Below is my column in the Hill on claims by former Deputy Special Counsel Andrew Weissmann that the recent pardons by President Donald Trump reinforce a possible obstruction of justice case against him. We have previously discussed how Weissmann has proven critics correct in their description of his animosity and bias toward Trump. For my part, his book and recent statements reinforce the view of an abusive prosecutor, particularly in his untethered view of obstruction. Indeed, Weissmann seems intent on making the best case for Trump to grant himself a self-pardon. He is calling for prosecutors to use grand juries to pursue Trump and others in an unrelenting campaign based on unfounded legal theories.
Here is the column:
In the debate over pardons, some Democrats seem to be making the case for Donald Trump and against themselves. Consider Andrew Weissmann. After the recent pardons, he declared that Trump effectively proved the case for an obstruction charge against himself and called on prosecutors to summon those who were pardoned into grand juries with the threat of later perjury charges. It was unfounded and dubious. It was also vintage Weissmann, who made the case against himself as someone who shows bias against Trump that overwhelms all other considerations.
If Trump wants a rationale to pardon himself, he can look no further than Weissmann, who was appointed as a top aide to special counsel Robert Mueller. Trump and numerous Republicans denounced him as a donor to Barack Obama, and he was said to have attended the election night party for Hilliary Clinton in 2016. My objection was not to his affiliations but to his history, which included extreme interpretations that were ultimately rejected by courts. Weissmann was responsible for the overextension of an obstruction provision in a jury instruction that led the Supreme Court to reverse the conviction in the Arthur Andersen case in 2005.
Weissmann is now a MSNBC analyst who teaches at a New York University. After he left the office of the special counsel, he fulfilled every account of someone with uncontrolled bias against Trump, including his book that attacks prosecutors for refusing to take on his extreme views. Weissmann called on prosecutors to refuse to assist John Durham in his investigation and, after the pardon of Roger Stone, called for Stone in a grand jury.
Even staunch critics of Trump like former prosecutor Randall Eliason described Weissmann’s book as a “betrayal of Mueller” that “trashed” his colleagues and threw them “under a bus for not agreeing with him.” He added that Weissmann’s “dishing may sell a lot of books” but he “himself violated the norms about how prosecutors should behave.”
After leaving the Special Counsel’s office, Weissmann seemed intent on proving critics correct in saying that he was a uniquely poor choice by Mueller to serve as his deputy. Now, Weissmann is openly voicing the extreme interpretations that have led many of us to criticize his tenure at the Justice DepartmentNow Weissmann voices the kind of extreme interpretations that led many of us to criticize his tenure with the Justice Department. His most recent column is illustrative. Many of us called out the recent pardons by Trump, ranging from corrupt former members of Congress to the father of Jared Kushner. However, Weissmann insists that the pardon of figures tied to the special counsel investigation is evidence of obstruction.
But these individuals were not pardoned to stop them from testifying or, with the case of Michael Flynn, from working with prosecutors, nor were they pardoned before they were tried and convicted. Former campaign chairman Paul Manafort, for instance, served time in prison before he was released due concerns of the coronavirus. Former campaign aide George Papadopoulos and attorney Alex Van Der Zwaan served sentences. Flynn was convicted and should have been sentenced years earlier if not for a series of bizarre actions by the federal judge who heard his case.
Trump did not pardon his lawyer, Michael Cohen, when Cohen angled for his pardon. Instead, Cohen worked with Mueller, testified against Trump, and was sent to prison. That is a curious pattern for obstruction. Wait until everyone testifies and most are sent to prison before they are pardoned. It did not seem to have been obstruction that Bill Clinton notably pardoned his own friend and business partner in the Whitewater scandal.
Weissmann insists that, when Trump is out of office, there is no barrier to indict him for obstruction and have all these figures appear before grand juries. The problem is the same one Weissmann faced for his disastrous role in the prosecution of Andersen. Weissmann simply misunderstands criminal obstruction. Indeed, he may have the longest learning curve in legal history on this issue. Indeed, he may have the longest learning curve in legal history on this question. Not even an unanimous rejection of his views by the Supreme Court for the case of Andersen seems to register with him, particularly when the law stands in the way of pursuing Trump.
I testified in the impeachment hearing on the flaws with this obstruction theory. Mueller himself did not find a case for an obstruction charge. He listed the alleged acts of obstruction discussed in the media but did not find the critical element of intent to support the charge. That was also the point that former Attorney General William Barr tried to make in his press conference on the summary of the special counsel investigation. Despite different ideas of obstruction, there was no doubt that it would take intent to prosecute. Former Deputy Attorney General Rod Rosenstein — who appointed Mueller and was widely praised by Democrats for his independence — also said under oath last year that there was no evidence of obstruction.
None of this matters to Weissmann, who comes across as a legal Captain Ahab, so blinded by rage that he would lay waste to the criminal code to nab his white whale. This same kind of rage could be cited by Trump for a controversial pardon of himself. I believe a president can pardon himself but should not do so. Even if someone had standing to challenge that, the Constitution is silent on any such limitation on the pardon power. That is the same reason I believe a president can be indicted in office. Yet, while constitutional, I still view self-pardons as a misuse of the power.
There are solid arguments on both sides of this debate, which has gone on for decades. From my view, the main obstacle is political rather than constitutional, but Weissmann and others are now working to remove that barrier. These critics demand prosecutions of Trump and his associates with the same blind fury as Captain Ahab, who said, “From heart of hell I stab at thee. For the sake of hate I spit my last breath at thee. Ye damned whale.” Their long-standing rage could be the long-sought rationale for the president.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.