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TERRY GROSS, HOST:
This is FRESH AIR. I'm Terry Gross. Why can't you sue a president or a presidential candidate who knowingly lies to the public? After all, corporate executives can be sued for lying to shareholders. This question about our inability to legally hold politicians accountable for their speech, the threats that poses to our democracy and what we can learn from how other countries deal with these lies are the subjects of my guest Andrew Weissmann's new book "Liar's Kingdom: How To Stop Trump's Deceit And Save America."
During Trump's first term, The Washington Post tabulated over 30,000 false or misleading Trump public statements. Andrew Weissmann was a lead prosecutor in the Mueller investigation into Russian interference in the 2016 election and whether the Russians colluded with candidate Donald Trump and his campaign. Weissmann also served as chief of the fraud section in the Justice Department and general counsel of the FBI when Robert Mueller was the FBI director. Weissman was a leader of the Enron Task Force, which successfully prosecuted Enron executives for knowingly lying to shareholders by inflating Enron's profits.
Earlier in his career, while working in the Eastern District of New York, he prosecuted three of the five most powerful crime families in New York. He's now an MS NOW legal analyst and co-host of the podcast "Main Justice." He's also a professor at the NYU Law School. We're going to begin the interview with the settlement Trump reached with the Justice Department over his lawsuit against the IRS pertaining to the leak of his tax filings. The details of that settlement and the new fund it created were made public this week. The judge in that case, who was considering dismissing the case, was not included in the discussions of the settlement.
Andrew Weissmann, welcome to FRESH AIR. So let's talk about the IRS case. So Trump had sued the IRS for $10 billion. This was because his tax filings were leaked to The New York Times and ProPublica, not by the IRS directly. They were leaked by an employee of a contractor that the IRS had hired. And Trump claimed the IRS hadn't taken enough precautions to prevent that leak. So the judge was concerned that since the IRS was being represented by the Justice Department and Trump himself oversees the IRS 'cause it's part of the executive branch - the judge wasn't sure that there were two sides in this case. Would you explain why?
ANDREW WEISSMANN: Sure. Well, Donald Trump himself had said that, isn't this odd because I'm suing myself. And that actually got it right. And under the law, in order for there to be a legal case, there has to be what's called a case or controversy, meaning that the plaintiff and defendants want different things. And here, it was entirely collusive. And that's why when people are referring to this as a, quote, "settlement," unquote, it really isn't. This is just one party making an agreement with the same party. And so they could obviously write whatever they wanted. And here, they wrote that they would get $1.776 billion for a claim that seems, let's just say, highly, highly dubious, and it is fought by the IRS in all sorts of cases other than ones that involve Donald Trump.
GROSS: So do you think this is unprecedented, a president suing the IRS and his opponent being, like, the acting attorney general in this case, who was - I mean, he's a Trump appointee, right?
WEISSMANN: He's a Trump appointee, and he was his defense lawyer and something that people...
GROSS: Right.
WEISSMANN: ...Don't realize.
GROSS: His personal defense lawyer.
WEISSMANN: Yes. And one thing, having - I'm a lawyer. I've been a defense lawyer. One of the things that when you represent somebody, even when that representation is over, you have a continuing duty of loyalty. So now you have somebody with a continuing duty of loyalty who is entering into an agreement that it is extremely hard to see the public interest here, in other words, where the public is being represented, and that actually is what the federal judge who had the tax case said when she was very concerned about this. She said, who is actually representing the public fisc here? And my view of this is, what separates what is now in black and white from just theft, where somebody is just taking almost $1.8 billion for their own personal use?
GROSS: Yeah. And when she says, like, who's representing the public, we, the public, through our taxes, are paying for this agreement.
WEISSMANN: Absolutely. So one of the things, Terry, I am keeping my eye out for is - and I've talked to various tax consultants, and sort of their assessment - is this normally would be a $1.8 billion recording of income to Donald Trump and his children, because they are the ones who are getting this benefit, that they choose to use it for a so-called slush fund is sort of irrelevant under the tax laws, as I understand them. So is he going to be recording $1.8 billion in income? Let's leave aside that this, as you said, is really coming from the taxpayers in what I think is a very, very collusive agreement with no adversity between the defendant and the plaintiff.
