Andrew Weissmann's Article in Just Security Shows Why He Was Reversed 9-0 By The Supreme Thereby Cratering His Career.

He offers sophistry and duplicitous reasoning in stringing together red herrings that ignore basics of federal criminal procedure and substantive law in criticizing the indictment of the SPLC

Andrew Weissmann “left” DOJ in the months following the Supreme Court’s 9-0 decision reversing his crowning achievement as head of the Enron Task Force, the conviction of the accounting firm Arthur Andersen. It is always instructive to remember exactly who and what Andrew Weissmann was and represented during his time at DOJ — he’s long been a stain on the integrity of the Department.

I’ve never liked him and I’m not going to sugarcoat the facts here:

1. Weissmann was part of the Enron Task Force when it was created in 2002, and became its Director in 2004. But the Arthur Andersen investigation began prior to the Task Force, with Weissmann leading the investigation while in the Fraud Section of DOJ’s Criminal Division. The case moved to the Enron Task Force when Weissmann moved.

2. The indictment was handed down in March 2002, and the trial was in May-June 2002. The facts were largely undisputed and the issues at trial mostly involved “intent” and a legal interpretation of the “obstruction” statute Weissmann relied upon.

3. The conviction led to Arthur Andersen’s collapse as a company, with 85,000 jobs lost world-wide, and 30,000 jobs lost in the U.S. Publicly traded companies cannot use the services of a CPA with a felony conviction. Most of Arthur Andersen’s clients were forced to drop the firm, and it collapsed as a result. Weissmann KNEW this would be the consequence of a conviction so he had as a GOAL putting Arthur Andersen out of business, thereby costing its partners billions of dollars as costing tens of thousands of people their jobs — people who had done nothing wrong.

4. The Supreme Court reversed the conviction on May 31, 2005. The vote was 9-0 that the theory used by Weismann was constitutionally unsound — with Justice Scalia agreeing with Justice Ginsburg that Weissmann didn’t know what he was doing.

5. DOJ announced Weissmann’s departure from the Enron Task Force on July 18, 2005 — 6 weeks after the Supreme Court’s decision.

6. When Weissmann joined Jenner & Block in New York in January 2006, the firm’s announcement said he had been “Special Counsel” to FBI Director Mueller from July to December 2005 — Mueller “hired” him to save him from being “let go” by DOJ in the aftermath of the Arthur Andersen FIASCO.

This is a passage taken from the Supreme Court’s opinion in Arthur Andersen, commenting on the legal theory pressed by Weissmann as reflected in the jury instructions he persuaded the trial judge to use:

The instructions also were infirm for another reason. They led the jury to believe that it did not have to find any nexus between the “persua[sion]” to destroy documents and any particular proceeding…. [T]he Government relies heavily on §1512(e)(1), which states that an official proceeding “need not be pending or about to be instituted at the time of the offense.” It is, however, one thing to say that a proceeding “need not be pending or about to be instituted at the time of the offense,” and quite another to say a proceeding need not even be foreseen. A “knowingly … corrup[t] persaude[r]” cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material.

Weissmann pressed the theory that a criminal conviction for document destruction could stand even when the entity engaging in the destruction had not been subpoenaed and no actual investigation had yet been started. To him it was enough that the company suspected there might be an investigation — even if the actual document destruction engaged in was consistent with a longstanding company policy to discard client documents when they were no longer needed.

He was reversed — 9-0 — but 85,000 people still lost their jobs and a Big Five accounting firm disappeared because of him. Did Weissmann have to go? Well, he went from the Enron Task Force he headed six weeks later, and then left DOJ for the FBI — where he had prior involvement — before leaving altogether 6 months later. That answers the question.

His LEGAL CAREER should have ended after that — not just his DOJ career. But, as I noted, Mueller saved him. Don’t ask me why.

I’ll save for later a fuller exploration of his similarly asinine interpretation of the Sec. 1512(c)(2) obstruction statute he argued for in the Mueller Report — later repudiated in large measure by the Supreme Court in the Jan.6 case Fisher v. United States. But that pretty much amounted to an “Oops, I Did It Again” capper to his entire career.

I hate to give “Just Security” a link, but Weissmann has now penned an article there in which he criticizes of the SPLC indictment, using as an “appeal to authority” his time as “head of the DOJ Fraud Section, overseeing the Department’s largest group of financial crime and fraud prosecutors from 2015-2019.”

Funny thing is, I remember him as a member of the Mueller Special Counsel Office starting in May 2017. It disbanded in May 2019 — under pressure from Attorney General Barr to wrap up its work — and Weissmann headed off to NYU Law School to join the faculty.

