A Prosecutor Answers Questions on the FBI's Search of Mar-a-Lago

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. I know many of you are tuning in right now asking yourselves, "Are they going to talk about the search warrant and the FBI search of Mar-a-Lago at the top of the show?" The answer is yes. We'll get to that in just a minute with special guest, Andrew Weissmann, who was chief of the Justice Department Fraud Section under Presidents Obama and Trump and he was general counsel to the Mueller investigation, some of you will remember.

Before we start in on that, we'll also be doing something special at the end of the show today that we want to invite you right now to participate in. We're calling it a Pop-Up Editorial Page. We're inviting you right now to start writing a one-minute editorial on any subject and read it on the air on our Pop-Up Editorial Page a little after 11:30 this morning. If you'd like to try to join in, you've got about an hour and a half to write a one-minute editorial on any subject of your choice, and be ready to call it in.

We know you have opinions about things, listeners. Now, we're inviting you to take a little time to write one out cogently as if you were a real-life editorial writer and we're inviting you to read it on the air. I'll just give you one piece of guidance. Tell us what your opinion is about the subject and tell us what you would do about it. Tell us what your opinion is about the subject and tell us what you want anybody to do about it. Maybe that little bit of structure will help you write.

Here's how it'll work. I've picked out some editorials that I'll sample from some of our local professional editorial pages today, from The Times and The Post and The Daily News and The Star-Ledger and Newsday, a variety of opinions. I'll read excerpts from those editorials on various topics and then we'll take your one-minute editorials on the phone on our Pop-Up Editorial Page. Get to work if you're interested and we'll open up the phones for those of you who are in about an hour and a half a little after 11:30 this morning.

Now, with us to shed light on the search at Mar-a-Lago and its implications, Andrew Weissmann, professor of criminal and national security law at NYU Law School, lead prosecutor in Robert Mueller's Special Counsel's Office, and the author of Where Law Ends: Inside the Mueller Investigation. Andrew, welcome back to WNYC. It's great to have you back with us today and on short notice with this breaking news, so thank you for hopping on.

Andrew Weissmann: My pleasure.

Brian Lehrer: First, on terminology. I think it's important to start here. Trump calls it a raid. I see actual law enforcement and ex-law enforcement people like you saying, "Raid is the wrong word." What's the right language here and does it matter?

Andrew Weissmann: I don't think it matters, but I do think it is important to have the right nomenclature because when you use phrases like "raid" and "break-in," it makes it sound like the government willy-nilly just did something against the law. Here, whatever side you're on of this issue, this complied with our legal system, which is that the government can't just do a search on its own. They have to get a court to approve it based on probable cause.

Here, a court clearly approved the search, which means there was probable cause that was set out in an affidavit that there would be evidence of a crime and that the evidence of that crime would be located at Mar-a-Lago. Then the FBI went about executing a search warrant. I think when you use words like "raid" and "break-in" and, "They broke into my safe," it makes it sound much more nefarious than saying, "This is how the court system works."

Brian Lehrer: Listeners, I know many of you will have questions about this search warrant and what the FBI may have been doing at Mar-a-Lago. We can take your questions for Andrew Weissmann, of course, at 212-433-WNYC, 212-433-9692, or you can tweet your questions to @BrianLehrer. There has never been a search warrant issued for the residence of a former president of the United States before as far as I know. How would it have to have been approved? Take us further into that process you were just referring to and what more extraordinary than usual steps may have been taken here to the best of your knowledge or what you would speculate under the circumstances?

Andrew Weissmann: I think there are two things that are worth noting here. One is for people to understand what the options were for Merrick Garland. He clearly must have evidence that there is something that is evidence of a crime at Mar-a-Lago. Normally, when you're looking for evidence, you can go about getting that information not necessarily by a search warrant. You can ask the person who has the evidence to voluntarily turn it over.

You can issue a grand jury subpoena. That's a document that requires the person to collect the documents and turn them over. That's the typical way in which people proceed, but here, the attorney general had to have seen that a subpoena would not have worked. In other words, if they issued a subpoena to the former president, he couldn't be trusted to gather the information and turn it over. That is why you proceed by way of a search warrant.

