In an interview with former Mueller prosecutor, Andrew Weissmann, MSNBC's Rachel Maddow noted that these cases "make Trump the first president in history to be subject to —not one, but two — impeachments and — not one, but two — special counsel investigations."
Maddow's new podcast "Ultra" explores the 20th Century attempt to overthrow the United States from a host of pro-Nazi activists, religious leaders and elected officials, all of which were connected through a member of Hitler's own government sent to the United States to work on keeping the U.S. out of World War II.
Weissmann called the analogy between the two stories "palpable."
"You have people from outside the nation seeking to interfere and you had people inside the nation doing the same thing in the White House and actually at the Justice Department," said Weissmann of the attempt to overthrow the 2020 election. "That is something Jack Smith is not going to really have to contend with. It is really important to see there is a huge difference between his situation and the Mueller situation because you don't have this sitting president using pardons to try to get people to not cooperate and threatening and dangling pardons. And you don't have the constant threat of being fired" as Mueller was.
He explained that because Trump is no longer a sitting U.S. president, he really lacks the protections he took advantage of in the Mueller probe.
"And then you don't have the White House and at times the Justice Department on the opposite side trying to actively curtail and thwart what you're doing," Weissmann also said. "Here you have the White House saying they'll be completely hands-off. And you don't have Bill Barr in the Justice Department working to undermine what they're doing."
Maddow noted that there is Congress, which can try and intervene in a way that undermines the investigation.
Weissmann said that it's clear that Attorney General Merrick Garland is working to deal with it in a way that is prudent.
"Merrick Garland, when there was this huge brouhaha after the search in Mar-a-Lago did have a public press conference, and when he said, you know, we only speak through our filings, not quite," said the former Mueller prosecutor. "He actually then spoke, and he made it clear, 'I made the decision. I, the attorney general, made the decision to do this. Not anyone else.' He made it clear that there was no planting of evidence. He vouched for the agents and prosecutors on the case. He made it clear that it would be routine to try other steps before we actually do a search warrant. Meaning this wasn't the only thing we did. We didn't go from zero to 60. This was a long-term effort."
In fact, the negotiations with Trump had been going on for a year before finally, someone went to Mar-a-Lago for the first time. There was at least one other time when the FBI went to Mar-a-Lago to pick up other documents that had been left out of the initial return. It was only after those multiple attempts that the FBI executed a search warrant very quietly without men in big FBI jackets and dozens of cameras.
"I think it is useful to look back to Archibald Cox," Weissmann said. "And there you don't have to have a press conference where you denigrate someone. You don't have to do what Jim Comey did with Hillary Clinton, which is, I think, all prosecutors view that as the symbol of what not to do. You don't have to do that. You can still do what Archibald Cox did. He was in a situation where he was being vilified by Nixon and his allies for not allowing a compromise and not seeking transcripts of the Nixon tapes. He wanted the tapes themselves. He gave a long press conference where the public could see him and evaluate him and judge him, the man, instead of just reading a brief."
He said that it was a very simple speech in plain language that most people who weren't lawyers could understand.
"If you're trying to counter-act the forces of Congress, the forces in Donald Trump and his allies in already spinning what is happening with Jack Smith and the Justice Department, it is useful to take your opportunities where appropriate to explain what you're doing," he explained. "To have more of an educational communicative function as the special counsel."
Mueller, by contrast, never made any public comments, so Maddow wondered if that would happen in the case of Jack Smith as well or if he would make daily or weekly statements.
"I don't think I wouldn't say daily or weekly. If you look at Archibald Cox, that was a key moment where it was really important to explain to the American public," he explained. "Here's an example of something really useful. If there are charges that are brought, let's say the Mar-a-Lago case. (And I think there will be.) I think it would be really useful to do something that we actually did at NYU. We put together a list of all the comprobable DOJ cases and it would be really useful for Jack Smith to explain why he is treating Donald Trump identically to other people. And there would be nothing wrong, and nothing that would violate the policies there. You're not taking this Jim Comey model, you're not just denigrating somebody."
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