After the initial wave of commentary that followed the indictment of Allen Weisselberg and two Trump organizations, Ryan Goodman spoke with Andrew Weissmann about his impressions of the case. In addition to his role in the Mueller investigation, Weissmann served as FBI General Counsel, Chief of the Justice Department Criminal Division’s Fraud Section, and head of the DOJ’s Enron Task Force, and has vast experience in prosecuting wrongdoing by corporations and their executives.
1. Another Avenue for Obtaining Weisselberg’s Testimony
Q: Andrew, if Weisselberg does not cooperate now, is there any other means for a prosecutor to obtain his testimony?
A: Yes there is. After Weisselberg is prosecuted — whether he is convicted or acquitted — the prosecution can put him in the grand jury and compel him to testify. He then would have to choose what to do. He could tell the truth, he could lie and hope that the government does not have sufficient proof to prosecute him, or he could refuse to testify — which is itself a crime and he could go to jail for that in addition to any other jail sentence he may be serving.
The downside for the government in this approach is it can take time. If Weisselberg were to plead guilty relatively soon, that would not be too much of an issue, but if were to go to trial, it could take literally years before the government was able to put him in the grand jury, and the government may not have that time, because the statute of limitations may run on the charges it is investigating.
We used this technique in organized crime cases and in Enron — I remember one case involving a Genovese Family defendant who pleaded guilty to a scheme to steal (successfully) a million dollars from Seton Hall University. We wanted to go up the chain and prosecute his captain, Louis “Dome” Pacella. So we put the associate who had pleaded guilty in the grand jury. He ended up just cooperating at that point, telling us “I was willing to do my time for the crime, but I don’t want to do his time as well!”
In a case closer to home, we did the same thing with a senior Enron executive, Ben Glisan, after he pleaded guilty. He ended up cooperating too, since he figured better to get credit for truthful testimony than to risk lying in the grand jury. He was one of our best witnesses. I also wrote about this technique in a NYT op ed, regarding Roger Stone and how even after he was pardoned he could be put in the GJ to get at the truth of who he had lied for.
Q: But would Weisselberg be able to claim that he still risks criminal exposure for other financial crimes under federal, state, or local law? (A similar issue arose in the discussion on the SistersInLaw podcast.)
A: Yes, often people retain a residual fifth amendment privilege for some federal or state criminal liability, and that is why in those cases you would immunize the person by obtaining an immunity order. But once the person has gone to trial and been convicted or acquitted, the calculus a prosecutor undertakes in deciding whether to immunize someone changes dramatically, because they have already been charged with the crimes you know about and presumably are going to ask them about. You are not risking immunizing someone for an unknown murder, for instance.
Q: Do you think this avenue for obtaining Weisselberg’s testimony may help explain the prosecutors’ decision to indict him now on these charges?
A: That may have been in the back of their minds as a collateral potential benefit, but I doubt it was the motivating factor. I suspect the reason the charges were brought now was to focus his mind and his eminent counsels’ minds on the reality of the charges, with the extraordinary detail of those 15 charges. I suspect he had been given a date by which they wanted to know if he would cooperate and when he said no, they had to go forward to show they were serious and not bluffing.
2. Leverage Over Weisselberg’s Family
Q: One of the greatest points of leverage prosecutors can have in trying to flip a holdout is the criminal exposure of the individual’s family members. In Weisselberg’s case, the CFO may be willing to risk jail time out of loyalty and financial connections to Trump – but it may be a very different calculation when it comes to his wife and son facing the prospect of jail. What is your take?
A: The Indictment’s references to Weisselberg’s family sends a signal to Weisselberg that prosecutors are willing to pursue them as well. And it also serves to show Weisselberg that they may face legal jeopardy regardless of whether Weisselberg cooperates. In other words, Weisselberg may be loyal to Trump and to his own family, but that loyalty may lessen if he sees that everyone is going down anyway, and that he can save himself and potentially seek a favorable deal for his family members, to the extent they face criminal exposure as well. Remember, if Weisselberg cooperates he will need to divulge all the incriminating information he has about his family members. On balance, he may put them at lowest risk by cooperating with the prosecutors in exchange for securing their protection from indictment or at least lesser charges.
