Lawfare Daily: Lies, Laws, and Campaigns

[Intro]

Andrew Weissmann: If you are called to testify before Congress and you lie, that is criminalized. Roger Stone was convicted of that, charged, had a trial, had due process, convicted. But if Congress lies to us, there are no legal ramifications. And, you know, there may, there may be political ramifications, but there's certainly no legal ramifications for that.

Michael Feinberg: It's the Lawfare Podcast. I'm Michael Feinberg, senior editor at Lawfare, here today with Andrew Weissmann, a professor of law at New York University and an individual who held a number of positions in the Department of Justice, both within its headquarters and in the Eastern District of New York.

Andrew Weissmann: The idea is that if you keep your head down and don't do anything, or don't do anything controversial, that's the way to have a long career. I think that, to me, is the challenge for institutions that rely on and need, and just to be clear, the public needs long-term expertise.

[Main Podcast]

Michael Feinberg: Today we're talking about the current state of political discourse in the United States, how our legal ecosystem may inadvertently be promoting falsehoods, and what changes we can make to remedy the problem.

We are here today with Andrew Weissmann, who is an accomplished professor of law at New York University and a well-known commentator on MSNOW for legal and prosecutorial matters. But more important for the purposes of this podcast, has also occupied a wide slate of positions at both the main Justice Department and the FBI.

He worked in the U.S. Attorney's Office for the Eastern District of New York. He worked at Main Justice in the fraud section, and he was also the general counsel of the FBI. So he brings a wide variety of experience to the topics we are going to discuss today. I want to open our conversation with a sort of inquiry about why this book is coming out now, and the answer is a little bit self-evident from the title.

But the problem of politicians lying to the public is really quite evergreen. I think if we go back to Homer, we would find examples of it there, and it's certainly something that any historian of the latter-day United States would be familiar with. So why is this moment of deceit in politics different from those that have occurred in the past?

Andrew Weissmann: Well, one, thank you for having me. You know, when I was at the Bureau and was the general counsel, I used to religiously read Lawfare just, like, every single day, 'cause they just had such a great compilation of people and issues, and it was really smart. And I think it's done a great job of speaking to multiple audiences, both people sort of in the field and then also laypeople.

And if anything, it's gotten better and wider in terms of what it does. So any- that's a long way of saying thank you so much for having me. And it's great having this conversation with you given our FBI overlap in terms of our, our work experience. So the, the book is “Liar's Kingdom,” and so as you're, you're correct and I point out in the book that this is not a unique time.

It's not like we don't have substantial historical examples that we can point to. And, you know, there's obviously Mark Twain, you know, who commented, you know, very famously and quipped about political lies. And so on the one hand, I do think it is a perennial problem, and it's one that I think other times in our history and other countries and civilizations have had to deal with.

Having said that, I don't think in my lifetime that we've had such brazenness about lies and ones that are so readily accepted by an inordinate number of people. So let me just explain really quickly what I mean by that, which is, so one example of, you know, a lie that, that I sort of take throughout this book is the big lie about the 2020 election, that there was material fraud.

I obviously can't cover every lie told by Donald Trump or every politician. The Washington Post cataloged just in the first term that there were 30,000 false or misleading statements. So I didn't want to write a encyclopedia. I wanted to write something that people could read. So I took that as the core lie.

Polling on that, which has been incredibly consistent, are that two-thirds of Republicans believe that, and a third of the electorate believes that lie. And I think part of that is because we are in a substantially different media environment than we have been certainly since Oliver Wendell Holmes talked about sort of the marketplace of ideas.

I mean, he didn't actually use that exact phrase, but that was sort of his, his concept. And because of this balkanization of the media, I think that lies can be much more pernicious and prevalent because the whole concept that they would rub up against the truth and be combated by the truth, and justice is saying you know, the remedy for false speech is true speech, that presupposes that they're going to be heard.