To give you an example, in the special counsel investigation, we were looking for information in Paul Manafort's home. We proceeded by search warrant and not by subpoena because we could not trust that Paul Manafort would turn over the documents as opposed to either lie to us or destroy the documents. I think the thing that I find most unusual here is that for Merrick Garland to approve going via a search warrant to get this information means that he really did not have confidence that a former president of the United States would actually comply with a grand jury subpoena.

I think that's one thing. The other that I think is really important to keep in mind as to why the attorney general might have taken this step, which is obviously, as you noted, a big deal to search the home of a former president, is that it appears from reports that what he may have been really concerned about is that there are incredibly-sensitive, highly-classified documents at that location, including perhaps in the former president's safe.

I could see the attorney general saying, "This is so important to the national security of the United States that these kinds of documents that could reveal all sorts of information that is necessary to keep secret for the national security of the United States, they have to be possessed by the government and cannot be in the hands of private citizens, including a former president." That overriding national security interest could be what drove this more so than thinking about would a criminal case come out of this at the back-end.

Brian Lehrer: Talk more about those documents. Because when people are hearing in the news that this appears or reportedly or some sources are saying it was about classified documents, they're not the big things the general public is aware of with respect to possible Donald Trump crimes, right?

They think about things connected to January 6th mostly, inciting a riot or sitting by when one was in progress in his name, or the big potential fraud of the big lie or about his potential real estate fraud or how he may have interfered with the election in Georgia, there's an investigation there, but not about taking documents home instead of turning them over to The National Archives, which might seem kind of abstract and even kind of small. Tell us more. What are these documents and why would that inspire the FBI and the attorney general to take this extraordinary step in and of themselves?

Andrew Weissmann: This is where there's a fair amount of speculation and educated speculation because the bottom line is we don't know. My intuition here is that we're not talking about sort of run-of-the-mill presidential records. In other words, there are a number of documents that any presidential appointee is required to maintain, preserve, and turn over to The National Archives.

That is really important. I don't know that it's so important that you would see this kind of stuff. It's the authorization of a search warrant of the former president's home. To me, if I had to guess here as to what's going on, these are documents about classified programs. That's one of the things where, since I was the general counsel of the FBI, I am aware of the kinds of things this could be. Obviously, I can't talk about them.

Just to give you some sense of the kinds of things that can be very sensitive. The identity and location of sources in this country and overseas, relations with different countries that are cooperating but on the guarantee that it will be kept quiet, different types of operations that are ongoing in foreign countries. All of those kinds of things of methods and means that are engaged in by the CIA, the National Security Administration, and all sorts of other agencies are highly classified and are things that every administration, Democratic and Republican, has a strong interest in protecting in order to keep the country safe.

My suspicion is that would be the kind of thing that would lead the attorney general to think action has to be taken. As I mentioned, they have to have that information that suggested that the president and his entourage were not being candid about having turned everything over. As we've heard, there are many, many boxes that they took but now have returned. They must have had information that that was not a complete set of what they had.

I think if they find that kind of information, classified information, highly-sensitive information at Mar-a-Lago, not only could there be potential criminality for theft of government property, but there could just be a very simple false statement charge, which is that the president and his entourage said, "Yes, yes, we've returned everything," but lo and behold, of course, they haven't if the search does turn up that kind of information.

I think for precedent when I've been thinking about anything that you could point to in the past that's akin to this, I think maybe the General David Petraeus case is similar where he had taken classified information and given them to a colleague he was having a personal relationship with so that she could write a book about him, and then he was not candid with the FBI when he was asked about that.

He ended up being charged and ended up pleading to a misdemeanor. Again, that's because the government has a really strong interest in making sure that sensitive programs are not revealed. That's one of the reasons, for instance, when Snowden leaked so much information. Whatever you might think of Snowden, there was an enormous effect on national security interests in light of various programs that were ongoing.

Brian Lehrer: Right, but that was a leak of government information. The Petraeus case is an interesting analogy, but do you think that this is all over a potential misdemeanor then since that's all he was charged with?

Andrew Weissmann: I don't know where this will end up. We don't know if the search actually will yield fruits. I strongly suspect that the government had lots of information to support the warrant and I'd be surprised if they did this, if they didn't have very strong evidence that they found something. Whether there are charges brought or not, I think, is a step down the road.

