When Robert Mueller appointed Andrew Weissmann as one of his top advisers, many of us warned that it was a poor choice. Weissmann seemed intent to prove those objections correct in increasingly unhinged and partisan statements. This week, he ratcheted up the rhetoric even further in claiming that the nation is “one vote away” from the end of democracy if the Supreme Court does not embrace the sweeping claims of Special Counsel Jack Smith.
At the time of his appointment, many Republicans objected to Weissmann’s status as a democratic donor, including his reported attendance of the election night party for Hillary Clinton in 2016. My objection was not to his political affiliations but to his professional 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 then became a MSNBC analyst and a “professor of practice” at New York University. In his book, he attacked prosecutors for refusing to take on his extreme views. Weissmann called on prosecutors to refuse to assist John Durham in his investigation.
Now he is predicting the end of democracy if the Court remand the immunity case for further proceedings.
Weissmann told MSNBC anchor Jen Psaki on Sunday:
I think that it’s important to remember that at the outset, the court had already given Donald Trump the win that he was seeking, which is the delay of the DC trial.
So going into this, this was all upside for him. I mean, I think he had to be thinking, I’m making this really outlandish argument, with ramifications that couldn’t possibly be squared with the text and history. The text of the Constitution or the history of the presidency? So it’s all upside if the court would actually bite on this. And so what was surprising is that there were justices who actually were taking this seriously. And it just was, frankly, shocking.
Remember, going into this, the given was that private conduct was certainly not, immunized from criminal liability. What everyone’s talking about now is, hey, maybe they think that some of this is private and they can go forward, but that was what was given going into this. And the reason people are thinking that is because there seem to be four justices who were really taking Donald Trump’s claim of criminal immunity seriously. And we are.
I mean, I know it sounds like hyperbole, but I think your opening is so correct that we are essentially, as Neil put it, one vote away from sort of the end of democracy as we know it with checks and balances. And to say it’s an imperial presidency that would be created is, it’s frankly saying it would be a king, he would be criminally immune. And that that is what is so shocking is how close we are.
And we are really on the razor’s edge of that kind of result. But for the chief justice.
Just for the record, it sounds less “like hyperbole” than hysteria. The justices were exploring the implications of the sweeping arguments on both sides of the immunity question. What they were not willing to do (as does Weissmann) is simply dismiss any arguments of official status on the part of the accused. That would establish a dangerous ambiguity for the future as prosecutors claim that political statements are private matters for the purpose of prosecution.
Ironically, Weissmann’s lack of concern for the implications of such an interpretation is reminiscent of his prior sweeping arguments as a prosecutor that led to the stinging defeat in the Anderson case.
Of course, there is another possibility is that the justices were not seeking the end of democracy. The Court was honestly trying to get this standard correct not just for this case but future cases. To do so, it will require a record on the underlying actions rather than the categorical threshold judgment made by the district court. The argument showed justices exploring how to avoid a parade of horribles on either extreme with a more moderate approach.
As I previously noted, it has been almost 50 years since the high court ruled presidents have absolute immunity from civil lawsuits in Nixon v. Fitzgerald. That protection applied to acts taken “within the ‘outer perimeter’ of his official responsibility.”
Apparently, that immunity did not endanger democracy.
In United States v. Nixon, the court also ruled a president is not immune from a criminal subpoena. Nixon was forced to comply with a subpoena for his White House tapes in the Watergate scandal from special counsel Leon Jaworski.
Since then, the court has avoided any significant ruling on the extension of immunity to a criminal case — until now.
There are cliffs on both sides of this case. If the court were to embrace special counsel Jack Smith’s arguments, a president would have no immunity from criminal charges, even for official acts taken in his presidency.
It would leave a president without protection from endless charges from politically motivated prosecutors.
If the court were to embrace Trump counsel’s arguments, a president would have complete immunity. It would leave a president largely unaccountable under the criminal code for any criminal acts.
The first cliff is made obvious by the lower-court opinion. While the media have largely focused on extreme examples of president-ordered assassinations and coups, the justices are clearly as concerned with the sweeping implications of the DC Circuit opinion.
Chief Justice John Roberts noted the DC Circuit failed to make any “focused” analysis of the underlying acts, instead offering little more than a judicial shrug.
Roberts read its statement that “a former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has acted in defiance of the laws” and noted it sounds like “a former president can be prosecuted because he is being prosecuted.”
The other cliff is more than obvious from the other proceedings occurring as these arguments were made. Trump’s best attorney proved to be Manhattan District Attorney Alvin Bragg — the very personification of the danger immunity is meant to avoid..
Weissmann is not concerned with the clear politicization of the criminal justice system by Bragg just before one of the most consequential elections in our history.
No, the threat is that justices may want to balance the interests over immunity by rejecting the extreme arguments on both sides. They may try to pursue a course that allows for immunity for official acts or functions while rejecting immunity for non-official acts. Some or all of Trump’s actions or statements could well fall into the unprotected category.
The sense of alarm expressed by legal experts is that the Court would not simply sign off on the absolutist arguments of Smith and, most importantly, allow for a trial before the election.