GROSS: But isn't it really going to him? It's going to this fund, right?
WEISSMANN: Yeah, but that's secondary. In other words, this is Donald Trump saying, I am settling my claim against the tax authorities. And then the fact that he chooses to spend it by saying, OK, I'm directing that the money be used for X, Y and Z, that doesn't make it not income to Donald Trump. He is still getting this as a result of, he says, his claim against the IRS. That's the whole reason that the DOJ is styling this as a settlement agreement, but that has tax consequences, and I'm going to really be interested to see how do they get out of that mousetrap that they've created for themselves, which is, this - as I understand it from tax authorities, this should be recorded as income to Donald Trump.
GROSS: And it's a huge amount of money. And the whole lawsuit might have just been thrown out because the judge asked both sides to write briefs explaining if they thought there were really two sides in this case, because if there weren't two sides, she would dismiss the case. And those briefs were due today. So the settlement was made before those briefs were submitted and before we knew if there was even a case or if the judge was just going to throw it out.
WEISSMANN: To make matters worse, Terry, one of the briefs that an amicus wrote, this sort of friend of the court brief, was from former tax authorities saying that what the IRS is doing with comparable cases is fighting them, because there are all sorts of defenses that the IRS has to the lawsuit. The easiest one, the easiest defense is that Donald Trump's claim out of time. He had two years to bring it, and he didn't, so that means that the amount of money, if the IRS were to prevail on that - and it seems very open and shut - the amount of money that the public would owe Donald Trump for this claim is zero. And I don't do math in public, but I know that zero is less than $1.8 billion.
GROSS: But meanwhile, Trump will be making money on this deal because Trump, his family and their businesses will have immunity from ever paying any taxes ever, ever, forever, related to current ongoing investigations into their taxes. And I've seen estimates as much as $100 million in savings from that. Now, no one knows exactly how much it would be, but it might be as high as that. So they're saving a lot of money on this deal in taxes, in addition to everything else.
WEISSMANN: Yes. That is the piece that broke, that, you know, was not in the main story and it came out. This one piece of paper that can be termed a general release, giving up the government's claims to money from Donald Trump, his family, his businesses. The way I look at this is Donald Trump as president has the pardon power and he can try and pardon all sorts of people. He may even try to pardon himself. But this is what you need to remember about the pardon power - it relates to criminal cases. It doesn't relate to civil cases. So what he has done here is essentially given himself a civil pardon so he can sort of be - have sort of blanket immunity both on the criminal side and on the civil side.
GROSS: So let's talk about the fund. What is the official purpose of the fund and who is supposed to be eligible?
WEISSMANN: So the fund will be this $1.776 billion, absent Congress or some other authority being able to put a stop to this. But assuming it goes forward, this money will be used by a commission set up by the attorney general with five people appointed by him. They can be removed by him.
GROSS: Appointed by the acting attorney general, in this case.
WEISSMANN: Exactly.
GROSS: Yeah.
WEISSMANN: And so they're very, very beholden to the wishes of the president and the acting attorney general, and they will adjudicate and decide who is going to get this money. And so that is an area where everyone is sort of rightly highly concerned that this could go to J6 defendants who were criminally convicted, including people who attacked police officers, including people that committed heinous crimes even after being pardoned by the president.
So it really - I think the correct term that people are using - is a slush fund that really means that people who not only were pardoned by the president after being found guilty of a crime are now actually going to be paid. So you sort of have a paid army of people who don't have to worry about criminal liability and are actually going to be able to put in a claim to be compensated for their activities that are criminal and have been found to be criminal.
GROSS: Yeah. And in order to qualify for this fund, you're supposed to be a victim of government weaponization - so you faced reprisals for personal, political or ideological reasons. So, you know, there's a lot of assumptions that the people who'll get compensated will be people who are friends of Trump, supporters of Trump, MAGA people. But the recipients are going to be kept secret. We're not going to know who they are unless it's leaked. It's going to be...
