Speaker 1: This is Bloomberg Law with June grosseol from Bloomberg Radio.
Speaker 2: Under the advice of my attorneys, I will invoke my
Speaker 2: right under the Fifth Amendment of the Constitution to refrain
Speaker 2: from answering your questions.
Speaker 3: Doctor Anthony Fauci took the Fifth Amendment more than one
Speaker 3: hundred times during a Senate committee hearing on his handling
Speaker 3: of the COVID nineteen pandemic, arguing that the hearing was
Speaker 3: intended to trap him into committing perjury rather than uncovering
Speaker 3: new information. And committee chair Republican Senator Rand Paul has
Speaker 3: made no secret of his desire to see Fauci behind bars.
Speaker 2: Any reasonable person who was followed his unhinged obsession with
Speaker 2: me would readily come to the same conclusion.
Speaker 3: The committee voted along party lines to hold Fauci in
Speaker 3: content empt of Congress over his refusal to answer questions
Speaker 3: at the hearing.
Speaker 4: We're voting on whether or witness who has received the
Speaker 4: benefit of a sweeping federal pardon can be ordered by
Speaker 4: this committee to answer questions and then defy that order
Speaker 4: without consequence.
Speaker 3: But Fauci's pardon from President Joe Biden only covers acts
Speaker 3: from twenty fourteen through January twenty twenty five, the day
Speaker 3: it was issued. It doesn't protect Fauci from state level
Speaker 3: prosecutions or from prosecutions over a testimony that he gives
Speaker 3: that lawmakers think is false. Joining me is Dave Ahrenberg,
Speaker 3: former Palm Beach County State Attorney. Dave explain why Fauci
Speaker 3: took the fifth on advice of his lawyer.
Speaker 1: Anthony Fauci took the Fifth Amendment because he knew he
Speaker 1: was walking into a perjury trap, and his lawyers knew
Speaker 1: that and told him that perjury is not part of
Speaker 1: the pardon you received, that you can still be prosecuted
Speaker 1: for that. And even though it's going to look bad
Speaker 1: in the court of public opinion, you have to realize
Speaker 1: that public statements made by Rand Paul and others show
Speaker 1: that their intent was to lock Fauci up, and you
Speaker 1: were just walking into a buzzsaw because they just dropped
Speaker 1: thousands of pages of documents right before the hearing. And
Speaker 1: you have an eighty five year old man who's going
Speaker 1: to be asked all these details in if he slips up,
Speaker 1: if he makes a mistake, he's on a one way
Speaker 1: ticket to the huscal and If you had any doubts
Speaker 1: about that, just ask James Comy, who was prosecuted for
Speaker 1: lying to Congress even though he didn't lie to Congress,
Speaker 1: or Jerome Powell, who was sent as a referral to
Speaker 1: the DOJ for allegedly making a false statement to Congress
Speaker 1: when he didn't or Jack Smith, who currently is under
Speaker 1: a referral from Congress to the DOJ for making a
Speaker 1: false statement to Congress that he did not make. So
Speaker 1: if Congress wants to weaponize the DOJ against you, they
Speaker 1: will under this administration.
Speaker 3: Senator Rand Paul continues to say that Fauci had no
Speaker 3: soh valid Fifth Amendment claim because the pardon nullified it,
Speaker 3: and that he waived any remaining protection by testifying.
Speaker 1: Okay, First, a pardon does not shield a witness from
Speaker 1: potential state level charges, and there are states who could
Speaker 1: prosecute him, and so he does have a legitimate claim
Speaker 1: to the Fifth Amendment against self incrimination. Plus, a pardon
Speaker 1: does not protect against a perjury charge because Aparton only
Speaker 1: protects you from charges that would have stemmed from things
Speaker 1: you've done in the past, not from something you're doing now,
Speaker 1: which is a statement before Congress. And if the Congress
Speaker 1: thinks that you are fibbing, they will refer it for prosecution.
Speaker 1: Plus a pardon does not affect state level charges. And
Speaker 1: so that's why he did have a legitimate claim of
Speaker 1: the Fifth Amendment. Here, it's Rampaul's own words being used
Speaker 1: against him that he wants to lock this guy up.
Speaker 1: And so this was not just a fact finding enterprise
Speaker 1: where they had a good faith discussion about the origins
Speaker 1: of COVID.
Speaker 5: He's testified many times before about this. What this was
Speaker 5: about was to.
Speaker 1: Find a reason a way to get Fauci, prosecute an
Speaker 1: eighty five year old man for slipping up and then
Speaker 1: getting what Rand Paul has dreamed of, which is Anthony
Speaker 1: Fauci waking up in an orange jumpsuit and a pair
Speaker 1: of steel bracelets.
Speaker 3: What's this fixation that Rand Paul has with Fauci.
Speaker 5: It's historic.
Speaker 1: It's something that's like the half feels on the McCoys,
Speaker 1: except you're dealing with a one on one situation where
Speaker 1: they just have this deep seated dislike of each other.
Speaker 1: And Rand Paul has blamed COVID in the way that
Speaker 1: it was handled on Fauci from the leak of the
Speaker 1: lad that he believes was funded by Fauci through the
Speaker 1: research that he was doing, to the mistakes made afterwards.
Speaker 1: And now it was ran Paul who leaked Fauci's diary.