So how will democracy end if the Court adopts a middle road on immunity? It appears to come down to the loss of a possible conviction to influence the outcome of the election.
At the same time, MSNBC guests are also calling, again, for the packing of the Supreme Court. While conservative justices have repeatedly voted with the Biden Administration, it does not matter. They want the Court packed to guarantee outcomes with the appointment of reliable liberal justices. All of this is being defended in the name of democracy, as was ballot cleansing.
The problem with the escalating rhetoric is that there is not much room for further hysterics. Where does Weissmann and others go from here after predicting the imminent death of democracy?
Pundits have now predicted the creation of camps for democrats, killing journalists and homosexuals, the death of the free press, and tyranny. That leaves only systemic mutilations and Roman decimation.
For lawyers to fuel this hysteria is a sad commentary on the state of our country. Whether a true crisis of faith or simple opportunism, it disregards centuries of constitutional history in overcoming every threat and obstacle. We have the oldest and most stable constitutional system in the world. To suddenly embrace tyranny would require all three branches, and the citizens as a whole, to shred an elaborate system of checks and balances.
We are better than that . . . and these inflammatory predictions.
The ENTIRE power structure protects the criminals — like Pelosi, like Schumer, like Biden, like Comey, like Wray, like Brennan, like Clapper, like Hunter Biden, like Ashley Biden — like ALL the rest of them. The criminals are in power and the power structure is protecting the criminals. Rule of Law does not exist for THEM. Only their enemies. Only the peasants. We have no functioning justice system in this country.
2A exists for this circumstance.
It’s the [anti-American, unconstitutional, communist “dictatorship of the proletariat”], stupid!”
– James Carville
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The entire communistic American welfare state is unconstitutional including, but not limited to, admissions affirmative action, grade-inflation affirmative action, employment affirmative action, quotas, welfare, food stamps, minimum wage, rent control, social services, forced busing, public housing, utility subsidies, WIC, SNAP, TANF, HAMP, HARP, TARP, Health and Human Services, Housing and Urban Development, Environmental Protection Agency, Agriculture, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc.
Article 1, Section 8, provides Congress the power to tax for ONLY debt, defense, and “…general (all, the whole) Welfare…,” omitting and, thereby, excluding any power to tax for individual Welfare, specific Welfare, particular Welfare, favor or charity. The same article enumerates and provides Congress the power to regulate ONLY the Value of money, Commerce with foreign Nations, and among the several states, and with the Indian Tribes, and land and naval Forces. Additionally, the 5th Amendment right to private property was initially qualified by the Framers and is, therefore, absolute, allowing no further qualification, and allowing ONLY the owner the power to “claim and exercise” dominion over private property.
Government exists, under the Constitution and Bill of Rights, to provide maximal freedom to individuals while government is severely limited and restricted to merely facilitating that maximal freedom of individuals through the provision of security and infrastructure only.
The media is essential part of the power structure protecting the criminals by pushing their “narrative”….
Ashely Biden is being protected. Make no mistake about this.
Hunter Biden is being protected. Obviously.
Jim Biden is being protected. Obviously.
Joe Biden is being protected. No comment needed. The man was INSTALLED.
Barack Obama? OMFG is that FRAUD is being protected NMW he does.
Judge Engomoron? Being protected. And yes he is the criminal.
Judge Merchan? Being protected. And yes he is the criminal.
Fat Alvin? Being protected. And yes he is the criminal.
DA Tish James? BEING GODDAM PROTECTED and make no mistake SHE BELONGS IN PRISON.
Jack Smith? Being protected. HE IS THE CRIMINAL.
Fani Willis? Being protected. Even by the corrupt REPUBLICANS in the state house!
Nancy Pelosi? OMFG she is the criminal. SHE belongs in prison – a LONG time ago.
The rest of the list is too long to put here….but make no mistake….ALL of these people are the criminals.
Where are those who are supposed to protect against this lawlessness and corruption?
Too scared to do the right thing?
Cowards, one and all.
Or…they are Marxists, one and all.
They are the Commies in power working for the good of The Party — For the Revolution above ALL.
America must be saved.
This country will not save herself.
Good People MUST stand up against this lawlessness, abuse of power and tyranny.
Demos-cracy is aborted in darkness.
Isn’t the immunity case fron the classified records case? There are so many cases it’s very confusing. But I always understood the Supreme court could not give advisory opinions – and had to deal with the case at hand. Otherwise it violates art 3. So the issue really is did djt violate the records act when he retained “presidential” documents – the issue is not if Obama is immune from prosecution for droning a us citizen and his kid. Further even if – djt violated the records act – does or can with separation of powers – that act even apply to him? As president the third branch?
