by JONATHAN TURLEY
In the ongoing debate over self-pardons, some Democrats seem to be working hard to make the case for Donald Trump — and against themselves. Consider Andrew Weissmann: After the recent spate of presidential pardons, Weissmann declared that Trump effectively proved the case for an obstruction prosecution against himself and called on prosecutors to summon those who were pardoned into grand juries, with the threat of later perjury charges.
It was both legally unfounded and ethically questionable. It also was vintage Weissmann, who has made the case against himself as someone who continues to show an unrestrained bias against Trump that overwhelms all other considerations. If Trump is looking for a rationale for a self-pardon, he may have to look no further than Weissmann.
After Weissmann was appointed as a top aide to special counsel Robert Mueller, the president and many Republicans denounced him for being a political donor to Barack Obama and reportedly attending Hillary Clinton’s 2016 election-night party. My objection was not to Weissmann’s political affiliations but to his legal history, which included extreme and, in my view, abusive legal interpretations that ultimately were rejected by courts. Weissmann was responsible for overextending an obstruction of justice provision in a jury instruction that led the Supreme Court to reverse the conviction in the Arthur Andersen case in 2005.
Weissmann is now an MSNBC contributor and a New York University professor. Soon after he left the special counsel’s office, he fulfilled every account of someone with unhinged, uncontrolled bias against Trump, including a book that is an unprofessional attack on colleagues for refusing to adopt his extreme views. (Even a staunch Trump critic like former prosecutor Randall Eliason described Weissmann’s book as a “betrayal of Mueller” that “trashed” colleagues and threw them “under a bus for not agreeing with him.” Eliason said Weissmann “may sell a lot of books” but “violated the norms about how prosecutors should behave.”) Weissmann also called on prosecutors to refuse to assist now-special counsel John Durham in his investigation and, after Trump’s Roger Stone pardon, called on prosecutors to haul Stone before a grand jury.
Now Weissmann is openly voicing the kind of extreme interpretations that led many of us to criticize his tenure at the Justice Department. His most recent diatribe is particularly illustrative. Many of us immediately criticized Trump’s recent pardons, ranging from corrupt former congressmen to the father of Trump’s son-in-law, Jared Kushner. Yet, Weissmann insists the pardoning of figures tied to the Mueller investigation is proof of obstruction.
However, these individuals were not pardoned to stop them from testifying or, in the case of Lt. Gen. Michael Flynn, from cooperating with prosecutors; nor were they pardoned before being tried and convicted. Former Trump campaign chairman Paul Manafort, for example, served time in prison before being released due to the COVID-19 pandemic. Former campaign aide George Papadopoulos and Dutch lawyer Alex van der Zwaan both served sentences. Flynn was convicted and should have been sentenced years earlier if not for a series of bizarre actions by the federal judge hearing his case.
Trump did not pardon his lawyer, Michael Cohen, when Cohen openly angled for a pardon; instead, Cohen cooperated with Mueller, testified against Trump, and was sent to prison. That is a curious pattern for obstruction: Wait until everyone testifies and most go to prison before issuing pardons. (Notably, it does not appear to have been obstruction that President Clinton pardoned his friend and fellow Whitewater business partner, Susan McDougal, who was a target with Clinton in the Whitewater scandal.)
Weissmann insists that, when Trump is out of office, there is no barrier to indicting him for obstruction and pulling all of these figures before grand juries. The problem here is the same problem Weissmann faced in his disastrous role in the Arthur Andersen prosecution: He fundamentally misunderstands the crime of obstruction. 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 in the Andersen case seems to register with him, particularly when the law stands in the way of pursuing Trump.
I testified in the Trump impeachment hearing on the flaws of this obstruction theory. Mueller himself did not find a case for prosecuting on obstruction. He listed the alleged acts of obstruction that had been widely discussed in the public press — but did not find the key element of intent to support such a charge. That was the point that former Attorney General Bill Barr tried to make in his controversial press conference on the summary of the Mueller’s report. Despite disagreement on the interpretation of obstruction (which came up in Barr’s confirmation hearing), there was no disagreement that it would require intent to obstruct. Moreover, former Deputy Attorney General Rod Rosenstein — who appointed Mueller and was widely praised by Democrats for his independence — stated last year under oath that there was no evidence of obstruction.
From a simple personal point of view, I would like to see Trump pardon himself, if that is possible. We’ve all seen the liberals don’t need a crime, evidence or facts to pursue a “criminal” case. We’ve also seen there are numerous liberal judges that will happily participate in vulgar show trials and will allow biased, partisan haters to be empaneled on a jury. Frankly, I’m sick of it. I’m tired of it. The only way to prevent it is to yank the corrupt rug out from under it.