Short Take: Mueller’s “Reprehensible” Pit Bull

Eastern District of New York Judge Charles Sifton was a soft-spoken guy, not prone to emotionalism or hyperbole, and razor sharp. For him to have named names is, well, serious. Yet he did.

AUSA Weissmann’s myopic withholding of information must also be viewed in the same context: while reprehensible and subject, perhaps, to appropriate disciplinary measures, it does not begin to approach the level of uncivilized and indecent behavior that would necessitate the extraordinary relief which defendants seek.

The defendants of whom Judge Sifton wrote were soldiers in the Colombo mob. Bad dudes. Bad enough that AUSA Andrew Weissmann’s concealment of Brady material, reprehensible though it was, wasn’t bad enough to cut killers free. A new trial was sufficient. It was, however, bad enough to name Weissmann in the decision, something that almost never happens.

That was in 1997. So what’s become of Andrew Weissmann? Summarily fired from the EDNY United States Attorney’s office? Disbarred? Humiliated? Disgraced for his reprehensible Brady violation? Have you been paying attention?

Described by the New York Times as Mueller’s ‘pitbull,’ Andrew Weissmann, a former Eastern District of New York Assistant U.S. Attorney, rose through the ranks to eventually become Mueller’s general counsel at the F.B.I.

In 2015 Weissmann was selected to run the Department of Justice’s criminal fraud section and was later handpicked by Mueller to join the ongoing Special Counsel’s Office investigation into the alleged obstruction and alleged collusion between Trump’s 2016 presidential campaign and Russia.

You may wonder how it’s possible that Weissmann not only survived Sifton’s condemnation, but ended up rewarded for it. His United States Attorney, Zach Carter, took up his cause.

Powerful allies came to his defense. In fact, then U.S. Attorney Eastern District of New York Zachary Carter fought to remove Weissmann’s name from the memorandum and order. Carter wrote a letter to Judge Sifton on Feb. 21, 1997, “to request that you amend your memorandum and order dated Feb.18, 1997 in the above-captioned case to delete the name of AUSA Andrew Weissmann from the sentence which it appears on page 46 of the opinion.”

Carter went on to say, “while the court has determined that the failure to make the disclosure was an error, the nondisclosure cannot fairly be characterized as the kind of egregious misconduct that warrants castigating an attorney by name in a published judicial opinion.”

If you are mistakenly arrested for some heinous offense, you might get to see your name on the front page of the New York Post. Assistant United States Attorneys, however, don’t get “castigated.” That’s just not the way propriety works in the legal system, and so Judge Sifton reissued his opinion with a certain deletion.

But dodging that bullet didn’t make Weissmann a more circumspect prosecutor.

Civil rights and criminal defense attorney David Schoen, was the lawyer who reported Weissmann. Schoen met with Inspector General Michael Horowitz and several FBI officials to discuss Weismann in 2015. Schoen, who says he has never been a member of a political party, told this reporter his concerns about Weissmann do not stem from politics but from Weissmann’s ‘egregious’ actions in previous cases. He became involved in Colombo crime cases more than 20 years ago after evidence revealed that the prosecution withheld exculpatory evidence in the case.

Schoen said he decided to revisit the case based on new witness information and “recent evidence that has come to light in the last several months.”

Notably, the Second Circuit held that Weissmann’s withholding of Brady wasn’t cause for reversal, not because he didn’t do it but because it wasn’t sufficiently “material.” Of course, every mob killer thereafter walked based on that information. Materiality is in the eye of the beholder, and the circuit’s notion of what juries will do seems not to comport well with what juries actually do. But that’s neither here nor there.

As has become the tribal norm, Robert Mueller has been held up as beyond reproach, his integrity intact. Some might argue that while he’s a straight shooter, he’s aimed poorly at times. But holding up Mueller’s pedestal are prosecutors like Weissmann. He may be tough. He may be smart.

But Judge Sifton called his conduct “reprehensible,” and instead of spending the rest of his days putting sprinkles on cones at Dairy Queen, he’s Mueller’s “pit bull.” No wonder pit bulls have such a lousy reputation, except they, unlike Weissmann, don’t deserve it.


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11 thoughts on “Short Take: Mueller’s “Reprehensible” Pit Bull

  1. PseudonymousKid

    Dear Papa,

    Thankfully Judge Sifton relented and did the noble, genteel thing for our grand profession. A corrupt POS gets rewarded while private attorneys get fucked by the bar for far, far less. Political connections are priceless.

    Think of how uncomfortable it would have been to leave Weissmann’s name in the opinion. I’m glad we avoided the unpleasantness. Oh my.

    Best,
    PK

      1. PseudonymousKid

        No. They do not deserve to be insulated from being singled out like every other attorney and judge for misconduct, if that’s the sort of accommodation you’re asking about. Prosecutors are at the same bar as the rest of us. If anything, they ought to be scrutinized more for the power they wield is dangerous if abused.

          1. PseudonymousKid

            I’m only talking about unethical conduct. Judge Sifton demurred on the topic with “perhaps.” Why does the bar suffer the “reprehensible” when the judiciary didn’t bat an eye?* Even then, Judge Sifton missed his own opportunity to police the attorneys’ conduct before him. One reprehensible Brady violation might not be uncivilized, but one thousand may be. A career is preserved at a deep cost to the rest of us.

            If these “best and brightest” must resort to unethical conduct to be so, then maybe an average, honest attorney will do.

            *I’m assuming the bar did not discipline Weissmann from nothing more than the context of your post.

            1. PseudonymousKid

              Yep. Too young for that. I’ve got some history to read, I suppose.

              It’s one thing now to say that prosecutors are subject to the same standards, it’s entirely another to actually police their conduct. We don’t need gunslingers out there thinking they can get away with anything in the name of justice.

            2. Jim Majkowski

              No reply link to the replies to this comment, which is where I wanted to put it, so I’m putting it here:

              No one’s old enough to remember Robert Jackson’s 12/1/1940 address, though some of us have read it.

              “The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”

              Unfortunately, as he himself stated, it’s a lesson which needs to be learned early. Then again, maybe the DoJ doesn’t embrace Mr. Jackson’s ideal.

      2. M. Kase

        I thought that was what the power, insulation from getting canned for incompetence, retirement, and dental bennies were for

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