WEBVTT - Fauci Held in Contempt & 5th Circuit Judges Cry Foul 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June grosseol from Bloomberg Radio. 0:00:09.039 --> 0:00:12.720 Under the advice of my attorneys, I will invoke my 0:00:12.880 --> 0:00:17.320 right under the Fifth Amendment of the Constitution to refrain 0:00:17.440 --> 0:00:19.200 from answering your questions. 0:00:19.520 --> 0:00:23.239 Doctor Anthony Fauci took the Fifth Amendment more than one 0:00:23.320 --> 0:00:26.840 hundred times during a Senate committee hearing on his handling 0:00:26.840 --> 0:00:30.560 of the COVID nineteen pandemic, arguing that the hearing was 0:00:30.600 --> 0:00:35.160 intended to trap him into committing perjury rather than uncovering 0:00:35.280 --> 0:00:40.400 new information. And committee chair Republican Senator Rand Paul has 0:00:40.479 --> 0:00:44.520 made no secret of his desire to see Fauci behind bars. 0:00:44.840 --> 0:00:51.519 Any reasonable person who was followed his unhinged obsession with 0:00:51.720 --> 0:00:55.480 me would readily come to the same conclusion. 0:00:56.200 --> 0:00:59.560 The committee voted along party lines to hold Fauci in 0:00:59.640 --> 0:01:03.640 content empt of Congress over his refusal to answer questions 0:01:03.640 --> 0:01:04.280 at the hearing. 0:01:04.800 --> 0:01:07.480 We're voting on whether or witness who has received the 0:01:07.480 --> 0:01:10.840 benefit of a sweeping federal pardon can be ordered by 0:01:10.840 --> 0:01:14.080 this committee to answer questions and then defy that order 0:01:14.120 --> 0:01:15.160 without consequence. 0:01:15.640 --> 0:01:20.240 But Fauci's pardon from President Joe Biden only covers acts 0:01:20.240 --> 0:01:24.160 from twenty fourteen through January twenty twenty five, the day 0:01:24.200 --> 0:01:27.920 it was issued. It doesn't protect Fauci from state level 0:01:27.959 --> 0:01:32.919 prosecutions or from prosecutions over a testimony that he gives 0:01:33.160 --> 0:01:36.800 that lawmakers think is false. Joining me is Dave Ahrenberg, 0:01:36.920 --> 0:01:41.440 former Palm Beach County State Attorney. Dave explain why Fauci 0:01:41.640 --> 0:01:43.919 took the fifth on advice of his lawyer. 0:01:44.240 --> 0:01:47.080 Anthony Fauci took the Fifth Amendment because he knew he 0:01:47.160 --> 0:01:50.559 was walking into a perjury trap, and his lawyers knew 0:01:50.560 --> 0:01:54.360 that and told him that perjury is not part of 0:01:54.360 --> 0:01:56.760 the pardon you received, that you can still be prosecuted 0:01:56.760 --> 0:01:58.680 for that. And even though it's going to look bad 0:01:58.680 --> 0:02:01.160 in the court of public opinion, you have to realize 0:02:01.240 --> 0:02:04.720 that public statements made by Rand Paul and others show 0:02:04.880 --> 0:02:07.600 that their intent was to lock Fauci up, and you 0:02:07.640 --> 0:02:11.520 were just walking into a buzzsaw because they just dropped 0:02:11.600 --> 0:02:15.120 thousands of pages of documents right before the hearing. And 0:02:15.160 --> 0:02:17.160 you have an eighty five year old man who's going 0:02:17.200 --> 0:02:20.120 to be asked all these details in if he slips up, 0:02:20.280 --> 0:02:22.280 if he makes a mistake, he's on a one way 0:02:22.400 --> 0:02:26.200 ticket to the huscal and If you had any doubts 0:02:26.200 --> 0:02:30.399 about that, just ask James Comy, who was prosecuted for 0:02:30.800 --> 0:02:32.880 lying to Congress even though he didn't lie to Congress, 0:02:33.000 --> 0:02:36.440 or Jerome Powell, who was sent as a referral to 0:02:36.480 --> 0:02:40.520 the DOJ for allegedly making a false statement to Congress 0:02:40.520 --> 0:02:44.320 when he didn't or Jack Smith, who currently is under 0:02:44.320 --> 0:02:47.280 a referral from Congress to the DOJ for making a 0:02:47.280 --> 0:02:49.720 false statement to Congress that he did not make. So 0:02:49.919 --> 0:02:53.880 if Congress wants to weaponize the DOJ against you, they 0:02:53.919 --> 0:02:55.519 will under this administration. 