And with our current media environment, which I don't see getting any better, that precondition for a marketplace of ideas is no longer there in the way that it used to be.

Michael Feinberg: Okay, so you mentioned Wendell Holmes' famous, well, his statements, which later got turned into the phrase the marketplace of ideas, and that was in the context of First Amendment jurisprudence.

And your book is very much a dialogue, at least I felt, with traditional conceptions, by which I mean ones that have gained currency in modern court decisions of the First Amendment. And you lay out a proposal that, by your own admission is gonna get some pushback from people who are really wedded to the marketplace of ideas theory.

Can you sort of just give us a brief overview of what your proposed solutions to this problem are? I think by the end of the book, you lay out sort of three variations on a similar theme.

Andrew Weissmann: Yeah. So maybe just turning to sort of the possible solutions at either the federal or state or both level, because this could all happen in either one.

And, you know, to be candid, it's much more likely if it's gonna happen at a state level first, certainly right now, where, you know, we have a, a Congress that doesn't seem to be able to, to, you know, do, do much of anything. So I, I think you can bifurcate sort of the proposals into t- sort of two camps. One is simply criminalizing an intentionally false statement.

You know, I can talk about that ad nauseam. And the other is a disqualification model. And for both of those, I go through sort of what the pros and cons are, what the various precedents that you might have. But those are sort of the two ideas that, one is if you tell an intentional lie of some, in some material way, you could be prosecuted or you could be disqualified as a candidate.

So an example of the latter would be England. England has a law that if you lie about a political opponent, you can be disqualified. To be fair, they don't enforce it all that often, and it may be that they don't have to do it that much, and they're much more judicious about when they do it. And then you have the other, which is to criminalize an intentionally false speech.

And one easy way to think about that in terms of the sort of w- why it would make sense is right now in this country, if you are called to testify before Congress and you lie, that is criminalized. Roger Stone was convicted of that, charged, had a trial, had due process, convicted. But if Congress lies to us, there are no legal ramifications and, you know, there may, there may be political ramifications, but there's certainly no legal ramifications for that.

And that's sort of the main theme of the book, which is why is that and looking at that particular issue

Michael Feinberg: So there's a lot to unpack here 'cause this has a lot of both immediate consequences, but also those of the third and second order category. And we can do it through a largely theoretical model or through sort of pragmatic questions that naturally follow.

I'd like to do both, but let, let's start with the practical ones. You are no stranger by any means to going after politicians and their immediate circle for a wide variety of criminal acts. And your background is primarily as a prosecutor, mine's primarily as an investigator. But we both know, I think, that lies rarely occur by themselves.

They are often attempts to obfuscate other crimes. Or even when they're not, they're usually occurring from the same sorta nexus of facts that lead to other criminal behavior. So I su- I suspect the answer to this is gonna be pretty obvious, but I wanna hear it from you since you have the first-hand experience.

Why is our existing prosecutorial and judicial system not enough to cover the waterfront on these issues? Because if we go after somebody primarily for fraud, primarily for white collar crimes, primarily for process or substantive crimes, like we don't have to implicate First Amendment concerns in a way that your proposals might. So, and I realize this is just sort of me rephrasing our first question, but why do we need to change now?

Andrew Weissmann: So, you know, I think that when it comes to politicians that lie, I'm not sure I agree that, that the lie is one that goes with other prosecutable crimes. I also feel like the reason that we have both civil and criminal laws with respect to false, intentionally false statements, whether it's defamation law, whether it's lying to Congress, whether it's lying to banks, whether it's lying to shareholders, whether it's lying to an FBI agent or a prosecutor, is to have an effect on people's conduct so they think long and hard.

As you know, before an interview, if you, if you and I were doing an interview together, I would start by saying to the person who is being interviewed, usually their lawyer would be there, and I'd introduce all of us, and I'd say, "Before we begin, I wanna make sure you understand both your rights and your obligations."

