Andrew Weissmann

- A former president is indicted for the first time in US history.

This week on "Firing Line".

An unprecedented moment in a Manhattan courtroom and in our nation's history.

As former president and current presidential candidate, Donald Trump, is charged with 34 felonies over hush money payments to adult film actress, Stormy Daniels.

- The defendant repeatedly made false statements on New York business records.

The evidence will show that he did so to cover up crimes relating to the 2016 election.

- The only crime that I have committed is to fearlessly defend our nation from those who seek to destroy it.

- [Margaret Hoover] Trump also faces possible indictment in three other federal and state criminal investigations.

- [Donald Trump] I just wanna find 11,780 votes.

- [Margaret Hoover] It's a legal saga that will unfold throughout the presidential campaign, election, and beyond.

- [Trump Supporters] Four more years, four more years.

- [Margaret Hoover] Longtime federal prosecutor, Andrew Weissmann, who served as a lead prosecutor for Special Counsel Robert Mueller breaks it all down.

- Remember, it's not just a prosecutor who makes the decision, jurors have to find that there's proof beyond a reasonable doubt and they have to be unanimous.

- [Margaret Hoover] How strong is the Manhattan DA's case?

Will it help or hurt the other investigations?

And what does this mean for our justice system?

What does former federal prosecutor, Andrew Weissmann, say now?

- [Announcer] "Firing Line" with Margaret Hoover is made possible in part by Robert Granieri, Charles R Schwab, The Fairweather Foundation, The Margaret and Daniel Loeb Foundation, The Asness Family Foundation, Jeffrey and Lisa Bewkes, Peter and Mary Kalikow, and by Craig Newmark Philanthropies, The Rosalind P Walter Foundation, Damon Button, The Center for the Study of the International Economy, Inc., The Pritzker Military Foundation on behalf of The Pritzker Military Museum and Library, and The Mark Haas Foundation.

Corporate funding is provided by Stevens Inc. - Andrew Weissmann, welcome to "Firing Line".

- Nice to be here.

- As former President Trump was entering the courthouse in Lower Manhattan, you said it was both "sad to see "and also affirming of the criminal justice system."

Why?

- It, there's no question it's sad to see the debasing of the White House, that you had somebody who committed these alleged crimes in the White House.

When you read the charges, the actual payments were being made while he was President of the United States.

And that to me was the part that's affirming of the rule of law where you say to yourself, you know what, it doesn't matter if you are dealing drugs on the street in New York City, you can be held to account, and if you are committing crimes in the White House, you can be held to account.

- The process has not been immune from politics.

"The Wall Street Journal" editorial page opined, "Doubting whether this case would have been brought "against any defendant not named Donald Trump."

What's your response?

- I think the way I think about that is one, does the prosecutor have the proof?

But I think there's even more than that because it's not enough that you can prove this to a jury beyond a reasonable doubt.

It also has to be for a crime that is sort of routinely prosecuted, that you haven't picked some arcane crime to single out this particular person.

So, I think people will have to make up their own minds.

I think Alvin Bragg yesterday went a little bit on his press conference to try and address that issue by saying the kinds of charges that were brought here are sort of bread and butter charges in New York.

And so he was trying to say, you know, this is us applying the rule of law because we would do this regardless of whether the person's name was Trump or not.

- What is the best outcome for this case?

- You know, with all due respect, that's not for you or for me.

At the end of that process, whatever the jury decides that is the result.

Whether it's an acquittal or it's conviction, if you believe in the rule of law, then you're all in for that.

- Manhattan District Attorney Alvin Bragg charged Trump with 34 felony counts of falsifying business records in the state of New York.

The charges listed in the indictment all relate to the $130,000 hush money payment made to Stormy Daniels by Trump's former attorney, Michael Cohen.

But Bragg also issued an accompanying document, a statement of facts that details a much broader array of events that include payments by American Media Inc, the former publisher of "National Enquirer" to Playboy model Karen McDougal who says that she had an affair with Trump.

Why did District Attorney Bragg not include any of the additional details in the indictment?

- So that's a really interesting thing that's a peculiarity of New York law.

In the federal system, all of this would've been in one document, very, very lengthy document that tells a really lengthy story and at the end of it, there are the charges.

Well, here it's basically split in two.

You have sort of the story of what happened and then you have a charging instrument, which is the indictment.

So, that's why you sort of have these two separate pieces but they obviously are gonna be read together.

- Indictments aren't static.

Is there a chance there could be more charges in the future?

