Longtime prosecutor turned white-collar defender Andrew Weissmann spent the past two years as the top lawyer at the FBI, immersed in some of the most controversial legal problems confronting the Obama administration.
That’s now behind Weissmann, who left his post as general counsel in October to take a teaching spot at New York University School of Law.
In his first interview since the departure, Weissmann talked about the challenges of building financial crime cases and about the intersection of privacy rights and government surveillance — an area under intense scrutiny since the public disclosure this summer of secret monitoring programs.
Weissmann hasn’t ruled out a return to private practice — he’s a former partner at Jenner & Block, where he was co-chairman of the white-collar practice — but for now he says his law school duties will keep him busy.
The interview that follows was edited for clarity and length.
NLJ: Why did you step down as FBI general counsel?
Andrew Weissmann: I went into the job very much thinking it would be two years. I was hired by Director [Robert] Mueller, who by statute had to leave on Sept. 4 of this year. Then, I am a veteran New Yorker. So, being away from New York for two years was quite a long time.
NLJ: What do you consider your biggest accomplishments during your tenure as FBI general counsel?
Weissmann: Some of that I can’t talk about. One of the things that happens in the job is there’s things that are public and things that are not. Things that are public, sort of concrete things, are there is a process that the FBI, and in particular the FBI laboratory, is working on with the Innocence Project and the National Association of Criminal Defense Lawyers to review cases in which there were examinations by FBI lab experts involving hair. It took a lot of time and effort on the part of lots of people — the Innocence Project, the NACDL and at the lab and in the general counsel’s office — to structure and implement. Then, it was reported on to the DOJ inspector general, to Congress. I think it is a good model of how to respond to a problem. I’m proud of that. On the national security side, as you can imagine, things have been very busy, both because of the Boston [Marathon bombing] case and then because of the [former National Security Agency contractor Edward] Snowden leaks. I think the FBI has done a good job in responding to that, balancing a number of competing interests.
NLJ: What do you think of those concerns that are being voiced out there after the Snowden leaks?
Weissmann: I think it’s understandable. I would say some of the reporting has been responsible and some of it I think has been not helpful because I don’t think it lays out what exactly the issues are. Whether you agree or disagree with what’s called the 215 program — that’s the telephone program — whether you think it’s a good idea or a bad idea, there’s no question that it was lawful. It was approved by the court repeatedly. It was briefed to Congress. You have all three branches agreeing with it. That’s not to say that each American citizen has to agree with what the three branches did. I think one of the hard things is it’s just very hard to articulate to people why secrecy is at times necessary and a good thing. But obviously, with secrecy, there’s always a concern about what the government is actually doing, whether there’s sufficient oversight. Those are really difficult issues. I do think if there’s any good that’s come from this, I do think it causes people to think about whether the lines have been drawn correctly, whether there is more that can be done from the point of view of having a greater adversarial process and having more that is made transparent.
NLJ: What were your biggest challenges during your time there and how did you confront them?
Weissmann: Sequestration is really hard on an agency. It’s terrible for morale. The not being able to hire people, the prospect of furloughs, which last year we were able to avoid but only with massive cuts in terms of spending. Then this year, there are definitely going to be furloughs. You’re basically asking people who work very hard to work even harder and with furloughs. What’s really hard is there are a lot of people who need their paycheck. So, I think that’s difficult. I think there are crises that are difficult because they come on top of a lot of other work people have to do.
NLJ: What updates, if any, do you think are needed to federal law to ensure law enforcement tools keep pace with technology without overstepping Americans’ privacy rights?
