Yesterday, former special counsel Jack Smith testified before the House Judiciary Committee to defend his investigations into Trump’s meddling in the 2020 presidential election. Smith secured two indictments against Trump regarding the attempted overthrow of that election, but failed to fully prosecute him. While Trump was not physically present, he made his opinion well known by posting in real time: “Jack Smith is a deranged animal, who shouldn’t be allowed to practice Law.”
Andrew Weissman, former general counsel of the FBI, joins Jen to unpack the legal truths hidden within the political theater staged by House Republicans. The two also discuss the ICE memo leaked by two whistleblowers that falsely claim agents may enter homes without a warrant.
Andrew Weissmann is a professor of practice at NYU school of law who served as a lead prosecutor in Robert S. Mueller’s Special Counsel’s Office and as General Counsel for the FBI. Stay connected with Andrew on his Substack here.
The following transcript has been edited for formatting.
Jen Rubin
Hi, this is Jen Rubin, Editor-in-Chief of The Contrarian. We are delighted caveat. We are delighted, but always regretful that we need to draw on his experience. Andrew Weissmann, the former General Counsel of the FBI. We love having you, Andrew, but it’s always a disastrous turn in our constitutional history that brings us together.
Andrew Weissmann
Yes, well, it’s nice to be here with all the… with the same caveat.
Jen Rubin
Very good. But let’s look at a bright, shining spot this week, and that was Jack Smith’s testimony in front of the house. Put aside the theatrics and the interrupting and the grandstanding of the Republicans, which was their usual ridiculous thing. What struck you, first of all—big picture—about Jack’s testimony, and then we can talk about some of the particulars, but what was the overall impression you got?
Andrew Weissmann
You know, I was thinking about this, this morning, you know, I was, I was on air, essentially, like, you know, 24-7, covering it, in part because of my background, in part because I interviewed him at, in London at the UCL University College of London. And so, I was very much prepared for his demeanor and what he’s like. I’ve dealt with him in the past in various professional contexts. And then, obviously, I did this interview, so I knew, sort of, what he would come off. like. But this is sort of a, something I haven’t talked about, which is there was such a, there’s such an odd contrast between the normal and the abnormal—or maybe it’s more normal and extraordinary—because, when he, was interviewed at UCL by me, a friend of mine who was in the audience said, you know, he came off great, he came off like a professional, serious guy, but, like, what’s the big deal? It seems so obvious, and what she was saying by that is, isn’t this exactly what any career person would say and do?
And in that sense, that’s the normal, which is, what you saw there was, the Department of Justice is filled at lower ranks, and frankly, the government writ large is filled with people like him, who are there for the right reason, who follow the facts and the law, they’re not partisan. They just want to do their job. Like, they’re not thinking, somebody’s gonna get this Social Security benefit if they’re a Democrat or a Republican, or we’re gonna prosecute somebody who did something horrendous, like, we’re gonna… let’s take it out of political corruption. Let’s say it’s a child predator. You’re not gonna be like, oh, it’s a child predator, but you know what? We’re only gonna prosecute that if it’s a Republican. Or it’s only a Democrat. I mean, it just doesn’t come up.
And so, part of what you are hearing, if you are used to that is so normal that… and it’s sort of taken for granted. The part that’s sort of abnormal, extraordinary, is that Jack, this person who is a perfect paragon of what the Department of Justice should be, is now in this extraordinary position where there aren’t a lot of people like him you know, showing the fortitude and the courage, and the leadership. Now, just to be clear, there are lots of people who are doing that, the people who are resigning, and, people who are speaking out at, you know, not lawyers and non-lawyers. But it’s not a huge group, and so that contrast of sort of how normal Is what he was saying, with the extraordinary nature of, his fortitude. Let’s remember. The President of the United States, in response to his testimony, said he should be prosecuted.
Jen Rubin
Yes. Called him a vicious animal, or a deranged animal, or some, really disgusting phrase.
Andrew Weissmann
An epithet with no facts. You know, it’s all epithet, it’s all adjectives and adverbs, no facts.
Jen Rubin
That’s, I guess, what struck me about the hearing, was how little the Republicans wanted to get into the facts. He would reassert, for example, that he had facts clearly beyond a reasonable doubt, and at times when he was allowed to speak, he explained, why, Trump was responsible for the insurrection. Republicans didn’t seem very interested in dealing with those, and that seemed to be the biggest tell, that they wanted to talk about his oath of office, they wanted to talk about some cockamamie connection he had to certain people, everything but the facts. Was that surprising to you, or did you expect them to go that route since they got nothing?