- Yes.

So, you know, pure speculation, but maybe educated speculation.

I was interested in sort of two things that happened at the arraignment yesterday, which have to do with scheduling.

So, neither side was particularly interested in a speedy resolution.

The next court appearance is in December.

When I have been in that situation and I am pursuing other investigative avenues that may or may not come to fruition but I want some time to see if I can make that case and then add them in.

The fact that the case has sort of kicked down the road a bit is useful because I'm thinking, okay, well the next court appearance is in December.

I have bought myself a little bit of time to see what's going on.

- What would additional charges be?

- So, there we actually have at least a bit of a roadmap.

It doesn't mean that they will, this will happen.

But Letitia James, who is the Attorney General in New York brought a very detailed civil case, not a criminal case, but a civil case against Donald Trump, the Trump Organization, various family members alleging fraud and it was an incredibly detailed scheme about essentially inflating your assets when you're going to banks and seeking, wanting to get loans because the the banks like to see that you have lots of assets but when it came time to deal with the tax authorities where you don't wanna pay taxes suddenly there's assets are devalued and you have a lot of debt on your books.

And so that is basically the, you know, the sort of nutshell of what the scheme is and then Letitia James in her complaint details it in all sorts of ways.

- So you think his business practices are on the table?

- I think they could very well be something that is still under investigation.

- In New York, falsifying a business record is a misdemeanor but it can be raised to a felony charge if the falsified records are intended to further or conceal another crime.

Now, Trump was charged with 34 felony counts, not 34 misdemeanors.

DA Bragg did give some context in his press conference for what the underlying crimes appear to be.

And they fall, it seems to be in three categories, federal campaign finance violations, state campaign finance violations, and then state tax fraud.

- Yes, there was one possible other one where he referred to AMI false business filings and that, it's unclear, but that may be one.

- Is tax fraud the strongest argument for the prosecution?

- I think that the AMI filing and the tax fraud are potentially the strongest.

And that's because the campaign finance charges or you know, predicates for sort of bumping this up, each have challenges.

The federal one, the legal issue is, is that really allowed?

Does- - In other words, the underlying crime that so-called bumps up the misdemeanor to a felony is actually not a state crime, but a federal crime.

- Exactly.

And so the issue is can you use a federal crime when the statute says it has to be in furtherance or to conceal another crime?

So that's something that certainly will be litigated and the defense will make its motion and the court will have to decide.

- At the end of the hearing, the judge said, "I'll see you in December," which, of course, is just before the Iowa caucuses.

And as the presidential primary campaign for the GOP nomination for President will be getting underway.

How does the spectacle of a national political campaign impact a local trial?

- So we've never been in that situation.

It'll be very interesting to see what the court does.

One indication yesterday was the defense, if you notice, said, "We would like to waive the appearance of Donald Trump at the next court appearance," meaning that he won't have to show up and the court said, "No he is going to, "this is a criminal case.

"In criminal cases, the defendant shows up."

We have, by all accounts, a very measured judge and on this case, but is sort of no nonsense.

So, I think that the judge is gonna be looking at my job is moving this criminal case to the end and having a decision one way or the other from a jury.

I think the issue is gonna be more from Donald Trump's side.

How does he deal with being under indictment in one case or maybe two, three, or four cases?

My own, I'm not a political pundit but my own sense is that one of the reasons he didn't ask for a sort of a quick trial is he sort of is gonna run I think and has run as sort of the outlaw president.

That he's very counter government and very much playing the victim.

And so this will, I think play into that particular narrative.

- During the arraignment on Tuesday, Judge Juan Merchan, who is presiding over the case, actually warned both parties, the prosecution and the defendant Donald Trump, to refrain from rhetoric that could incite violence.

Hours later, former President Trump returned to Florida to his club Mar-a-Lago, and proceeded to call Bragg a criminal.

He proceeded to deride Judge Merchan.

He singled out members of both the Judge's family and the DA's family.

Judge Merchan said he had no intention at this point to issue a gag order of the defendant, former President Trump.

What can you tell me about gag orders and when they're likely to be used?

- So I guess the first thing I just want to note is just how remarkable the conversation is that we are having, that I have prosecuted numerous organized crime cases when I started out as a prosecutor.

This topic of a boss of a crime family and whether they would go after a judge or a prosecutor never came up.

That's just not something that's done.

We are having this conversation about inciting violence and about someone attacking the family of the DA and the judge about the former President of the United States of America.

It is really breathtaking.