I do think that Merrick Garland and the Justice Department will look at precedent because they will be trying to figure out what has been done in the past and that they're treating whether it's the former president or anyone else comparably to what they've done in the past and whether you think that General Petraeus got off easy or not. I was in the government at the time. I wasn't a huge fan of a misdemeanor charge as being appropriate, but I do think that's now in the books. I do think it's important for the Justice Department and I'm confident at Merrick Garland being a serious person will look at precedent to figure out what is a condign result here.

Brian Lehrer: You were talking before, Andrew, about the importance of classified documents because they may contain national security secrets that we don't want enemy countries to know. They may also contain the names of sources who might be put in mortal danger if word of their cooperation with the US government got out to the wrong sources, but what motivation would Donald Trump have for keeping documents like that and not turning them over to The National Archives as he left office as opposed to only keeping things away from The National Archives that incriminate him in some way?

Andrew Weissmann: Well, it could be both. It's very hard to get into the mind of the former president. When I think about him and other people who have committed crimes is there's usually a lot of hubris and a sense of the rules don't apply to me. There could be documents that the former president thought, yes, might incriminate him, but there also could be documents that he just thought it would be useful for him to have in possession because knowledge is power and he can make himself more powerful with people.

They know that he has various pieces of information and given his predilection or an affinity for authoritarian leaders, the idea that he would have these kinds of documents and ability to undermine our intelligence agencies is something that I could see the intelligence community up to and including Merrick Garland feeling that needs to be removed from his possession.

Brian Lehrer: Interesting. Just one more question before we go to a break and then we'll start taking listener questions for you. My guest is Andrew Weissmann, who has had many high positions with the FBI and the US Justice Department, including general counsel to the Mueller investigation and chief of the FBI's fraud division.

He was a leader in the Enron investigation way back when, things like that, as we get perspective on what this search warrant and FBI search of Mar-a-Lago yesterday was about. One more question before we go to a break. Trump appointed the FBI director, Chris Wray. Would Chris Wray have been personally involved in requesting this search warrant and is that some pushback against Trump and some who are echoing Trump who say this is political?

Andrew Weissmann: It is some pushback. I don't know that Chris Wray would've requested the warrant that he would've had to have signed off on it. It would be highly unlikely that the FBI director opposed the warrant, but it was overruled by Merrick Garland. This is one where I strongly suspect that the FBI director, Deputy Attorney General Lisa Monaco, and Merrick Garland all signed off on this and were reviewing this affidavit and the contents of it to make sure it was rock solid.

Certainly, in the case of Lisa Monaco and Merrick Garland, these are highly-experienced people who are apolitical who have worked under both Republican and Democratic regimes. Yes, Chris Wray was appointed by Donald Trump. Now, that doesn't seem to stop Donald Trump or his allies from vilifying them if the person takes actions that are against their interests. We're seeing that today in the Republican reaction to the search, which I find very disappointing because this is a nation of laws and the rule of law. None of us know what is in that affidavit.

None of us can really make a judgment about what is going on here other than we know that it was approved by a court, that probable cause had to have been established. It feels incredibly premature for Republican leaders to start vilifying something that was complying with our legal system. That, to me, shows the continued strength of Donald Trump and the claims during the January 6th hearing that he may be losing his grip on the Republican Party. I think last night and this morning is a good sign, a healthy sign that that is just not true that Donald Trump is still very much in control of the party because the reaction seems so untethered to the facts on the ground.

Brian Lehrer: We'll come back to the politics later. I see many analysts saying, at least in the short term, this FBI search of Mar-a-Lago may be strengthening Trump politically. Of course, we don't know what's going to come out in terms of information about whatever they found and if there's an indictment or a conviction, but in the short term, it seems many analysts are saying to be bolstering Trump politically. Of course, that's a very short term because we've only known about this for about 15 hours. Listeners, we will start taking your questions for Andrew Weissmann on the FBI search of Mar-a-Lago yesterday. 212-433-WNYC or tweet @BrianLehrer right after this.