And when it got to obligations, I would go through, I used to say exactly the same thing to everyone about what is required about telling the truth and what the consequences could be if you do not tell the truth. Now, it could be a little scary for people to hear that, but that wasn't really the point.

It was to make sure they understood what they were getting into. And ideally, for the, the ... there's like a bell curve of people. There are those people who are gonna tell the truth no matter what, and there probably are those people who are gonna lie no matter what. But you wa- the whole point of having some either criminal or civil strictures is to, for those people who will change their behavior based on knowing what the law is.

Think of speeding in a car and seeing a, you know, seeing a police car as you're driving by, you slow down. And so I think there's an important effect of having a law where people think twice before they say something to make sure that it is accurate. This is something that, you know, you and I are sort of still relatively new to sort of the public speaking, quasi-journalist role that we Take in that, you know, b- you and I both now comment and give, give our analysis on things and, and are very much exposed to people who are real journalists on a day in and day out basis.

And as you know, there's standards departments in, for journal- for any reputable journalism organization to make sure that what is being said is accurate and sourced, but also they are concerned about making sure there isn't a, a defamation lawsuit. And to me, if you do not have that, the, the, you know, for the, the bad actor and the people who could be persuaded, you are saying, "Well, you know what? There really isn't... There, there may be a, a political deterrent, and that may be less and less. And by the way, it may come after you've already won the election. And so, you know, you, you, you may get the benefits of your lie. But you wanna have that deterrent at the time so that they are that squashed because we're owed, we're owed that as the people who these people are gonna represent."

Michael Feinberg: Yeah. What you're actually talking about is very similar to the change in footing the FBI took while we were both there, where it went from investigating things almost entirely after the fact to where it really became an organization that was based on preventing harm in the first place. And I think what you're getting at is that in today's sort of what you described as a skewed marketplace because of the balkanization of media and the myriad voices proliferating, our legal regime has to be more focused on preventing the lies from circulating in the first place because once they're in the ether, they're out of control, versus going after somebody after the fact.

Andrew Weissmann: Much better said than, than, a much, much better and much faster. So...

Michael Feinberg: Well, it's something we've both been thinking about since roughly 2016, I suspect. Yes. So all right. So there's, I- I'm curious about this though, because what you are talking about is, it's an imposition, I, I, I think it's a, a pretty modest one, but it does require a reconceptualization of the First Amendment.

And we live in a world, and this speaks to your comments about balkanization, we live in a world where an airhead who happens to have a "We the People" tattoo is given as much credibility as John Hart Ely or Erwin Chemerinsky when it comes to expounding on the Constitution. So I'm gonna give you a softball and just ask you to defend why is this imposition, which some people will no doubt view as very extreme, actually not that out of the main discourse of American history?

Andrew Weissmann: So I don't think that it's a reconceptualization of the First Amendment. So the marketplace of ideas, the, the entire way it sort of came into being and was used came up in the context of opinion and not something that was a hard fact. So there is no such thing as a false opinion. In other words, I think that there should be more focus on immigration.

I think there should be less focus on immigration. I think there should be more focus on fentanyl. I think there should be less focus on fentanyl. Those are all opinions. Or I think that the Constitution validly can be viewed as including a woman's right to choose. I disagree. I think that it's, doesn't include that.

All of those are opinions, and those are ones where you can ima- that you can completely imagine, and I think correctly, that there is a marketplace of ideas and, and people have that discussion, and we have a problem in terms of how that marketplace is functioning. But nothing about what I am saying is in, is restricting that in any way, shape, or form.

I'm talking about something that's a cold, hard fact. So one of the examples I give is if there is gravity in the world, that is not something that is subject to a marketplace of ideas. Or my father was a scientist, and there are certain things that are cures. There ob- there's objective data for that, and you're not gonna subject to, to the, a marketplace of ideas something that is actually objectively verifiable.

