First of all, people commit crimes. So you ultimately are investigating people. I think that phrase — “we investigate crimes, not people” — is an important sentiment, but what it means is that you have to have factual predication to investigate a crime or a person.

Nobody in their right mind could say there’s not factual predication to look into efforts to undermine the election. The department itself admitted that by looking at the fake electoral scheme, and now the DOJ scheme, the Georgia scheme — in other words, there’s no question there’s factual predication. So to say we’d look at crimes and not people is not a terribly useful comment. I think we should expect more from public officials in terms of responding in either a meaningful way or just not saying anything, but I just don’t think that’s a particularly helpful way to look at this.

Khardori: I want to ask you about the concept of predication for an investigation. I think most people hear that word, and it sounds kind of complicated and weighty. It’s not actually a terribly burdensome concept.

Weissmann: That’s right. I worked at the FBI, where predication is actually used a lot more in terms of what you do, because there are specific rules within the FBI — they’re not laws, they’re internal FBI rules — that in order to do certain investigative steps, you need to have certain factual predication.

So here’s a really good example. In order to make sure that the FBI isn’t just looking at anybody in the United States for no reason, in order to do this sort of low-level first step of an investigation, which is called an assessment, there has to be some articulable reason that you’re doing that. It can’t just be, “Oh, you know what, I want to just take a look and see what Ankush is doing today because I think he might be up to some wrongdoing.” There has to be something more than that. You have to be able to articulate why you are going to be taking some investigative step.

And then the more intrusive the step, the more factual predication you need. So if you were to open a full investigation of someone, you need more factual predication. All that means is — it’s very, very low level, it’s not proof beyond a reasonable doubt, it’s not even probable cause — some facts that would lead you to tend to think that there’s wrongdoing.

There obviously isn’t going to be a lot of factual predication, because the whole point is to do the investigation to get to be able to decide whether there’s proof beyond a reasonable doubt and whether someone should be charged. So I think that it is an important principle. It’s really important for civil liberties that exists. At times the FBI gets criticized because people say, “Why weren’t you looking at something?” And usually, the answer is — sometimes it’s incompetence, unfortunately, or a mistake or an oversight — but sometimes it’s because they were just applying that rule.

But it is a pretty low standard in the canon of rules that applies to prosecutors and agents.

Khardori: Obviously, an investigation involving Trump is a unique thing, but prosecutors open investigations, including grand jury investigations, on the basis even of news reports. If there’s a Wall Street Journal story about some potential malfeasance at a company, that can be sufficient for prosecutors to open a criminal investigation.

Weissmann: Yeah, it can be. Just to be clear, sometimes news reports are not sufficient — if it’s too speculative, if it’s too hearsay, if there are reasons to question the veracity of what’s being said. But yes, there are news articles that can provide sufficient factual predication. And usually, there are ways to do some quick public verification to get to the very minimum threshold that you need to open an assessment.

Khardori: I want to try to take you back to last March, which is when Merrick Garland took office. If you had been in charge of crafting an investigative plan at that point in time, coming into a newly run Justice Department, to address all of the concerns that you would have had at that time — not just what happened on the day of Jan. 6, but the potential misconduct within the White House — what would you have recommended?

Weissmann: I have no problem with the U.S. Attorney in D.C. being appointed to lead. That’s certainly one way to do it. I do think that you want to focus on what that person’s remit is, and I think, to me, the issue was, yes, it is fine that they’re going to focus on the enormous undertaking of holding people to account for what happened at the Capitol.

But you can also look at all of the other things. The fake electors, the DOJ scheme, the Georgia pressuring, the vice president pressuring, to name just a few, and then you have to figure out a plan for doing all that. And it doesn’t mean that you prejudge the issue as to what you’re going to do when that investigation is done in terms of who’s going to get charged.

And obviously, the very weighty decision that if you get to the point where you think you have enough proof that you can charge the former president — you obviously have the second thing, which all prosecutors need to think about, which is whether you should prosecute. But that’s all for a second step.

The first issue is doing the investigation. And I think that you need to have a really good point person who has got the skill set and the sense of alacrity and the backbone, and then has the backing of the attorney general, to undertake that investigation. And I don’t think that happened.

Khardori: Would you have set up or proposed setting up distinct teams, perhaps reporting up to a single person?

Weissmann: I think there are different ways to do it. Obviously, I just finished — you know, the last thing I worked on was the special counsel investigation, and we did have separate teams, and then the teams coordinated where we saw overlap or potential overlap. We also made sure each team knew what the other teams were doing. And we had daily meetings, weekly meetings. There was a lot of coordination.

