Chapter 1: What is the main topic discussed regarding the Epstein files?
Hello and welcome to the Bulwark Podcast. I'm your host, Tim Miller. Delighted to be here with one of our good friends on the day before Thanksgiving. He's a professor of practice at NYU Law School. He was chief of the fraud section, which no longer exists at the DOJ, as well as general counsel of the FBI. He's an MSNBC legal analyst. He has a podcast called Main Justice with Mary McCord.
He has a sub stack called Behind the Headlines. It's Andrew Weissman. Hi, Tim. How are you? He's bescarfed. He is in Paris and he is bescarfed. And I look at you. I'm sorry. I'm sorry. But if I'm Kash Patel, I'm looking at you in this photo right now and I'm thinking, are you a suspect in the Candace Owens situation? She says the French are sending assassins her way. You are in France.
You're in a scarf. Have you been speaking to any Legionnaires?
I was going to make some French joke, but I'm not going to. No, I'm not. But I was very interested that you said that the fraud section doesn't exist anymore. But you didn't say that about the FBI. But I would say, having been the general counsel of the FBI, the FBI that I knew doesn't exist anymore either. Yeah. But yes, all that stuff has gotten dismantled.
See, I just jumped right into substance.
I appreciate that. Well, I've got more chitchat for you. For starters, I just looked at this. I'm going to be in trouble because you're an MS now legal analyst now.
MS now. MS now. Although, you know, did I tell you I came up with my own sort of way to try and deal with this, which is MS now more than ever. No, more than ever. What do you think? Okay. I'm still working on it. I don't know. I'll let it sit with me for a little bit. Just so listeners understand the challenge. You can't change MS now, right? That's what you've got. You got to work with that.
So you got to figure out. That's why I do it. MS now. You could do that. But I think MS now more than ever.
I'm going to sit with it. We'll see what I think. I'll think about it over Thanksgiving dinner.
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Chapter 2: How does Andrew Weissmann view Trump's accusations related to the Epstein files?
No, fuck you. Yeah. Kind of like the notorious B.I.G. in a way of legal, of the legal world. Yeah. So, I mean, as people who listen to me probably know, I really don't like cursing. But this is what I totally hear you. I have not made a decision about what to do. It is completely defamatory. And that I'm confident of.
But this is also one where I think time is also on my side because I know that I'm not in the documents, that there's going to be nothing in there to show that I'm palling around or friends with him or communicated with him in any way, shape, or form. And it's clear that the president has not been told that and knows that's not true. So let's see what happens.
Biggie Weissman. Okay. We'll look at it. I'm on the suing side. I like that. I'm on the suing side, just in case you're wondering. Seriously, do you think I should sue him? Yeah. I'm not a lawyer. But is there a more open and shut defamation case than this? I mean, his team has the files. It's a pretty significant smear to say that you were at a child sex trafficking island.
And it's not just like he said that he did some other smear about you, about how you're a meanie pants or something or how you're whatever.
Scum. I have a whole list. There's a lot of adjectives. Scum and a bad guy.
Yeah.
Yeah, sure. I should be invented.
You're not either of those things either. You're a good guy. You're not scum, but I wouldn't sue over that. I would probably sue over him saying that he says directly, they went to his island many times. I never did. Andrew Weissman. I hear. Yeah.
It's pretty cut and dry. Yeah. And then we have to just figure, do I pick, like, you know, he seems to be bouncing around between the $10 billion and the $1 billion. So I think it's like BBC, maybe because the Brits, he feels like he should be a little bit more restrained. I think it's like a $1 billion figure.
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Chapter 3: What legal implications arise from the dismissal of charges against Comey and Tish James?
Her predecessor, Siebert, was also a Trump-appointed interim. He was the one that resigned because he wouldn't take on the case. And so that means that the cases are dismissed. There are a lot of ins and outs and what have yous, but where are you at? Do you think this is obviously the appeal, but do you think this is basically the end or TBD?
So the judge's decision is consistent with all of the other judges who had had to confront this, which is just a sign that Donald Trump keeps on appointing people as U.S. attorneys who are so unqualified that the judges, after the 120 days, the way the statute works is unqualified. Trump gets the first 120 days. And then after that, the judges get to choose.
Now, in normal circumstances, the judges just go ahead and choose the person who the president chose for the first 120 days, because they're not looking at this from a partisan way or a policy decision. They're just saying, look, it's the person competent and they do the job. And so they almost always do that, but not in this administration. So that's why you have Alina Haba
having been ruled, nope, illegal, and the judges won't appoint her. Same thing would happen, I think, with Lindsey Halligan. So this is happening around the country. That's sort of just to say there's nothing unusual about this decision.