And the Supreme Court has said that, the Supreme Court has said that false statements in and of themselves are not protected. Now, there's there's various justices who have various embroideries on that, but the idea that false statements themselves are protected is something that is now a truism.

That's why, Michael, that you can have false statements to Congress are criminalized. False statements about election workers in Georgia are subject to civil laws. If you defame E. Jean Carroll, you can be sued successfully and be required to pay tens of millions of dollars. If you lie to Congress and if you lie to banks, et cetera, et cetera.

All of that, no one says, "Wait a second, the First Amendment protects it." And so my extension is about the question, why are we exempting politicians from that? As opposed to saying, "Wait a second, isn't that a total reconceptualizing of the First Amendment?" I would argue it's not. It's a question of what are the upsides and downsides of applying it in this other context?

Michael Feinberg: Okay, so let me ask– for the record, I agree with everything you're saying. But I wouldn't be doing my job if I didn't throw some provocations out there.

Andrew Weissmann: Oh, great. Totally, totally love it. By the way, I should tell you, I went to, I did a bit of a book tour in L- in London, and some of the best, smartest, most provocative questions I got were from various British interlocutors. And it's, you know, as y- as you, as I know you appreciate, it makes it more fun and more interesting.

Michael Feinberg: 100%. All right. So my first question is Are we at a point where we as a society agree enough on what a fact is, full stop, for this to be workable? And I, I'm gonna be a little bit unfair and pull a somewhat obscure example.

You mentioned gravity as being a fact, but we live in a world where less than a few decades ago, a professor was able to write an article in a journal called Social Text where he argued that gravity was a social construct. This was widely known as the Sokal affair after the author Alan Sokal, and his point was that even in a peer-reviewed system, there were ways to get through the gatekeepers and make something patently insane sound true.

Andrew Weissmann: So, you know, the answer to that, this is where I would say the practical side of me comes in having, you know, just practiced law for so long. I think the answer to that is If the government couldn't prove that what the, the statement is both false and intentionally so, this doesn't apply. And what you're saying is there may be issues, factual issues, where the person can say, "That's not even a false statement."

So opinions, of course, are never gonna be covered because they're not a false statement. And even if you could show that it's false, you'd have to show it's intentionally false. So in your example, you may be able to show and convince a jury, let's say, beyond a reasonable doubt that it's false because there is gravity, but they then would have to assess whether it was intentionally so.

And by the way, that's what we do now. Th- just think about defamation law, where if you defame a public figure, it's, it's not enough for the plaintiff to say that what they said about me is wrong. You have to show that it was said with actual malice, which is a, a mental state that's required. And so that's all that would happen here.

And so the more that the, the fact is not a is not actually, you know, universally agreed on and the, the easier it would be. Having been a defense lawyer I would know this, but you know this too just as having been an FBI agent, 'cause you think about what are the defenses gonna be. And so I think that's the answer to, to that issue.

Michael Feinberg: Okay. Now, I'm guessing you started writing this book some time ago, if, if not an incredibly long time. Like, books gestate, the ideas come. You mention a conversation with your parents that sort of forms the seed for this one. And in the interim between what I assume was the beginning of this project and now its publication, we've seen a real uptick at least in the federal level, of what I think most people would not have a problem saying are selective and vindictive prosecutions.

Do you have any concerns that promulgating this sort of regime now would give more easily reachable ammunition to those who do wanna weaponize federal prosecutions?

Andrew Weissmann: So I address that towards the end as sort of one of the key downsides is, is this gonna lie around like a Chekhov gun that somebody can use-

Michael Feinberg: Which just for those in the audience who do not love Russian literature apparently the way we do, Chekhov's law is if you show a gun in act one, it has to go off in act three.

Andrew Weissmann: And, and it creates tension because it's like there and, you know, you're sort of, you know, as an audience member you're like, you- you're sort of waiting for it. So I'm not gonna get, I, I actually address that in detail, but let me just give you sort of the high level of where I am on that. There's so many weapons that are, exist right now.