And you know, going back to your first question about is this a sad day or not?

That's one of the reasons that it is sad.

I mean the idea of the sort of just how debased, the sort of oval office and the institution of the president.

I mean, I remember going into the Oval Office under different administrations and each time you are in awe of the institution and it didn't make any difference whether it was a Democrat or Republican.

You just felt as you really did feel like an American.

So, to answer your question you cannot incite violence and you cannot commit violence period and particularly when you're out on bail Donald Trump is defendant Donald Trump right now.

So, as the judge did in a very measured way is he said "Knock it off.

"I expect the parties to behave."

If you have children, you can, you understand what's going on, which is that's notice as to what is expected.

And if it continues, which unfortunately it appears to have continued hours later, then that is something that the judge can say, bring them back in and can start imposing more and more rules.

- Is it conceivable that you could have a candidate for President of the United States operating under a gag order or a partial gag order?

- Well, it depends what it says.

Just, you can, I mean this is what's so remarkable about this conversation.

There's nothing that would prevent him in a gag order from talking about policies, what he wants to do as President, what he wants to say about his adversary.

You could imagine a gag order that says this, don't attack and belittle and threaten the judge on the case.

Don't do that with respect to the family members.

That has nothing to do with the political sphere.

- Yeah.

- [Andrew Weissmann] And so that to me is a- - So a gag order could be tailored specifically- - Sure.

- To the kind of language that would be acceptable or unacceptable for defendant Trump to use.

- Yes, you can still run for president and not have a picture of yourself with a bat and Alvin Bragg's image on the other side.

There's zero reason that you need to be threatening violence with respect to anybody who's part of the process.

- A central figure in this case is Michael Cohen who made the payments to Daniels as part of the scheme to be reimbursed by former President Trump.

He ultimately, of course, served time in federal prison for related finance violations among other matters.

- Yes.

- It seems to me Cohen has a credibility problem.

- Huge, absolutely.

There's no question and one of the things I thought was fascinating and you may have had the same reaction, when you read the statement of facts, which is, you know that gives you a lot more meat on the bones.

You know, Michael Cohen has a role but I was very interested that they sort of downplayed his role that David Pecker has a huge role in terms of establishing the scheme and there also appears to be, I say appears, a lot of documents that are corroborative.

- David Pecker of course who is the publisher of the "National Enquirer" who helped Donald Trump and his campaign by suppressing negative stories about him.

Look, observers point out that of all the potential cases that are to be brought before the court related to the former president, that this is one of the weakest and potentially the easiest to portray as a witch hunt.

Bragg has already taken a lot of heat for being the first prosecutor to file charges against a former president.

"The Wall Street Journal" even editorializes that this could open a Pandora's box.

What's your response?

- So I think that there's no question that this case is the least serious.

I won't say the weakest because we don't know what the proof is yet on this case or any of the other cases that have not yet been brought.

But I do think it's the least serious.

I do think the issue of are you opening up a Pandora's box?

Are you en engaging in selective prosecution is a real issue that people have to be very focused on.

It is important to hold leaders to account criminally.

The answer to say, well, don't ever indict a former president because you're gonna suddenly become a Banana Republic.

My view is you become a Banana Republic if you don't bring those charges.

But you have to be sure that it is not selective prosecution.

But I think the other thing I would say to sort of "The Wall Street Journal" piece, which I think is a serious issue to discuss, is it is really important to remember that we in this country have a check on that problem.

This is not something where there's a show trial.

A DA can't just just be like, oh, this person's going off to jail.

That is going to have to be 12 average Americans.

- That's a great point.

- Making the decision that this has been proved beyond a reasonable doubt and they are unanimous.

That is required - If we are to hold our leaders criminally accountable, would you have preferred one of the other cases happen first?

- Yes, the reason is precisely what we've been talking about in terms of selective prosecution, that it's really important that leaders be held to account but it's so much easier to make that argument.

It's not that it's not applicable to the current situation, it's that it's so easily made in connection with January 6th or even Mar-a-Lago in terms of what happened there.

So, I just think in terms of public acceptance and understanding that it would be preferable, but you know what?

Life is messy and there was a statute of limitations here and it's not one prosecutor, there's three prosecutors.

So we may find ourselves in a situation where in several months this all sort of looks like a footnote to history because the current case, yes it was brought first and it is an important moment for American history, but that it in a few months really we're well past that.

- When you say Mar-a-Lago, you're of course referring the special counsel's investigation into former President Trump's handling of classified documents - And allegedly obstructing that national security investigation.