• April 18, 2019 — Mueller Report published.

• April 29, 2019 — NYU Law School announces Weissmann joining its faculty.

• May 29, 2019 — Mueller announces Special Counsel Office’s closing.

When Weissmann joined the Mueller SCO, he was still head of the Fraud Section of the DOJ’s Criminal Division — appointed to that position in 2015 during the Obama Administration. I’m suspect new Attorney General Sessions simply hadn’t gotten around to firing him yet in May 2017 — at that point the Trump Administration had not yet appointed an Assistant Attorney General for the Criminal Division — that would have been Weissmann’s new boss. So Mueller adding him to the SCO was the second time Mueller saved him from being fired.

It is worth noting he doesn’t mention in the Just Security article his time as Enron Task Force Director or his prosecution of Arthur Anderson in his “appeal to authority.”

Let me now turn to his article and his criticisms of the SPLC indictment. I’m going to break this up into two stories because his article is quite lengthy, and he makes MANY claims that are simply wrong as a matter of procedure and substantive law.

FIRST: The SPLC indictment is not a “speaking indictment” but Weissmann calls it one several times. He does so because he wants the reader to believe that the indictment includes most or all the evidence DOJ possesses, and uses that as a dishonest premise to ask “Is this the best they can do?” That’s a red herring.

The SPLC indictment is 14 pages long. Three pages provide a limited description of SPLC’s history, publications, and samples of public representations it has made in those publications and on its website about its “mission.”

Two pages briefly explain the "Informants Program" and provides limited information about 8 "informants — what groups they are affiliated with, how much they were paid over a specified period of time, and a brief allegation of what they were tasked by SLPC to do.

One page names and describes briefly 6 fictitious businesses involved in the Informants program.

Less than two full pages describe the "Scheme to Defraud" -- as required by the statute, and set for the six different wire transactions alleged to have been part of the scheme.

In slightly more than two pages the “false statements to banks” are described as part of opening six bank accounts in the names of the fictitious businesses.

Two pages allege a conspiracy to engage in money laundering — just a simple description of the object of the conspiracy and the “Manner and Means” of carrying it out. Again, both are required by law but can be stated in summary fashion and still satisfy the “notice” requirement of a criminal indictment.

Finally, two plus pages describe two different forfeiture allegations -- mostly technical language that is required in order to sustain a jury’s determination of a forfeiture judgment as part of the verdict.

That’s 14 pages -- 11 charged counts, and 2 forfeiture allegations. That is NOT a “Speaking Indictment” no matter how many times Weissmann wants to deceive his readers into thinking that to be the case by saying it over and over.

Here is a “speaking indictment” — the Mueller SCO’s indictment of 14 Russian individuals and 3 Russian businesses — describing one count of “Conspiracy to defraud the United States” over the first 30 pages.

A “conspiracy” requires an allegation that two or more people entered into an agreement to commit one or more federal crimes, and that a member of the conspiracy committed an “overt act” in furtherance of that agreement. That doesn’t take 30 pages unless your real motive is to get all those facts into the public discourse by writing an indictment that is more of a press release than it is a charging document. Count Two was a “Conspiracy to Wire Fraud and Bank Fraud” and it took the Mueller SCO six more pages to explain that.

Here’s another example — the Indictment of the Oath Keeper defendants in United States v. Rhodes. That one was 48 pages long, with 24 pages taking up the “description” of the “seditious conspiracy.”

Again, all that is needed to allege a conspiracy is a factual statement that two or more people entered into an agreement to commit one or more crimes, and that a conspirator committed an overt act in furtherance of that agreement. The other 23 pages of Count One constitutes a “speaking indictment.”

Again, the SPCL indictment is 14 pages long — start to finish. It is NOT a “speaking indictment” — lie #1 by Weissmann.

SECOND — Weissmann claims DOJ policy prohibits the bringing of a case if the evidence might not meet the “beyond a reasonable” doubt standard. He claims:

Under long-standing DOJ internal rules in the Justice Manual, prosecutors should never seek a grand jury indictment unless they have evidence that would probably be sufficient to prove the case beyond a reasonable doubt and to sustain that verdict on appeal — a standard meant to avoid subjecting anyone to a fatally weak criminal case….

Almost comical coming from a guy with a 9-0 Supreme Court reversal figuratively tattooed across his forehead as emblematic of his time at DOJ.

But, more importantly, he omits the following guidance from the DOJ Justice Manual, Section 9-27.220, that bears directly on the point that he disengenuously raises:

[N]o prosecution should be initiated against any person unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact….