Speaker 1: I mean, if rand Paul was really trying to act
Speaker 1: in good faith and trying to get answers, why embarrass
Speaker 1: a guy by leaking his diary. I mean, I thought
Speaker 1: Rampaul was a libertarian who wanted less government. But this
Speaker 1: is the government getting the diary of a now private
Speaker 1: individual and leaking it.
Speaker 5: For the world to see. It doesn't sound like less
Speaker 5: government to me.
Speaker 3: Could Rand Paul have given Fauci immunity for his testimony.
Speaker 1: Well, perjury cannot be immunized, so you could say that
Speaker 1: you're getting immunity for anything you answer, But if.
Speaker 5: You lie, that could be prosecuted.
Speaker 1: And remember, if you're trying to get someone to commit
Speaker 1: perjury to set up a perjury trap, then saying you're
Speaker 1: immunized from prosecution is not good enough.
Speaker 5: You could always find a way.
Speaker 1: If Rampaul wants her to twist Fauci's words to refer
Speaker 1: to the dog, we've seen this. He saw Sir Jack
Speaker 1: Smith and throwing Powell and James COMI. I mean, they
Speaker 1: didn't lie to Congress, but they were referred to prosecution
Speaker 1: because that was the intent of the politicians who wanted
Speaker 1: these individuals prosecuted. Well, that's why Fauci was like, Hey,
Speaker 1: I thought what this is about. I've seen this move
Speaker 1: before and I'm not going to be part of it.
Speaker 5: So, yes, he takes a hit in.
Speaker 1: The court of public opinion because it doesn't look good
Speaker 1: when you invote the fifth so many times, But at
Speaker 1: the same time, he'll do so as a free man.
Speaker 3: Paul said the prosecution referral would be hand delivered to
Speaker 3: the Justice Department, So he bypassed a vote by the
Speaker 3: full Senate, perhaps because it's only voted twice in the
Speaker 3: past half century to hold someone in contempt.
Speaker 1: Well, that's going to be another argument for Fauci's lawyers
Speaker 1: if this ever results in a prosecution, because you're supposed
Speaker 1: to send it to the full Senate for the vote,
Speaker 1: and he is short circuiting that process. He's attempting to
Speaker 1: bypass a full Senate vote to send it directly to
Speaker 1: the DOJ, and that deviates from standard institutional procedure. Plus,
Speaker 1: the vote was on a narrow party line committee vote.
Speaker 1: So I don't think that's legal, but something that can
Speaker 1: be tied up in the court. Remember, a lot of
Speaker 1: this is not necessarily to convict Fauci of anything.
Speaker 5: It's to make life miserable for the guy.
Speaker 1: This is Ram Paul wielding his power against an eighty
Speaker 1: five year old man who served for many decades in
Speaker 1: public life, and to humiliate him, and then to make
Speaker 1: him spend hundreds of thousands of dollars fighting against the
Speaker 1: criminal charge. And there's an old saying that we used
Speaker 1: to say at the State Attorney's office that you can
Speaker 1: beat the rap, but you can't beat the ride.
Speaker 3: The top Democrat on the committee, Senator Gary Peters, said
Speaker 3: that if the committee tries to punish a witness for
Speaker 3: asserting their Fifth Amendment rights, future witnesses will argue that
Speaker 3: appearing before Congress exposes them to punishment regardless of whether
Speaker 3: they comply with the subpoena and invoke a constitutional protection.
Speaker 3: Do you think that future witnesses would be chilled by
Speaker 3: what's happening here.
Speaker 1: I think that all future witnesses who are in the
Speaker 1: crosshairs of President Trump and leaders of the MAGA world
Speaker 1: are going to think twice. This is what happens when
Speaker 1: you weaponize the Department of Justice to go after Trump's enemies,
Speaker 1: whether it's Jerome Powell or Jack Smith or James Comy.
Speaker 1: Future witnesses are going to see that and they're going
Speaker 1: to say, wait, wait, these guys didn't lie to Congress,
Speaker 1: and yet they're being referred for criminal prosecution for lying
Speaker 1: to Congress. I mean, James Comy even was charged with
Speaker 1: lying to Congress, and that was based on ambiguity. So
Speaker 1: you can see why they're saying, Okay, this is not
Speaker 1: just a figment of our imagination. Normally, you cannot just
Speaker 1: take the fifth because you don't want to enter into
Speaker 1: a perjury trap.
Speaker 5: But this perjury trap is real.
Speaker 1: This is a case where the monsters under your bed
Speaker 1: really do exist.
Speaker 3: They're saying that it's now up to the DCUs attorney
Speaker 3: Janine Pierro whether to prosecute or not. I mean, is
Speaker 3: there any doubt that she will prosecute a man who's
Speaker 3: somewhere near the top of Resident Trump's enemies list.
Speaker 1: They're getting to the impureau at the perfect time, which
Speaker 1: is a time of vulnerability where she's worried about being
Speaker 1: fired by President Trump because she moved to dismiss the
Speaker 1: case against David Hearn, the guy who was wrongfully prosecuted
Speaker 1: for vandalizing the reflecting pond, which he didn't do.
Speaker 5: And so Trump is very upset with her. So to
Speaker 5: keep her job, she's.
