Houston-based attorney Kevin Fulton, of the Fulton Law Group, filed a motion on my behalf Thursday morning to unseal and unredact court records that may expose past misconduct by Special Counsel Robert Mueller’s lead prosecutor, Andrew Weissmann.
Since Weissmann took a leave of absence from his top Department of Justice job to join the special counsel’s team, critics have questioned his impartiality. Reports suggest the man branded Mueller’s pit bull by the New York Times violated internal protocol when he met with reporters from the Associated Press in April 2017. The following day, the AP published an exposé on Paul Manafort’s relationship with Ukraine officials.
Then news broke that twice-demoted Department of Justice attorney Bruce Ohr kept Weissmann “in the loop” about the dossier penned by former MI6 British spy Christopher Steele and used to obtain a Foreign Intelligence Surveillance Act warrant to surveil President Trump’s campaign.
Ohr, who apparently had no official role in the Russia investigation, has come under fire for feeding the FBI intel from Steele following the latter’s termination as an informant. Ohr’s purported communications with Weissmann raise the question of whether the top DOJ lawyer likewise sidestepped FBI protocols concerning sources.
These facts raise serious concerns about Weissmann’s continued service on the special counsel’s team and justify delving further into the career of the long-time federal prosecutor.
Both The Federalist’s Mollie Hemingway and former federal prosecutor Sidney Powell have exposed Weissmann’s reckless win-until-reversed modus operandi that has destroyed countless lives. Weissmann’s tactics sent four Merrill Lynch executives to prison, until a federal appellate court overturned their convictions and freed the men—but not before upending their lives.
Also, Weissmann’s prosecution of former accounting giant Arthur Andersen for its role in the Enron collapse shuttered the firm, leaving tens of thousands of people unemployed. Several years later the Supreme Court unanimously reversed the Arthur Andersen conviction, but it was too late by then to undo the harm Weissmann had caused.
Further research into Weissmann’s role in the prosecution of Enron executives Jeffrey Skilling, Kenneth Lay, and Richard Causey (the “Enron case”) reveal a more startling and concerning possibility: that Weissmann improperly threatened witnesses. In that case, co-defendants Skilling, Lay, and Causey filed a joint motion to dismiss the criminal charges brought against them, arguing the Enron Task Force, which Weissmann joined in 2002 and headed from 2004 until his abrupt departure in July 2005, engaged in multiple incidents of prosecutorial misconduct.
While the original motion was filed under seal, the judge later released a redacted version of the court filing, which chronicled the claimed misconduct:
The above redactions and others found in the brief leave unknown the extent of the claimed prosecutorial misconduct. For instance, the defendants placed great emphasis on a threatening email from one of the government attorneys to an unnamed witness. Those redactions remain in place to this day, although the Fifth Circuit Court of Appeals later outed Weissmann as the email’s author and Ken Rice as the witness allegedly threatened.
Notwithstanding the allegations of misconduct, the judge presiding over the Enron case denied the defendants’ motion to dismiss the criminal charges. Significantly, though, the district court did not resolve the question of whether Weissmann had engaged in prosecutorial misconduct. Rather, the court stressed that a defendant’s due process rights are not violated “if the government’s actions do not affect the witness’s decision” to cooperate with a defendant. The court then focused on the question of whether the threats had silenced the witnesses.
In addressing this question, the district court highlighted the efforts it had taken to counter the prosecution’s conduct: The judge wrote letters to the attorneys for numerous potential witnesses, assuring the lawyers that their clients could meet with the Enron defendants without the government’s permission and that the government could not target witnesses for prosecution based on their cooperation with the defendants.
The court also questioned the attorneys of the allegedly threatened witnesses to determine if the government’s coercion had silenced their clients. After hearing this testimony, the court concluded that the defendants had not established that the government substantially interfered with the ability of defense counsel to interview the witnesses.
On appeal, the Fifth Circuit deferred to the lower court’s decision, stressing that the attorney representing Rice—the witness Weissmann allegedly threatened in an email—stated under oath that the “government’s communications played no part in Rice’s decision not to meet with Skilling.” However, after noting Weissmann’s excuse for sending the email—that he believed Rice’s attorney had a conflict of interest—the court stated that “Weissmann would have done well to have brought the issue to the court’s attention” instead of sending the note.
While this outcome ended matters for the Enron defendants, questions still remain concerning Weissmann’s conduct. What, exactly, did he say in the email? What other “communications” were involved? Did Weissmann approve of similar conduct by other agents? And how did the DOJ justify Weissmann’s conduct?
Or did the DOJ not approve of Weissmann’s conduct? Had the DOJ instead axed Weissmann as claims of prosecutorial misconduct against the government’s lead attorney continued to mount?
Weissmann’s abrupt resignation from his top spot on the Enron Task Force and his departure from the DOJ raise that possibility: Weissmann resigned from the task force in the middle of jury deliberations in another Enron-related prosecution. Also, Weissmann’s departure came following trial testimony from two witnesses that “based on discussions with the Task Force before their testimony, they both felt threatened by a possible indictment if they testified on behalf of the [Enron] defendants.”
Additionally, at that trial, the government elicited false testimony from Rice, the witness Weissmann purportedly threatened, which defense counsel was able to establish based on a video tape that contracted Rice’s testimony.
Weissmann’s resignation also came on the heels of the court’s order in the Enron case that directed the attorneys of clients who had pleaded guilty to any Enron-related charge to provide the defendants with all communications from members of the Enron Task Force addressing whether they should communicate with Skilling, Lay, and Causey, or their attorneys.
Weissmann’s conduct, even if it did not violate the defendants’ constitutional rights, may well have crossed ethical lines: An expert witness with nearly 40 years of experience trying criminal cases in state and federal courts, and who had argued seven cases before the U.S. Supreme Court, stated that while he had seen prosecutorial misconduct in the past, in all his years of handling criminal cases he had never seen such “unfair pressures brought to bear on the adversary system in a single case.” The expert then specifically called out as an example the email Weissmann had authored.
Given Weissmann’s role in the politically charged special counsel investigation, reports that he improperly spoke with reporters about the Manafort investigation, and information indicating that Ohr updated Weissmann about the Steele dossier, it is imperative to know whether Weissmann also has a history of prosecutorial misconduct. That is why I asked a federal court in the Southern District of Texas to unseal and unredact the relevant court records.
There is both a common law and a First Amendment right to access such court records. While that right is not absolute, there are no countervailing reasons that justify the continued concealment of the facts surrounding the claims of prosecutorial misconduct.
It is unclear whether the U.S. attorney or DOJ will object to releasing the email and the related court filings in unredacted form. It is also unclear when the district court will rule on the motion. But until these records are released, the public has yet another reason to doubt the integrity of Mueller’s special counsel team.
Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame.
The views expressed here are those of Cleveland in her private capacity.