Mueller’s Testimony and the Team He Chose

With Special Counsel Robert Mueller scheduled to testify before Congress, pursuant to an agreement he reached with House Democrats, a few observations are appropriate.

First under section 600.8 of the Special Counsel regulations, made expressly applicable to Mueller with his appointment by Rod Rosenstein, the product of his work is to be reported confidentially and solely to the Attorney General, as a matter of law. Under 600.9, only the Attorney General is given the authority to decide what and to whom information from the confidential report is to be disseminated. Contrary to popular belief or desire, it is not up to Mueller to decide on his own whether to testify about his report or the Special Counsel investigation. That is a decision exclusively left to the Attorney General. In this case, Attorney General Barr has given Mueller permission to testify; but he has set parameters based on the Special Counsel regulations and long-standing Department of Justice guidelines. He did not have to permit Mueller to testify at all about the Special Counsel investigation.

Under the law in place prior to the enactment of the Special Counsel regulations through which Mueller was appointed, Congress had a direct role in the process and the Independent Counsel had an obligation to report to directly to Congress as well as to the Executive Branch. But that all changed in 1999.

Under the current Special Counsel regulations, drawn up by the Clinton administration in 1999, the authority to appoint, set the mandate for, control, and fire the Special Counsel are all exclusively delegated to the Executive Branch, as is the decision regarding what, if any, of the confidential Special Counsel report to make public. Similarly, the Special Counsel expressly accepts the appointment as a matter of law with the understanding and agreement that his or her work will be subject to Department of Justice policy and that he or she reports exclusively to the Attorney General – not to Congress or any other person of body.

In short, by demanding, under force of subpoena, that Mueller testify about his investigation and report, House Democrats violate both the letter and the spirit of the law and binding regulations that the Democratic Clinton administration so vigorously lobbied for and had enacted into law.

For his part, absent the express permission from the Attorney General, Mueller would violate the mandate under which he accepted his appointment if he testifies in any way, shape, or form about his investigation, his conclusions, or his report. In this instance, Attorney General Barr has given permission for Mueller to testify, but only concerning those portions of the report that have been made public.

Mueller has said publicly that, in effect, the report is his testimony and he has nothing to add. Perhaps then, there are some more interesting questions concerning the investigation that Mr. Mueller should be asked in order to put his report in a meaningful context.

The best place to start with Mr. Mueller to better understand how his “investigation” dragged on for almost two years and cost the taxpayers tens of millions of dollars, would be to ask him what he was thinking when, after being selected to lead an investigation into matters which would potentially implicate the President of the United States and the integrity of our electoral system, he thought it appropriate to choose an investigative team comprised of partisan Democrats who openly supported, politically and financially, Hilary Clinton and vigorously opposed Donald Trump.

Why, notwithstanding the American public’s interest in learning objective facts from his investigation, not to mention the Special Counsel regulations that require the Special Counsel team selection process to be non-partisan and to put a premium on integrity and the appearance of integrity, did he choose to select a lawyer who actually represented Hillary Clinton in her email scandal and others who contributed money to defeat President Trump’s candidacy.

But the most pressing question along these lines, to which the American public deserves an answer, is what on earth was Mueller thinking when he selected Andrew Weissmann to be his chief assistant on the Special Counsel team.

Recent media reports reveal that Weissmann has signed a lucrative book deal on his experience with the Special Counsel team; but of course he is subject to the same public disclosure limitations that the operative federal regulations place on Mueller when it comes to disclosing details about the investigation. Documents recently obtained by Judicial Watch through a FOIA request reveal that Mueller actually delegated to Weissmann primary responsibility in the process of recruiting, interviewing, and selecting members of the Special Counsel team. This goes a long way toward explaining the composition of the team comprised of committed partisan members, given reports of Weissmann crying at Ms. Clinton’s ruined victory party following the election.

But the most important reason to get answers from Mueller about his selection of Weissmann as his top assistant is that Andrew Weissmann has perhaps the single most ethically challenged record of any modern federal prosecutor, with examples of his ethical transgressions in the most fundamentally important areas of criminal procedure evident over decades of his work.

Weissmann’s despicable role in destroying lives and jobs at Enron and Arthur Andersen has been widely reported and deservedly so. Many of those lives and reputations were irretrievably ruined and so many jobs were lost forever. But it was Weissmann’s work decades before as an organized crime prosecutor in the U.S. Attorney’s office in Brooklyn that most vividly reflects his complete disregard of the ethical obligations placed on a prosecutor and the fundamental constitutional rights guaranteed to every American charged with a crime. The media has portrayed Weissmann as a dogged “pit bull” in his work as a prosecutor in those cases. The actual facts, instead, reveal an unethical bully of the first order, cited early on for his violations, but given a pass by his supervisors through an “ends justifies the means” mentality.

Consider just the following basic examples, which only scratch the surface when describing his transgressions: In the 1990s the New York news media reported that a “war” broke out within the so-called Colombo organized crime family, resulting in several high profile murders. Documents obtained since reveal that at the heart of the matter was a corrupt relationship between an FBI agent and a ruthless mafia killer that fomented and promoted the “war” to advance their own agenda. Additional documents obtained through FOIA directly from the DOJ, reveal a much more complicated program of Top Echelon Confidential Informants working with the government that included in its numbers some of the most notorious mafia figures in the annals of organized crime. But that is a longer story for another day.