Speaker 1: Going to do, in my mind, what the administration expects
Speaker 1: her to do. But the issue is that this does
Speaker 1: open the way for a defense lawyer to say this
Speaker 1: is an illegal procedure're supposed to get the approval of
Speaker 1: the full Senate. You can't just go around that procedure. Now,
Speaker 1: under federal law, a statutory criminal contempt of Congress charged
Speaker 1: that obligates the US Attorney to bring the case has
Speaker 1: to be certified by the full Senate or the full House.
Speaker 1: So what they're trying to do here is to send
Speaker 1: it to the DOJ as a recommendation, without a legal
Speaker 1: mandate to act, just as a request. But I still
Speaker 1: don't think that holds water because the DJ can always
Speaker 1: reject vote by the US House or the US Senate.
Speaker 5: They've done that in the past.
Speaker 1: Merreck Garland did that when the Democratic House tried to
Speaker 1: send some people to the DJ for contempt who didn't
Speaker 1: want to cooperate with the January sixth investigation.
Speaker 5: It's up to the DOJ. They have prosecutoral discretion.
Speaker 1: So I don't think you can get around the full
Speaker 1: Senate having to approve this by saying it's just a recommendation,
Speaker 1: not a mandate. It's never a mandate to the DOJ.
Speaker 1: It's always really a recommendation, Dave.
Speaker 3: So let's say he is indicted. Is it a good
Speaker 3: defense that this was a perjury trap?
Speaker 1: Oh? Absolutely, And they're going to use rand Paul's words
Speaker 1: against them because Ran Paul and others said that, yeah,
Speaker 1: we want to prosecute he needs to be in handcuffs,
Speaker 1: and so you can't look at this in a bubble.
Speaker 1: Normally you would say, no, you can't take the fifth
Speaker 1: in a situation like this where you're being asked questions
Speaker 1: and you've been given a pardon and the only criminal
Speaker 1: liability here is just the fact that you may or
Speaker 1: may not be telling the truth. Now, in response, thousands
Speaker 1: lawyers are going to say the perjury trap is real.
Speaker 1: We're not living in normal times. You can't look at
Speaker 1: this in a bubble. This is a situation where the
Speaker 1: senators have said we want to prosecute him. We're bringing
Speaker 1: him back before this body, not as a fact finding mission,
Speaker 1: because we've already done that, but to catch him in perjury.
Speaker 1: And then the defense leaders will point to Jack Smith
Speaker 1: and James Comy and Jerome Pallace here, this is what
Speaker 1: we're trying to avoid. And then on top of that,
Speaker 1: they can also mention you've got very aggressive Republican state
Speaker 1: attorney generals who are around the country trying to oscute Fauci,
Speaker 1: and Fauci's pardons do not protect him against that, so
Speaker 1: he does have a legitimate claim to take the Fifth Amendment.
Speaker 3: Yeah, so state attorneys general in Florida, Alabama, Louisiana, and
Speaker 3: Oklahoma are launching inquiries, and the Florida Ag in your
Speaker 3: neck of the woods, Dave said that Florida law on
Speaker 3: deceptive trade practices, fraud or public nuisances could be invoked.
Speaker 3: I mean these sound like uphill battles, to say the least.
Speaker 3: And you've also got statute of limitations problems.
Speaker 1: So number one, the Attorney General of Florida is up
Speaker 1: for election in November, and this is the type of
Speaker 1: thing that will motivate his political base. And it's one
Speaker 1: thing to say you're investigating some other thing to actually
Speaker 1: bring charges. Does Florida have jurisdiction over a national figure here,
Speaker 1: someone who is a federal official at the time. You're
Speaker 1: not given the ability under the supremacy clause to do that.
Speaker 1: You're a state official. There's the doctor of federal immunity.
Speaker 1: State officials generally lack the jurisdictional authorities to prosecute federal
Speaker 1: executive officers for things that they've done within the scope
Speaker 1: of their official federal duties, so you wouldn't have the jurisdiction. Plus,
Speaker 1: is there a Florida connection to the gain of function research?
Speaker 1: Is there a Florida connection that gives him jurisdiction? Does
Speaker 1: the statue limitations bar any prosecution? There are so many
Speaker 1: reasons why you cannot get a prosecution here, and it
Speaker 1: just shows that it's all political. But the fact that
Speaker 1: the state attorneys general are threatening this gives yet another
Speaker 1: defense to Fauci's lawyers to say, this is why we
Speaker 1: took the Fifth Amendment.
Speaker 3: Peter Navarro was found guilty of contempt of Congress and
Speaker 3: served four months. Steve Bannon also served four months for
Speaker 3: contempt of Congress. Their appeals multiple appeals failed. So is
Speaker 3: Fauci any different?
Speaker 5: Yes, very different.
Speaker 1: You know what the biggest different June, It's that Peter
Speaker 1: Navarro and Steve Banner didn't even show up. Anthony Fauci
Speaker 1: showed up. He showed up to answer questions, but then
Speaker 1: when he realized he was walking into a perjury trap
Speaker 1: where the Senator is saying we're gonna prosecute you, where
Speaker 1: state attorneys general are like chomping at the bit, that's
Speaker 1: when they took the fifth. That's different than Bannon or Navarro,
Speaker 1: who thumbed their noses at the committee, didn't even show up.