Andrew Weissmann
Yeah, so I expected it because, you know what? In criminal trials, and I’ve just… even though people know me because I’ve been a prosecutor, I was a defense lawyer for 10 years, so altogether, sort of 30 years, you know, doing criminal cases. In criminal trials, and I don’t say this pejoratively, one of the things that defense lawyers do when they’re representing somebody who is likely guilty, as to which there’s tons of proof, is they need to distract. And so it is all, look at the birdie, look at the birdie.
So here are examples of that yesterday. You subpoenaed, senators for telephone records, you asked for a relatively fast trial, you were sworn in as special counsel, but you had to take the oath again. The police, the Capitol Police, were responsible for not stopping the January 6th sooner. All of those things have nothing to do with the guilt of Donald Trump. So the fact that, you know, Jack was laying out all of the ways in which they could prove, in his view, beyond a reasonable doubt, the fact that he was, participating in this insurrection. In other words, not the January 6th date, the larger point of, I want it not, to transfer power, and in the Mar-a-Lago case was hoarding classified documents and obstructing justice in that case. Those two buckets were never touched on, and that is very similar to what happens in a criminal trial, and a good prosecutor keeps on bringing a jury back.
There are lots of answers to those distractions, but even if those distractions were true, it’s irrelevant. And so, I just sort of had that same deja vu of what it was like being a prosecutor, sitting through the defense summation, knowing the work I needed to do when I got up and talked to the jury again to explain to them, to keep them focused. So, that seemed to be the playbook. And again, I don’t say that for defense lawyers, I don’t say that pejoratively, because they have as duty to zealous adequacy to their client. That is not the duty that somebody in Congress has. They took an oath of office, and they are supposed to be truthful and candid with the public and not misleading them. So I don’t have the same view of, anybody in Congress, whether it’s Republicans or Democrats, who are not viewing their clients’ interests, the public, first. So, I want to make sure people understand, defense lawyers have an obligation within the bounds of the law to do that.
Jen Rubin
I do want to talk about the phone records, because to the extent he was able to speak. he really kind of blew away their argument. If you recall, they had made a big fuss saying that he sought the contents of the conversations of certain senators, and in fact, the senators slipped into the, last appropriations, paper over, this provision that senators could sue. Which was beyond ridiculous.
Andrew Weissmann
Get a half a million dollars of our taxpayer money each. I mean, are you kidding me?
Jen Rubin
Yes, and Jack actually, and again, he wasn’t able to completely get out sentences, but he actually did explain what happened here. What was that?
Andrew Weissmann
So, I think it’s kind of complicated, but the big picture is, it is standard operating procedure when you have, as part of your case, that, there was a telephone call between Person A and Person B to get telephone records to corroborate that, and also to create an exact timeline. Now here, Rudy Giuliani, as Jackson said, had provided that information about calling Republicans on the Hill. And of course, they called Republicans, because as Rudy Giuliani reportedly said, that was who was going to be able to help them, the Democrats were not trying to keep Donald Trump in power.
And so these are call records that are really standard in, in sort of any case where these phone calls are irrelevant. And so it’s not the content, it’s this number called that number for this duration. And it’s something you can get by a subpoena. Now, there is a wrinkle, because the statute that was relied on does have a sort of a provision about, that the provider is supposed to notify the senator.
Jen Rubin
Provider being the phone company, not the prosecutor.
Andrew Weissmann
Exactly, and so I do have an open issue on that, which is, you know, the provider, I don’t think… I don’t think both providers at issue did notify the senators, I’m not sure why or why not, but I think that’s the reporting. But I also feel like if the prosecutors knew about that provision, that they have to do that, then you wouldn’t ask the court to not to have a non-disclosure if you knew there was a law that said there has to be a disclosure. So, to me, that is the one open issue that I was… took away from that. I want to make sure people understand that that is an open issue that is entirely irrelevant to the issue of being able to get them. I think if there is a provision that Senators were entitled to notice, I’m a big believer in due process, and they should have notice, but they weren’t going to be able to… let’s just… there’s no harm here in the sense that this is something that Jack Smith and his team were entitled to, and any judge would say that. And so, now, I just wanted to flag, though, that there is an open legal issue.