WEISSMANN: Yeah.
GROSS: Yeah. So...
WEISSMANN: That's one where I would say we don't - we know that in the papers so far, there is no provision for this being public. Now, it could end up being that the people who are in charge of this decide that it all should be public, that there should be transparency. And in the nature of transparency, I should tell you - and I'm being somewhat facetious, but it's in some ways not facetious, Terry - which is I was the subject of two executive orders by this president, one of which was struck down by a federal judge finding that my personal First Amendment rights were violated. So I actually have a judicial finding that I am a victim of weaponization and that my constitutional rights were violated. So I technically I am eligible for compensation by this fund.
Now, I don't think there is a snowball's chance that I am going to be compensated by a group of five people appointed by Donald Trump or somebody who's his amanuensis, but it tells you that we could see a real politicization about how the fund is distributed, where people who are actually factually victims of weaponization do not get money, but people who are criminals, and adjudicated criminals, are paid.
GROSS: Do you think you will apply just as a kind of test case and - just to see for yourself what the process...
WEISSMANN: You know...
GROSS: ...Is like for compensation?
WEISSMANN: I think that if no one else does, I think it's very important for people to test this. And if it's not being done by anyone else, I will do it because I think that is - there are many, many ways that this program can be legally challenged, but one is what's called viewpoint discrimination. So if somebody like me were to sue, saying, wait a second, I am absolutely comparable to the people that you are giving funds to, then that's something that a court can step in and say that you have violated either the Equal Protection Clause, you have violated the Administrative Procedures Act. And there are various challenges. Like, on the fly, I'm not going to rattle off all the ways this could be challenged, but I do think that that is sort of a back-end point that we should keep our eye on in terms of how this is adjudicated because it surely is going to be the subject of litigation.
GROSS: My guest is Andrew Weissmann. He was a lead prosecutor in the Mueller investigation after having held leadership positions in the Justice Department and the FBI. His new book is called "Liar's Kingdom." We'll be right back. This is FRESH AIR.
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GROSS: This is FRESH AIR. Let's get back to my interview with Andrew Weissmann. He was a lead prosecutor in the Mueller investigation and served as chief of the fraud section in the Justice Department. His new book "Liar's Kingdom" is about why it's time to hold politicians legally accountable when they knowingly lied to the public. When we left off, we were talking about Trump's settlement with the Justice Department over Trump's lawsuit against the IRS.
So you raised the question of, like, will January 6 insurrectionists, including those who attacked the police and defaced the building and threatened everybody in it, will they now, in addition to being pardoned, also make claims from this fund and actually get compensated? So Chris Van Hollen, Democratic senator from Maryland, asked that question to Todd Blanche, the acting attorney general, yesterday at a previously scheduled hearing about the Justice Department's 2027 budget. So I want to play an excerpt of that. So here's Chris Van Hollen questioning Todd Blanche.
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CHRIS VAN HOLLEN: Will individuals who assaulted Capitol Hill police officers be eligible for this fund?
TODD BLANCHE: Well, as it makes plain, anybody is...
VAN HOLLEN: Will they be - just let me know if they're eligible for the fund.
BLANCHE: As was made plain yesterday, anybody in this country is eligible to apply if they believe they are a victim of weaponization.
VAN HOLLEN: Mr. Attorney General, let me ask you this. Are there going to be rules that say that if you've assaulted a Capitol Hill police officer or committed a violent crime you will not be eligible? Why not make that a rule?
BLANCHE: I expect that the - well, because I'm not one of the commissioners setting up the rules. I expect that there will be rules set up...
VAN HOLLEN: You're appointing four of the five members, aren't you, Mr. Attorney General?
BLANCHE: Pardon me?
VAN HOLLEN: You're appointing four of the five members.
BLANCHE: I am appointing all five members.