Speaker 1: And that's why I think you'll see Fauci defend himself
Speaker 1: and win as opposed to Navarro and Bannon who lost.
Speaker 3: It's always great to talk to you, Dave, Thanks so much.
Speaker 3: That's former Palm Beach County State Attorney Dave Ahrenberg coming
Speaker 3: up complaints from judges at the Fifth Circuit. This is Bloomberg.
Speaker 3: The Fifth Circuit is on its way to making on
Speaker 3: bank history, with fourteen total grants and twelve rehearings scheduled
Speaker 3: this year, and now, in an extremely rare move, some
Speaker 3: of the judges have started dissenting from the grants of
Speaker 3: full court review, voicing their consternation as the number of
Speaker 3: on Bank cases rises. An on Bank review means that
Speaker 3: all the judges in the circuit hear oral arguments and
Speaker 3: decide a case after a party requests a rehearing from
Speaker 3: a decision of a three judge panel. At the New
Speaker 3: Orleans based Federal Court, three judges, a Ronald Reagan appointee,
Speaker 3: a George W. Bush appointee, and a Barack Obama appointee
Speaker 3: have voiced their consternation at the number of Ombank cases
Speaker 3: being heard. Joining me is Bloomberg Law reporter Jacqueline Thompson. So,
Speaker 3: Jacqueline tell us about the Fifth Circuit hearing more Ombank
Speaker 3: cases lately?
Speaker 6: They definitely have, and I sit in the courtroom for
Speaker 6: all of them, and the judges are even talking about
Speaker 6: how many cases they're hearing. Back in January, they were
Speaker 6: scheduled to hear seven arguments and it ended up once
Speaker 6: got scuttled at the last minute, so they had six
Speaker 6: arguments across seven cases.
Speaker 7: Then they had two more in May.
Speaker 6: They have five hours arguments across four cases set up
Speaker 6: for September, and that number has just been ticking up
Speaker 6: since all the Trump appointees have joined the appeals Court.
Speaker 6: You know, obviously there was a bunch of litigation against
Speaker 6: the Biden administration that ended up within the Fifth Circuit's jurisdiction,
Speaker 6: and those are all really high profile cases. Some judges
Speaker 6: want to, you know, be able to dip their toes
Speaker 6: in and make their voices heard, especially if they disagree
Speaker 6: with the underlying panel opinions. So you know, we have
Speaker 6: been seeing the full slate of active judges be especially
Speaker 6: eager to be taking up en banc cases lately.
Speaker 3: Describe the composition of the Fifth Circuit for US, I
Speaker 3: usually say that it's the most conservative circuit in the country.
Speaker 6: Right, So there are seventeen active judges. Six of those
Speaker 6: currently are Trump appointees, There's two Reagan appointees.
Speaker 7: There's a handful of George W.
Speaker 6: Bush appointees, a handful of Clinton and Obama appointees as well.
Speaker 6: But it's that conservative block which I sort of count
Speaker 6: as the six Trump appointees plus the two Reagan appointees
Speaker 6: that make up you know, the driving force here, because
Speaker 6: that is eight out of seventeen votes. And then if
Speaker 6: you know, you have any judges who have to refuse
Speaker 6: can't hear a case, you know, that gives that block
Speaker 6: even more power. One of those judges, Kurt Engelhart, he's
Speaker 6: a Trump appointee. He's going to be taking senior status,
Speaker 6: so he'll soon no longer be part of the en
Speaker 6: banc proceedings. But another Trump appointed judge will be taking
Speaker 6: his place, we expect in the next few months.
Speaker 3: A descend from a denial of emotion for an on
Speaker 3: bank hearing is more common than these descents, which are
Speaker 3: descents from the granting of emotion for an onbank hearing. Right.
Speaker 6: Yeah, we see descents from denial all the time, and
Speaker 6: that could be because a judge wants to flag it
Speaker 6: for the Supreme Court. Sometimes judges want to say, we
Speaker 6: should have heard this case, we should have reviewed it
Speaker 6: as a full court, and here are the reasons why
Speaker 6: I think this is the situation. I think we need
Speaker 6: to revisit bad precedent. I think we need to realign
Speaker 6: what the court is doing with what the Supreme Court
Speaker 6: has told us to do, you know, things along those lines.
Speaker 6: So often when they put out those ascents, it can
Speaker 6: either be to a get their opinions out on the
Speaker 6: record or to be sort of raise a hand up
Speaker 6: to the Supreme Court and say, hey, our full court
Speaker 6: messed up. You should take a look at this and
Speaker 6: review of what the panel did.
Speaker 3: How are the descents from the grant of on bank hearing?
Speaker 3: I mean, can you categorize what they're like?
Speaker 6: So there's been so few of them that it's kind
Speaker 6: of hard to say with a broad sweep of what
Speaker 6: exactly they're like. But you know what's interesting about them
Speaker 6: is you would think with an no Bank case, you
Speaker 6: know that it's getting argued before the full court, judges
Speaker 6: have the opportunity then to share their feelings about them
Speaker 6: hearing the case. They have the opportunity when the opinions
Speaker 6: are issued to lay out how they feel about here
Speaker 6: a case. But here they're sort of you know, dipping
Speaker 6: in early in the process and they're going, hey, before
Speaker 6: we do anything else of this, I just want to
Speaker 6: stick my hand up and say we're wrong.