Where the law and the facts create a sound, prosecutable case, the likelihood of an acquittal due to unpopularity of some aspect of the prosecution or because of the overwhelming popularity of the defendant or his/her cause is not a factor prohibiting prosecution. For example, in a civil rights case or a case involving an extremely popular political figure, it might be clear that the evidence of guilt—viewed objectively by an unbiased factfinder—would be sufficient to obtain and sustain a conviction, yet the prosecutor might reasonably doubt, based on the circumstances, that the jury would convict. In such a case, despite his/her negative assessment of the likelihood of a guilty verdict (based on factors extraneous to an objective view of the law and the facts), the prosecutor may properly conclude that it is necessary and appropriate to commence or recommend prosecution and allow the criminal process to operate in accordance with the principles set forth here.

So Weissmann is 100% wrong to claim that a prosecution should not be initiated in the face of difficulties that might be encountered due to the nature of the case or popularity of the defendant.

The first bolded sentence makes clear that the prosecutor can focus solely on the evidence to be presented in the case-in-chief when deciding whether to seek an indictment, and need not consider evidence that might be presented by the defense. The only bar for a proseuctor to clear is that the evidence in the government’s case-in-chief is sufficient to satisfy Rule 29. That test arises before the defense case begins, so there is no obligation to factor in what evidence or testimony the defense might offer.

Strike One for Weissmann.

The second bolded sentence makes clear that even where the prosecutor recognizes the likelihood of an acquittal is increased by either the unpopularity of the prosecution or the popularity of the defendant and/or his cause, such a circumstance should not factor into the decision whether to prosecute.

Strike Two for Weissmann.

The third bolded sentence makes clear that even where the prosecutor has a negative assessment of the likely outcome due to extraneous factors, it is still appropriate to seek and indictment and prosecute the case in order to allow the criminal process to operate in the manner in which it is designed. It is not the job of the prosecutor to anticipate the outcome of an adversarial process.

Swing and a Miss — Strike Three and Weissmann is OUT.

THIRD: Weissmann characterizes the government’s theory with respect to the wire fraud scheme as follows:

The government’s theory of the case, necessary (though not sufficient) to establish the first bucket of charges [wire fraud], is that the Center was secretly promoting racist organizations. The fraud was taking money from donors who were intentionally led to believe that the Center was fighting such groups.

Weissmann criticizes this theory by positing a hypothetical which he claims reflects the flaw in the analysis employed by DOJ:

Suppose the U.S. repeatedly paid a member of ISIS to disclose information about upcoming ISIS terrorist plans concerning American people and places. The U.S. obtains such information and uses it to thwart these attacks. Would it be correct to say the U.S. is trying to promote ISIS and its attacks? Of course not.

What we don’t know yet — and Weissmann certainly doesn’t know — is the extent to which money from the SPLC money was used to facilitate actual activities undertaken by the hate groups it claimed to be seeking to undermine with donor dollars. That is evidence that DOJ has likely developed from multiple sources but has not yet produced it all publicly. We don’t know how many of the hateful “events” SPLC helped to organize or fund with the money it contributed — whether SPLC realized it or not — and how many of those “events” were the subject of some form of SPLC effort to prevent or interrupt it as part of its mission to “dismantle” such groups that it advertised. I doubt SPLC is going to be able to present and “after-action” audit or report that shows precisely what its contributions to various hate groups accomplished via the use of donor funds.

Let me alter Weissmann’s ISIS example just slightly, and see how it holds up:

Suppose the U.S. gave money ISIS informants/operatives, some of which was diverted into ISIS attack plans. But suppose those informants provided information on only 6 different terrorist attack plans, but held back information about 4 others. The first six were thwarted with the information, but the other four were successful. Would it be correct to say that the U.S. contributed to the 4 successful attacks it supported with funding but about which it received no valuable information? If it was shown that those 4 would not have happened but for the U.S.’s money given to the informants, “Of course” the answer is yes.

More Weissmann:

But that is the precise theory of the DOJ indictment against the Center: That it did not tell its donors that it was promoting hate groups when it paid money to informants to get data about the groups. That is a possible fraud only if the Center actually was seeking to promote – as opposed to dismantle – such groups.

“When it paid money to informants to get data….” That is going to be SPLC’s story and they are going to stick to it.

When a defendant had an “explanation” for conduct that was illegal without the benefit of the explanation, my general response to defense counsel was:

“Very interesting. We’ll have to see if the jury buys it.”

Just because a defendant has a story doesn’t mean the prosecution is undermined. Jury’s decide which version of conflicting accounts is credible. SPCL says it was only gathering “data” via payments to informants. DOJ is going to say SPLC’s money funding hate group activities as part of an effort to bolster fundraising that always trended up in the aftermath of highly publicized hate group activities. SPLC relentlessly covered such events through its various forms of media outreach to the public, and targeting its donors.