0:02:56.280 --> 0:03:00.040 Senator Rand Paul continues to say that Fauci had no 0:03:00.040 --> 0:03:04.480 soh valid Fifth Amendment claim because the pardon nullified it, 0:03:04.680 --> 0:03:08.519 and that he waived any remaining protection by testifying. 0:03:09.000 --> 0:03:11.240 Okay, First, a pardon does not shield a witness from 0:03:11.240 --> 0:03:14.359 potential state level charges, and there are states who could 0:03:14.960 --> 0:03:17.600 prosecute him, and so he does have a legitimate claim 0:03:17.960 --> 0:03:21.360 to the Fifth Amendment against self incrimination. Plus, a pardon 0:03:21.400 --> 0:03:24.520 does not protect against a perjury charge because Aparton only 0:03:24.639 --> 0:03:28.280 protects you from charges that would have stemmed from things 0:03:28.320 --> 0:03:31.400 you've done in the past, not from something you're doing now, 0:03:31.440 --> 0:03:35.240 which is a statement before Congress. And if the Congress 0:03:35.240 --> 0:03:38.840 thinks that you are fibbing, they will refer it for prosecution. 0:03:39.280 --> 0:03:42.040 Plus a pardon does not affect state level charges. And 0:03:42.160 --> 0:03:45.840 so that's why he did have a legitimate claim of 0:03:45.880 --> 0:03:49.120 the Fifth Amendment. Here, it's Rampaul's own words being used 0:03:49.120 --> 0:03:51.440 against him that he wants to lock this guy up. 0:03:51.840 --> 0:03:54.960 And so this was not just a fact finding enterprise 0:03:55.000 --> 0:03:58.720 where they had a good faith discussion about the origins 0:03:58.760 --> 0:03:59.360 of COVID. 0:04:00.080 --> 0:04:03.720 He's testified many times before about this. What this was 0:04:03.760 --> 0:04:04.880 about was to. 0:04:04.800 --> 0:04:08.480 Find a reason a way to get Fauci, prosecute an 0:04:08.480 --> 0:04:11.320 eighty five year old man for slipping up and then 0:04:11.400 --> 0:04:14.720 getting what Rand Paul has dreamed of, which is Anthony 0:04:14.720 --> 0:04:17.200 Fauci waking up in an orange jumpsuit and a pair 0:04:17.240 --> 0:04:18.159 of steel bracelets. 0:04:18.720 --> 0:04:24.039 What's this fixation that Rand Paul has with Fauci. 0:04:25.440 --> 0:04:27.040 It's historic. 0:04:27.120 --> 0:04:29.720 It's something that's like the half feels on the McCoys, 0:04:29.760 --> 0:04:34.040 except you're dealing with a one on one situation where 0:04:34.080 --> 0:04:37.839 they just have this deep seated dislike of each other. 0:04:38.040 --> 0:04:41.640 And Rand Paul has blamed COVID in the way that 0:04:41.680 --> 0:04:44.960 it was handled on Fauci from the leak of the 0:04:45.040 --> 0:04:49.040 lad that he believes was funded by Fauci through the 0:04:49.560 --> 0:04:55.120 research that he was doing, to the mistakes made afterwards. 0:04:55.600 --> 0:04:58.480 And now it was ran Paul who leaked Fauci's diary. 0:04:58.520 --> 0:05:01.080 I mean, if rand Paul was really trying to act 0:05:01.120 --> 0:05:03.560 in good faith and trying to get answers, why embarrass 0:05:03.600 --> 0:05:06.040 a guy by leaking his diary. I mean, I thought 0:05:06.120 --> 0:05:09.440 Rampaul was a libertarian who wanted less government. But this 0:05:09.520 --> 0:05:13.200 is the government getting the diary of a now private 0:05:13.240 --> 0:05:15.440 individual and leaking it. 0:05:15.360 --> 0:05:17.240 For the world to see. It doesn't sound like less 0:05:17.279 --> 0:05:17.839 government to me. 0:05:18.200 --> 0:05:23.160 Could Rand Paul have given Fauci immunity for his testimony. 