VAN HOLLEN: You could simply set up the rules. I would hope you would make a rule that anyone convicted of assaulting a police officer or a violent crime is simply not eligible. They should not apply.
BLANCHE: Well...
VAN HOLLEN: Let me ask you this, 'cause you compared it to the Keepseagle case, but I think you know full well that in that case, the settlement agreement was approved by a federal judge, including the payments to people who were not originally parties to the lawsuit. No federal judge has approved this fund, have they, Mr. Attorney General?
BLANCHE: No. No federal judge...
VAN HOLLEN: No.
BLANCHE: ...Did approve this.
VAN HOLLEN: So that's a big difference between this case and the case that you compared it to.
BLANCHE: No, it's not.
VAN HOLLEN: Did a judge sign off on this case?
BLANCHE: No.
VAN HOLLEN: A judge did sign off on the other one.
BLANCHE: Yes, but it's...
VAN HOLLEN: Yeah.
BLANCHE: Your question was whether it's a big difference. It's not.
VAN HOLLEN: Of course it is because that allows for an independent person to look at it rather than the handpicked...
BLANCHE: There was no independence.
VAN HOLLEN: ...Former personal attorney...
BLANCHE: There was no independence. There was a single commissioner. A judge signed off on it. A judge had nothing...
VAN HOLLEN: Mr. Attorney General...
BLANCHE: ...To do with deciding the money.
VAN HOLLEN: ...There was a judge who looked at it and signed off on it, so to compare that case to this one is incredibly deceptive.
GROSS: Andrew Weissmann, what's your reaction to that exchange?
WEISSMANN: So one of the things that I found disingenuous is that Todd Blanche, as the acting attorney general, has the authority to have created rules that said that if you are a convicted felon, if you have assaulted police officers, he - all of - and other categories - he had the authority to say that cannot apply for these funds, that you are not a victim of weaponization, especially since there's a criminal justice system that can handle that - in other words, if anyone thought they were wrongly convicted. So to try and duck by saying, well, that'll be left to others to decide, he's the person that actually set up the fund and so he had the power to set up those rules.
Also, the senator was totally right to point out that here, the Department of Justice went out of its way not to submit the settlement papers to the federal judge overseeing this case. And the judge pointed that out - that there was no settlement papers, no settlement agreements that were before her that she could adjudicate. Instead, the government moved to dismiss the case. And obviously they thought, you know what? We probably should never have even brought this case. We should have just done this as a private agreement.
And so there was no independent authority that has approved this. And that is why, to go back to what we initially were saying, this seems so collusive because you have the government on both sides with the same interests. And the - you know, the thing that seems so apparent is that you have embodied in the Department of Justice somebody who was the personal defense lawyer, with a continuing duty of loyalty, to the president of the United States as his personal attorney.
GROSS: Is it fair to say that the head of the Justice Department did an end run around the judicial system, around the court?
WEISSMANN: I think that is - that it's fair. I think I would broaden that to say he did an end run around his oath of office to all of us to represent our interest. And that's why there have been so many reports that the head of legal ethics at the Department of Justice, who was summarily removed, but he gave advice - which happens all the time - saying that Todd Blanche should not be sitting on things that are directly related to his prior representation of the president. And obviously - in my view, that obviously was not followed because we're seeing an action here where the actions that are taken by the Department of Justice are in the interest of the president personally, but they are not, in my view, in the interest of the public.
GROSS: Let me reintroduce you. My guest is Andrew Weissmann, and he was a lead prosecutor on the Muller investigation and his new book is called "Liar's Kingdom." So we'll be right back. I'm Terry Gross, and this is FRESH AIR.
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GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to my interview with Andrew Weissmann. His new book, "Liar's Kingdom," asks why politicians aren't held legally responsible when they knowingly mislead or lie to the electorate. And he looks to other countries who do have such laws. Weissmann was a lead prosecutor in the Mueller investigation, served as chief of the fraud section in the Justice Department and general counsel of the FBI when Robert Mueller was the FBI director. He's now an MS NOW legal analyst, host of the podcast "Main Justice" and a professor at the NYU Law School. You mentioned that you were the subject of two of President Trump's executive orders. Can you tell us about those executive orders?
