Andrew Weissmann, a key prosecutor on special counsel Robert Mueller’s team, has a history of aggressive tactics in pursuing targets — including actions that critics argue have crossed ethical boundaries.
Reporters covering Mueller’s probe of Russia’s election interference saw Weissmann entering the grand jury room in U.S. District Court in Washington on Friday. That same grand jury handed up indictments against Paul Manafort, who ran President Donald Trump’s campaign for two months last year, and longtime Manafort associate Rick Gates.
Weissmann’s critics accuse him of strong-arming witnesses and withholding information favorable to the defense when he oversaw prosecutions of executives at Enron, Arthur Andersen, and Merrill Lynch more than a decade ago.
“He is very good at stretching the law to encompass conduct that is not criminal,” said Sidney Powell, an attorney who represented former Merrill Lynch executive James Brown.
Weissmann and several other members of Mueller’s campaign drew complaints from Republicans earlier this year after revelations that they have been heavy contributors to Democratic political campaigns. But Weissmann’s conduct as a prosecutor might be more troubling.
Powell told LifeZette that prosecutors withheld evidence about statements that two potential witnesses in the Merrill Lynch prosecution made contradicting the government’s case. She said prosecutors gave the defense a summary of an interview with Enron executive Jeffrey McMahon indicating that he did not remember a buyback agreement that was key to the case.
But McMahon’s actual statement, which the defense did not get, indicated that there was no deal.
“That’s more than just a bad summary. That’s actively misleading,” said Bill Hodes, an attorney who worked with Powell to try to get Brown a new trial after he already had served his sentence.
Hodes said the information likely would never have come to light had then-Attorney General Eric Holder not ordered a review of recent prosecutions after allegations of prosecutorial misconduct in the corruption trial of Sen. Ted Stevens (R-Alaska) in 2008.
Powell said the documents withheld by prosecutors in her case included yellow highlights emphasizing key portions of the statement.
“They knew exactly what they were doing because they had literally highlighted it,” she said.
The 5th U.S. Circuit Court of Appeals found prosecutors should have turned over the evidence.
“Favorable information was plainly suppressed from McMahon’s notes,” the judges wrote.
But the court ruled that the withheld evidence was not “material” to the case and let the conviction stand.
Ethics Complaint Against Weissmann
Powell, who wrote a book in 2014 on prosecutorial misconduct — “Licensed to Lie: Exposing Corruption in the Department of Justice” — said the appeals court did overturn 12 of 14 charges against four Merrill Lynch defendants and completely acquitted one of them.
The affair led to an ethics complaint against Weissmann with the New York State Bar Association. Powell said she signed on to that complaint. She said the bar, without notifying the complainants, transferred the complaint to the Justice Department’s Office of Professional Responsibility.
Hodes, who prepared the complaint against Weissmann and others, recalled that the Justice Department sent the case back to the bar association and then defended Weissmann and the others against the allegations.
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“It’s kind of odd that first they’re investigating them and then they were defending them,” he said.
Hodes said the Justice Department’s defense pointed to the fact that the defendant had lost his appeal without addressing the fact the bar association’s ethics rules require a higher level of compliance with the spirit of a Supreme Court ruling governing what information prosecutors must disclose to the defense.
“They refused to engage by ignoring it,” he said.
Houston lawyer Tom Kirkendall said the withheld evidence “was probably the most egregious thing that was done.”
Kirkendall, who represented three Enron executives in civil cases, said he got a “front-row seat” to the prosecution tactics in the criminal cases. He documented those tactics in a series of blog posts.
Kirkendall told LifeZette that Weissmann’s team employed extremely aggressive tactics and obtained convictions in five cases. The victories were short-lived, however.
“I find it highly ironic that Mr. Mueller, who is investigating Russian interference in the election, used KGB tactics in pursuing this case. That seems to be lost on them.”
“Every one of those convictions that were obtained from this were overturned on appeal,” he said. “Every one of them.”
Kirkendall pointed to another unusual tactic employed by Weissmann. The Enron task force in court documents named 114 unindicted co-conspirators in the case involving Enron Chairman and CEO Kenneth Lay and CEO Jeffrey Skilling.
“That was unprecedented in American criminal law that has never been done before,” he said. “The transparent purpose of doing that was an effort to chill them from testifying for Lay and Skilling. And it was effective.”
Kirkendall said his research indicates that the previous record for named unindicted co-conspirators in a federal criminal case was 60-something in the prosecution of former Louisiana Gov. Edwin Edwards.
Said Powell: “That made most of Houston lawyer up. It was like the Houston Defense Lawyers Employment Act.”
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Silencing Merrill Lynch Employees
Powell also noted that prosecutors negotiated an agreement with Merrill Lynch, agreeing not to bring criminal charges against the firm in exchange for prohibiting employees from saying anything publicly that contradicted the government’s case. She said the 2nd U.S. Circuit Court of Appeals later invalidated that tactic in an unrelated case.
“I had never seen it before. I’m not sure it’s happened since,” she said. “It was the most onerous non-prosecution agreement I have ever seen.”
The charges against Manafort and Gates focus on their work as political consultants for the Party of Regions, a political party in Ukraine that favored a close relationship with Russia. Manafort worked closely with the party to help elect its candidate, Viktor Yanukovych, to the presidency in 2010. Yanukovych was ousted in 2014 after a wave of protests that were supported by the U.S. State Department, then headed by Hillary Clinton.
Kirkendall said it is difficult to say for certain how Weissmann will proceed with the investigation.
“Weissmann may have changed over the last decade,” he said. “He may have become more careful.”
Mueller’s team, however, has sent signals that it will embrace hardball tactics. The special counsel’s office raised eyebrows when it sent agents to pick the lock of Manafort’s Virginia home before dawn on July 26 with guns drawn and searched him and his wife.
“It’s very unusual in the United States,” Kirkendall said. “I find it highly ironic that Mr. Mueller, who is investigating Russian interference in the election, used KGB tactics in pursuing this case. That seems to be lost on them.”
Powell said Manafort and Gates should expect the fight of their lives.
“They’re going to have to work very hard to get evidence from the government which is exculpatory, that is favorable to their case,” she said. “They’re going to have to pound for that and never trust that the government has given it all to them.”
Powell said Weissmann’s history indicates he’s not shy about using whatever leverage he has to pressure witnesses and defendants.
“He’s probably the most aggressive I’ve ever seen on that,” she said.
Powell, who served as a federal prosecutor for 10 years under nine different U.S. attorneys in three different districts, said Weissmann’s conduct goes well beyond vigorous prosecution.
“None of the U.S. attorneys I know would have tolerated that crap for two seconds,” she said.