It is true that this could be a potential new one, but I think that, that when I'm assessing the pluses and minuses I think it depends on where you think we are in this country and how much of a crisis you think we're in. And even for people who are not sold on this i- on my idea or I, I just wrote something for the Times about these, a, a way to quell vindictive prosecutions, which by the way, I think you would like because it's, it, I think it appe- it should actually appeal to everyone.

But in any event, I think that if you think that we're in a, a sort of fundamental crisis as opposed to just a pendulum swing and don't worry, people will learn and we won't get back here anytime soon, I, I think that that will dictate how you view this. But I do think no matter where you are in my idea, I think it's really important that we think about structures, and you will like this phrase 'cause I think it sort of goes to our, our upbringing at the FBI, which is how do you harden the target?

That's a phrase that is used in the intelligence community very much to say how do you make a target you wanna protect harder to infiltrate, whether you're talking about cyber attacks, whether you're talking about spying by foreign adversaries, whether you're talking about terrorism, you know, physical terrorism. How do you harden the target? Here, that being our democracy against authoritarian tactics and tendencies in people.

Michael Feinberg: Yeah, I think that makes sense, and I don't want to belabor the point because I think you and I are on the same page about where we are on that spectrum now and what level of alarm people, if not emoting about, should at least be considering in their own mind.

But it's important to note, I think, while the problem may have reached an inflection point in the United States, this is, as we've said before, not a new concern and you are not the first thinker to write about it. What you're talking about is the first argument I'm aware of to justify politicians or rulers lying to their people is the allegory of the cave in Plato, which for those who don't know, essentially imagine The polity is living in a cave with limited light, and all they can see on the wall of the cave are shadows of the real world.

It is the job of the ruler to be an intermediary and interpret those signs for the citizenry. They should not be allowed to have first-hand access to the actual truth outside of that sort of moderating force. To really reach for an analogy, you know, it's sort of the difference between the early church and the justification by faith alone of Protestantism.

Like, should you be allowed to know the divine truth without intercession from an appointed body?

Andrew Weissmann: You know, this is great. Do you know, this is really... I, I studied in a college, on a fellowship after college 17th century theology. Mm-hmm. And very focused on sort of Puritanism, Catholicism, a version of Protestantism that was aligned with Cartesianism.

People are probably, like, going, "What the hell is going on?" But I, I think just to bring it back to this issue of the role of political leaders, and it goes to something we were just briefly chatting about before we started, which is there is the Plato model, and one of the thinkers that I reference in my introduction, which is, you know-

Michael Feinberg: And this is what I wanna get to, yeah

Andrew Weissmann: Yeah, is, my introduction, by the way, is extremely personal. Like, it is, for people who, like, you know, people who don't like me Don't read the introduction. Yeah. But it's a very personal story, which, it's funny, when I was on with Nicole Wallace, I knew she would go right to th- those issues, 'cause I never talk about that stuff on air.

And so I knew she would be, like, really fascinated by it. But I talk about Karl Popper, who was not a fan of Plato, or at least in th- in the sense, in the area where, which you have raised and in terms of the role of the citizen and the individual and what's owed to them and the role that they should play vis-a-vis sort of the, sort of political leaders.

Michael Feinberg: Yeah, and I mean, that's sort of what I wanna get to, because- I don't think it's a coincidence that Popper came of intellectual age during the '30s and '40s and was part of that intelligentsia generation that really grew up, if I'm getting my f- if I'm not misremembering things, like he was somebody who was very much part of the intellectual ferment that begins with the decline and fall of the Austria-Hungarian Empire, the Habsburgs, and leads to this just absolute flowering of, you know, social sciences and humanities and literature and art that comes to a crashing halt with the rise of fascism in Europe in the '30s.

And that's the background against which he's writing. And I'm wondering if in alluding to him in your book, you are making an implicit comparison to a precipice we may be standing on now

Andrew Weissmann: Absolutely. That, that is, that is 100% what I was thinking about, and I, I think I make that fairly clear when I talk about my father's history.