I also thought, just as a technical matter, one thing that was extremely useful is the prosecutors and agents and analysts all sat together. That was a particularly fruitful exercise in terms of getting things done.

But I still think the key to me is having a really good leader who has the full backing of the attorney general, so that you have that sense of mission and purpose and a sense of alacrity in terms of getting to the end of the investigation as quickly as possible — that there isn’t any sort of second-guessing as to whether this is something that the leadership is supporting or not supporting.

Khardori: I think this is something about the Mueller investigation that is not well understood, despite the fact that you publicly wrote and talked about the internal organization of the team. I think a lot of people think the investigation was akin to the “bottom-up” framework, where you get people on low hanging fruit, and then kind of hope to flip them. And it was partially that, but it also had this structure in which there were multiple investigative streams. Was that decided very early on?

Weissmann: Yeah, it was really early on that there were going to be these three main teams, which, you know, we were not imaginative. We had a Team M, Team R, and Team 600. “M” was for Manafort and “R” was for Russia. And “600” is named after the statute that dealt with obstruction. Those were the three basic building blocks. There was a lead prosecutor and lead agent for each team. And then there were prosecutors and agents and analysts within each of those structures.

Team M was much more like a pretty routine economic crime case. I mean, there were aspects of it that were unusual — the fact that the president could pardon people, the president could fire us. Obviously, you know, I never dealt with that before.

But in terms of what we were investigating, by and large, it was just an economic crime case. And so we put that together. And yes, I was thinking about, “Oh, here’s the right hand man to Manafort, it’d be great if we could flip him.” That’s sort of a classic going from low to high. On the other hand, it’s not like we waited to investigate Manafort. But we did sort of look at who around Manafort, who’s below him who could flip. So there was, for instance, a very low level person who cooperated early on and allowed us to do a search of his home because he had been inside and to give us the factual predication necessary to get a search warrant.

But other parts were not at all like that. I mean, the Russia part, you know, they didn’t really have that ability to do a sort of “bottom-up” [investigation]. They went right to being able to see into what was happening in Russia in terms of active measures.

Part of the reason I wrote this article is I thought, the way DOJ is going about this is they’re truncating the evidence of a large conspiracy by examining one small piece and a piece that’s going to be particularly fraught when it comes to the president because of First Amendment issues, instead of looking at the whole pie.

And, as you know, the defense in a case, and I’ve been a defense lawyer, is always to isolate the proof and to try and separate each piece and not have it looked at in context of all the other evidence. So to me, it was really not a good way to proceed. You need to be looking at all of the aspects.

It’s not like in the Special Counsel [investigation] we said, “oh, let’s just look at Manafort. And we’ll look at Russian and obstruction later.” You can do all of these things at once.

Khardori: Yeah, I mean, this has always been one of the big problems with the “bottom-up” plan or thesis, which is that these are not mutually exclusive paths. You can prosecute all the rioters and work that aggressively, and you can also conduct an investigation focused on the Trump White House and campaign.

Weissmann: Of course. Right. But to me, it’s a question of will — of somebody sitting down saying, “I’m going to own this, we’re going to have this kind of investigation.”

I do think things are changing. I mean, for instance, after the hearings started, there were two searches done. One was the search of Jeffrey Clark’s home. And the other was — it really was a seizure more than a search at this point, was this seizure of [John] Eastman’s phone. So, you know, that is a sign of an expansion. It’s fairly late in the day in terms of when it came, and it doesn’t give confidence that this was sort of thought through and given direction at the outset.

Khardori: You said in the piece that you think it’s still possible for the country to get a “thorough, fearless, competent and fair criminal investigation.” I have to say that seems perhaps overly optimistic. The midterms are coming up, the House is likely to change hands, Trump may at some point announce that he’s running in 2024, and this has not been a particularly politically adept Justice Department. Are you concerned about the loss of time and changing political conditions?

Weissmann: Well, you know, the department — that is not changing hands after the midterms, and the department still has the ability. And my phrasing was that there still is time. It doesn’t say it’s going to happen.

And, you know, obviously, it’d be a very different issue if I said that the Jan. 6 committee has the ability — I mean, it likely has a time imperative. But that just to me puts more pressure on the department to do the right thing.

Khardori: Better late than never, right? But it is not going to look good if an investigation begins, or is expanded into the upper region — whatever terminology they want to apply to doing what I think they should have been doing a year and a half ago, which is investigating Trump, the Trump White House and the Trump campaign — it’s not going to look good for that to happen in a midterm season, perhaps immediately after a midterm loss, potentially in the midst of Trump actively running. It’ll look like it was a response to political conditions — a potential effort to head off Trump politically in 2024.

 

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