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Brian Lehrer: Brian Lehrer on WNYC as we continue to talk about the FBI search of Mar-a-Lago yesterday, the first FBI search, first search warrant ever issued as far as we know in US history on the residence of a former president. We're talking about it with Andrew Weissmann, who was general counsel to the Mueller investigation, had a 20-year career in the Department of Justice overall, chief of the fraud division.

He's prosecuted mob bosses. He's prosecuted leaders of Enron during that financial fraud era. He's the author of the book, Where Law Ends: Inside the Mueller Investigation, as well as now being a professor of criminal and national security law at the NYU School of Law. Not too far from NYU, Mitchell in Stuyvesant Town, you're on WNYC with Andrew Weissmann. Hi, Mitchell.

Mitchell: Hi, Brian, how are you? Love your show, called a few times.

Brian Lehrer: Thank you.

Mitchell: Andrew, glad you're here. Thanks for all of your input. You've put on so many things on the plate. I don't know where to begin, but I'll just say. First, about Petraeus. I think that exemplifies the two-tiered system of justice in this country. A slap on the wrist for what he did. If anyone else did that, it would be serious jail time. I think we would probably agree to that. The same thing goes with Trump.

My question to you is this. If he moved out of the White House on January or so 20th and he took those boxes with him, why has it taken all this time for the Justice Department to get into action about that and why is it taking them so long to actually come up with a criminal prosecution, which they haven't even done yet? I have been urging Merrick Garland as have many of my colleagues to do so immediately before he jumps into the ring for the next presidential race.

Andrew Weissmann: Mitchell, those are a comment and a question. Both of which, they're music to my ears. The first point about a slap on the wrist with respect to David Petraeus and your comment about a two-tier justice system. I tend to agree with you. I was in the Justice Department. I was the general counsel of the FBI when that investigation was ongoing with respect to General Petraeus. I remember commenting to friends and having friends in law enforcement comment to me that if it had been any one of us who had done that, we would've faced a felony, not a misdemeanor.

My point in discussing this with Brian earlier was not to say that I thought that that was an appropriate disposition, but it is the disposition that he was afforded. I do think that will be a precedent if the government gets to the point where they are thinking of bringing charges. They have to consider that precedent. It doesn't mean they have to follow it, but they have to figure out why. If they don't follow it, why it's appropriate to take a different position now? In general, totally agree with you.

The second point you have, which is what's taken so long. I've actually written about this in an op-ed in The New York Times about a month ago. I and many other people, particularly members of the January 6th committee, very much were on this drumbeat of where is the Justice Department. It's not sufficient for them to be doing a fantastic and diligent job with respect to the people who actually invaded the Capitol on January 6th.

Those are important cases, but those are low-level cases when you look at what the January 6th committee was presenting, which was evidence of a widespread conspiracy by Donald Trump that had many, many different facets. The issue is, why were they not looking at this in a more holistic way from the top down? Whatever the history is, whether it's Justice Department was doing or, I think, probably was not doing enough prior to the January 6th committee, whatever the delay was prior to the January 6th committee, I do think that Merrick Garland at this point gets it and has said publicly, I think, the right things.

I thought it was terrific that he went on air to talk about this and what his view was. I'm a big fan of the government trying to be more transparent about its views and how it sees things so that the electorate has a better sense of what's going on. Obviously, that has to be weighed against the civil liberties of those people under investigation, which is why, when you're in the government, you don't do what Jim Comey did with respect to Hillary Clinton, which is have a press conference to air your personal views about somebody who's not charged.

It is a tension that you have to weigh both of those things. I do think Merrick Garland's recent statements and the recent activity we're seeing does show that he has both the competence and probably, most important, the backbone to weather the storm that is going to be coming at him, and certainly that I saw when I was in the Special Counsel's Office under Director Mueller that if you do something that is hurting Donald Trump, he is going to come after you and you have to be willing to put that aside and do your job

Brian Lehrer: Well, on your complaint in your New York Times op-ed that they were doing the January 6th investigation from the bottom up, meaning starting with the actual physical rioters rather than the top down, looking for the organized conspiracy, my understanding of your career is that you have prosecuted organized crime bosses, mob bosses, when you were in the Brooklyn US Attorney's Office.