3. The Status of Prosecutors’ Evidence Against Trump and the Trump Organization
Q: Some legal commentators have said that if the Manhattan DA and New York Attorney General had sufficient evidence to indict Donald Trump they would have done so, and similarly if they had sufficient evidence to indict the Trump Organization for other serious crimes they would have done so. And that this is essentially the end of the road for the Manhattan investigation, absent Weisselberg’s cooperating. Does that ring true or do you think prosecutors may already have sufficient evidence to indict on other charges but are still building the case to strengthen their hand?
A: I think some of that is definitely true, but my guess is that not all of it is. There is no question that the prosecutors are not in a position now to charge Trump or Weisselberg with other crimes, or I would have thought they would have done so. But it is normal to bring charges when you have them and supersede with more as your investigation continues.
Let’s take the Manafort and Gates prosecutions in the Special Counsel investigation. We brought the initial set of charges against both of them in October 2017. We were interested in the cooperation of both of them, since we had a paramount interest in learning the truth about the 2016 election — and interference in it by the Russians and any complicity in it by any Americans. Neither cooperated at that point. We continued our investigation, pressing ahead with the existing indictment, and bringing new charges when we were ready in January 2018. Those new charges proved to be enough to cause Gates to cooperate, even with the prospect of a presidential pardon counteracting any leverage we had as a result of the series of criminal charges. In Manhattan, the same strategy can be at play, but of course they don’t have to worry about a federal or state pardon.
4. The Status of Prosecutors’ Evidence Against Weisselberg
Q: Some legal commentators have suggested that prosecutors would throw everything they have at Weisselberg now in order to encourage him to cooperate, and therefore the current criminal charges represent everything they presently have against the CFO. On the other hand, prosecutors may not want to divulge to other potential defendants the full breadth of the criminal investigation and evidence at this point; and prosecutors could gradually ratchet up pressure on Weisselberg with the threat of superseding indictments.
A: The former is a reasonable assessment; I would think they would bring the strongest charges that they were ready to bring as to Weisselberg.
Q: Some have suggested that by indicting two Trump entities now that signals the end of the investigation, not the beginning. Do you agree?
A: I don’t. First, if that were true, and the accepted wisdom, why would the prosecutors bring those charges now? Wouldn’t they not want to signal the end of the investigation? But more than that, we have the state actually telling the court at the arraignment on the indictment that it needed a protective order delaying discovery to the three defendants (one individual and two entities) because of the ongoing investigation, and I believe that was granted, unopposed. And I was struck that there already is a noticeable split in the defense — few have commented on the fact that Weisselberg’s lawyers did not appear at a joint press conference with the Trump entities’ lawyers, and Weisselberg’s lawyers did not disparage the state in any way, which to me is a clear sign that they are keeping their options open to cooperate (such public bashing would be cross-examination fodder against their client if he eventually cooperates). So Weisselberg’s defense team, I think, clearly believes there is the prospect of more to come.
Then of course there is the indictment itself: the charges are just too detailed, and allege a scheme over so many years, involving so many people, and so many entities, that it is hard for me to see this being the end. But time will tell.
One last point: it is not at all unusual to bring corporate charges prior to the end of an investigation — we did that all the time, in the Enron investigation and at the Fraud Section — where corporate cases were our bread and butter, which is atypical of any other part of the Department of Justice whether in Washington or in the US Attorney’s Offices in the field, where corporate cases are few and far between.
5. Signaling to Other Potential Cooperators
Q: Do you see any messages in the indictment?
A: Yes, it is a speaking indictment and that is typically to send a message to the public and to potential witnesses. I read the indictment as sending a strong signal to other potential witnesses. The details of the indictment show that prosecutors have extraordinary visibility into the inner workings of the Trump Organization, a trove of incriminating internal records, and the real possibility that tax preparers and others are already cooperating. The indictment gives lots of details about information the prosecution already has about the lengthy tax scheme from which it is not hard for those working at Trump organizations to know if they are in the state’s cross-hairs.
If you are a lawyer representing someone in this investigation, you have a frank conversation with your client if they face any criminal exposure about different directions they can go in, but one would be to stress the option of cooperating, trying to strike the most favorable deal now, or potentially face a criminal charge — ie being on the wrong side of the “v” in a criminal case (i.e. US v Defendant).