Top Mueller prosecutor says New York investigators are likely examining if the Trump Organization falsified tax records

Andrew Weissmann
Andrew Weissmann speaking to MSNBC on May 19, 2021.

  • Former Mueller prosecutor Andrew Weissmann analyzed the investigations into the Trump Organization.
  • He said investigators were likely focused on the possible falsification of business records.
  • New York AG Letitia James this week announced a criminal investigation into the company.
  • See more stories on Insider’s business page.

Andrew Weissmann, who served as a top prosecutor on Special Counsel Robert Mueller’s Russia investigation, has said that authorities probing the Trump Organization are likely focusing on whether business records were falsified.

In an Wednesday interview with MSNBC’s Lawrence O’Donnell, Weissmann discussed the Tuesday announcement by the New York Attorney General that its investigation into former President Donald Trump’s businesses was now criminal in nature.

The interview also followed reports that the New York Attorney General had opened a criminal tax investigation into Allen Weisselberg, the former chief financial officer of the Trump Organization.

CNN reported that the New York AG was looking into Weisselberg’s personal taxes, while the Manhattan District Attorney was focusing on his work at the Trump Organization, both in an attempt to find leverage that could convince him to cooperate with prosecutors.

“Allen Weisselberg is clearly in the sights of the Manhattan office and the New York attorney general because they clearly want him to flip,” Weissmann said Wednesday.

“So getting him [Weisselberg] to flip is important,” continued Weissmann, adding that the former CFO “faces two types of liability. He faces liability for the work he did as part of the Trump Organization, but also he could face liability with respect to his own personal taxes.”

“And, of course, there has been reporting of him receiving or being the beneficiary of substantial sums to pay for school tuition,” Weissmann said, referring to reports that investigators were examining whether Weisselberg or his family’s tuition payments allowed him to avoid paying taxes.

“And the issue is going to be how is that reported by the Trump Organization? How is that reported by Allen Weisselberg? How was it reported by others, and did they do the right thing?”

Weissmann then discussed the specific legal instruments prosecutors could use in the investigation.

“There is a tax statute and a false-statements statute in New York law that is quite broad and makes it a crime to submit falsified or have falsified business records, particularly if you’re doing that in aid of another crime,” he said.

“So, for example, if you have false Trump Organization business records and you’re doing that to aid in either a federal or state tax scheme, you can be charged with that very broad false-statements charge under New York law, and that is a felony.”

Weisselberg was the finance chief at the Trump Organization for 40 years, and has not formally been accused of any wrongdoing. Insider has contacted Weisselberg’s attorney for comment.

If the investigations resulted in criminal charges, Weissmann said he thinks Trump would likely say “that he was not aware of certain facts and certain valuations and blame underlings.”

The Trump family has claimed that the investigations were politically motivated and have denied any allegations of wrongdoing.

Weissmann served as a lead prosecutor on the Mueller investigation that wound up in 2019 declining to reach a judgment on whether Trump obstructed justice, and finding there was insufficient evidence to bring conspiracy charges against Trump. It also resulted in charges being filed against 34 people.

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Trump’s pardons may be poorly worded enough to leave some people on the hook

Trump turkey pardon 2019
President Donald Trump gives a presidential ‘pardon’ to the National Thanksgiving Turkey Butter in the Rose Garden of the White House November 26, 2019 in Washington, DC. While Butter may be safe, Paul Manafort still faces risks, experts say.

  • President Trump’s pardons leave some of their subjects open to additional prosecution, experts say.
  • His former campaign chair Paul Manafort could still be prosecuted for specific crimes he wasn’t pardoned for.
  • Even Michael Flynn, who received a wider-ranging pardon, could still have it tested by courts.
  • Visit Business Insider’s homepage for more stories.

On his way out of office, President Donald Trump issued more than 100 pardons, mostly to his personal friends and political allies.

A number of those pardons were for people convicted of federal crimes linked to the Mueller investigation – including his former National Security Adviser Michael Flynn, campaign chairman Paul Manafort, and advisors Roger Stone and George Papadopoulos.

Trump was sure to malign Mueller’s investigation in his pardon notices. The press release for Manafort’s pardon, for example, said he was “prosecuted in the course of Special Counsel Mueller’s investigation, which was premised on the Russian collusion hoax.”

