Weekend Law: Fauci, Blanche & Pirro in the Legal News

0:02This is Bloomberg Law with June Grasso from Bloomberg Radio. Under the advice of my attorneys, I will invoke my right under the Fifth Amendment of the Constitution to refrain from answering your questions. Dr. Anthony Fauci took the Fifth Amendment more than 100 times during a Senate committee hearing on his handling of the COVID-19 pandemic, arguing that the hearing, called by committee chair Rand Paul, was intended to trap him into committing perjury. The only conclusion I can reach is that the sole reason he is calling me before this committee is to get me to say something, anything that could vindicate his repeated public pledges that I end up, in his words, quote, vote behind bars.

0:58And on Thursday, Senator Paul took a step toward putting Fauci behind bars when the committee voted along party lines to hold Fauci in contempt of Congress. 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. A contempt resolution would normally head to the full Senate for a vote. However, Paul bypassed that vote and had the prosecution referral hand-delivered to the Justice Department. My guest is Dave Arenberg, former Palm Beach County state attorney. Dave, explain why Fauci took the Fifth, even though he got a preemptive pardon from President Joe Biden covering his actions from 2014 through January 19th of 2025.

1:50Anthony 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. And 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.

2:24And 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. So 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.

3:12OK, 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 have stemmed from things you've done in the past, not from something you're doing now, which is a statement before Congress. And 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.

3:49It'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. Paul bypassed a vote by the full Senate. Could there be any consequences for that? 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.

4:33And he is short-circuiting that process. The Senate directly to the DOJ deviates from standard institutional procedure. 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.

5:13But 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 6th 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. 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.

6:10Do 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.

6:46So 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. The decision on whether to bring charges against Fauci is now in the hands of D.C. U.S. attorney Janine Pirro. Do you have any doubt that she'll indict him after President Trump suggested on Thursday that Fauci should be prosecuted? They're getting Janine 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.

7:33The guy who was wrongfully prosecuted for vandalizing the reflecting pond, which he didn't do. And 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. So, Dave, let's assume that Fauci is indicted. Is 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. 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.

8:17And 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. You 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.

9:04And Fauci's pardons do not protect him against that. So he does have a legitimate claim to take the Fifth Amendment. Right. So Fauci is being investigated by state attorneys general in four states. Three of them have joined forces to subpoena him. And Florida's attorney general, in your neck of the woods, Dave, said Fauci could have broken Florida law if he personally profited off the guidance he issued during COVID. I mean, these sound like uphill battles, to say the least. 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.

9:44And it's one thing to say you're investigating. It's another thing to actually bring charges. Does Florida have jurisdiction over 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 that gives him jurisdiction? Does the statute of limitations bar any prosecution?

10:16There 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.

10:54Anthony 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. This is guaranteed to be another saga at the Justice Department. Always a pleasure to talk to you, Dave. That's former Palm Beach County State Attorney Dave Ehrenberg.

11:31Coming up next on the Bloomberg Law Show. Despite strong opposition, even from two Republican senators, Todd Blanche will be the next attorney general of the United States. Remember, you can always get the latest legal news by listening to our Bloomberg Law Podcast, wherever you get your favorite podcasts. I'm June Grosso, and this is Bloomberg.

11:55David Super:All considered, I will vote for Mr. Blanche. I'll be criticized for this vote. What's new? And with the vote of Republican Senator Bill Cassidy, Todd Blanche secured enough votes to become the next Attorney General of the United States, putting the difficult confirmation battle behind him. As Acting Attorney General, Blanche had aggressively pushed to meet all of President Trump's demands, including targeting his political enemies, thus eroding the traditional independence of the Justice Department. The problem with confirming Todd Blanche is that he has never been able to shed his role as criminal defense lawyer for Donald Trump.

12:37He just can't do it. He does not represent the American people now. He will never represent the American people. When he is sworn in as attorney general, he will have to swear to uphold, support and defend the Constitution. But we know that oath will take a backseat to his loyalty to the president. Blanche's absolute loyalty to Trump was raised as a concern by many Democratic senators like Adam Schiff and Maisie Hirono, and also by Republican Senators Susan Collins and Lisa Murkowski, who refused to support him. But it was Blanche's unprecedented deal to settle Trump's IRS lawsuit with a$1.8 billion fund to compensate his allies that almost tanked Blanche's nomination.

