One of the most controversial figures selected by Special Counsel Robert Mueller for his investigative team was Andrew Weissmann. While some criticized Weissmann for perceived bias, many of us focused on his record of prosecutorial excess. Now a law professor at New York University, Weissmann appears eager to fulfill both criticisms. After the commutation of Roger Stone, Weissmann called for Stone to be pulled in front of a grand jury. It did not matter that there was no crime under investigation or likely criminal charge based on the use of a presidential power that is virtually absolute. Weissmann seemed to call for the use of the grand jury for a fishing expedition — precisely the type of alleged excessive use of prosecutorial power that he faced at the Justice Department. Weissmann is reportedly writing a book on the investigation with the reported titled “Where Law Ends: Inside the Mueller Investigation.”
Weissmann wrote “Time to put Roger Stone in the grand jury to find out what he knows about Trump but would not tell. Commutation can’t stop that.” That is certainly true. A commutation does not bar someone from being called into a grand jury. However, ethical prosecutors generally require more than an interest in finding out stuff. Grand juries usually come after an investigation finds probable cause for a crime. There is supposed to be more than a hope and prayer that a grand jury may find a crime. Indeed, this is precisely the type of untethered pursuit that led some of us to criticize the Flynn investigation.
In this case, Mueller did not find evidence showing that President Trump or his campaign conspired with the Russian government to obtain hacked emails from the Clinton campaign or Democratic National Committee. There was no allegation of a crime by Trump linked to the Stone false statements or threats. Stone was convicted on seven counts including one count of obstruction of an official proceeding, five counts of false statements, and one count of witness tampering. The government proved that Stone had lied to Congress to hide his efforts to contact WikiLeaks. However, he was not accused of lying about knowledge or actions by President Donald Trump. Here is the indictment.
So there was no allegation of a crime by Trump in the Stone indictment and the Mueller investigation found no credible evidence of collusion by Trump or his campaign. Indeed, the original allegations of Russian collusion have been discredited. However, Weissmann believes that it is perfectly ethical for prosecutors in New York to just pull in Stone to see if there is anything that might be criminal in the use of an entirely discretionary use of presidential pardons. Under this same theory, Susan McDougal should have been pulled into a grand jury just to see if Bill Clinton’s pardon was part of a delayed quid pro quo deal. Likewise, the Iran Contra defendants should have been pulled into a grand jury to see if there was any crime behind the clemency decisions of President George H.W. Bush.
As I discussed in my recent column, presidential pardons have often involved friends, donors, and a virtual rogue’s gallery of questionable characters. None of those pardons were subjected to grand jury investigations because the use of this power is generally beyond the reach of judicial review.
It would be exceptionally difficult to establish a criminal use of the pardon authority since Trump could have legitimately granted clemency on the grounds that he publicly stated. Trump has stated that he viewed the underlying investigation by Weissmann and other to be political and unfair. Weissmann has now responded by calling for Stone to be pulled into a grand jury on the hope that a new crime might be found.
The grand jury is not a device for prosecutorial whim or curiosity. It is a powerful tool that demands a modicum of restraint. Conversely, Weissmann seems to follow Oscar Wilde’s famous observation as a virtual prosecutorial mandate: “I can resist everything except temptation.”