WEISSMANN: Well, let's see. The first one, I was in extremely good company, Terry. I was in the company of, I think, Joe Biden, Kamala Harris, Hillary Clinton and many others. I tell an anecdote in my book that when that got implemented by Tulsi Gabbard, she dutifully announced, I think, on social media, that she had stripped the security clearance of Andrew Weissman, but she misspelled my name. So I'd like to formally apologize to that Andrew Weissman for being the cause of his security clearance being stripped. But anyway, that was the first...
GROSS: Wait, wait, you didn't even have a security clearance anymore.
WEISSMANN: It's true. That is - not only did they get my name wrong, but I had been out of government. So it's one thing to strip somebody of a security clearance when they're in government. But I was working as a professor. There was no reason for me to have a security clearance. So it was all very performative.
GROSS: Or uninformed.
WEISSMANN: Yes. I think both of those could be true. The second one was more serious, and it is actually the subject of ongoing litigation. It was one of the many executive orders that in Trump's 2.0 term in office he issued with respect to law firms. So one of them was for a law firm that I had worked at, which was Jenner & Block, where I was a partner. And that executive order that was issued, I believe, in March of last year, featured my name prominently 'cause one of the main sins of Jenner & Block was having hired me. And so that executive order stripped Jenner & Block of all sorts of rights and privileges. They were not the only firm targeted, I think, as everyone listening to this knows, that there were many firms that caved to that pressure. There were some firms that did not cave to that pressure.
All four of the executive orders that were challenged in court were immediately struck down. Sort of really - it's easy to sort of normalize this and forget that as this administration - Trump's second administration - started, he issued four executive orders, with four separate federal judges immediately striking them down, saying they violated the First Amendment. Those are now up on appeal. The oral argument just took place. I think - I listened to all of it, and I think most people thought that it went very, very well for the law firms and not so well for the government.
GROSS: Yeah. And the law firms that made an agreement with the Trump administration agreed to, like, many hours and millions of dollars of time spent doing pro bono work on behalf of the Trump administration.
WEISSMANN: Yes, almost a billion dollars collectively. But there's also sort of a hidden process to this, which is beyond those law firms, there's been a chilling effect on major law firms doing pro bono work where they would sue the government for various things. That used to be - when I was in private practice, that was part of what you did with a righteous case. And sometimes you won, and sometimes you didn't win. But you never were vilified. There was no retribution from the government for taking on a cause and zealously advocating. So this is a really, really pernicious tactic that, as I said, was struck down by every court that has heard it, and I think they're going to lose also in D.C.
It's worth remembering this is the case where on a Monday a few weeks ago, the government announced that they were not going to appeal anymore any of the four orders, that was, they were going to leave them in place. That got a lot of publicity. And then Tuesday morning, the government had to come into court and say, oh, never mind. When we said we were going to withdraw, we now are withdrawing our withdrawal, and they then proceeded on the appeal. So not a terribly good look if you're then in court saying, these are orders that passed the constitutional muster.
GROSS: OK, let's get to your book, "Liar's Kingdom." So you compare the ability to sue, say, corporate executives for false, misleading statements, for knowing lies to political candidates and people in office who - there's no laws to protect us from them when they knowingly lie to us, and there's so much at stake when they do lie to us. So why are politicians and those serving in office exempt from that kind of law?
WEISSMANN: That is exactly the question that drove why I wrote this book. I was dealing with the issue of what I think is sort of rampant lying by politicians and candidates. I looked at Enron leaders that you've referenced in thinking, why is it that we care about the value of stock more than we care about the ballot box and thought about all of the ways that it's a crime to lie to the public about stock. It's a crime to lie to Congress. It's a crime to lie to the Department of Justice, to the FBI, to federal prosecutors, to banks. Over and over again, I was thinking about, in my career, all of the ways that we hold those people to account. And we don't say the First Amendment precludes that, because in all of those settings, civil and criminal, we actually take action.