Don't those traditionally take place from the bottom up? You get the little fish who tell you something about the bigger fish who tell you something about the real big fish. Maybe, in this case, some of the physical rioters who say they came because Donald Trump told them to come. Then if they are prosecuting leaders of the Oath Keepers and the Proud Boys, they can talk about connections to the Trump campaign and things like that. Why not go bottom up in a case like this based on your experience prosecuting organized crime figures?

Andrew Weissmann: Great question. I think the answer to that is it's not an either/or. There's nothing wrong with going from the bottom up, but the reason that is insufficient in my view in terms of what the January 6th committee laid out is that makes it very tunnel vision that you have to try and get to the point where somebody at the top like an Oath Keeper is having direct conversations with somebody in the White House or a White House hanger-on like a Roger Stone or a Michael Flynn.

That could take quite some time and you may never get there. What the January 6th committee laid out was all sorts of other ways in which the White House was trying to undermine our democracy such as eliminating people of the Department of Justice to put in flunkies who would falsely claim that there was election fraud, pressuring state officials such as in Georgia or Arizona, pressuring the vice president of the United States, the scheme to install Sidney Powell as a special counsel to these ballot boxes.

All of that can be investigated at the same time and a bottom-up approach wouldn't necessarily get you any of that information. To me, it was necessary to take a more holistic view and to put a bluntly walk and chew gum at the same time. There's nothing to say that you shouldn't still go from the bottom up in terms of the people who invaded the Capitol, but that wasn't going to get you into the White House and the kind of information that we heard from Cassidy Hutchinson.

Brian Lehrer: Interesting. Let me ask you this since you've got a lot of experience in the Justice Department prosecuting fraud cases. Since the big lie of a stolen election is a kind of big national fraud with all the tentacles that we know now that it had, can you say at what point if any point it becomes a crime to perpetrate that fraud and not just a politician's big public lie? Because you can't go after every politician who lies or they'd all be locked up.

Andrew Weissmann: Absolutely. One of the things that the president has certainly learned is that just going on TV or tweeting and making public statements that he's not guilty of anything or people are bad people who are against him, all of that is fair game and he can't be held to account. He has scrupulously avoided, however, doing any of that under oath, or if you remember both of the impeachments, he never actually submitted anything to Congress.

That's because if you make those statements to Congress, if you make those statements to law enforcement, if they're false, those are crimes. He scrupulously avoided making those kinds of broad-sweeping denials in any sort of forum where he could be held criminally to account. Now, false statements about the election, which are geared to undermine the counting of the votes on January 6th, can form the basis for bringing obstruction of Congress charges. Some of the evidence of that could be his public statements, meaning his public statements alone are not illegal. If all of that is part of a conspiracy to undermine the ability of Congress to do its job and count the votes in a democratic election, that is something that his public statements can be used to prove up.

Brian Lehrer: Vicky in Tudor City, you're on WNYC with Andrew Weissmann. Hi, Vicky.

Vicky: Oh, good morning. Thank you for having such a prestigious guest. I was just wondering how long the process takes to enact something like this, FBI going to Mar-a-Lago to get documents. Because I was wondering if recent text messages that might have been received by the January 6th committee had any bearing on that, but that was so recent. Then the second part of my question is, given the nefarious character of Donald Trump, if he was going to blackmail somebody or provide information to Vladimir Putin, for example, wouldn't it have already gotten into the work and taken place?

Brian Lehrer: Great questions. Let me tell the rest of the listeners what text messages she's referring to. For those who aren't reading into that, there was a big news story as I'm sure you know, Andrew, from the other day in the libel judgment against the InfoWars right-wing and conspiracy theorist talk show host, Alex Jones, that his lawyers accidentally, apparently turned over many, many, many, many text messages of his to the other side. The January 6th committee then obtained those Alex Jones text messages.

That, of course, was a case having to do with his false statements about the Newtown elementary school massacre from 10 years ago. Maybe he also said stuff, had contact with Trump or Trump's people about January 6th than other text messages, and that's why the committee is looking at them to see if that's the case, I guess. Could something like that so quickly, because that was just the other day, have triggered this FBI search? Then also, what about her other question regarding documents that might be sensitive with regards to Putin?