Though the president’s pardon powers are broad, a number of prosecutors and experts on clemency laws don’t believe those people are off the hook just yet.

Trump pardoned Manafort for his specific convictions. It’s much more narrowly tailored than the pardon Trump gave to Flynn, for “any and all offenses arising out of the facts and circumstances” brought by Robert Mueller’s office.

It’s also narrower than the pardon President Gerald Ford gave to former President Richard Nixon, which covered a broad timeframe.

“It says ‘for his conviction’ and that’s it. It’s just for the crimes for which he was convicted,” Kimberly Wehle, a University of Baltimore law professor, told Insider. “That is a different wording than Richard Nixon received under his pardon, which is for ‘all conceivable crimes.'”

Manafort
Paul Manafort, President Trump’s former campaign manager, in 2019. Trump pardoned him in 2020.

Wehle, who worked under Independent Counsel Kenneth Starr in the Justice Department, said presidents must specify the specific crimes being pardoned.

Beyond that, prosecutors can always try to bring different charges using the same set of underlying facts, she said.

The same point was brought up by Andrew Weissman, Mueller’s second-in-command, in an article for the blog Just Security on Wednesday. Weissman argued that while Flynn’s pardon left “no room for now holding Flynn to account for his past felonious conduct,” the pardon for Manafort was full of holes.

“Specifically, the pardon is solely for the crimes of conviction … That leaves numerous crimes as to which Manafort can still be prosecuted, as in Virginia there were 10 hung counts,” Weissman wrote. “In Washington, the situation is even more wide open. In that district, Manafort pleaded to a superseding information containing two conspiracy charges, while the entire underlying indictment – containing numerous crimes from money laundering, to witness tampering, to violation of the Foreign Agents Registration Act – now remains open to prosecution as there was no conviction for those charges.”

Read more: Could Trump mass-pardon his supporters who rioted at the Capitol? Constitutional-law experts weigh in.

There are other obstacles, too.

Prosecutors need to make sure they don’t run afoul of the statue of limitations – though Manafort waived some of those protections, Weissman said. And a judge might decide that prosecutors are simply repackaging the same actions for which a person was pardoned into different crimes, which may run afoul of the Constitution’s double jeopardy protection.

But Wehle said there’s plenty of case law for judges to review. While federal prosecutors have rarely tried to go around presidential pardons, state-level prosecutors have often brought new criminal charges following governors’ state-level pardons and succeeded.

“Say there was a robbery and a murder, and you’re indicted and prosecuted for the robbery, and then later they come back and indict you and prosecute you for the murder,” Wehle said. “I don’t think there’s this a problem with fairness in there.”

Experts think Flynn may not be safe either

Some pardon attorneys even believe that federal prosecutors may still be able to bring new charges against Flynn.

Margaret Love, a clemency attorney and US Department of Justice pardon attorney between 1990 and 1997, believes the pardon for Flynn may have asserted powers that Trump didn’t actually have.

Love told Insider that while Trump could grant Flynn clemency for the crimes he was prosecuted for, a judge might decide that the “any and all offenses arising out of the facts and circumstances” part of it might not hold water.

“The president can assert whatever power he has, but at issue is whether he has the power,” Love said, adding: “I believe there is a strong argument that the constitutional pardon power requires a degree of specificity as to what crime it is pardoning.”

sidney powell michael flynn
Michael Flynn, President Donald Trump’s former national security adviser, leaves the federal court with his lawyer Sidney Powell, in September 2019.

Even the broad pardon Ford gave to Nixon, Love said, has never been tested. The Justice Department never brought the issue before a court to decide whether the sweeping nature of the pardon was valid.

The question of whether Flynn’s pardon would prevent future prosecutions now depends on the appetite of Justice Department prosecutors, and it’s an open question whether Biden’s selection for attorney general, Merrick Garland, would choose to bring another case against him.

“Whoever is the prosecutor in the Flynn case will undoubtedly be looking closely at [the pardon] wording, just like Andrew Weissman was looking closely at [the] Manafort pardon,” Love said. “Then they will decide what to do.”

Attorneys for Manafort and Flynn didn’t immediately respond to Insider’s request for comment.

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