Jen Rubin
Right, right. But to be clear, it wasn’t the content of the records, he wasn’t targeting Republicans, there’s even some question about whether he knew what the numbers were when they went to the providers. So, as you said, it’s neither here nor there, and perhaps, we shouldn’t be giving, a half a million dollars to each senator as a reward for this scheme that they have come up with.
Andrew Weissmann
Can I just say one thing? I think Jack has made it clear that they were not targeting people on the Hill, but it is not clear to me, based on following the facts at the time, that there weren’t people who were complicit on the Hill. In other words, like, let’s not just sugarcoat this and be like, oh, look at all these poor victims, and these are also people, let’s assume some might be complicit, and some were just… they were being leaned on. Well, that meant they were witnesses to what happened, and I didn’t notice a lot of them volunteering. and I’m talking about you, Jim Jordan, the chair of the hearing yesterday, didn’t volunteer his conversations to comply with a subpoena about his conversations. And again, I’m not saying he was complicit, but he also could have been an important witness to what was being said.
Jen Rubin
Absolutely, absolutely. I think the other thing that struck me about, Jack’s testimony was the degree to which these Republicans kind of seemed at a loss when someone wouldn’t play into their game. In other words, they thrive over these conflicts, over these moments, and Jack just absorbed their nonsense, and kind of wouldn’t play ball with them. Now, that might have been frustrating to some of us who wanted to you know, sock it back to Jim Jordan, but that’s just not what he is about. And I think that really came out in the testimony.
Andrew Weissmann
Yeah, I mean, that is, that is not Jack Smith. I mean, that is not his personality. He wasn’t doing this as a sort of performance technique. I mean, he is a calm, serious, measured person who takes serious situations seriously. So, to my mind, is what you see is what you get, but it also, I agree with you. it played well because it also was not sort of hot TV, and I thought that it… I thought it was very useful for the public to be able to see Somebody with that kind of demeanor, almost a judicial demeanor in the way that he was answering everyone’s questions,
Jen Rubin
Absolutely. This is a real prosecutor. This is what one looks like. This is what one sounds like. Last question on this, and then we want to move on to ICE. He also made a comment about the Capitol Police, and about the pardons, that were issued for people who attacked them. That was quite a strong defense, and kind of a nervy statement, that he couldn’t understand why people had been pardoned. Were you surprised he was that candid?
Andrew Weissmann
I’m not. That is Jack, classic Jack. I mean, you have to remember, he has spent his entire career in public service, at the state level, at the federal level, at an international level, he is about public service. When he said the one thing he regrets is not coming to the defense even more, the people who have worked for him and the people who’ve been targeted.
I haven’t asked him this, but I am 100% sure that that is deep in his hear about how he feels about what happened. I thought a particularly low moment in the hearing was the Republican member of Congress who looked at the Capitol Police in the audience and said, what happened on January 6th is your fault. Not only does it… not only is that absurd, because what he’s really saying is, oh, you could have acted to prevent it sooner, but it doesn’t even make any logical sense, because let’s assume that’s correct. You know who could have… you know who was president at the time, who could have acted to prevent this sooner? Donald Trump.
Jen Rubin
Exactly.
Andrew Weissmann
If the point is that more could have been done beforehand, well, that meant Donald Trump could have done more beforehand. And you know what Donald Trump didn’t do? He didn’t do anything while it was happening. He issued a tweet that Jack, I think, correctly said, endangered the sitting Vice President of the United States’ life. And then he had to be cajoled repeatedly and have his arm twisted before he would call off the violence. And so, to me, not only was it a sort of nonsensical position, but so callous when you’re looking at people who are there to protect you. And to me, it was like, there’s no bottom to which, and to which you won’t stoop. I mean, you know, every time you think it can’t get worse. You know, and I… as a friend of mine says, who raised that person? I mean, what parent raised somebody to do that?