- The most recent president to find himself in such deep legal peril was Richard Nixon.

Two months before Nixon resigned, Vice President Gerald Ford appeared on the original "Firing Line" with William F. Buckley Jr and said this.

- In the event that you become president, would you grant amnesty to everyone involved in the so-called Watergate affair?

- I'm not sure, Bill, that I ought to undertake to respond to a question of that kind.

The first place I don't anticipate becoming President and to speculate in such a sensitive area without knowing who might be convicted and who might be acquitted, I think would be presumptuous and ill advised.

- Vice President Ford, of course, didn't answer the question about whether he would pardon or not, but what we do know is that he did go on to pardon President Nixon.

And there are legal scholars who since then have argued that the act of pardoning the former President has created a sense that former presidents are immune from prosecution.

Do you think that Nixon's being pardoned did set a precedent for former presidents not being charged?

- You know, I don't know that I would go that far because there were, in his case, real consequences to his actions.

I mean, he was disgraced and he left office.

That is very different than having no consequences.

The Department of Justice has a policy that you cannot indict a sitting president.

If you cannot indict under that policy a sitting president but when that president leaves office- - Yeah.

- Your view is we're only gonna look forward and not backwards.

That is creating a de facto system of somebody being above the law.

And you know, that's where I think both as an American and as somebody who spent so many years in the Justice Department, to me that is anathema to the rule of law.

- Let me ask you about one of the other cases because you served as General Counsel for the FBI, so you have really deep knowledge about how classified information ought to be handled.

Secret service agents connected to Trump are now testifying before a grand jury in this case about the documents that were at Mar-a-Lago.

Are we seeing signs that indictment could be coming in that case?

- Yes, I think that both the reports with respect to the Secret Service, the decision that Mr. Corcoran, one of Donald Trump's lawyers had to go into the grand jury and testify.

I think those are all signs that it's gonna come to a head one way or the other in terms of that case.

I will say that the decision whether Secret Service agents need to testify is a complicated issue and a serious step because there is a downside to that.

Their first priority is the safety of the person they are protecting and they're not there to sort of, you know, be there to report on everything that the person is doing.

On the other hand, they are United States law enforcement and they actually have a duty to report any criminal conduct.

So it is, you don't want to do anything that undermines the efficacy of their safety mission.

But here they very well could have direct evidence of a crime and right now we're only in a position where the grand jury would hear that.

There is no sort of public revelation of that, but there, that is a complicated discussion.

- You wrote a book, "Where the Law Ends" about your time as a lead prosecutor with Special Counsel Robert Mueller.

You lament that more wasn't done to hold Trump accountable.

And I wonder how Trump's defenders were able to shift the narrative in that situation that creates a teachable moment for these upcoming cases.

- That's a great, really great question because there is an imbalance because the defense, in some ways, quite rightly, does what they can to make sure that the public understands their view of the case outside of the courtroom.

That is an aspect of the criminal defense.

They will be thinking about that and the government cannot start talking about why the defendant is guilty.

And I think one way to deal with that imbalance is that I do think that there are things that a prosecutor can talk about that don't cross that line into saying why the defendant is guilty.

An example I think that I thought was very, very useful by Alvin Bragg in his press conference, was taking on this issue of selective prosecutions.

He talked about how the charges, the 34 false filings, that these are routinely charged.

And what he was saying is, you know what we use this against people who are involved in sex trafficking, bank secrecy, tax offenses.

This is no different.

To not charge this would be treating the former president better, not worse.

And that's something that I do think that prosecutors have to, it's outside of what they're comfortable doing but I think that especially in a case like this, it's gonna be important to do.

- Andrew Weissmann, thank you for joining me on "Firing Line".

- My pleasure.

- [Announcer] "Firing Line" with Margaret Hoover is made possible in part by Robert Granieri, Charles R Schwab, The Fairweather Foundation, The Margaret and Daniel Loeb Foundation, The Asness Family Foundation, Jeffrey and Lisa Bewkes.

Peter and Mary Calico, and by Craig Newmark Philanthropies, The Rosalind P Walter Foundation, Damon Button, The Center for the Study of the International Economy Inc., The Pritzker Military Foundation on behalf of the Pritzker Military Museum and Library, and The Mark Haas Foundation.

Corporate funding is provided by Stephens, Inc. [upbeat classical music] [upbeat classical music continues] [upbeat classical music continues] [gentle music] - [Announcer] You are watching PBS.