Serious ethical charges against FBI Deputy Director Andrew Weissmann are pending before the First Judicial Department Disciplinary Committee in New York.  The charges arise from his role in hiding evidence favorable to the defense when he was a federal prosecutor leading the Enron Task Force. The Department of Justice is handling his defense.

According to the DOJ, there was no violation of the rules of ethics, even if Weissmann “plainly suppressed” evidence favorable to the defense—as the Fifth Circuit Court of Appeals held that the Enron Task Force did. Mr. Weissmann, who also serves as General Counsel to the FBI, has pitched his entire ethics defense on the claim that the Rules of Professional Conduct require prosecutors to disclose to the defense team only information that is both favorable and “material.”   That may be the standard for reversing a criminal conviction under the Supreme Court’s 1963  decision in Brady v. Maryland, but the ethical rules require more.

Any notion that the Rules of Professional Conduct merely codify or mirror Brady, and do not press beyond it, would be a major NEWS FLASH to anyone even moderately familiar with legal ethics. The text of the rule (usually a paragraph of Rule 3.8, Special Responsibilities of a Prosecutor), explicitly requires prosecutors “to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused.” What part of “all” is confusing to the Department of Justice?  

It was no accident that the Brady requirement of materiality was omitted from ABA Model Rule 3.8, which has been adopted essentially verbatim in every state. ABA Formal Opinion 09-454, issued in July 2009 explained in detail that while constitutional doctrine under Brady and its progeny focuses on the fairness of the underlying criminal proceeding, Rule 3.8 focuses only on the knowing misconduct of the prosecutor, whose mission is not merely to seek convictions, but to see that justice is done. Over and over again, the Opinion insisted that it simply incorrect to think of Rule 3.8 as nothing more than the Brady rule made enforceable against prosecutors in disciplinary proceedings.

This obvious understanding of the key difference between Brady and Rule 3.8-that only the former includes a “materiality” prong-has been assumed by the Supreme Court in several opinions following on Brady, and has been adopted everywhere in the United States except Ohio and Colorado. Certainly it is the understanding in New York, where Weissmann is licensed and is facing disciplinary charges, and in Texas where the Enron cases were tried.

Andrew Weissmann and his subordinate at the time, current Chief White House Counsel Kathryn Ruemmler, did not make the required disclosures, and there is no doubt that the information they withheld was known to them. The Enron Task Force prosecuting Merrill Lynch executives in the “Nigerian Barges” case had actually yellow-highlighted statements of  key witnesses they knew were favorable to the defense, and then hid the yellow-highlighted evidence from the defendants. New prosecutors disclosed it accidentally six years later.   That was long after four executives who had committed no crime spent a year in prison while Weissmann and his team continued to conceal the evidence.

Weissmann resigned from the ETF amid allegations of prosecutorial misconduct during the Broadband part of the Enron saga. He was also the driving force behind the destruction of the Arthur Andersen accounting firm-obliterating 85,000 jobs-only to have a unanimous Supreme Court reverse the decision because Weissmann had proposed jury instructions, adopted by Judge Melinda Harmon, that had written criminal intent out of the law.

After a partnership at the mega-firm Jenner & Block, Andrew Weissman was elevated to his current positions at the FBI by President Obama-an unusual and troubling choice in light of Weissmann’s history of disregard of the special responsibilities of the federal prosecutor.

During his years on the Enron Task Force, Prosecutor Weissmann was widely known for intimidating witnesses, hiding evidence, and unethical and heavy-handed, if not illegal, tactics.  As long as he held the power to indict, however, few dared speak out.  He repeatedly threatened to indict people who contradicted his view of the Enron cases.

Will the authorities in New York take action to address the serious violations of the rules of ethics by former federal prosecutor and current high-ranking official in the FBI Andrew Weissmann?   Will they even seriously investigate these charges?

Will other attorneys now speak out about Weissman’s misconduct in years past? Or has he risen so high that he is truly above the law?

New York lawyers must step up to the plate to ensure that New York does the right thing. But because Andrew Weissmann now holds a high position in the nation’s justice system, lawyers from around the country are on deck as well.

By Bill Hodes