0:05:22.960 --> 0:05:27.240 Well, perjury cannot be immunized, so you could say that 0:05:27.839 --> 0:05:32.400 you're getting immunity for anything you answer, But if. 0:05:32.320 --> 0:05:34.919 You lie, that could be prosecuted. 0:05:34.960 --> 0:05:37.680 And remember, if you're trying to get someone to commit 0:05:37.760 --> 0:05:42.080 perjury to set up a perjury trap, then saying you're 0:05:42.320 --> 0:05:44.719 immunized from prosecution is not good enough. 0:05:44.839 --> 0:05:46.000 You could always find a way. 0:05:46.040 --> 0:05:49.119 If Rampaul wants her to twist Fauci's words to refer 0:05:49.200 --> 0:05:51.440 to the dog, we've seen this. He saw Sir Jack 0:05:51.480 --> 0:05:54.160 Smith and throwing Powell and James COMI. I mean, they 0:05:54.160 --> 0:05:56.960 didn't lie to Congress, but they were referred to prosecution 0:05:57.400 --> 0:06:02.160 because that was the intent of the politicians who wanted 0:06:02.200 --> 0:06:06.360 these individuals prosecuted. Well, that's why Fauci was like, Hey, 0:06:06.440 --> 0:06:08.440 I thought what this is about. I've seen this move 0:06:08.520 --> 0:06:11.320 before and I'm not going to be part of it. 0:06:11.560 --> 0:06:13.040 So, yes, he takes a hit in. 0:06:12.960 --> 0:06:15.520 The court of public opinion because it doesn't look good 0:06:15.560 --> 0:06:18.280 when you invote the fifth so many times, But at 0:06:18.279 --> 0:06:21.119 the same time, he'll do so as a free man. 0:06:21.600 --> 0:06:25.520 Paul said the prosecution referral would be hand delivered to 0:06:25.560 --> 0:06:29.960 the Justice Department, So he bypassed a vote by the 0:06:30.000 --> 0:06:33.760 full Senate, perhaps because it's only voted twice in the 0:06:33.800 --> 0:06:36.720 past half century to hold someone in contempt. 0:06:37.120 --> 0:06:41.040 Well, that's going to be another argument for Fauci's lawyers 0:06:41.040 --> 0:06:43.960 if this ever results in a prosecution, because you're supposed 0:06:44.000 --> 0:06:46.360 to send it to the full Senate for the vote, 0:06:46.400 --> 0:06:50.440 and he is short circuiting that process. He's attempting to 0:06:50.440 --> 0:06:52.800 bypass a full Senate vote to send it directly to 0:06:52.800 --> 0:06:56.880 the DOJ, and that deviates from standard institutional procedure. Plus, 0:06:56.920 --> 0:06:59.400 the vote was on a narrow party line committee vote. 0:06:59.600 --> 0:07:02.880 So I don't think that's legal, but something that can 0:07:02.920 --> 0:07:04.719 be tied up in the court. Remember, a lot of 0:07:04.720 --> 0:07:07.760 this is not necessarily to convict Fauci of anything. 0:07:07.800 --> 0:07:09.240 It's to make life miserable for the guy. 0:07:09.320 --> 0:07:12.240 This is Ram Paul wielding his power against an eighty 0:07:12.240 --> 0:07:15.120 five year old man who served for many decades in 0:07:15.240 --> 0:07:19.760 public life, and to humiliate him, and then to make 0:07:19.840 --> 0:07:23.360 him spend hundreds of thousands of dollars fighting against the 0:07:23.400 --> 0:07:26.480 criminal charge. And there's an old saying that we used 0:07:26.520 --> 0:07:29.000 to say at the State Attorney's office that you can 0:07:29.000 --> 0:07:31.560 beat the rap, but you can't beat the ride. 0:07:31.880 --> 0:07:36.440 The top Democrat on the committee, Senator Gary Peters, said 0:07:36.480 --> 0:07:38.760 that if the committee tries to punish a witness for 0:07:38.800 --> 0:07:43.600 asserting their Fifth Amendment rights, future witnesses will argue that 0:07:43.680 --> 0:07:48.560 appearing before Congress exposes them to punishment regardless of whether 0:07:48.600 --> 0:07:52.520 they comply with the subpoena and invoke a constitutional protection. 