Weissmann: There are a couple of things that are ongoing. There’s one which has gotten a lot of attention, which is changes to the Electronic Communications Privacy Act. There are all sorts of requirements depending on a variety of things and reasonable minds can completely disagree on where each of those lines should be as to what process you need. In general, what the law tries to do is, the more intrusive the technique, the more predication you need to show. If you’re doing something that is particularly intrusive, you need a search warrant, for instance. One thing that is bubbling through the system was the FBI with the Department of Justice submitted a proposal to amend Rule 41, which is a provision in the Federal Rules of Criminal Procedure for search warrants, to allow an expansion of the venue provisions in cyber cases. This may sound incredibly technical, but it is a practical problem that has started to have real effects in cases. The general issue is that Rule 41 was written at a time where it assumes that you knew exactly what it is you’re going to search and where that item was. When you’re dealing with cyber cases, it’s not so obvious all the time where the device is. A provision that requires you to go to the jurisdiction where the device is [located] is antiquated.
NLJ: The Justice Department over the past year has received criticism over the lack of financial crime prosecutions of Wall Street executives. What do you make of that contention?
Weissmann: Having been on the inside of that during Enron, when you’re in the department you just keep your head down and do your job. You try to just do the right thing. Somebody in the press is going to criticize you for doing whatever you’re doing. You have to just be very comfortable that you made the right judgment. I am confident that if there were cases to be made, that there are a lot of very good people and they would make them. It’s not for a lack of trying. Obviously, I can’t say that 100 percent. But sometimes, it’s easy for an outsider to say, “Oh gee, why aren’t more individuals prosecuted?” These cases are extremely hard to make, even when one’s fairly sure there is criminal liability. But a lot of times in white-collar cases, it’s not clear there is criminal liability. In white-collar cases, you have to be able to prove exactly what the person knew and that it wasn’t blessed by lawyers or accountants. They can be very difficult cases to bring.
NLJ: You came to the FBI as a white-collar defender from a big firm. How did that experience help or hurt you while you were at the FBI?
Weissmann: Before that, I had been an [assistant U.S. attorney] for 15 years. So, I had a lot of government experience to bring to bear. But I think the experience in private practice helped me. I was aware about the line between law and policy and conscious of making sure people understood what the legal issues were, where the lines were in terms of you could make a decision between these two lines and then you’ve crossed over. And then also making sure they understood what the risks were, because not all of the time is it clear which way the courts would come out. The beauty of that job, and I think it’s the beauty of any good in-house job, is people also want to know your views on policy.
NLJ: Before you came to the FBI, you advocated for changes to the Foreign Corrupt Practices Act. In a congressional hearing in 2010, you said Congress should create a defense under the FCPA for companies whose employees violate established anticorruption policies. Do you think FCPA reforms are still needed?
Weissmann: Even before the FCPA reform, I had advocated for a compliance defense for corporate criminal liability. I think that the legal standard for corporate criminal liability in this country is wrong. Just to be clear, I think that there should be corporate criminal liability. I just [question] the standard today which is that all you need to show is one employee committed a criminal act that in some way was intended to benefit the company, and that there’s no defense at all for the company. In other words, the company couldn’t say, “But wait a second, we counseled that person a million times not to do it. We had a really strong compliance program.” That doesn’t count as a defense at all. I think that’s wrong. I don’t think that’s consistent with how we treat any other crime in this country where there’s any mens rea element.
NLJ: What kind of topics are you planning on discussing [at NYU]?
Weissmann: There’s all sorts of issues, many of which are quite topical, such as all the different types of procedures there are for domestic surveillance, balancing transparency with national security, which as you can imagine is somewhat of a hot topic. There is national security overseas in terms of what the authorities are there. There’s how to try national security cases, whether it’s in military tribunals or whether it’s in Article III [civilian courts].
NLJ: What lessons have you learned from your time as general counsel?
Weissmann: I think one lesson that I learned from the director of the FBI and I think many of the senior people there is to run to a problem, not from it. To me, an agency is going to be judged not so much on what are the problems, but how do you deal with them and are you straightforward about what happened, as transparent as you can be. Let people know what happened and what you’re doing about it. I think that’s the biggest thing. It’s really admirable, and it counters the cynicism that some people have and sometimes deservedly have about government.
Contact Andrew Ramonas at email@example.com.