And so I saw this as a gap and looked at what is going on in our country. What kind of strictures would there be if we did have some law that made this harder to do. And then I did something which Americans don't like to do all that often, which is looking overseas to see, what do other countries do? And that was really eye-opening.
GROSS: You say that Trump knew the difference between lies and falsehoods because he said things in public that he didn't say under oath to Congress. So can you talk about that a little bit, about the difference between what you can say to Congress and what you can say to the electorate and why you think Trump really understood that difference?
WEISSMANN: So I think a best example of that might be the first impeachment, the one where the so-called perfect call between the then- and current president of Ukraine, Zelenskyy, and the president of the United States. Donald Trump was vociferous in the public airways, saying that this was a perfect call, saying there was no quid pro quo, even though, to me at least, it seemed absolutely apparent that there was. And the whole context of it was to coerce Zelenskyy to say that he was doing a fraud investigation of Joe Biden and his son, and the sort of gun to his head was the withholding of military aid that had been congressionally authorized and approved.
So the president said over and over again publicly that that's not what happened. This is perfect. But he never testified before Congress. He didn't even submit a statement, whether under oath or not, to Congress saying what he was saying publicly. And what I think is the reason is, if you lie, whether under oath or not, to Congress, if you submit something false to Congress, that is prescribed by the criminal laws. That is, there are consequences to that.
GROSS: So I imagine part of the fear of holding political candidates and those in office liable for false or misleading statements knowingly made to the public is the idea of infringing on those people's - you know, on the politicians and office holders' First Amendment rights to free speech. But free speech has limitations when there's victims of that speech. So is that the reason why we don't have anything holding those politicians accountable?
WEISSMANN: I do think that is a big part of it. But it is complicated because the state of the law is that there is no First Amendment protection for false speech itself. In other words, there's many cases from our Supreme Court saying that there is no value or minimal value - and different justices take different views on that - but that false speech is not something core to the First Amendment. The concern is, will there be a chilling effect on true speech?
But I have an analogy for you on that, Terry. So as you mentioned, I work for MS NOW as a legal analyst. And so one of the things that I learned when I started working for MS NOW is that there's something called a Standards Division. And what Standards does is it goes over what it is that people say to make sure it is accurate and supported and not false, whether deliberately or not. And there's a whole variety of reasons for that. Some of it is because, of course, you want to be a good journalist, but another is you don't want to get sued for defamation. And so that's what Standards looks at.
And this is something that responsible organizations of all stripes - not just, you know, liberal or conservative - responsible organizations do. And no one says, well, wait a second. That's an improper chilling of the First Amendment. It's viewed as part and parcel of responsible journalism, of a responsible Fourth Estate. And so even in that area, their - the argument of a sort of chilling effect doesn't carry the day.
GROSS: Would the electorate have standing in any kind of lawsuit?
WEISSMANN: That is a great question. I sort of make this point of an oddity in the law, which is if you are Rudy Giuliani and you say, this is what Ruby Freeman and Shaye Moss did, you've identified those people. And they then have been hurt, and they can bring a claim. Or if you say Dominion Voting Systems engaged in fraud, they have been hurt. But if you just say in the sort of passive voice, there was fraud in the election, but you don't say it was Dominion, even though all of us are the victims, the state of the law is that you need to have sort of individualized harm, even though we're all harmed. So it is an oddity and a quirk. And that is one of the reasons that the law could develop to deal with this in a way. For instance, if it was a criminal law, then that is something that is a harm that can be vindicated by the state.
GROSS: Let's take a short break here. My guest is Andrew Weissmann. He was a lead prosecutor in the Mueller investigation. His new book is called "Liar's Kingdom." We'll be right back. This is FRESH AIR.
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GROSS: This is FRESH AIR. Let's get back to my interview with Andrew Weissmann. His new book, "Liar's Kingdom," asks why politicians aren't held legally responsible when they knowingly mislead or lie to the electorate, and he looks to other countries who do have such laws. Weissmann was a lead prosecutor in the Mueller investigation.
