Fauci Held in Contempt & 5th Circuit Judges Cry Foul

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2:08And committee chair Republican Senator Rand Paul has made no secret of his desire to see Fauci behind bars. Any reasonable person who has followed his unhinged obsession with me would readily come to the same conclusion. The committee voted along party lines to hold Fauci in contempt of Congress over his refusal to answer questions at the hearing. We are voting on whether a witness who has received the benefit of a sweeping federal pardon can be ordered by this committee to answer questions and then defy that order without consequence. But Fauci's pardon from President Joe Biden only covers acts from 2014 through January 2025, the day it was issued.

2:57It doesn't protect Fauci from state-level prosecutions or from prosecutions over testimony that he gives that lawmakers think is false. Joining me is Dave Ehrenberg, former Palm Beach County state attorney. Dave, explain why Fauci took the Fifth on advice of his lawyer. Anthony Fauci took the Fifth Amendment because he knew he was walking into a perjury trap. And his lawyers knew that and told him that perjury is not part of the pardon you received, that you can still be prosecuted for that. And even though it's going to look bad in the court of public opinion, you have to realize that public statements made by Rand Paul and others show that their intent was to lock Fauci up.

3:39And you were just walking into a buzzsaw because they just dropped thousands of pages of documents right before the hearing. And you have an 85-year-old man who's going to be asked all these details. And if he slips up, if he makes a mistake, he's on a one-way ticket to the Huskow. And if you had any doubts about that, just ask James Comey, who was prosecuted for lying to Congress, even though he didn't lie to Congress. or Jerome Powell, who was sent as a referral to the DOJ for allegedly making a false statement to Congress when he didn't, or Jack Smith, who currently is under a referral from Congress to the DOJ for making a false statement to Congress that he did not make.

4:21So if Congress wants to weaponize the DOJ against you, they will under this administration. Senator Rand Paul continues to say that Fauci had no valid Fifth Amendment claim because the pardon nullified it and that he waived any remaining protection by testifying. Okay, first, a pardon does not shield a witness from potential state-level charges, and there are states who could prosecute him, and so he does have a legitimate claim to the Fifth Amendment against self-incrimination. Plus, a pardon does not protect against a perjury charge because a pardon only protects you from charges that would of stemmed from things you've done in the past, not from something you're doing now, which is a statement before Congress.

5:06And if Congress thinks that you are fibbing, they will refer it for prosecution. Plus, a pardon does not affect state level charges. And so that's why he did have a legitimate claim of the Fifth Amendment here. It's Rand Paul's own words being used against him that he wants to lock this guy up. And so this was not just a fact finding enterprise where they had a good faith discussion about the origins of COVID. He's testified many times before about this. What this was about was to find a reason, a way to get Fauci prosecuted, an 85-year-old man for slipping up and then getting what Rand Paul has dreamed of, which is Anthony Fauci waking up in an orange jumpsuit and a pair of steel bracelets.

5:50What is this fixation that Rand Paul has with Fauci? It's historic. It's something that's like the Hatfields and the McCoys, except you're dealing with a one-on-one situation where they just have this deep-seated dislike of each other. And Rand Paul has blamed COVID and the way that it was handled on Fauci from the leak of the lab that he believes was funded by Fauci through the research that he was doing to the mistakes made afterwards. and now it was Rand Paul who leaked Fauci's diary. I mean, if Rand Paul was really trying to act in good faith and trying to get answers, why embarrass a guy by leaking his diary?

6:37I mean, I thought Rand Paul was a libertarian. He wanted less government. But this is the government getting the diary of a now private individual and leaking it for the world to see. Doesn't sound like less government to me. Could Rand Paul have given Fauci immunity for his testimony? Well, perjury cannot be immunized. So you could say that you're getting immunity for anything you answer. But if you lie, that could be prosecuted. And remember, if you're trying to get someone to commit perjury, to set up a perjury trap, then saying you're immunized from prosecution is not good enough. You could always find a way, if Rand Paul wants you, to twist Fauci's words to refer it to the DOJ.

7:21We've seen this. We saw this with Jack Smith and Jerome Powell and James Comey. They didn't lie to Congress, but they were referred to prosecution because that was the intent of the politicians who wanted these individuals prosecuted. Well, that's why Fauci was like, hey, I know what this is about. I've seen this movie before and I'm not going to be part of it. So, yes, he takes a hit in the court of public opinion because it doesn't look good when you invoke the fifth so many times. But at the same time, he'll do so as a free man. Paul said the prosecution referral would be hand-delivered to the Justice Department.