He was born in 1930 in Vienna, and h- my grandparents, his parents, were part of that intelligentsia. My grandfather, his father, was a doctor at the university there and was very much in denial about what was going on and thinking, It w- it's a little bit like the way I think about New York now, which is, you know, couldn't happen here because, you know, look how sophisticated people are, and cultured, and also relatively tolerant as a community at the time.

And as a result of that, my grandparents did not leave Austria when they should have, and instead they managed to leave in 1938, which for some people listening to this are gonna go, "That's, that's late," because it was after the borders closed. And so, you know, my, I start the book with a conversation with my parents where my father directly alludes to that period in history when we are having this conversation about McCarthyism, about Trump's first term, and he is relating what he, h- his experience.

Michael Feinberg: So y- I just wanna interject with one thing, which is there are inevitably gonna be people who hear this, having not been familiar with Karl Popper beforehand, that are gonna jump to the assumption he's some sort of creature of the left. So I'm, I'm going to point out that Karl Popper has three targets in his work, the open Society and his enemies and its enemies.

And the latter two are Hegel and Marx. This is not, this is not somebody who is an ideologue for any side, but rather genuinely interested in freedom of thought and what allows for a flourishing society. I k- I kinda wanna pursue this Karl Popper thought by bringing in another thinker who you don't extensively talk about, but you do quote, and that's Hannah Arendt. And Hannah Arendt and Karl Popper both come out of the same sort of intellectual environment.

But after the war, Hannah Arendt has a very different approach to those who enable totalitarianism than a lot of other thinkers of her ilk. She writes extensively on it. Her book “The Origins of Totalitarianism” is sort of a gold standard of sociology for authoritarianism and, and its creation and ascension.

I think a lot of people disagree with some of its assumptions and conclusions now, but it's, it's not a polemic. It's an actual academic work that attempts to figure out how do these things happen. But at the same time, she's remarkably forgiving of many of the people who enable it I'm thinking in particular she had an on-again, off-again love affair with Martin Heidegger.

I was gonna make some pun about wearing his fascism on his sleeve, except he very much actually does. I mean, he's a member of the Nazi Party who helps, right, jettison Jewish intellectuals from the various universities, I think Heidelberg or Gottingen, where he's working throughout the war. And, and I wanna ask you as a veteran of the FBI and a veteran of the DOJ, there are certainly explicit bad actors who are enabling the weaponization of the legal system.

There are the opposite. There are people who left or got fired out of a refusal to do so. Right. But there's also a wide swath in between of careerists who maybe are trying to keep their head do- heads down, maybe are working on things that in and of themselves are unobjectionable, or maybe just think that their work is apolitical and not connected.

And I just wanna get your point of view, 'cause it's something I've been puzzling over a lot with many of my friends and former colleagues about if you believe that the Justice Department has been corrupted, what do we do once this is done? The, the explicitly bad actors are an easy question. Right. What do we do or how do we approach careerists who allowed the machine to continue running but they themselves were not malefactors?

Andrew Weissmann: So let me give you my take. And obviously, again, there's, there's different categories. The people who are being, actually being asked to do things that are illegal or unethical, viol,  you know, we've seen so many. Illegal's an easy category. Unethical is the category of not obeying your duty to the court in terms of candor.

And, you know, we've seen examples of, of that that judges of all stripes have called out. And, and so that group fall into the sort of complicity group. And I, maybe unlike Hannah Arendt, I view those people as particularly problematic because there are always going to be truly bad actors. You will have l- political leaders who are corrupt.

Donald Trump, in my view, is not the first, and he is not the last. I've worked on the Enron case. The leaders of Enron were convicted, but the story of Enron is not about them. The r- if you want, the lesson of Enron is the complicity of those people who knew what was going on or closed their eyes to what was, what was going on.