13:31Republican Senators John Cornyn and Tom Tillis only dropped their opposition after Blanche posted an order last Sunday rescinding the so-called anti-weaponization fund and narrowing Trump's tax immunity deal. I've never liked this 1776 fund. It made no sense to me and I thought it was an insult to the police officers and the people that defended us on January the 6th. It's done. It's been rescinded and I am satisfied. Though Senator Tillis may think the fund is done, Democratic senators like Cory Booker say the papers attached to Blanche's post have no legal significance at all.

14:12David Super:This is ridiculous. We got nothing, no guarantees whatsoever that this slush fund still can't go forward. We got nothing that the president of the United States can't cheat on his taxes and have no accountability. Joining me is an expert in constitutional law, David Super, a professor at Georgetown Law. David, tell us about the two pages that Blanche posted that led Senators Cornyn and Tillis to fold. One is an order signed by Blanche, and the other is an unsigned memo from the Justice Department. He basically typed up what he said at the hearing and posted it. There's literally nothing new there.

14:56David Super:And indeed, he said there was nothing new there. He's telling the truth on that. I'm sure he prepared his talking points for the hearing very, very carefully that those words were not extemporaneous. And these are the same words. He says, looking entirely retrospectively, that the so-called weaponization fund did not get off the ground. He does not make any promises that they won't do something like that tomorrow, but he says, and I think this is historically accurate, it did not start. And then he says that the immunity for Trump is limited to Trump, his family, and his organization, which were the parties of the case.

15:39David Super:We always knew that. So he is setting to rest the fears of people who can't read, but he is leaving the rest of us just as nervous as we were before. The settlement agreement says this settlement agreement may be modified only with the written agreement of the parties. And President Trump didn't sign anything. And he told reporters on Wednesday that he didn't even look at this. Yeah, there's so many holes here, it's hard to count them. Blanche says the agreement didn't go forward, but as you note, they don't modify it, and he doesn't have authority to modify it unless you say, well, actually, he's Trump's lawyer in all respects, so he can modify it on behalf of both the plaintiffs and the defendants, which I don't think is quite the case.

16:31David Super:but he has no authority to modify it because it requires the agreement of the plaintiff's council. So he didn't modify it. He just said they didn't act on it, which is true, but doesn't mean they won't act on it in the immediate future as soon as he's confirmed. And he says that they haven't put the money out there, but he doesn't promise not to raid the justice fund for payoffs for more Trump-affiliated lawbreakers. The Judgment Fund is still there. And if Senator Cornyn really was concerned about this, he should have asked Mr. Blanche for the administration's agreement to an amendment to the Justice Fund, a quick unanimous consent bill amending the Justice Fund to make it unavailable to pay for settlements with anyone affiliated with the president.

17:20David Super:That would be an easy fix to make sure this never happens again. As far as we can tell, that wasn't even requested, much less done. Also, a federal judge in Florida had issued a ruling preventing Trump from enforcing the$1.8 billion fund and the tax immunity deal. She said his IRS lawsuit was a sham and had no basis in law or fact. Well, on July 31st, Trump filed a notice that he would appeal her ruling. What does that tell you? It tells you that the weaponization fund is not dead, that the tax immunity is not gone, and that this is just a second saga in the collusive litigation. Because, of course, Trump appeals that decision, and then he orders the Justice Department not to fight the appeal.

18:11David Super:So it will be uncontested in the appellate court. I hope the 11th Circuit has the integrity to appoint someone to participate as a friend of the court to make the arguments for affirming what the district court did. But saying we're going through more judicial proceedings where we control both sides of the case should give nobody any reassurance. The whole point of our system is that it's an adversary system. And it only works well, it only purports to work well when there are serious advocates on both sides. There's never been that in this case. Democratic senators voiced their opposition to Blanche for other reasons, the departure of thousands of attorneys and staff at the Justice Department, the weaponization of the department to pursue Trump's political enemies, his protecting Trump in the bungle release of the Epstein files, to name a few.

19:06How do you judge his performance as acting attorney general? Mr.

19:11David Super:Blanche has taken more than 200 years of careful, mostly nonpartisan professionalism at the Justice Department and thrown it in the trash. And he has shown everybody just how politicized the department could be. When someone single-handedly destroys the tradition of an agency, he should not be continued in a position of leading that agency. The argument that was floated is we won't get a better nominee from the president. I'm not sure they would, but getting someone who has not committed the gross violations of public trust that Mr. Blanche already has is better than waiving someone through who has committed those acts.

20:01And if Mr.

20:04David Super:Trump is determined to have Todd Blanche there, he should be serving in an unconfirmed capacity. What he will now have is the blessing of the United States Senate, which was well aware of all the things that he did. This will, of course, become enormously controversial next time we have a Democratic administration and a Democratic attorney general tries to follow some of the precedents that Mr. Blanche set. I hope a Democratic attorney general won't follow these precedents because they're just bad for the country, whatever side of the artisan aisle you're on. But he has completely reconceived the Justice Department.