7:58So he bypassed a vote by the full Senate, perhaps because it's only voted twice in the past half century to hold someone in contempt. Well, that's going to be another argument for Fauci's lawyers if this ever results in a prosecution, because you're supposed to send it to the full Senate for the vote. And he is short-circuiting that process. He's attempting to bypass a full Senate vote to send it directly to the DOJ, and that deviates from standard institutional procedure. Plus, the vote was on a narrow party line committee vote. So I don't think that's legal, but something that can be tied up in the courts.

8:35Remember, a lot of this is not necessarily to convict Fauci of anything. It's to make life miserable for the guy. This is Rand Paul wielding his power against an 85-year-old man who served for many decades in public life and to humiliate him and then to make him spend hundreds of thousands of dollars fighting against a criminal charge. And there's an old saying that we used to say at the state attorney's office that you can beat the rap, but you can't beat the ride. The top Democrat on the committee, Senator Gary Peters, said that if the committee tries to punish a witness for asserting their Fifth Amendment rights, future witnesses will argue that appearing before Congress exposes them to punishment, regardless of whether they comply with the subpoena and invoke a constitutional protection.

9:24Do you think that future witnesses would be chilled by what's happening here? I think that all future witnesses who are in the crosshairs of President Trump and leaders of the MAGA world are going to think twice. This is what happens when you weaponize the Department of Justice to go after Trump's enemies, whether it's Jerome Powell or Jack Smith or James Comey. Future witnesses are going to see that and they're going to say, wait, wait, these guys didn't lie to Congress. And yet they're being referred for criminal prosecution for lying to Congress. I mean, James Comey even was charged with lying to Congress, and that was based on ambiguity.

10:02So you can see why they're saying, OK, this is not just a figment of our imagination. Normally, you cannot just take the fifth because you don't want to enter into a perjury trap. But this perjury trap is real. This is a case where the monsters under your bed really do exist. They're saying that it's now up to the D.C. U.S. attorney, Janine Pirro, whether to prosecute or not. I mean, is there any doubt that she will prosecute a man who's somewhere near the top of President Trump's enemies list? They're getting Jeanine Pirro at the perfect time, which is a time of vulnerability where she's worried about being fired by President Trump because she moved to dismiss the case against David Hearn, the guy who was wrongfully prosecuted for vandalizing the reflecting pond, which he didn't do.

10:53And so Trump is very upset with her. So to keep her job, she's going to do, in my mind, what the administration expects her to do. But the issue is that this does open the way for a defense lawyer to say this is an illegal procedure. You're supposed to get the approval of the full Senate. You can't just go around that procedure. Now, under federal law, a statutory criminal contempt of Congress charge that obligates the U.S. attorney to bring the case has to be certified by the full Senate or the full House. So what they're trying to do here is to send it to the DOJ as a recommendation without a legal mandate to act just as a request.

11:35But I still don't think that holds water because the DOJ can always reject a vote by the U.S. House or the U.S. Senate. They've done that in the past. Merrick Garland did that when the Democratic House tried to send some people to the DOJ for contempt who didn't want to cooperate with the January 6 investigation. It's up to the DOJ. They have prosecutorial discretion. So I don't think you can get around the full Senate having to approve this by saying it's just a recommendation, not a mandate. It's never a mandate to the DOJ. It's always really a recommendation. Dave, so let's say he is indicted.

12:16Is it a good defense that this was a perjury trap? Oh, absolutely. And they're going to use Rand Paul's words against them because Rand Paul and others said that, yeah, we want to prosecute him. He needs to be in handcuffs. And so you can't look at this in a bubble. Normally, you would say, no, you can't take the fifth in a situation like this where you're being asked questions and you've been given a pardon. And the only criminal liability here is just the fact that you may or may not be telling the truth. Now, in response, Fauci's lawyers are going to say the perjury trap is real. We're not living in normal times.

12:57You can't look at this in a bubble. This is a situation where the senators have said we want to prosecute him. We're bringing him back before this body, not as a fact-finding mission because we've already done that, but to catch him in perjury. And then the defense lawyers will point to Jack Smith and James Comey and Jerome Powell saying, here, this is what we're trying to avoid. And then on top of that, they can also mention you've got very aggressive Republican state attorney generals who are around the country trying to prosecute Fauci. And Fauci's pardons do not protect him against that. So he does have a legitimate claim to take the Fifth Amendment.

13:38Yes. So state attorneys general in Florida, Alabama, Louisiana and Oklahoma are launching inquiries. And the Florida AG, in your neck of the woods, Dave, said that Florida law on deceptive trade practices, fraud or public nuisances could be invoked. I mean, these sound like uphill battles, to say the least. And you've also got statute of limitations problems. So, number one, the attorney general of Florida is up for election in November. And this is the type of thing that will motivate his political base. And it's one thing to say you're investigating. It's another thing to actually bring charges.