Speaker 7: We are wrong to.
Speaker 6: Even hear this case in the first place. I was
Speaker 6: till recently apparently the term for this is actually a discrantle,
Speaker 6: and that is what the judges are doing here. They
Speaker 6: are disgruntled and they've issued a discrantle. And you know,
Speaker 6: there are various reasons why they might want to be
Speaker 6: saying all of this, they might want to flag it
Speaker 6: for briefing in the case in the future, you know,
Speaker 6: before the parties step up and say anything and give
Speaker 6: an opportunity for outside parties to file anarchist briefs and
Speaker 6: raise issues here, or they're saying, Hey, we're wielding our
Speaker 6: en banc power weirdly, and I don't like it, and
Speaker 6: I think we need to revisit exactly when we're hearing
Speaker 6: these cases, and why.
Speaker 3: Tell us about some of the cases where we've had
Speaker 3: these disgruntled disgruntled whatever is so.
Speaker 6: The first one I had noticed was last year's judge
Speaker 6: Leslie Southwick. He's a George W. Bush appointing on the Court.
Speaker 6: He's sort of a more moderate voice in this day
Speaker 6: and age. Maybe in an earlier version of the Court
Speaker 6: not so much. But he had been on the initial
Speaker 6: panel for the case, which was over the Trump administration's
Speaker 6: use of the Alien Enemies Act to deport Venezuelan nationals
Speaker 6: from the country, and what he said there was I
Speaker 6: don't understand why our full court is hearing this case.
Speaker 6: I think this should have just gone straight to the
Speaker 6: Supreme Court. This is obviously an issue of high importance.
Speaker 6: And we need them to be able to weigh in
Speaker 6: on it. And it's going to end up there anyway,
Speaker 6: So why are we delaying all of this? One of
Speaker 6: the Trump appointees on the court, Judge James Hoe, he
Speaker 6: stepped in. He filed a concurrence. He said, you know,
Speaker 6: DOJ asked us to hear this case. It's compelling, it's interesting,
Speaker 6: it's important, So we're gonna hear it. And that's the
Speaker 6: deal there. So you know, that could be sort of
Speaker 6: the Circuit trying to hold onto their power and influence
Speaker 6: too and saying no, we also can issue very important decisions.
Speaker 7: It's not just the Supreme Court. So that was one instance.
Speaker 7: A few weeks ago.
Speaker 6: Judge Jerry Smith, a Reagan appointee, there was a criminal
Speaker 6: case that they took up bom banc. It was a
Speaker 6: discovery dispute in a long litigated murder trial, and he
Speaker 6: had written the underlying panel opinion and said, you know,
Speaker 6: I wrote my panel opinion. Judge Southwick wrote a dissent
Speaker 6: that should have been totally fine. We don't need to
Speaker 6: revisit this. As a non banc court. We hear very
Speaker 6: important cases as a non bank court. I love en
Speaker 6: banc proceedings. We should have more of them, but this
Speaker 6: is not the case. And then the last one was
Speaker 6: Judge Stephen Higginson. He's a Barack Obama appointing on the court.
Speaker 6: The court has taken up a constitutional challenge to the
Speaker 6: felon gun in possession law, which has been really widely
Speaker 6: litigated over the last few years, given recent Second Amendment
Speaker 6: rulings from the US Supreme Court, and then most recently,
Speaker 6: the Justice Clarence Thomas wrote an opinion where he said, hey,
Speaker 6: I think that maybe this gun ban is unconstitutional under
Speaker 6: the Commerce Clause of the Constitution.
Speaker 7: Now four weeks.
Speaker 6: Later, the Fifth Circuit says, hey, let's take up this
Speaker 6: fellon gun in possession case. And Judge Higginson says, I
Speaker 6: think this is actually about the Commerce clause thing and
Speaker 6: not applying another precedent, which is what I'd been raised
Speaker 6: in the briefing below. So he started bringing up all
Speaker 6: the issues he had with revisiting these sorts of issues
Speaker 6: with taking up a Commerce clause challenge. He said, you know,
Speaker 6: this brings up the potential that our circuit is going
Speaker 6: to completely upend the US Code. We could get challenges
Speaker 6: to all certain kinds of laws. It could be security regulations,
Speaker 6: it could be child sexual abuse, possession charges. You know,
Speaker 6: we're sort of opening Pandora's box here. And he put
Speaker 6: out a list of groups that he thinks will want
Speaker 6: to file briefing in the case. And it seemed to
Speaker 6: be a little bit of him going to the outside world. Hey,
Speaker 6: everyone take a look and make sure your voice is
Speaker 6: heard when we.
Speaker 7: Hear this case.
Speaker 3: I mean, the Supreme Court has been taking a lot
Speaker 3: of cases from the Fifth Circuit the last few years.
Speaker 3: In fact, last term it took more cases from the
Speaker 3: Fifth Circuit than any other circuit. The circuit is sort
Speaker 3: of known for pushing the envelope as far as the
Speaker 3: law is concerned.
Speaker 6: That is what some observers say. This last term was
Speaker 6: a little weird at the Supreme Court. The Fifth Circuit
Speaker 6: cases seemed to just be cases that happened to come out.