So let's look at Brazil. It's one of the countries that you look at that has a law that seems to be working that punishes politicians and those in office who knowingly lie to the public. Tell us about this law and how it's been used.
WEISSMANN: Sure. Well, one of the things that was fascinating for me was looking at Bolsonaro, who was the then-president of Brazil, and the remarkable, remarkable similarities between his political career and the things that he has said and done, comparing that to our current president. And this is a man who ultimately was criminally prosecuted for engaging in an insurrection after he lost the election. But to your question, and before he was criminally prosecuted and convicted of that, he had been accused of making false claims about there being fraud in the election, where he claimed that he had won when he hadn't. And that was something that, after due process and a trial where he - you know, like what happened in the United States - he was allowed to present evidence and make arguments, etc., the court concluded that he had engaged in this intentional false conduct. And the result was that he was barred from holding office for a set period of time.
So in so many ways, Brazil has dealt with - as have other countries - what to do with political leaders who either engaging in crimes like insurrection or intentional falsehoods, and have a system to deal with that and deter that kind of behavior.
GROSS: So as you pointed out, what Bolsonaro was charged with criminally was participating and, I think, helping to incite - am I right about that? - an insurrection.
WEISSMANN: Absolutely.
GROSS: Yeah. And so very similar to what many people think Trump has done regarding January 6. And Trump's reaction to the prosecution and imprisonment of Bolsonaro - 'cause he's serving a 27-year sentence for the insurrection - Trump issued a 50% tariff on Brazil and personal sanctions against the judges involved in that case. How do you, if you're the president of another country, personally sanction judges in Brazil?
WEISSMANN: You know, he has made - our president has made similar claims with respect to Bibi Netanyahu, saying it's a disgrace that he is on trial. And I could understand an American president and other presidents condemning a show trial, but you have to have reason to point that out. But I don't think that is what was going on here. I looked at this and thought, oh. The president of the United States is concerned about the precedent of countries that have figured out how to hold political leaders to account. And I looked at that in not just Brazil. It's also true in France and in England. We have that also in many states in the United States.
GROSS: So what would you like to see the U.S. borrow from Brazil's law? What lesson can we learn?
WEISSMANN: So I think there are a number of them. But I think one is very, very big-picture, which is understanding that as wonderful as the Constitution is, we see the flaws and how there are no structural checks and balances to much of what's going on.
In terms of what I am proposing, it is to see some version of a criminal law where if you have a politician who intentionally lies about certain subjects - let's just take the Brazil example about material fraud in an election, or the British example is intentionally lying about your opponent when you're running for office - where they have actually stripped someone of being able to be in office after concluding after a trial and due process that they had engaged in that conduct. To me, that is one of the things that we have to think about. How do - how are we going to deal with this? Especially in a media environment where we really cannot count on, the truth will out - that the answer to false speech is just more true speech.
GROSS: Let's take a short break here. My guest is Andrew Weissmann. He was a lead prosecutor in the Mueller investigation. His new book is called "Liar's Kingdom." We'll be right back. This is FRESH AIR.
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GROSS: This is FRESH AIR. Let's get back to my interview with Andrew Weissmann. He was a lead prosecutor in the Mueller investigation. He also served as chief of the fraud section in the Justice Department and general counsel of the FBI when Robert Mueller was the FBI director. His new book is called "Liar's Kingdom."
What are your concerns about FBI Director Kash Patel? The Atlantic had a big investigative piece saying that he's been known to be drinking - there are times that he couldn't be found, times that it was hard to wake him. What are your concerns about his ability and his commitment to the job?
WEISSMANN: So he has denied that, and he has sued The Atlantic. And I know this is easy for me to say, but I actually would love to see The Atlantic ask for an immediate trial so that the public can hear the truth. And if it turns out that what The Atlantic says is true, then it will really both call Kash Patel's bluff, and it will also put an end to this kind of tactic by the administration of fighting news organizations simply because they don't like what's being said.
