By now you know a lot about Special Counsel Robert Mueller and his past. You have watched with me as the Trump-Russia investigation has virtually gone nowhere in 20 months. Yes, there have been indictments — but NOT of anyone or anything related to 2016 election-tampering collusion between Russians and members of the Trump Campaign. But Mueller does not give up. And he has a lapdog that owns a past in legal prosecutions that is more vicious and dogged than that of Mueller: Andrew Weissmann. Let’s meet Mr. Weissman.
Who is Andrew Weissmann?
FBI Director Christopher Wray was an assistant attorney general in 2004 when he heaped praise on an ambitious Mafia-tested prosecutor while promoting him to the top of the Justice Department’s high-profile Enron task force. Wray specifically praised Andrew Weissmann for getting convictions against two Enron clients: accounting giant Arthur Andersen and executives at banking dynamo Merrill Lynch.
Andersen was finished as a company; four Merrill executives went to prison. Today, Weissmann stands as special counsel Robert Mueller’s top gun in a squadron of nearly 20 prosecutors and scores of FBI agents delving into Trump-Russia. Mr. Weissmann is leading the probe into the biggest target to date, Paul Manafort, President Trump’s onetime campaign manager. How Weissmann operated over a decade ago offers possible glimpses at how he carries out orders today from his longtime mentor, Robert Mueller.
He went to Texas from New York City in 2002 fresh from putting a number of Mafiosos in prison. By the time he left in 2005, he had rung up some impressive numbers, such as 22 guilty pleas and millions of dollars in restitution. But he also suffered historic courtroom losses. And how he won and how he lost is still the subject of bitter comments from his adversaries in Houston.
“Do not misunderstand my disdain for him with ineffectiveness or something not to be concerned with,” said Dan Cogdell, who represented three Enron defendants. “He’s a formable prosecutor. If I’m Donald Trump and I know the backstory of Andrew Weissmann, it’s going to concern me. There is no question about it.”
The backstory: Defense attorneys say Weissmann bent or broke the rules. As proof, they point to appeals court decisions, exhibits and witness statements.
They say he intimidated witnesses by threatening indictments, created crimes that did not exist and, in one case, withheld evidence that could have aided the accused. At one hearing, an incredulous district court judge looked down at an Enron defendant and told him he was pleading guilty to a wire fraud crime that did not exist. “Weissmann seemed more interested in obtaining convictions than in promoting justice,” said Tom Kirkendall, a Houston lawyer who represented an Enron executive.
Those convictions for which FBI Director Wray offered praise in 2004? Weissmann’s cases against Andersen and Merrill Lynch lay in shambles just a few years later.
The Supreme Court, in a 9-0 vote, overturned the Andersen conviction. A year later, the 5th U.S. Circuit Court of Appeals erased all the fraud convictions against four Merrill Lynch managers. The jury had acquitted another defendant. “People went off to prison for a completely phantom of a case,” said Kirkendall.
Kirkendall became sort of an unofficial Enron historian. He observed goings-on at the Houston federal courthouse and blogged about what he considered a systematic miscarriage of justice. The task force, which ultimately would catapult prosecutors to lucrative careers, wanted to win as many convictions as possible. They were prosecuting players in one of the nation’s biggest corporate scandals. Enron bosses falsified balance sheets, inflated earnings and traded stocks with insider knowledge. By 2001, the mega-company went bankrupt. Its stock was worthless.
The Justice Department task force mobilized in 2002 and quickly won convictions. But there were dark sides. That’s where Sidney Powell enters the picture. The Dallas lawyer took the appeal of a Merrill Lynch figure. She obtained from Justice a batch of task force documents that should have been disclosed to trial attorneys years earlier. Justice prosecutors not connected to the Enron task force deliberately withheld evidence favorable to Stevens. A judge threw out his conviction.
Powell wrote a 2014 book about the scandals, “Licensed to Lie: Exposing Corruption in the Department of Justice.” “All of the cases Weissmann pushed to trial were reversed in whole or in part due to some form of his overreaching and abuses,” Powell said. “The most polite thing the Houston bar said about Weissmann was that he was a madman.”
It probably will come as no surprise that the special counsel’s office declined to comment about Weissmann’s track record. However, the Justice Department in 2012 and 2013 defended him against ethics complaints and concluded he did not violate the rules.
His hardball tactics seem intact today. Within weeks of his arrival in June, the FBI executed a no-knock, predawn raid on Mr. Manafort’s condo. Agents stayed for hours after waking up the target and his wife. Then a leak appeared in The New York Times. Mueller had informed Manafort that he would be indicted. It’s an old Enron tactic: Scare people into talking.
With over 20,000 employees, Andersen stood as one of the country’s most prominent corporate auditors. The Securities and Exchange Commission began investigating Enron, an Andersen client. Auditors started destroying documents. Weissmann took the lead in prosecuting Andersen for obstruction of justice in 2002. Andersen’s defense: It followed company policy on when to destroy the confidential material.
Convicted at trial, a fatally damaged Andersen appealed. The Supreme Court eventually took the case. In 2005, the nation’s highest court overturned the conviction in a 9-0 opinion, a devastating judgment that shattered Weissmann’s showcase. Chief Justice William H. Rehnquist wrote the opinion, solo — a message of how seriously the high court took the breach. In essence, Rehnquist said the prosecutor sold the presiding judge on jury instructions that assured a conviction. “Indeed, it is striking how little culpability the instructions required,” Chief Justice Rehnquist wrote. “For example, the jury was told that, even if [Andersen] honestly and sincerely believed that its conduct was lawful, you may find [Andersen] guilty. The instructions also diluted the meaning of ‘corruptly’ so that it covered innocent conduct.”
