times inquiry? Did you in your investigation ever try to find out whether Trump and Putin discussed that meeting, and what the Trump family’s response should be to the news of that meeting when they had their bilat, which according to Putin, I think, was about adoptions.
I think the answer to that is yes, to the extent that we could. Everybody who would sit down for an interview with us who was at that meeting was asked about it, including not just what happened at the meeting, but also the circumstances of, a year later, how it would be spun to the press. The answer is we’ve tried to, and I don’t think there’s… There’s certainly no evidence in our report that the spinning of it a year later, that that emanated from anyplace other than the administration. I’m not saying it didn’t happen. I’m just saying there’s no evidence of that.
I’m not as deep into this as I was for like two or three years, but if I’m remembering, that was the trip where there’s the official bilat, and then there’s this walk-aside at the dinner where they get about a half hour talking with just Putin’s translator about we don’t know what.
There are a lot of communications between the president of the United States and the president of Russia that no one knows about, so we don’t know about and the press doesn’t know about. One of the reasons I thought it would be useful to have an interview is to ask those questions. Again, we may not have gotten the truth, but it’s also this is the president of the United States giving the benefit of telling us from his own mouth what happened.
Just for your listeners, the Trump Tower meeting is the meeting where a Russian oligarch named Agalarov, who was a business associate of Donald Trump… He financed the 2013 Miss Universe Pageant, and also makes an appearance in the New York Times reporting from about 10 days ago about the finances of the Miss Universe Pageant. Is also the Russian oligarch who sends the Russians to the Trump Tower meeting saying that as part of the Russian government’s assistance to the Trump campaign, they have dirt on Hillary Clinton that they would like to share, where Don Jr. says famously, “I love it.” All of that is in emails.
Then when this comes out a year later, in 2017, there is an effort to have the press spun about what happened, where there’s a discussion of saying this is primarily about adoptions, which is, of course, misleading because the Magnitsky Act, which was the sanctions by the United States on Russia, was retaliated against by Putin by saying, “If you have the Magnitsky Act, we are not going to allow adoptions of Russian children by Americans.” So to say it’s primarily about adoptions hides the fact that it’s really about the Magnitsky Act, which Russia did not want to have in place.
Curiously, Putin, when asked about what he and Donald Trump spoke about in that bilat that Josh referred to, that only Putin’s translator was present for, he said, “We talked about adoptions,” I believe.
Yeah, which, to me, it’s not even code, because adoptions is a discussion about the sanctions.
Right. Andrew, let me ask you this. One of the things that has… This is something that I have been thinking about well before this investigation, going back to a number of previous high-profile investigations of either the president or people around the president, is we have this basic tension between, on the one hand, investigating, finding, and punishing people for violating statute laws, and that is obviously what the Department of Justice is in the business of doing, that’s what its skillset is, all of that. In many ways, in my mind, the greater public interest is in finding out what happened. We have sort of been crosswise about this ever since that appellate litigation with Oliver North, and Congress, now they hear there’s a special counsel investigation, they won’t touch it because they’re afraid they’re going to get crosswise with some aspect of the investigation.
It has occurred to me, certainly in this case, the fact that Paul Manafort… Presumably, COVID is over at one point, he goes back to prison. The fact that Paul Manafort is going to spend a lot of time in prison or without his liberty, that doesn’t really affect me. I don’t think it really affects our democracy in a big way. He should be accountable for his actions, but that is not a question of big public concern. What happened is a matter of grave public concern, and as I think we have seen, often the logistics and equities of criminal investigations go against finding out what happened. Not only is it not the primary aim, it can actually get in the way of it.
Having been through this process, how did those two competing equities play out in internal discussions? I guess they did to the extent that the office didn’t have to write a big report; could’ve just said, “Yeah, we did these indictments,” and that’s it. But tell us. Walk us through that. How did those equities play out?
I think that is a really great question, but I think of it differently, because I think that when you say that whether Paul Manafort is in jail for a certain period of time or not, that’s not of big import, but that is a tool that the government uses to obtain evidence. In other words, if people thought they could come in and lie to us with impunity, and there was no ability to indict them for perjury or making a false statement, you would see even more of it.
Now, there’s one of the tools that you have, and it was used in organized crime cases, used in Enron, and it was used in this case, is those tools where the criminal law is actually a tool to get at the truth. Sometimes you don’t need it, but oftentimes you really do, particularly I think in a public corruption-type case. So I don’t view them as necessarily working against each other.
Where I do think there… I understand your point, and where I do think there needs to be a change is that I think the special counsel rules as currently written, and responding to the Ken Starr investigation, where there was this very public salacious report, said, “No, the special counsel’s audience is only going to be the attorney general. It is going to be private. You have no ability as the special counsel to speak publicly without the attorney general’s permission, and your audience is essentially an audience of one.” I think that is a disservice, understanding that it will bring us closer back to the Ken Starr world, but I think it’s really important for the special counsel rules to understand the public education function of a special counsel.
I think most people thought that we were going to write a report more akin to, let’s say, the 9/11 Commission and speak to the public and make findings and have a greater discussion. Obviously, people at the far right or far left may have been blown it off and said, “I’m not listening to any of that,” but there has to be that effort. I don’t know that we’ve got the balance right.
I do think that one of the things there’s been a dearth of discussion about since the special counsel report was issued is, structurally, is this where we want to be? Because it is difficult to be investigating the presidency, but we need to have a mechanism to do it. This is a good data point to use in figuring out whether we are really accomplishing the purposes that you’re noting.
Kary, you had a final question you wanted to end on.
Yeah. Would you tell us what you believe you’re most proud of about your service on the Mueller team and what your greatest personal regret is in your service on that team?
I think the greatest accomplishment is not my own. I really do think it is the full documentation, to the extent that we could, of what Russia did in 2016, and documenting that in black and white, because that is so fundamental to our democracy. It was, I thought, very reassuring to see a bipartisan Senate report just a couple of months ago say, “Yes, that is what happened,” and provide a few more details as well. I think that was the thing that I’m most proud of, is the work that that team did in uncovering it and getting that into the public discourse. That really is no mean feat. When you’re thinking about Robert Mueller, that is under his leadership and guidance and brilliance in getting that done.
The biggest regret is… I think it’s twofold. I feel like I should’ve been more vociferous about needing to do, as the investigation proceeded, a fuller financial investigation. This is one where I can’t say it’s my personal regret, just because I expressed my views at the time, but I feel like we really needed to subpoena the president because of the precedent it set by not doing it. Those were two things that, when I look back and I think about what more we could’ve done, those are the two things that really stand out to me.
Well, Andrew, thank you so much. The book is Where Law Ends. It is your look at… Remind me how long the investigation took.
22 months. I’m trying to think if I remember it feeling longer or feeling shorter. I’m sure it felt longer doing it. Thank you so much for making this time.
Let me remind everybody that The Josh Marshall Podcast is brought to you by Grady’s Cold Brew Ice Coffee. You can get 25% off from now until Election Day, gradyscoldbrew.com.
As I said, Andrew’s book is Where Law Ends, and it is available at all… Basically, available at Amazon. I guess that’s books nowadays. They’re available at Amazon, the only place that is still around selling books, but obviously all bookstores, to the extent that you can still find them operating.
Andrew, thank you so much.
Thanks for having me. Great discussion.
Absolutely. All right. Thanks so much. Talk soon.