0:07:53.040 --> 0:07:56.280 Do you think that future witnesses would be chilled by 0:07:56.280 --> 0:07:57.320 what's happening here. 0:07:57.720 --> 0:08:00.400 I think that all future witnesses who are in the 0:08:00.440 --> 0:08:05.240 crosshairs of President Trump and leaders of the MAGA world 0:08:05.480 --> 0:08:07.560 are going to think twice. This is what happens when 0:08:07.600 --> 0:08:11.200 you weaponize the Department of Justice to go after Trump's enemies, 0:08:11.200 --> 0:08:14.360 whether it's Jerome Powell or Jack Smith or James Comy. 0:08:14.480 --> 0:08:16.480 Future witnesses are going to see that and they're going 0:08:16.560 --> 0:08:19.640 to say, wait, wait, these guys didn't lie to Congress, 0:08:19.680 --> 0:08:23.480 and yet they're being referred for criminal prosecution for lying 0:08:23.640 --> 0:08:27.640 to Congress. I mean, James Comy even was charged with 0:08:27.760 --> 0:08:30.920 lying to Congress, and that was based on ambiguity. So 0:08:31.000 --> 0:08:34.000 you can see why they're saying, Okay, this is not 0:08:34.520 --> 0:08:38.280 just a figment of our imagination. Normally, you cannot just 0:08:38.320 --> 0:08:41.000 take the fifth because you don't want to enter into 0:08:41.040 --> 0:08:41.920 a perjury trap. 0:08:41.920 --> 0:08:43.480 But this perjury trap is real. 0:08:43.679 --> 0:08:46.640 This is a case where the monsters under your bed 0:08:46.720 --> 0:08:47.520 really do exist. 0:08:48.240 --> 0:08:51.640 They're saying that it's now up to the DCUs attorney 0:08:51.720 --> 0:08:54.720 Janine Pierro whether to prosecute or not. I mean, is 0:08:54.720 --> 0:08:58.600 there any doubt that she will prosecute a man who's 0:08:58.640 --> 0:09:01.679 somewhere near the top of Resident Trump's enemies list. 0:09:02.160 --> 0:09:05.120 They're getting to the impureau at the perfect time, which 0:09:05.160 --> 0:09:07.720 is a time of vulnerability where she's worried about being 0:09:07.720 --> 0:09:12.800 fired by President Trump because she moved to dismiss the 0:09:12.800 --> 0:09:17.280 case against David Hearn, the guy who was wrongfully prosecuted 0:09:17.320 --> 0:09:21.000 for vandalizing the reflecting pond, which he didn't do. 0:09:21.559 --> 0:09:23.440 And so Trump is very upset with her. So to 0:09:23.520 --> 0:09:24.720 keep her job, she's. 0:09:24.520 --> 0:09:28.000 Going to do, in my mind, what the administration expects 0:09:28.040 --> 0:09:31.120 her to do. But the issue is that this does 0:09:31.760 --> 0:09:35.240 open the way for a defense lawyer to say this 0:09:35.360 --> 0:09:38.080 is an illegal procedure're supposed to get the approval of 0:09:38.120 --> 0:09:41.559 the full Senate. You can't just go around that procedure. Now, 0:09:41.640 --> 0:09:46.360 under federal law, a statutory criminal contempt of Congress charged 0:09:46.679 --> 0:09:49.080 that obligates the US Attorney to bring the case has 0:09:49.160 --> 0:09:52.280 to be certified by the full Senate or the full House. 0:09:53.000 --> 0:09:56.120 So what they're trying to do here is to send 0:09:56.120 --> 0:10:00.480 it to the DOJ as a recommendation, without a legal 0:10:00.480 --> 0:10:05.360 mandate to act, just as a request. But I still 0:10:05.360 --> 0:10:09.160 don't think that holds water because the DJ can always 0:10:09.320 --> 0:10:13.160 reject vote by the US House or the US Senate. 