14:21Does the state of Florida have jurisdiction over a national figure here, someone who is a federal official at the time? You're not given the ability under the Supremacy Clause to do that. You're a state official. There's the doctrine of federal immunity. State officials generally lack the jurisdictional authorities to prosecute federal executive officers for things that they've done within the scope of their official federal duties. So you wouldn't have the jurisdiction. Plus, is there a Florida connection to the gain-of-function research? Is there a Florida connection that gives him jurisdiction?

14:51Does the statute of limitations bar any prosecution? There are so many reasons why you cannot get a prosecution here. And it just shows that it's all political. But the fact that the state attorneys general are threatening this gives yet another defense to Fauci's lawyers to say this is why we took the Fifth Amendment. Peter Navarro was found guilty of contempt of Congress and served four months. Steve Bannon also served four months for contempt of Congress. Their appeals, multiple appeals failed. So is Fauci any different? Yes, very different. You know what the biggest difference, June? It's that Peter Navarro and Steve Bannon didn't even show up.

15:33Anthony Fauci showed up. He showed up to answer questions. But then when he realized he was walking into a perjury trap where the senator is saying, we're going to prosecute you, where state attorneys general are like chomping at the bit, that's when they took the fifth. That's different than Bannon or Navarro, who thumbed their noses at the committee, didn't even show up. And that's why I think you'll see Fauci defend himself and win as opposed to Navarro and Bannon who lost. It's always great to talk to you, Dave. Thanks so much. That's former Palm Beach County State Attorney Dave Arenberg. Coming up, complaints from judges at the Fifth Circuit.

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18:13Visit Baja Mar.com today. The Fifth Circuit is on its way to making en banc history, with 14 total grants and 12 re-hearings scheduled this year. And now, in an extremely rare move, some of the judges have started dissenting from the grants of full court review, voicing their consternation as the number of en banc cases rises. An en banc review means that all the judges in the circuit hear oral arguments and decide a case after a party requests a rehearing from a decision of a three-judge panel. At the New Orleans-based federal court, three judges, a Ronald Reagan appointee, a George W. Bush appointee, and a Barack Obama appointee, have voiced their consternation at the number of en banc cases being heard.

19:03Joining me is Bloomberg Law reporter Jacqueline Thompson. So Jacqueline, tell us about the Fifth Circuit hearing more en banc cases lately. They definitely have. And I sit in the courtroom for all of them. And the judges are even talking about how many cases they're hearing. Back in January, they were scheduled to hear seven arguments. And it ended up, ones got scuttled at the last minute. So they had six arguments across seven cases. Then they had two more in May. They have five arguments across four cases set up for September. And that number has just been ticking up since all the Trump appointees have joined the appeals court.

19:42You know, obviously, there was a bunch of litigation against the Biden administration that ended up within the Fifth Circuit's jurisdiction. And those are all really high profile cases. Some judges want to, you know, be able to dip their toes in and make their voices heard, especially if they disagree with the underlying panel opinion. So, you know, we've have been seeing the full slate of active judges be especially eager to be taking up en bond cases lately. Describe the composition of the Fifth Circuit for us. I usually say that it's the most conservative circuit in the country. Right. So there are 17 active judges.

20:21Six of those currently are Trump appointees. There's two Reagan appointees. There's a handful of George W. Bush appointees, a handful of Clinton and Obama appointees as well, but it's that conservative block, which I sort of count as the six Trump appointees plus the two Reagan appointees that make up, you know, the driving force here because that is eight out of 17 votes. And then if you know you have any judges who have to recuse, can't hear a case, you know, that gives that block even more power. One of those judges, Kurt Englehart, he's a Trump appointee. He's going to be taking senior status, so he'll soon no longer be part of the en banc proceedings, but another Trump-appointed judge will be taking his place, we expect, in the next few months.

21:07A dissent from a denial of a motion for an en banc hearing is more common than these dissents, which are dissents from the granting of a motion for an en banc hearing. Right, yeah, we see dissents from denial all the time, and that could be because the judge wants to flag it for the Supreme Court. Sometimes judges want to say, we should have heard this case. We should have reviewed it as a full court. And here are the reasons why I think this is the situation. I think we need to revisit bad precedent. I think we need to realign what the court is doing with what the Supreme Court has told us to do, you know, things along those lines.