Andrew Weissmann: Great questions. The answer to the first question is it is conceivable that text messages and evidence that is relatively recent made its way into the supporting affidavit. That's the affidavit that the FBI agent has to swear to and present to the court to establish probable cause. I certainly have been in situations in my career where a search warrant, you obtain it based on evidence that you get the same day.

Because of the need to act quickly, you actually go to court that same day. I don't suspect that's what happened here. It's possible that it could be some of the evidence. There was something in there that assisted. It's hard to imagine just given the level of scrutiny that this warrant had to have undergone at the FBI and the Department of Justice that it was that quick. One of the unfortunate aspects of being in the government is things do not happen quickly.

There are a lot of different people who have to review things in a case like this, where it's the first time ever that there was a search of a former president. I can't imagine that this wasn't heavily scrutinized for days if not weeks. Then with respect to your other comment, which is really interesting and I only have speculation, is I guess I would say is that it is possible that those kinds of blackmail or use of the information could have been done in the past.

You could imagine that the intelligence community was concerned about not just how it was used in the past but how it could be used in the future and being very concerned about a now-private citizen having his hands on information that is highly sensitive that could be used in all sorts of ways, whether it's blackmail or not going forward. I guess I would just say it's not an either/or. It could be that it happened in the past that people in the government are concerned about it continuing in the future.

Brian Lehrer: Listener on Twitter asks, "Do we know the identity of the judge who signed the search warrant and if he or she was a Trump appointee?"

Andrew Weissmann: I think there has been a lot of speculation, but I don't know the answer to that. I don't know the identity and I don't know whether the person is a Trump appointee or not. I would like to make a plug. While it is certainly the case that you can have judges appointed by Democratic and Republican presidents who seem to show signs of political bias, there are ample situations where you have judges who are appointed by Trump who are ruling against the Trump position in DC where many of the January 6th cases are.

In the banning case that just happened, there are a number of very well-respected judges who were appointed by Donald Trump who are making completely unbiased decisions in my view. It is certainly a relevant consideration who appointed the judge, but I think I would say it's useful to look past that to see what is the substance of their ruling. Most judges, here, the question is simply, is there probable cause set out for the evidence of a crime and that the evidence of the crime will be at the location identified at Mar-a-Lago? That's something that federal judges, whether it's a district judge or a magistrate judge, are very used to handling. It would be unusual for politics to weigh in and interfere with that kind of judgment.

Brian Lehrer: Would a grand jury have been involved in this evidence search request?

Andrew Weissmann: No. Here, it's the FBI. It's an FBI agent who swears an affidavit, which is setting forth facts. That is then presented by the agent and, usually, a prosecutor to a magistrate judge or sometimes a district judge and they make the decision. It is possible that evidence that was obtained pursuant to grand jury subpoenas and grand jury work was used in the search warrant, but the grand jury itself would not have a role in the issuance of the search warrant.

Brian Lehrer: As we run out of time since so much of this is only the subject of speculation at this point, but speculation that's inevitable given the unprecedented event, the search warrant on a former president's residence that he himself confirmed, when would we typically know who the judge was and what the warrant said?

Andrew Weissmann: Well, if there are charges, you will definitely know because the warrant and the underlying affidavit has to be disclosed to the defendant so that they can make motions and move to suppress if they think the warrant was invalid. That's one ground. The other is that Donald Trump could try and litigate those issues now. We've seen that with respect to John Eastman.

John Eastman has been litigating and losing, but he has been litigating the issue of the search warrant for his phone. That's the way that we know what happened there. Not from the government having leaked or publicly talked about it, but the subject of the search having litigated it. Those are ways in which this could become public. Other than that, this is one where we're going to have to all sit tight because I think it'll probably be a little bit of time before we actually know what was in the warrant affidavit submitted by the FBI to the court.

Brian Lehrer: Andrew Weissmann, professor of criminal and national security law at the NYU School of Law. He was general counsel to the Robert Mueller Russia investigation and the Special Counsel's Office at that time, one of many things he's done in a 20-year career in the Justice Department, and he's the author of Where Law Ends: Inside the Mueller Investigation. Andrew, thanks so much. We really appreciate so much time today.

Andrew Weissmann: You're welcome.

 

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