GROSS: Patel has reportedly been polygraphing FBI agents to see who leaked to The Atlantic. Is there any precedent for that?
WEISSMANN: I'm not aware of any polygraphing. And doing an investigation would be appropriate - and I'm enough of a sort of former government lawyer - if we were talking about the revelation of classified information, or if there was an ongoing criminal investigation and there was a concern about somebody at the FBI leaking that information. But for just personal derogatory information, do we have adults in the room who have a thick skin and keep their mind on the ball, who are focusing on what it takes to keep this country safe?
I mean, being head of the FBI is a job that requires you to be present, if not physically, to be available and ready 24 hours a day, seven days a week. I - when I was the general counsel, I have never, ever worked harder, and it was my privilege and obligation to do so.
GROSS: What are your concerns about if there's an authoritarian president and if Congress is going with an authoritarian president's wishes, and a lot of the courts, as well as a majority of the Supreme Court, seem to often take a cue from the authoritarian president or at least seem to agree with the authoritarian president - how the laws you suggested could still be abused?
WEISSMANN: There is the potential for abuse. And there's no doubt that if there is some weapon lying about, like a Chekov gun, that Donald Trump or people like him will be tempted to use it. We are witnessing, in my view, a series of retributive indictments and the weaponization of the Department of Justice in the grossest way. And just to be clear, Terry, as you noted, I've worked in the Department of Justice for 21 years with Republican and Democratic administrations, and I've never seen that in any of those administrations. There just wasn't that - directives coming from the White House to the Department of Justice.
But I do think that one of the forums that I think has held up well and is one of the few forums that we have right now in our system is the court system. I tell the story of the wonderful federal District Judge Amy Berman Jackson, who said - when she was overseeing many of the prosecutions in the Mueller investigation, she mentioned - she said, courts are a place that facts and the law still matters.
And so one of the things that I am putting my faith in, and maybe it comes from years of having been in the court system, is the ability of courts to hold people to account after affording them due process in a way that we are not seeing it happen in the marketplace, in the so-called marketplace of ideas - that there is a way to try and harness the truth-telling and the factual nature of what goes on in court, including with jurors. You know, everyday United States citizens rising to the occasion in that setting to try and get out of the huge problem that we're facing right now.
GROSS: Andrew Weissmann, thank you so much for talking with us.
WEISSMANN: Thank you so much for having me.
GROSS: Andrew Weissmann's new book is called "Liar's Kingdom." He's now an MS NOW legal analyst, co-host of the podcast "Main Justice" and a professor at the NYU Law School. Tomorrow on FRESH AIR, our guest will be actor Rose Byrne. She's nominated for a Tony for her leading role in the revival of Noel Coward's "Fallen Angels." She was nominated for an Oscar for her role in the film "If I Had Legs I'd Kick You." She co-starred in the films "Bridesmaids," "Spy" and "Neighbors" and in the TV shows "Platonic" and Damages. I hope you'll join us. To keep up with what's on the show and get highlights of our interviews, follow us on Instagram - @nprfreshair.
((SOUNDBITE OF WARREN VACHE AND ALLEN VACHE'S “COTTONTAIL (FEAT. EDDIE HIGGINS AND HOWARD AIDEN)”)))
GROSS: FRESH AIR's executive producer is Sam Briger. Our technical director and engineer is Audrey Bentham. Our interviews and reviews are produced and edited by Phyllis Myers, Ann Marie Baldonado, Lauren Krenzel, Therese Madden, Monique Nazareth, Thea Chaloner, Susan Nyakundi, Anna Bauman and Nico Gonzalez-Wisler. Our digital media producer is Molly Seavy-Nesper. Roberta Shorrock directs the show. Our co-host is Tonya Mosley. I'm Terry Gross.
((SOUNDBITE OF WARREN VACHE AND ALLEN VACHE'S “COTTONTAIL (FEAT. EDDIE HIGGINS AND HOWARD AIDEN)”)) Transcript provided by NPR, Copyright NPR.
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