Jen Rubin
Unbelievable. And it still goes on to this day. The firings, I mean, the layoffs, the firings of more people connected with the January 6th prosecution continues to dribble on, so they’re gonna find every single person who touched that case. Speaking about new lows, let’s move over to this whistleblower revealed memo, an internal memo within DHS, which essentially says. Fourth Amendment pish posh. We have the right to go into anyone’s home on the theory that because administrative warrants, and it’s a warrant signed by the executive branch, not by a judge, allows us to remove people, well, presto, then we can go into their houses and remove them. This is so absurdly unconstitutional. What was your action, and what do you think is going on over there? Do they believe this crap?
Andrew Weissmann
Well, you know their intent, and you know their view of the law by… by what the whistleblower said about this memo, which was that no one was allowed to sort of get it, and you had to go see it, and then you couldn’t talk about it, and you weren’t allowed to take it with you. And so, that’s not a nor… if it’s a policy that is perfectly legitimate, what’s with the cloak and dagger stuff? And so, to me, that was… again, I’m assuming the whistleblower information is true. Of course, we do have what purports to be the actual memo. But again, let’s assume that’s all accurate.
You know, that on its face about the way it is being disseminated, but not publicly, and not even widely within the organization, so that people could see it, tells you everything, about what their view is about whether this is lawful. Let me just quickly give people a primer on the law . The main thing people need to understand, I’m doing a foot stomp something you said, Jen. There is something called a judicial warrant. That is a normal separate branch of government judge, and in federal court, it’s an Article III judge. They are not part of the executive branch, they’re part of the judicial branch, and they are considered, under the Constitution, a neutral and detached judge. It’s called… the technical term is a neutral and detached magistrate. They’re in a separate branch of government.
And when you say an immigration order, or an immigration, or administrative order. That is happening within the executive branch. That is not outside of the president’s control. And remember, the president has the theory of the unitary executive, so everything that’s happening in the executive his position is, it all reports to me, and I can do what I want. So that is not neutral or detached, or even if it was neutral, it’s certainly not detached, because the president says it’s not detached, it’s all within the unitary executive.
So this memo is saying that we, ICE, can rely on an executive branch decision to go into your home to search. But here’s the law, and it comes from not just one, but I think there’s now three Supreme Court cases that could not be clearer. The Supreme Court has said that in order to, go into a home. to search for someone, who you want to arrest. You have to have a judicial arrest warrant. You could also have a search warrant, but at the very least, you have to have a judicial arrest warrant. That means you have to have gone to court, through the judicial branch, and gotten an arrest warrant based on probable cause. you are not allowed to do it on anything less. And that arrest warrant allows you, if you are the government, solely to go into that person’s home. to arrest that person. You cannot do a wide search. You cannot go into other homes. It is only if you believe that person is home, you can go in and arrest them based on that judicial arrest warrant.
You have to remember, under the Fourth Amendment, the home is the high watermark of what is protected. It is… it is the thing in the Fourth Amendment, if you’re looking for sort of the platonic ideal of what remains about the Fourth Amendment, it is the protection of the home. And so, this is one where, if I were, like, the General Counsel of ICE, and I wanted to think about doing this. I would have to go to court. Before I trotted out this cockamamie theory that’s in violation of a Supreme Court, I would say, okay, well, before we do this, we’re gonna have to go to court and convince a judge that the case law is wrong. and why it is that an immigration judge order should be sufficient, but I’d be like, I have a bar ticket, and I am not advising you or permitting you to do something that is in direct contravention of the Fourth Amendment as interpreted by the Supreme Court. So, I can’t… I know I’m going on and on…
Jen Rubin
This is so fundamental, it’s so obvious. This was the basis, folks, for the Fourth Amendment. You know, the concept, your home is your castle, that’s not just a modern phrase, that goes back hundreds of years in English common law. And oh, by the way, I seem to remember Republicans favoring all of these stand-your-ground laws, because you’re allowed to defend your home with weapons with force. So, what is it? ICE can go in, but if you fear for your life, you could shoot them. I mean, they’re so contradictory, they’re so confused, and when they want to apply the Constitution, you just have to take a step back and say, this is just lawless you know, fascism. They’re just making up rules as they go along.
Andrew Weissmann
Well, and it’s also, when you think about, sort of, I wasn’t a huge Ronald Reagan fan, on a policy level, but one of the, sort of, mantras of, sort of, Reaganism was his saying, the thing you have to fear most is someone saying, I’m from the government, I’m here to help. Which I thought was outrageous, because I thought the government actually is here to help. But the Republican, sort of, doctrine was, to have, and I think there’s some fairness to this, to have a healthy skepticism about the government. This is the opposite of that. This is, ICE can shoot a woman 3 times, you know, including in her head, for, at best, a traffic violation. I mean, it’s… and then, have no… now I think they’re saying there is going to be an investigation, but for a long time it was there’s no investigation, and the President and Vice President were saying that he didn’t do anything wrong. That is anti the sort of Reagan view of the government.