Speaker 7: Of the Fifth Circuit.
Speaker 6: Now, there were a few that were definitely what I
Speaker 6: think of as quintessential Fifth Circuit cases. For example, if
Speaker 6: you are voting on election day, can you only vote
Speaker 6: on election day? Or can your vote that was postmarked
Speaker 6: after the facts still be counted? And that was over
Speaker 6: a Mississippi statute allowing military members to vote from overseas
Speaker 6: by mail. So there are always a few of those cases,
Speaker 6: but this past term was a little more. Things just
Speaker 6: happened to happen within the Fifth Circuit and that case
Speaker 6: just happened to be taken up by the Supreme Court.
Speaker 3: Are there any other circuits that are hearing more cases
Speaker 3: on bank than they used to?
Speaker 7: I don't know if it's more than they've used to.
Speaker 6: The Ninth Circuit has always been incredibly active on unbanked cases,
Speaker 6: and they even have their own procedure because they have
Speaker 6: so many judges. I believe they have twenty nine active judges,
Speaker 6: so they have a situation where not all of the
Speaker 6: judges sit on the en banc court when they were
Speaker 6: reviewing underlying panel opinions. And as a result, we actually
Speaker 6: do see more of the descents from grants of en
Speaker 6: banc on that circuit because judges are going, oh gosh,
Speaker 6: I don't know if I'm going to be on this
Speaker 6: court and I got something to say, so I'm going
Speaker 6: to say it right now.
Speaker 3: On the DC Circuit, it seems that a lot of
Speaker 3: times when there's a two to one decision with two
Speaker 3: Republican appointees in the majority, the full DC Circuit will
Speaker 3: take the case and then it ends up getting reversed.
Speaker 3: And I'm wondering if the opposite is true here, if
Speaker 3: when you have two Democratic appointees in the majority in
Speaker 3: a two to one case, that then the full circuit
Speaker 3: takes the case and reverses.
Speaker 7: Yeah, that's a trend I've seen pop up.
Speaker 6: I'll say that I haven't crunched the numbers for the
Speaker 6: most recent six cases or so, but earlier in the
Speaker 6: year I actually took a look at the number of
Speaker 6: underlying panel rulings that senior judges were on, and the
Speaker 6: senior judges on the Fifth Circuit are more moderate. They
Speaker 6: tend to not be in the same camp necessary as
Speaker 6: the Trump and the active Reagan appointees, and as a result,
Speaker 6: the conservative majority of active judges says, Okay, well we'll take.
Speaker 7: Up this case.
Speaker 3: Thanks for keeping such a close eye on the Fifth
Speaker 3: Circuit for us, Jacqueline, I really like to talk about
Speaker 3: trends on the circuit courts. It's so interesting. That's Bloomberg
Speaker 3: Law reporter Jacqueline Thompson coming up next on the Bloomberg
Speaker 3: Law Show. FBI director Cash Patel is planning to reduce
Speaker 3: lawyers at the FBI, deepening divisions with his general counsel.
Speaker 3: I'm June Grosso and you're listening to Bloomberg. FBI Director
Speaker 3: Cash Patel is planning to shrink his legal advisory office,
Speaker 3: deepening divisions with his general counsel as outside lawsuits are
Speaker 3: challenging prior staff termination. That's according to Bloomberg sources, and
Speaker 3: the FBI's Office of the General Council has begun carrying
Speaker 3: out Patel's instructions by put wishing its workforce to take
Speaker 3: early retirement. Joining me is the Bloomberg Law reporter who
Speaker 3: covers the Justice Department, Ben Penn. He wrote this story
Speaker 3: on the FBI. Ben start by telling us about the
Speaker 3: FBI Office of the General Council.
Speaker 8: Sure, it has a number of functions behind the scenes.
Speaker 8: There are a couple hundred lawyers as of recently, or
Speaker 8: as of at least before the start of this administration,
Speaker 8: when people started taking the fork in the road, there
Speaker 8: were about three hundred lawyers there who are split into
Speaker 8: national security, criminal investigation, and litigation branches. And so they do,
Speaker 8: you know, whenever there are sensitive investigations going on, they
Speaker 8: will be advising agents. They'll be advising senior FBI executives
Speaker 8: up to the Director on ensuring that investigations are conducted
Speaker 8: in a law manner, that they're complying with the Constitution,
Speaker 8: with ethical guidelines. It's also the General Counsel's Office is
Speaker 8: also going to be coordinating with prosecutors at Main Justice
Speaker 8: to have those lawyer to lawyer conversations so that the
Speaker 8: FBI is on the same page with the lawyers who
Speaker 8: are actually going into court to bring cases based on
Speaker 8: the investigations that the Bureau has conducted. They're also going
Speaker 8: to be working with thej lawyers in responding to lawsuits
Speaker 8: that the FBI faces from say, in this administration, this
Speaker 8: has been a recurrence from former agents and officials who've
Speaker 8: been terminated by Director Cash Bettel. The General Council's Offices
Speaker 8: going to play a significant role behind the scenes in
Speaker 8: coming up with the litigation strategy.
Speaker 3: Project twenty twenty five advocated for the elimination of this office.
Speaker 3: Why Yeah.