21:46So often when they put out those dissents, it can either be to A, get their opinions out on the record, or to be sort of raise a hand up to the Supreme Court and say, hey, our full court messed up. You should take a look at this and review of what the panel did. How are the dissents from the grant of en banc hearing? I mean, can you categorize what they're like? So there's been so few of them that it's kind of hard to say with a broad sweep of what exactly they're like. But, you know, what's interesting about them is you would think with an en banc case, you know, that it's getting argued before the full court, judges have the opportunity then to share their feelings about them hearing the case, they have the opportunity when the opinions are issued, to lay out how they feel about hearing a case.

22:35But here, they're sort of, you know, dipping in early in the process. And they're going, Hey, before we do anything else in this, I just want to stick my hand up and say, we're wrong, we are wrong to even hear this case in the first place. I was told recently, apparently the term for this is actually a disgruntle. And that is what the judges are doing here. They are disgruntled and they've issued a disgruntle. And, you know, there are various reasons why they might want to be saying all of this. They might want to flag it for briefing in the case in the future, you know, before the parties step up and say anything.

23:12And give an opportunity for outside parties to file amicus briefs and raise issues here. Or they're saying, hey, we're wielding our ombang power weirdly, and I don't like it. And I think we need to revisit exactly when we're hearing these cases and why. Tell us about some of the cases where we've had these disgruntled, disgruntled, whatever. So the first one I had noticed was last year's Judge Leslie Southwick. He's a George W. Bush appointee on the court. He's sort of a more moderate voice in this day and age. maybe in an earlier version of the court, not so much. But he had been on the initial panel for the case, which was over the Trump administration's use of the Alien Enemies Act to deport Venezuelan nationals from the country.

24:02And what he said there was, I don't understand why our full court is hearing this case. I think this should have just gone straight to the Supreme Court. This is obviously an issue of high importance, and we need them to be able to weigh in on it And it's going to end up there anyway. So why are we delaying all of this? One of the Trump appointees on the court, Judge James Ho, he stepped in, he filed a concurrence. He said, you know, DOJ asked us to hear this case. It's compelling. It's interesting. It's important. So we're going to hear it. And that's the deal there. So, you know, that could be sort of the circuit trying to hold on to their power and influence too and saying, no, we also can issue very important decisions.

24:47It's not just the Supreme Court. So that was one instance. A few weeks ago, Judge Jerry Smith, a Reagan appointee, there was a criminal case that they took up en banc. It was a discovery dispute in a long litigated murder trial. And he had written the underlying panel opinion and said, you know, I wrote my panel opinion. Judge Southwick wrote a dissent. That should have been totally fine. We don't need to revisit this as an en banc court. We hear very important cases as an en banc court. I love en banc proceedings. We should have more of them, but this is not the case. And then the last one was Judge Stephen Higginson.

25:28He's Barack Obama appointing on the court. The court has taken up a constitutional challenge to the felon gun in possession law, which has been really widely litigated over the last few years, given recent Second Amendment rulings from the U.S. Supreme Court. And then most recently, Justice Clarence Thomas wrote an opinion where he said, hey, I think that maybe this gun ban is unconstitutional under the Commerce Clause of the Constitution. Now, four weeks later, the Fifth Circuit says, hey, let's take up this felon gun and possession case. And Judge Higginson says, I think this is actually about the Commerce Clause thing and not applying another precedent, which is what had been raised in the briefing below.

26:17So he started bringing up all the issues he had with revisiting these sorts of issues with taking up a Commerce Clause challenge. He said, you know, this brings up the potential that our circuit is going to completely upend the U.S. Code. We could get challenges to all certain kinds of laws. It could be security regulations. It could be child sexual abuse possession charges. You know, we're sort of opening Pandora's box here. And he put out a list of groups that he thinks will want to file briefing in the case. And it seemed to be a little bit of him going to the outside world. Hey, everyone, take a look and make sure your voice is heard when we hear this case.

26:59I mean, the Supreme Court has been taking a lot of cases from the Fifth Circuit the last few years. In fact, last term, it took more cases from the Fifth Circuit than any other circuit. The circuit is sort of known for pushing the envelope as far as the law is concerned. That is what some observers say. This last term was a little weird at the Supreme Court. The Fifth Circuit cases seem to just be cases that happened to come out of the Fifth Circuit. Now, there were a few that were definitely what I think of as quintessential Fifth Circuit cases. For example, if you are voting on Election Day, can you only vote on Election Day?

27:39Or can your vote that was postmarked after the facts still be counted? And that was over a Mississippi statute allowing military members to vote from overseas by mail. So there are always a few of those cases. But this past term was a little more things just happened to happen within the Fifth Circuit. And that case just happened to be taken up by the Supreme Court. Are there any other circuits that are hearing more cases en banc than they used to? I don't know if it's more than they used to. The Ninth Circuit has always been incredibly active on en banc cases. And they even have their own procedure because they have so many judges.