And so within DOJ, those people may not have criminal liability, but I think that they, they do need to be removed. And obviously, I think there should be due process, and I think they should be, have a chance to be heard. And if they, you know, if you can't show they did anything wrong, then that's so be it.

But I think for people who, let's just take my, my office in the Eastern District of New York, where I grew up. You know, let's say you're dealing with somebody who's been there for a year or two. They're doing their narcotics cases, which is sort of a typical sort of training ground, and it's all business as usual in terms of what is in front of them.

And those people are thinking, "Well, I wanted to be a prosecutor. I don't-- I'm not in any way doing anything wrong. I'm not a- being asked to do anything wrong. I wouldn't, if asked, do something wrong. And these people are, I think, are who I'm prosecuting. Or these are righteous cases, and y- and, and I am modeling good behavior."

So, I don't have a view that those people should leave now because they can't be part of that system. I think it's better for them to be there for a whole variety of reasons, and I don't think anything should happen to them later. And also, they're, in many ways they're victims having to even think about this.

It's like not sort of part of the job. In the same way I want the same thing to be true with FBI agents and analysts and staff, and there may be even more so because of its, the national security mission. I wanna make sure that we have the very, very best people there now to keep people safe. It's, that's sort of a paramount importance.

It's funny, I don't think the issue of like rebuilding DOJ, rebuilding the FBI, I don't see That is being the hardest issue. I think the FBI is going to be harder than DOJ, and I'd be really interested in your view on this. And the, but I think DOJ is going to be relatively easy to build its reputation back and to model it, and I think there's various things they can do.

The FBI, I think, is harder because people go there for their career. And if you now have to think every four years, you know, we could have another Donald Trump, we could have no protection the old saying of, which is I think not just unique to the FBI, which is you know, big cases, big problems, little cases, little problems, no cases, no problems.

The idea is that if you keep your head down and don't do anything or don't do anything controversial, that's the way to have a long career. I think that, to me, is the challenge for institutions that rely on and need, and just to be clear, the public needs long-term expertise.

Michael Feinberg: Yeah, I think I've got two things in response to that.

I remember after the 2016 election, right around the time of the Muslim ban I've always considered myself somebody on the center right, if not explicitly right, and a number of my friends very much on the left asked me how I could stay in a government that was promulgating a policy like that, and my response was pretty simple, which is just because we have domestic disagreements right now does not mean that the Ministry of State Security from China or the Russian SVR are not doing everything they can to undermine U.S. national security.

And that's ultimately gonna bounce back on the citizens, including the ones who voted against Trump, and I have a moral obligation to stay and try and stop them. But I, but I think you hit on another point which a lot of people on the outside don't understand, which is one can very easily and very frequently, as I believe you yourself have done, leave and come back, and leave and come back to the Department of Justice.

It's- Right ... not only easy, it's something that's almost expected. There are very few people who start as a line AUSA and spend their entire career at DOJ steadily rising the ranks. What is far more common, you do a couple years as an AUSA, maybe you become chief or deputy chief of a section within your US attorney's office.

You go to the white shoe firm world for a couple years. Maybe you come back as a higher position at the U.S. attorney's office or Main Justice. Maybe you leave again, and then maybe you come back as a political appointee. When I was in law school, I suspect it was the same as when you were in law school, that was actually sort of the dream progression of 75%, if not more, of the people who wanted to go into some sort of public service The FBI is emphatically not like that by design, people do not leave, get other experiences, and come back.

And, you know, I've been asked, "If there's a change of an administration, would you go back to the FBI?" And my answer is maybe, maybe not, but I can't. Because the fact is, under FBI policy, if you leave for more than two years and you wanna come back, you have to go through the FBI Academy again in its entirety, and you have to start again as a line level investigator.

I'm quite sure my wife and child would not allow me to disappear for 21 weeks. I'm quite sure that my body-

Andrew Weissmann: I think that Kash Patel, didn't Kash Patel cut it down to?