Speaker 8: They felt that it was duplicative that the work could
Speaker 8: be handled instead by attorneys at Justice Department headquarters. That's
Speaker 8: the where the legal work should be done. The FBI
Speaker 8: doesn't need to have this function as well.
Speaker 3: So up to this point, have they been letting people go.
Speaker 5: No.
Speaker 8: That's what's interesting is that even as there have been
Speaker 8: terminations of senior and line level employees of the FBI
Speaker 8: under Director Patel, we have not seen those sort of
Speaker 8: adverse personnel actions at the General Council's Office, and the
Speaker 8: current General Counsel Sam Raymer, has been able to stave
Speaker 8: off until now at least, has been able to stave
Speaker 8: off the kind of workforce reductions that we've seen elsewhere.
Speaker 6: In the bureau.
Speaker 3: Tell us about your story and this plan to shrink
Speaker 3: the office.
Speaker 8: Sure, so the reporting has evolved essentially in recent months.
Speaker 8: You know, there have been tensions between the General Counsel
Speaker 8: and the FBI Director, according to my sources, and we
Speaker 8: saw that play out in a number of ways. A
Speaker 8: couple months ago, there was a demand from the Director's
Speaker 8: office that the General Council's Office find any attorney to fire,
Speaker 8: to sort of send a message to the staff, and
Speaker 8: that wound up going away and nobody was fired. And
Speaker 8: then more recently, it was the understanding of my sources
Speaker 8: that there was a demand that twenty five percent of
Speaker 8: the attorneys at the General Council's Office be cut, and
Speaker 8: even more recently than that that has evolved a bit
Speaker 8: into less of a firm demand. Twenty five percent is
Speaker 8: no longer understood to be a hard expectation. And now
Speaker 8: what is happening is FBI lawyers are being offered voluntary
Speaker 8: early retirement as a means of getting out the door
Speaker 8: before they'd otherwise be eligible for retirement. And the FBI
Speaker 8: is not denying this reporting, but they're characterizing it as
Speaker 8: part of a reorganization that they say is long overdue
Speaker 8: at the General Counsel's Office.
Speaker 3: So you said that they were trying to send a message,
Speaker 3: or cash Patel was trying to send a message. What's
Speaker 3: the message they were trying to send?
Speaker 8: The assumption and again this is what you know. This
Speaker 8: is the understanding of my sources. It's not we would
Speaker 8: have to ask cash Pateel or his inner circle exactly
Speaker 8: what their intention was. But the you know, the understanding
Speaker 8: room from the people I talked to, is that it
Speaker 8: was sort of to ensure that nobody feels to secure
Speaker 8: in their in their jobs and that they need to
Speaker 8: ensure that they are serving the mission. There was a
Speaker 8: statement provided by Patel's spokesperson that was something to the
Speaker 8: effect of anybody who is weaponized would deserve to be terminated.
Speaker 8: You know, we have seen people lose their jobs under
Speaker 8: this FBI director if they got crosswise with the director's agenda,
Speaker 8: which has been very closely aligned with the White House
Speaker 8: in this administration.
Speaker 3: Ben give us an example of one of the investigations
Speaker 3: closely aligned with the White House.
Speaker 8: The six Democratic lawmakers who posted a social media video
Speaker 8: last year at reminding military officers of their duty not
Speaker 8: to obey unlawful orders, and that led to an FBI
Speaker 8: investigation in dj failed attempt at criminal prosecution. That's an example,
Speaker 8: a very stark example of this FBI being willing to
Speaker 8: initiate investigations that many veterans of the bureau have criticized
Speaker 8: for lacking any predication that a crime even existed.
Speaker 3: So what is the relationship between the General Council and Patel.
Speaker 8: The General Council and Cash Ptel. There is no known
Speaker 8: history between them as far as I understand. Sam Raimer
Speaker 8: is somebody who's a very experienced government lawyer and a
Speaker 8: GOP attorney on Capitol Hell and he worked in the
Speaker 8: Trump White House Counsel's Office in the president's first term.
Speaker 8: I don't know for sure. There's no apparent history the
Speaker 8: two of them have until they started working together in
Speaker 8: this administration. Sam Raymer, by all accounts, is hardly an obstructionist.
Speaker 8: He's somebody who has made it clear to his staff
Speaker 8: that they need to view it as their jobs as
Speaker 8: doing everything they can to get to yes when they
Speaker 8: are advising the director and his team on whether they
Speaker 8: are legally permitted to undertake certain actions that they want
Speaker 8: to take, and it is not their job unless something
Speaker 8: in their minds is very blatantly illegal, to recommend against it.
Speaker 8: That has been a shift that was somewhat shocking to
Speaker 8: some of the people I talked to in how the
Speaker 8: FBI General Counsel's Office would approach its role. And you know,
Speaker 8: that would seem to suggest that Raymer could fit in
Speaker 8: in the long run continuing to work for this director.
Speaker 8: But more recently their relationship has been strained. This is
Speaker 8: something that the director's spokesman said is false. But according
Speaker 8: to my reports, they are no longer as simpatico as
Speaker 8: they once were, and that you know, there are several
Speaker 8: examples that people pointed to the General Counsel's Office having
Speaker 8: waning influence in recent months, including a sense that they
Speaker 8: had to justify their existence by scrambling to put together
Speaker 8: a list of accomplishments to the director to show their worth.