Jen Rubin
Yes.
Andrew Weissmann
Sure, it’s the government can just go into a home. and the executive branch can decide unilaterally without the judiciary, that is exactly what the Fourth Amendment is about, which is that it is not the executive branch that gets to make that determination. You know, we have talked in the past about Youngstown, this famous concurrence by Robert Jackson, but I’m gonna just briefly say, his point is that it’s divided power that assures liberty.
Divided power assures liberty, and this is an example of that, where he’s saying. It is only with these ideas of checks and balances that you can have liberty. Yes, is it inconvenient? Yes, does it make things harder at times for one branch to do what it wants? Exactly, that’s the point. And this is an example of that, now you have the executive branch saying, we get to do whatever we want, and no one can stop us, and we’re actually not even going to let you know we’re doing this unless a whistleblower comes out to reveal that we’re doing something that, on its face. seems to me, to violate a case called Payton, P-A-Y-T-O-N. People can look it up, a Supreme Court case, and it’s all about needing a judicial warrant in order to do this.
Jen Rubin
Absolutely. And again, folks. If Republicans used to stand for anything, it was property rights. Your home is your castle. You don’t have real freedom unless your property is your own and is defended. So all of this is just a descent into fascism. It’s a repudiation, whatever you think of the conservative movement, whatever you think of, as you said, Ronald Reagan. This isn’t that. This is an obliteration of this. And in fact, this is why some of them keep saying we need the Second Amendment, because if government ever tries to do this, we’ll need to arm ourselves. That’s a ridiculous argument, but it shows their perspective. When tyranny shows up, you want to be able to defend yourself. Well, tyranny has showed up, and their attitude is, just cooperate, just go along.
Andrew Weissmann
In fact, it seems to be, and if you speak out, whether you’re Don Lemon, whether you’re the governor of Minnesota, just speaking out subjects you to a criminal investigation. Speaking out if you’re a senator of the United States, leads to that, and to bring it back to our conversation. Just doing your job, as Jack Smith did, leads to the President of the United States directly and explicitly saying he should be prosecuted, and I hope Pam Bondi is listening.
I’m gonna sort of… maybe end with just saying something that is… that is, what the Prime Minister of Canada said now two days ago in Davos, where he really talked about the world order, really having a rupture. And that we are seeing Russia, China, and unbelievably, America, not just acting as superpowers, but acting as superpowers, meaning untethered to the United Nations and the rule of international law, about the rule of domestic law, and he said we have to wake up to it. We can’t pretend it isn’t happening, and we have to not just steal ourselves to it, but we have to be creative to figure out ways that we’re going to deal with this and not put our head in the sand.
It’s a remarkable speech, but for the same way he is reacting on the international stage. what we’re talking about is exactly the same thing at the domestic stage. It’s not like Donald Trump is a different person domestically and internationally. It’s the same, disregard for rules, for law, for anything that, that would interfere with the sort of might makes right view of the world.
Jen Rubin
Absolutely. And, whatever they eventually do, I hope the Senate takes this week, as they’re considering the funding bill, to spend some time, hours, perhaps days on the Senate floor. To educate people, to inform people, to explain why this is so dangerous. Whatever the end result is, they need to take the floor and take the national stage and make these arguments. Thank you as always, Andrew. Always a delight, and I think if we leave this week on one note of hope, it’s Jack Smith’s testimony and his display that, at its best, that’s what the rule of law looks like, and we should hold firm to that ideal.
Andrew Weissmann
You know, he ended his opening statement that way, saying, it’s important to know that the rule of law and democracy is not self-executing, and it takes courage and commitment, and it may come at a cost, and he is living that. But he also is a role model for all of us who care about and love our country.
Jen Rubin
Absolutely, absolutely. Well, thanks again. Have a good weekend. Stay warm from the storm, and I see you… on already, you’re all set, ready to go, and we’ll look forward to talking to you next time.
Andrew Weissmann
Take care.