Michael Feinberg: For primary law enforcement supposedly. I also don't think my body pushing 50 could take three days a week of hand-to-hand combat. But as a result of that sort of non-permeable border with the private sector, the FBI has a culture which is incredibly difficult to change.

And my biggest worry is that we are gonna have a core of agents who came in starting in January of 2025 up to, you know, four years from now, and they're gonna be accultured to an FBI that they have never known as apolitical And extirpating that kind of thought, I think is gonna be infinitely harder than people realize

Andrew Weissmann: Yeah. I, I, and I think, I think that's true. I think what I said is true in terms of recruiting. I just think, you know, that's where going back to my theme of thinking about systemic issues, civil service rules are, you know, gravely, gravely under attack. They don't even apply to the Bureau, and the, the n- need for us to think our way out of this problem and for people to understand...

Like, I, I know it doesn't sound very sexy to be like, you know, politicians need to run on the civil service, but it's true. I mean, there's a reason for the civil service, is that we lived in a system of the spoils system for an incredibly long time, and that is not healthy. This is one where it presupposes an engaged electorate and an engaged Congress to deal with this.

But th- to, that to me is the only real way to solve the sort of FBI issue, which by the way, we're dealing with the FBI because we were both there, but it's the same issue in many, many other agencies where these are... This is where people spend their career, and they had previously been trained to be completely apolitical.

I mean, I remember, Michael, when I went from... I'd worked for, in the department for years and years and years, and the first time I worked for Director Mueller was as his special counsel for six months, and then I came back as the general counsel. And It is, it was so palpable how independent and fact-based the FBI was and how proud it was of that, that it was in Washington, but it just kept its head down on all of those issues.

I mean, Director Mueller would be asked to weigh in on various policy issues or like a new law was being proposed or to testify in support of some new administration law enforcement position, and he was like the, not doing it. I mean, his view was that the F- it was so important for the FBI to have integrity for everybody, Republican, Democrat, Independent, so that they kept itself out of those debates.

Michael Feinberg: Yeah, I remember midway through my career when I wasn't quite a senior executive, I also wasn't a field agent. I was what the FBI in its overly complicated vocabulary would call a senior leader, dealing with a particularly thorny counterintelligence problem that had a very easy legislative fix. We weren't gonna propose it.

It, it just, it wasn't viewed as our place. There is a political appointee at the Department of Justice. Department of Justice has an office of legislative affairs, and if the administration wants to speak, it will be p- through people who do not carry guns. There was just There is something deeply ingrained in the American spirit that if you had the power to use force against the public in certain circumstances, you had an obligation to be a sort of gray man.

Don't wear your feelings or your ideologies on your sleeve. You have to be the epitome of apolitical so that when you do have to do something extreme to protect other people, nobody's gonna second guess your judgments. And I and the loss of that trust is something that does still keep me up at night.

Andrew Weissmann: To me, that is, you know, when you said that you and I are, probably have exactly the same view about where we are on the spectrum of, you know, hair on fire versus pendulum swinging. You know, the story after story of what is happening in the judicial system is so abnormal under... And both of us have worked in, you know, for different administrations, and it's just, it just isn't anything that happens.

You, you, you don't see mass firings or even, or people quitting over being asked to do things that are improper in, in any administration other than now.

Michael Feinberg: Yeah, this is the Saturday Night Massacre, except it's lasting 18 months with no signs of slowing down. And I think on that slightly pessimistic note, being respectful of your time, we will leave things, but I, I would unhesitatingly recommend your book for anybody who wants to try and understand what solutions to the problem of fraud in politics, by which I mean colloquially speaking, lying in politics, might be out there that haven't previously been on the table in this country.

And I think the set of circumstances we're in right now is sort of exactly the right moment to start examining those options.

Andrew Weissmann: Well, thank you so much for having me. Great discussion.

Michael Feinberg: Thanks for coming here.

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