How might a prosecutor prove that SPLC did have an ulterior motive in making its payments? That its motive was to sponsor continued activities by hate groups by funding these individuals, along with giving them instructions to be a catalyst inside the groups to continue agitation of racist hatred?

Well, one way a prosecutor might do that would be to total up the money paid to individuals connected with the Charlottesville rally, examine the instructions that were given about how to act, look at the SLPC fundraising in the aftermath of Charlottesville, and THEN look at how that fundraising was transformed into income and fringe benefits for decision-makers at the top of SPLC who were the driving forces behind the Informants Program.

Whether their motives were consistent with their representations to donors, or they were motivated by their self-interest and greed, becomes a decision for the jury.

More Weissmann:

All this makes Blanche’s contention at his press conference that the Center was intending “to stoke” racial hatred by these alleged hate groups so disturbing…. The indictment is devoid of any allegation that that was an actual intended goal of the Center; indeed, the indictment makes allegations that are flatly inconsistent with Blanche’s representation.

First, an allegation that the SPLC was “intending ‘to stoke’ racial hatred” isn’t necessary to the fraud scheme. Including such an allegation wasn’t necessary to the indictment. That is evidence of “motive,” and “motive” isn’t an element of the offense. Facts not necessary to establish an element of a charged offense need not be alleged.

Second, just because there is no such allegation in the indictment does not mean DOJ does no have evidence of such a motive. I don’t know that they do, but Weissmann doesn’t know that they don’t. If they have it, my guess would be it is in the form of written communication(s) found with a grand jury subpoena, or it has come from an interview with an insider. The indictment — in my opinion — very deliberately does not allege any specific piece of information that could only come from interviews. Such allegations might possibly be used by SLPC and its lawyers to identify cooperators who are inside the organization.

Last point about Weissmann’s article for this Part One:

But there is more reason that the indictment on its face is particularly weak. In spite of the fact this is what is known as a “speaking indictment” … it nowhere says what specifically the donors were told that was fraudulent. The indictment is devoid of any allegation that the Center told the donors that it would not use donor money to engage in the informant plan it devised to learn about these alleged hate groups. That is necessary to be able to prove fraud.

I’ve already dealt with his false characterization of this being a “speaking indictment.” That’s just willfully false because he knows the difference.

But the second point he raises is one that the lefty legal beagles are leaning on heavily — that there can only be fraud here if there was an affirmative misrepresentation of a fact that was not true. That is simply not the law and Weissmann knows it.

In United States v. Maxwell, the 11th Circuit — the Circuit where the Middle District of Alabama sits — held in 2009 as follows:

A scheme to defraud requires proof of a material misrepresentation, or the omission or concealment of a material fact calculated to deceive another out of money or property.

That is pretty straight forward — and it conclusively shows Weissmann either doesn’t understand the law or he’s willing to deliberately mislead readers — again.

The 11th Circuit reaffirmed “fraud by omission” in its 2021 decision in United States v. Wheeler. There the defendants were engaged in the fraudulent sale of securities, but misrepresented the nature of their compensation as part of their sales pitch by stating they would be paid only in shares of the company whose stock they were selling when, in fact, they were paid by commission.

“There is evidence in the record, however, of making misrepresentations or failing to disclose information that a reasonable jury could find affected the nature of the bargain…. Wheeler and Long [] misrepresented their form of compensation, telling investors they were only paid in company stock and did not make commissions on stock sales. The investors money they said would go back into the company….

Although investors presumably knew that the salespeople were being paid somehow, a reasonable jury could have found that it would decrease the value investor’s got from the bargain if their money was going into the salesperson’s pocket rather than injecting capital for CFC or to conduct research and development.”

It is true — and I want to acknowledge this fact — that Weissmann’s article makes no effort to cite to any case authority on the various legal pronouncements he has included. I accept that for purposes of his article, he did not approach his task in a manner that would include case citations. There is nothing wrong with that. Some of his legal claims accurately state the law as I understand it, so I take no issue with them.

But as I’ve set forth above, some of his claims are simply contrary to the case law as it exists today.

I’m going to pick up Part Two with this same point — some recent court authority is combining a failure to disclose with an obligation or duty to disclose the omitted information — mere silence, without more, is not sufficient to prove “fraud.” But SPLC’s status as an IRS 501(c)(3) non-profit/charity — with potential tax implications for misleading donors — likely meets that burden without difficulty.

Part Two to follow.