It turns out that the corrupt agent, later himself charged with several murders to advance the cause of his mob hit man partner, ran his “investigation” under the supervision of Andrew Weissmann and his colleagues. When news of the corrupt relationship finally broke through its inadvertent discovery, of all the prosecutors involved only Weissmann was singled out by then Chief Federal Judge Charles Sifton for his unethical conduct in concealing the corrupt relationship from the defendants he prosecuted and who were directly affected by it. Shockingly, though, after the Order excoriating Weissmann was issued, Sifton withdrew his Order and replaced it with another omitting Weissmann’s name. This was done at the demand of Weissmann’s boss who expressed the concern that it could hurt Weissmann’s career. That was the beginning of the licensing of Andrew Weissmann to corrupt the criminal process in cases around the country in the decades since.

Once the exculpatory information Weissmann unethically had withheld was made public and juries were told about it, all 16 of the remaining Colombo family defendants Weissmann’s team prosecuted were acquitted in front of 4 different federal judges and 48 different jurors.

But at least two men, Michael Sessa and Victor Orena, remain in prison for now over twenty-seven years, convicted and sentenced before the evidence Weissmann withheld was revealed. Consider just the following examples of dirty tricks Weissmann used to deny these two men a fair trial and secure their convictions and life sentences:

In the Sessa case, the corrupt FBI agent actually testified as a witness for Weissmann. He lied over and over again and Weissmann knew it. Not only did he fail to correct the lies, the jury was told that if they thought for a moment that anything the agent said was not true, they should acquit; but of course, Weissmann well knew the agent was lying and kept that from the jury and the defendant. One of Weissmann’s key witnesses in the case has admitted on tape that he was told what to say at trial. When the same witness was asked at trial, right in front of Weissmann, whether he had been paid for his work as a cooperating witness, he lied and said he had not been. As Weissmann well knew, the witness had been paid well over $100,000. The defendant in the case has at all times maintained his absolute innocence. When he demanded the investigative file in the case, Weissmann’s team represented to the judge that there was nothing exculpatory in it and refused to turn it over. Years later when it was obtained independently, the file revealed multiple suspects for the murder, none of whom was the defendant who was convicted, and one of whom was the mafia hit man aligned with the FBI agent. Weissmann knowingly lied to the court about crimes committed by one of his key witnesses and falsely denied that one of his confidential sources in the case had been that same mafia hit man. There are many more examples of Weissmann’s unconscionable transgressions in just this one case.

In the Orena case, the wrongfully convicted defendant is now well into his 80s and in poor health and still remains in prison. In that case, one of Weissmann’s top confidential informants has approached the man’s family to tell them a great deal about the outrageous misconduct engaged in by Weissmann and his colleagues. This same informant had told the government that someone else had killed the victim and explained why. His statement was memorialized in a report that was withheld by Weissmann from the defendant and the court. A key piece of evidence in the case was a bag of guns agents claimed to have found under a deck at the defendant’s house. The defendant denied knowing anything about the guns. It turns out the government found a fingerprint on the bag. Notwithstanding expert testimony that any such bag with a latent print would be safely stored in an evidence vault, when the defense team learned about the print and asked to have it forensically examined, it was told the bag had “disappeared.” Finally, the defendant learned after his trial that Weissmann and his colleagues had all along withheld a vitally important investigative report that undercut their entire theory of prosecution. The judge in another case made Weissmann produce it and the jury acquitted.

There is little question now as to why Andrew Weissmann came to be known among some prominent criminal defense lawyers in Brooklyn as the “pathological liar” after the popular Saturday Night Live character. Lawyers have traded story after story about Weissmann, with one more shocking example of unethical conduct after another. The FBI had to change its entire protocol for dealing with confidential informants after these cases and Weissmann’s cover-up.

One thing for sure – Robert Mueller well knew all about Andrew Weissmann before he selected him to be his right hand man on the Special Counsel team. As FBI Director, Mueller approved some $500,000 to pay for attorneys for the corrupt FBI agent, despite a federal judge’s findings that the agent was working outside his capacity as an agent in his corrupt relationship. Then, notwithstanding all of the above, Mueller tapped Weissmann to be his general counsel at the FBI. That truly is shocking and speaks volumes about Mueller’s judgment, character, concern for due process and constitutional rights, and his agenda.

Robert Mueller’s report and any testimony he provides, like his “investigation” itself must be considered for what it is and what it is not based on the team he put together. The America people deserved to have its President and its electoral process investigated, if at all, by women and men who had no partisan agenda. We all got something very different and it cost the country two years and tens of millions of dollars.

About the Author
David Schoen is a civil rights and criminal defense attorney practicing in Montgomery, Alabama. He represents American victims of terrorism and is actively involved in efforts to fight BDS and other anti-Semitism. He also has represented the Democratic Party as trial counsel.
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