Rehnquist wrote that the government (Weissmann) insisted, over defense objections, that the word “dishonestly” be excluded from the instructions and that the word “impede” be added. The chief justice went to the dictionary, read the meaning of “impede” and concluded it was “such innocent conduct” for someone to “impede” the government.
According to Attorney Powell, “Weissmann indicted them for conduct that was not criminal, and he took criminal intent out of the jury instructions that he then persuaded the judge to give.”
With a lack of sustaining clients, a mortally wounded Andersen put out a statement. “We are very pleased with the Supreme Court’s decision, which acknowledges the fundamental injustice that has been done to Arthur Andersen and its former personnel and retirees,” it said. In the end, the George W. Bush Justice Department put out of business a thriving accounting firm whose actions could have been handled in other ways short of felony charges. The pain? 10,000 Arthur Andersen employees were put on the street without jobs by an over-aggressive prosecutor.
It became known as the Nigerian barge case. Weissmann induced indictments in 2003 against four Merrill Lynch executives, an Enron vice president, and an Enron accountant. He contended that Merrill and Enron entered into a sham transaction in 1999. The banker would buy three Enron barge-mounted power generators for $7 million purely to boost the Houston company’s balance sheet — and then Enron would buy them back at a profit. They were charged under a federal statute that normally requires proof that someone paid a bribe or received kickbacks that denigrated the business practices of “honest services.” There were no bribes or kickbacks. Five were convicted. The accountant — represented by Cogdell — heard the jury say, “Not guilty.”
Four of them appealed while serving time in prison. In 2006, the 5th Circuit reversed all the fraud charges, leaving just a perjury conviction against one executive, whom Powell came to represent on appeal. Again, the problem for Weissmann was his definition of a crime that greatly relaxed the standard for convictions. “We reverse the conspiracy and wire fraud convictions of each of the defendants on the legal ground that the government’s [Weissmann task force] theory of fraud relating to the deprivation of honest services is flawed,” the appeals court said. The opinion said the scheme may have been unethical but did not violate federal fraud laws. The court said that not all corporate fiduciary lapses are tantamount to crimes.
Attorney Kirkendall said the Enron trials in Houston were held “in a highly inflamed environment.” “The task force took advantage of that and convicted these men,” he said. “What it caused them and their families, you can just imagine.”
The government did not retry the five on fraud charges.
What the Merrill defense attorneys did not know during the trial was this: There were favorable witness statements that the prosecution withheld. In 2010, Justice began releasing confidential Enron task force documents. They showed that Weissmann’s team provided misleading summaries at the trial of raw witness statements to the FBI and to the grand jury. The disconnect became an issue in the appeal of Attorney Powell’s client, Merrill executive James A. Brown, in the Nigerian barge case. Although his fraud conviction went away, his perjury guilt stuck.
Powell was particularly struck by this: The government’s summary said a witness, Enron’s Jeffrey McMahon, “does not recall” a barge buyback agreement. In his actual interview, he said there was no deal. The prosecution badly distorted what he had said, depriving trial attorneys of information that could persuade a jury to acquit. Mr. McMahon was under threat of indictment and did not testify. The 5th Circuit agreed — to a point. “Favorable information was plainly suppressed from McMahon’s notes,” the court wrote. “The McMahon notes contain numerous passages that unequivocally state that it was McMahon’s understanding that there was only a ‘best efforts’ agreement and no ‘promise,’ whereas the government’s disclosure letter says only that McMahon ‘does not recall’ a guaranteed buyback.”
Even worse, the documents showed that Weissmann’s team yellow-highlighted favorable information that it deliberately withheld from its summaries presented in court. Yet the appeals court did not throw out the perjury conviction. It said the prosecution “flaw” was not material.
When the task force brought indictments in July 2004 against the big cheese in the Enron saga — Kenneth L. Lay, Jeffrey Skilling, and Richard Cause — defense attorneys learned that Weissmann had done something even more far-reaching. In a sealed court document, he named 114 unindicted co-conspirators. Defense attorney Kirkendall did some research. He found that it was by far the largest number of such targeted people in the history of federally prosecuted white-collar crime.
Defendants at trial hoped that some Enron executives would testify on their behalf. But those hopes collapsed on the list of 114.
“Chilling effect, my ass,” said attorney Cogdell. “It was Ice Station Zebra. No one in their right mind would do anything that would upset the task force, specifically Weissmann.” It was evident Weissmann made the list for that exact reason: to scare potential witnesses.
Justice Department press releases in the 2000s would tout the number 30 as in over 30 people charged in the Enron saga. But final conviction count is short that number given that appeals courts eviscerated two major cases — Merrill Lynch and Arthur Andersen — while juries acquitted two people and partially acquitted others and two were allowed to withdraw guilty pleas. In all, 22 pleaded guilty and four trial convictions stuck.
Afterward, some task force prosecutors rose to significant government posts.
Weissmann joined Robert Mueller at the FBI and then arrived at a powerhouse New York law firm as a white-collar-crime defense specialist. He returned to the FBI as Mr. Mueller’s general counsel and, later, was appointed by the Obama administration as chief of Justice’s fraud unit in Washington.
FBI Director Christopher Wray, the Justice Department assistant attorney general who named him task force chief a decade ago, is now supplying Weissmann with the FBI manpower he needs to pursue Trump-Russia.
Kathryn Ruemmler prosecuted both the Merrill defendants and Lay-Skilling. Years later, she emerged in the prestigious post of White House counsel to President Obama.
Lisa Monaco, another task force prosecutor, stayed at Justice, was Mueller’s chief of staff and then went to the Obama White House as the president’s top counterterrorism adviser. She joined CNN as an analyst this year.