This is totally in keeping with what has happened with this administration trying to avoid a congressional statute, trying to avoid what the Constitution requires, which is that there be Senate approval of U.S. attorneys. What do I think is going to happen? I think that with respect to Letitia James, what they need to do is find a U.S.
attorney, somebody who's official enough and new interim, somebody who is willing to do it. Remember, that might not be so easy in the sense that Eric Seibert, as you pointed out, said no. Apparently, all of the career people in the Eastern District of Virginia are not on the cases because they don't want to do them. And so they have to find somebody.
And with respect to Letitia James, they probably will find somebody. With James Comey, the issue is even if they find somebody, the statute of limitations, the five-year period in which they have to bring charges has run.
Does that mean that it's run? Or but since they'd started it, does it get kind of grandfathered in?
Sure. So that is going to be the litigation. If they find somebody to bring this new case, if they find somebody to do it, which I suspect they will, There will be litigation where Comey will say, in addition to all of his other arguments, vindictive and selective prosecution, et cetera, they will say that the statute ran.
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Chapter 4: What concerns are raised about military personnel and political orders?
Me and James Comey might have that in common.
Yes, he might be lucky. I have to say, I, on a big picture level, not from a James Comey level, because from his perspective, it could be like, I want the case to go away no matter what the reason is. I would like to see the judge's rule on the vindictive and selective prosecution passed. argument. That would get rid of the case. Did that still happen? It's complicated.
This is why lawyers have a bad name because you're just like, can't you just give me like a freaking yes or no? And I think that the answer is mostly unless the case is reinstituted, it's not going to get litigated.
So you kind of want them to reinstitute it so that they can then go back at them over the vindictive prosecution. Yeah.
Well, look, the Letitia James case will be – I think will be brought and she will continue making that argument. And she has a very strong argument. I think her argument in many ways is even stronger than James Comey's argument for vindictive prosecution. There is – I just want to mention something on the government side.
which is there is a statute that says that if you have brought the case within the statute of limitations and a court later says that there's some defect in the indictment and you need to re-indict, that you dismiss the indictment because of that, this congressional statute 3288 says that the government gets six more months
And so I think we're going to hear a lot about that statute and about whether this is the kind of dismissal that triggers that six-month period that would allow James Comey to be properly re-indicted or whether that statute doesn't apply here.
Can we take this at the bigger picture, which is just about how embarrassing this is for them and just like the degree to which they're bad at their efforts at political retribution? I mean, I was saying this to Sarah earlier. Trump has gone a lot further than many people expected in certain areas in this area. I was pretty concerned, and I know you were. Everybody was.
I wasn't fleeing the country concerned, but I was like, there's a lot of things the FBI can do before you even get to an indictment. There's a lot of ways that the Department of Justice can hassle people and make their lives miserable. I didn't think I was at the top of the list. You were ahead of me. I was keeping an eye on you mostly.
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Chapter 5: How does Andrew Weissmann assess the current state of the FBI's investigations?
Yes. I'm glad I answered the rhetorical question, then. I put it in the context of... I don't know. Did you read Liz Cheney's book? It opens with a real call to the concern about the president, Trump, improperly interfering with the military. If you are engaging in a coup, as we know from many international examples, control of the military is everything.
And to me, the idea of saying, I don't want you to speak the truth to the military about what they are entitled to do. For the same reason, by the way, they got rid of the top military. lawyers, the Jags, right? Why would you do that? Again, you don't want independent, impartial people steeped in military justice, which I have a huge amount of respect for, to be giving that kind of advice.
And so I think if your view is might makes right, and you don't believe in principle, and you want to control the military, I think that there are very scary things to worry about.
I agree there are scary things to worry about. I think the question is – and I'm glad we both gave our view because it's worth thinking about and hashing out. Neither option is particularly great. The question is, like, is the Secretary of Defense just –
like a little boy, like play acting secretary of defense with imposter syndrome, just trying to like do a little, you will respect my authority game because he's a man child who is totally in over his head. Is that the person in charge of the military? Not a great picture of the person in charge of the military, but that's my view.
Or are these guys in charge of the military plotting with Trump for, you know, 2027 when who knows what happens? Maybe they might need to ask the military to do unlawful orders. Well, the thing is, it can be both.
You know, in other words, I guess that's true.
Why choose?
Right. I mean, I think that what you're saying about the description could be a completely accurate description. It also is the case that you ask yourself if you're right, that that is the accurate depiction of who we have there. When push comes to shove, will he be an Esper or a Mark Milley?
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