Speaker 8: There was a legal conference for FBI lawyers nationwide that
Speaker 8: was canceled on very short notice. I have other reporting
Speaker 8: too to suggest that the General Counsel's Office may not
Speaker 8: be in good graces right now with the Director.
Speaker 3: So and you wrote that they don't voice recommendations against
Speaker 3: particular actions. That's something that they used to evaluate.
Speaker 8: Yeah, I mean that the people I talked to said
Speaker 8: that that has the default has become to avoid voicing objections,
Speaker 8: legal objections, that now people are trying to lay low
Speaker 8: and to help the FBI Director get to yes, And
Speaker 8: that if they even have objections, that they are going
Speaker 8: to be very careful and how they voice them, not
Speaker 8: to overtly advise against doing something, but maybe to more
Speaker 8: subtly lay out what the risk might be in order
Speaker 8: to avoid being cast as an obstructionist wing of the
Speaker 8: Justice Department.
Speaker 3: Let's turn to another one of your stories out the
Speaker 3: Justice Department, overstating the extent to which the Nevada US
Speaker 3: Attorney's Office has increased criminal charges and indictments while losing
Speaker 3: prosecutors during President Trump's second term.
Speaker 8: To make a long story short, I spent months reporting
Speaker 8: on some of the troubles that have been happening at
Speaker 8: the US Attorney's Office based in Las Vegas in the
Speaker 8: current administration and under the leadership of the office's top prosecutors,
Speaker 8: Segal Chada. And after writing a sort of a deep
Speaker 8: dive on the tumultuous past year that Chada has had
Speaker 8: leading the office, you know, I was struck by a
Speaker 8: statement that they provided in that story in which they
Speaker 8: said that the office is essentially doing more with less,
Speaker 8: that they have increased their criminal charges or cases charged
Speaker 8: by fifteen percent despite losing twenty percent of their prosecutors.
Speaker 8: So we asked to show their work and where they
Speaker 8: were getting those numbers from. We never got a response.
Speaker 8: So here at Bloomberg Law, our sharp data analysts did
Speaker 8: our own analysis and came up with numbers showing that indictments,
Speaker 8: criminal indictments, strangury indictments are down by six point four
Speaker 8: percent year over year from twenty twenty four to twenty
Speaker 8: twenty five, and that the office's overall charges, which would
Speaker 8: include cases that were brought without just indictments and would
Speaker 8: include complaints that those increased by four percent, contrary to
Speaker 8: the fifteen percent figure that the office presented to us.
Speaker 8: We came back to them with our findings, they started
Speaker 8: changing their narrative a bit to say that they were
Speaker 8: now measuring their productivity in just indictments now, and they
Speaker 8: said that indictments had increased by ten point seven percent
Speaker 8: year over year last year, and despite our findings that
Speaker 8: they had actually gone down by six point four percent.
Speaker 8: They were never able to show us their work explain
Speaker 8: where they were getting those numbers from. We showed them
Speaker 8: all of our work. Basically, long story short, what this
Speaker 8: is getting at is this is a Justice Department right
Speaker 8: now that is increasingly relying on statistics to try to
Speaker 8: refute the narrative that we are seeing in outlets, not
Speaker 8: just here at Bloomberg, that the Justice Department has been
Speaker 8: losing quite a bit of prosecutorial experience over the past
Speaker 8: year and a half, and they are trying to use
Speaker 8: statistics that, in their minds demonstrate that DOJ is still
Speaker 8: able to do more with less, and that prosecutions are
Speaker 8: at a record high. And this is just a snapshot.
Speaker 8: This is just one office out of ninety three. But
Speaker 8: our analysis shows that the Nevada US Attorney's Office, which
Speaker 8: is one of the many offices that have suffered from
Speaker 8: significant attrition, that the indictments are down over the past year.
Speaker 8: And the other point that's missing here is that measuring
Speaker 8: a DOJ prosecution office's success can't be done solely by
Speaker 8: looking at the total number of cases charged. That that
Speaker 8: requires a much more exhaustive and really complicated review if
Speaker 8: we want to really get under the hood and see
Speaker 8: how an office is performing, because it's not just the
Speaker 8: quantity of cases, it's the quality of cases. And sometimes
Speaker 8: you can have much more impact by bringing fewer cases
Speaker 8: but much more meaningful cases. So I want to make
Speaker 8: that point clear. But in this case, if this is
Speaker 8: how DOJ wants to show the public that they are
Speaker 8: still performing and that losing bodies doesn't actually have an impact,
Speaker 8: I believe that we deserve a little more transparency into
Speaker 8: where they are deriving their numbers from.
Speaker 3: It's an interesting time to be covering the Justice Department.
Speaker 3: Thanks so much, Ben. That's Ben Penn, Bloomberg Law Reporter,
Speaker 3: And that's it. For this edition of The Bloomberg Law Show.
Speaker 3: Remember you can always get the latest legal news on
Speaker 3: our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
Speaker 3: and at www dot bloomberg dot com slash podcast Slash Law,
Speaker 3: And remember to tune into The Bloomberg Law Show every
Speaker 3: weeknight at ten pm Wall Street Time. I'm June Grosso
Speaker 3: and you're listening to Bloomberg