It’s a conundrum- bc the exec is in charge of the ppl making classification- and in charge all appointed ambassadors and their intell re our foreign relations. Meanwhile congress gets to well regulate the military – does that Trump the presidents foreign relations? By well regulated – does that mean a soldiers waiste size – and the handling of classified info – vs classifying it in the first instance… or as here claiming to as head presidency claiming to for himself declassified it. What we the people can’t have is a congress that delegates to the exec – their war making power – that bankrupnts we the people – they never declare war but point guns at we the people to fund a presidents entanglement- meanwhile the constitutions says….and now Jack Smith wants to enforce a congress law that check and balance doesn’t apply to the president – and was written not to apply to that branch. Bc it can’t- yet some how our supreme are entertaining hypothetical – and past precedent – instead of the case at hand – makes we the people rationally jaded. We the people –
And that is what the Anderson case gist was about – why does one state get to tee it up? When there are all us – the electorate? Yet in NY Bragg filings he pretends to save me in alabama from election. Fraud ? Where is his jurisdiction to vindicate alabamians ? That ship sailed- Paxton tried it – didn’t have staying- yet a county/city ptosecuter can get clever? Bs
@Cernovich
The Federalist Society should host a debate on selective prosecution. I’d love to see a panel discussion explain why Trump’s payments to an extortionist is election fraud but Hillary Clinton’s Russiagate hoax dossier was not.
@JeffClarkUS
Amen and amen.
And it should take place at the National Convention.
George Conway should also be invited to take hostile questions about why he worked with Molly Jong-Fast and Reid Hoffmann to bring forward E Jean Carrol’s lawfare as well.
Conway working on that fiasco is vintage structural conservative constitutional lawyer right there.
When the Mueller probe chose its attorneys, Weissman’s choice made it clear that Mueller wasn’t truly going to be in charge of day to day functions of the probe. Not one attorney in the group could be said to be untainted by Weissman’s views.
And yet, when concluded, the Mueller probe found nothing close to the kind of evidence of collusion that it was searching for.
And we’re still waiting for Adam Schiff’s clear evidence, plain as day, of the collusion that wasn’t found by Mueller and his group of Weissman-style attorneys.
Were it not for MSNBC’s invitations, Weissman would not have a ready platform to vent.
I recall Dick Nixon’s ‘enemies list’ and what an uproar its existence caused.
Trump’s enemies list will likely have Weissman’s name high atop it!
Maybe a better solution is to start putting DA’s like Bragg and Judges like Merchan bankrupt and in prison, for participating in Soviet style show trials. Criminality with impunity was never meant to protect rogue judges. This legal dysfunction screams for an overhaul of the Bar Associations.
But maybe I am being too harsh. It’s only the 98% giving the rest a bad name.
Honestly, I’m surprised that Justice Ketangi Brown Jackson hasn’t issued a scathing opinion against President Trump for overdue library books. It’s a crime right ?
other than Trump…name us someone who is going to save us from the Fascist Democrats?
You clearly do not have a clue what a fascist actually is.
The D brand party does and it wears that shoe well.
imagine the 1000’s of Democrats from across government as bad or worse! Government needs to be CUT 50%! Back to only necessary functions!
Did anyone go to jail for the Russian Hoax Conspiracy? That was the DEATH Knell for American rule of law!
10,000’s of Democrats from across government need to be jailed! As we are now run by 1930’s European Fascists!
Democrats are FASCISTS! Republicans Fund them!
The Rule of law is Dead in America!
DC, NYC, silicon valley….are 100% Democrat points of power!
The only solution left is to DEFUND Democrats…end ALL Federal Aid to cities, states, colleges and non-profits. Cut Federal Spending 50%!
The existential threat to our American Republic comes from Marxists like Weissman who believe the legal system and national media are to be used to go after political enemies and protect their friends. The judge Engmorons and Merchans of the world who bar evidence that would exonerate a defendant and issue gag rules on defendants only, as if the constitution guaranteed the prosecution and state to a fair trial and not the defendant. These people are evil twisted creeps.
Add U.S. District Judge Amit Mehta.
Mehta sent Dr. Peter Navarro to prison.
“when you were called up to go to testify, you didn’t show a co-equal branch of Congress the same degree of respect”
Defy Nancy Pelosi’s sham show trial, you get hauled off your plane, put in leg irons, perp walked, strip searched, and sent to rot in prison.
Did we miss Hunter Biden getting hauled off his plane, shackled, and prosecuted for defying subpoenas?
The Law moves swiftly only in one direction.
We’ll look forward to the day all the lawbreaking Democrats are rounded up, perp walked in leg irons, prosecuted by judges who strip them of all their defenses, and sentenced to the harshest prison terms for ignoring The Law.
We’re going to need bigger prisons to handle the load.
Entire DC Circuit must be jailed. DC Circuit must be dissolved.
Although Trump is oafish, if you want to understand why America needs him as the next president, watch the movie “Green Book”
“Jonathan Turley’s right wing extremist views are on an entirely different planet.”
– Pontificating John
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“The Flak Only Gets Heavy When You’re Over the Target”
– World War II Bomber Pilot
Poor lil’ victim. Sorry you got left behind.
As a Jewish philosopher said, “Passive resistance is fine until the crematoriums arrive.”
This applies to our voting system, our political system, our legal system, and finally SCOTUS wandering around wondering “what’s that smell?”
I wonder if Weissmann knows who Nicholas Marsh was.
He should study him and emulate him.
Total overhaul of the legal system and state bars has to occur to prevent any future Andrew Weissmanns from defrauding the courts or abusing the system as he has so egregiously done.