Former Mueller prosecutor has major issues with Merrick Garland’s Jan. 6 investigation

Former Mueller prosecutor has major issues with Merrick Garland’s Jan. 6 investigation
Merrick Garland in 2016, Wikimedia Commons

After the Mueller Report was released in 2019, former federal prosecutor Andrew Weissmann — who had been a key member of former Special Counsel Robert Mueller’s team during the Russia investigation — went into the private sector. But Weissmann, now 64, has been speaking out about politics a lot recently — first in an op-ed published by the New York Times on July 11, then in an interview with Politico published the following day.

Weissmann, in his Times op-ed, had a lot to say about two separate investigations of the January 6, 2021 insurrection: the one conducted by House Speaker Nancy Pelosi’s January 6 select committee, and the investigation being conducted by the U.S. Department of Justice under Attorney General Merrick Garland. As Weissmann sees it, Garland — in light of all the revelations the committee has presented during its series of hearings — needs to be more aggressive.

In his Times op-ed, Weissmann wrote, “The tenacious work of the Jan. 6 committee has transformed how we think about the Jan. 6 rebellion. It should also transform the Justice Department’s investigation into efforts to overturn the 2020 election. Before the hearings, federal agents and prosecutors were performing a classic ‘bottom up’ criminal investigation of the Jan. 6 rioters, which means prosecuting the lowest-ranking members of a conspiracy, flipping people as it proceeds and following the evidence as high as it goes…. But that is actually the wrong approach for investigating the Jan. 6 insurrection. That approach sees the attack on the Capitol as a single event — an isolated riot, separate from other efforts by Donald Trump and his allies to overturn the election.”

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Weissmann went on to say that the select committee’s hearings “should inspire the Justice Department to rethink its approach” and look at the bigger picture rather than maintaining “a myopic focus on the Jan. 6 riot.”

The Politico interview was conducted by attorney Ankush Khardori, who, like Weissmann, is a former federal prosecutor. When Khardori asked Weissmann what “spurred” him to write such a ‘pointed’ op-ed and criticize his former DOJ colleagues, Weissmann responded, “Reading about the reaction of federal prosecutors to the testimony of Cassidy Hutchinson, and the reports that were pretty widespread, which was that they were surprised and were sort of learning along with the public was — I won’t say ‘shocking,’ but I was surprised by it and disappointed.”

Weissmann continued, “The Department has a lot more tools to investigate than Congress. We’re in a very unusual situation where you see Congress doing a really, really good job and being out in front of, by all accounts, the federal government in many ways in terms of understanding and investigating what happened in terms of trying to undermine the last presidential election. And so, I thought it was important to try and send at least my voice out there as to what I thought they were doing right and what I thought they were doing wrong.”

According to Weissmann, the DOJ’s January 6 investigation should have, from the beginning, taken a broader approach than simply “looking at the riot and prosecuting the people who participated in it” — and probed former President Donald Trump’s efforts to overturn the 2020 election results.

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Weissmann told Khardori, “Nobody in their right mind could say there’s not factual predication to look into efforts to undermine the election. The Department itself admitted that by looking at the fake electoral scheme, and now the DOJ scheme, the Georgia scheme — in other words, there’s no question there’s factual predication. So, to say we’d look at crimes and not people is not a terribly useful comment. I think we should expect more from public officials in terms of responding in either a meaningful way or just not saying anything, but I just don’t think that’s a particularly helpful way to look at this.”

Weissmann also discussed the 2022 midterms and the possibility of Trump running for president again in 2024. The former Mueller prosecutor argued that if some type of Trump-related prosecution comes about, it’s likely to be attacked as politically motivated.

“Better late than never, right?” Weissmann told Khardori. “But it is not going to look good if an investigation begins, or is expanded into the upper region — whatever terminology they want to apply to doing what I think they should have been doing a year and a half ago, which is investigating Trump, the Trump White House and the Trump campaign — it’s not going to look good for that to happen in a midterm season, perhaps immediately after a midterm loss, potentially in the midst of Trump actively running. It’ll look like it was a response to political conditions — a potential effort to head off Trump politically in 2024.”

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