20:42David Super:Mr. Trump has famously complained that he needed a Roy Cohn. He needed a dirty lawyer to push the limits and get him what he wants. And I think he's found one. I was surprised that the Epstein victims' opposition to Blanche and all that went on there didn't cause more Republicans to hesitate about Blanche, because that's been an issue that President Trump has been unable to put behind him. I think the word must have gone out that they've released pretty much everything they have that doesn't terribly incriminate the president or perhaps some members of Congress as well. And that the word is that they don't dare push any farther because the results will be catastrophic.

21:29David Super:I think a great many people who voted for the president and who voted for Republican members of Congress to support the president would be shocked, appalled, and deeply disillusioned if they found out that the president was as closely involved in Mr. Epstein's criminal activities as we keep being told. and the presence in these files of references to documents that have not been released is an ongoing problem. I think the decision has been made by Republicans and that they're largely following the party line to not press further on this because there's nothing else that can be done that wouldn't be destructive.

22:11David, what kind of an attorney general do you think Blanche will be. Sometimes when people get a new position, they step up.

22:20David Super:Oh, I think this is a what you see is what you get situation. He, by all accounts, was a competent and not particularly ideological prosecutor when he started out as a lawyer. So he knows how to be a good lawyer. But he's made a decision in his life. And there's no reason to think he would change, particularly since he can be dismissed at any time. So I I would not expect him to stand up to the president now. I would not expect him to say no to the president. I would not expect any scintilla of moderation out of him. The Justice Department is just a great big Trump law firm now. Obviously, Pam Bondi looked like a complete Trump acolyte coming in, and she served as attorney general in exactly that way.

23:07she was fired basically for doing something that she had promised to do with trump's blessing that

23:17David Super:blew up in his face concerning the epstein files i think that todd blanche has seen how even complete loyalty like hers was not good enough to save her job so he's not going to be under any illusions that he can show any independence at all and keep his job and he has made very clear he is not the sort of person who will resign on principle because just about any significant principle that is relevant to serving as attorney general, he's been asked to violate already. Let's end with a historical question. Can you think of any other attorney general in our recent history who was as willing to do the president's bidding as Blanche appears to be?

24:00David Super:Well, the only name that comes to mind, of course, is John Mitchell, Nixon's attorney general. And Nixon's attorney general was a frequent visitor to the White House, but he ended up in the big house. You're right, of course. I looked it up. Mitchell did serve 19 months in prison for his role in the Watergate scandal. Thanks so much for joining me, David. I always appreciate your insights. That's Professor David Super of Georgetown Law. Coming up next, a judge dismisses the felony case against a former Olympian for damage to the reflecting pool. But the case isn't over yet. I'm June Grosso, and you're listening to Bloomberg.

24:40The evidence shows, and we will prove beyond a reasonable doubt, that Hearn willfully destroyed property at the Lincoln Memorial Reflecting Pool. This was a delivered act to damage the reflecting pool at the National Mall. At a press conference a little over a month ago, D.C. U.S. attorney Janine Pirro repeatedly said that her office had evidence, including witnesses, to prove that former Olympic rower David Hearn had damaged the reflecting pool at the Lincoln Memorial by violently ripping up sealant from the bottom of the pool. Pirro charged Hearn with felony vandalism and rejected any suggestion that the pool had already been damaged.

25:26Oh, he damaged it. Further, but do you believe it had already been damaged before? He damaged the pool. But then, a stunning about face. Pirro's office admitted in a court filing that they didn't have the evidence against Hearn and that the damage was actually the result of a botched installation by the contractor. They asked the court to dismiss the case. But President Trump continues to insist that the pool was damaged by vandals. I was disappointed with Jeanine Pirro, really disappointed with Jeanine Pirro. She folded like an umbrella. On Thursday, a judge dismissed the felony vandalism charge against Hearn.

26:10My guest is former federal prosecutor Robert Mintz, a partner at McCarter and English. Bob Pirro blamed the Interior Department for providing less than fulsome information, but also wrote in the filing that a visual inspection showed damage throughout the reflecting pool, even in the middle, where a vandal wouldn't likely attempt to peel the lining. I mean, shouldn't the U.S. Attorney's Office have done a minimal, at least, investigation before they file felony charges against someone? That's exactly the question here and why this is such an embarrassing setback for the Department of Justice, because typically the Department of Justice does not rely on another agency to do its own investigation.