0:10:13.720 --> 0:10:14.679 They've done that in the past. 0:10:14.720 --> 0:10:19.720 Merreck Garland did that when the Democratic House tried to 0:10:19.760 --> 0:10:23.000 send some people to the DJ for contempt who didn't 0:10:23.000 --> 0:10:26.360 want to cooperate with the January sixth investigation. 0:10:26.679 --> 0:10:28.959 It's up to the DOJ. They have prosecutoral discretion. 0:10:29.400 --> 0:10:32.360 So I don't think you can get around the full 0:10:32.600 --> 0:10:36.040 Senate having to approve this by saying it's just a recommendation, 0:10:36.280 --> 0:10:38.800 not a mandate. It's never a mandate to the DOJ. 0:10:39.600 --> 0:10:41.800 It's always really a recommendation, Dave. 0:10:41.880 --> 0:10:45.160 So let's say he is indicted. Is it a good 0:10:45.200 --> 0:10:47.560 defense that this was a perjury trap? 0:10:48.440 --> 0:10:52.040 Oh? Absolutely, And they're going to use rand Paul's words 0:10:52.080 --> 0:10:55.800 against them because Ran Paul and others said that, yeah, 0:10:55.800 --> 0:10:58.160 we want to prosecute he needs to be in handcuffs, 0:10:58.600 --> 0:11:00.720 and so you can't look at this in a bubble. 0:11:00.800 --> 0:11:03.680 Normally you would say, no, you can't take the fifth 0:11:03.720 --> 0:11:08.400 in a situation like this where you're being asked questions 0:11:08.760 --> 0:11:12.560 and you've been given a pardon and the only criminal 0:11:12.920 --> 0:11:17.280 liability here is just the fact that you may or 0:11:17.280 --> 0:11:21.440 may not be telling the truth. Now, in response, thousands 0:11:21.480 --> 0:11:23.840 lawyers are going to say the perjury trap is real. 0:11:23.960 --> 0:11:26.840 We're not living in normal times. You can't look at 0:11:26.880 --> 0:11:30.640 this in a bubble. This is a situation where the 0:11:30.679 --> 0:11:34.800 senators have said we want to prosecute him. We're bringing 0:11:34.880 --> 0:11:39.760 him back before this body, not as a fact finding mission, 0:11:39.800 --> 0:11:43.480 because we've already done that, but to catch him in perjury. 0:11:43.520 --> 0:11:46.840 And then the defense leaders will point to Jack Smith 0:11:46.960 --> 0:11:49.840 and James Comy and Jerome Pallace here, this is what 0:11:49.840 --> 0:11:52.000 we're trying to avoid. And then on top of that, 0:11:52.080 --> 0:11:56.280 they can also mention you've got very aggressive Republican state 0:11:56.360 --> 0:12:00.800 attorney generals who are around the country trying to oscute Fauci, 0:12:00.920 --> 0:12:03.880 and Fauci's pardons do not protect him against that, so 0:12:03.920 --> 0:12:06.480 he does have a legitimate claim to take the Fifth Amendment. 0:12:07.040 --> 0:12:12.240 Yeah, so state attorneys general in Florida, Alabama, Louisiana, and 0:12:12.320 --> 0:12:17.520 Oklahoma are launching inquiries, and the Florida Ag in your 0:12:17.559 --> 0:12:21.000 neck of the woods, Dave said that Florida law on 0:12:21.120 --> 0:12:26.199 deceptive trade practices, fraud or public nuisances could be invoked. 0:12:27.000 --> 0:12:30.360 I mean these sound like uphill battles, to say the least. 0:12:30.520 --> 0:12:33.599 And you've also got statute of limitations problems. 0:12:34.520 --> 0:12:37.679 So number one, the Attorney General of Florida is up 0:12:37.679 --> 0:12:41.960 for election in November, and this is the type of 0:12:41.960 --> 0:12:45.920 thing that will motivate his political base. And it's one 0:12:45.920 --> 0:12:48.079 thing to say you're investigating some other thing to actually 0:12:48.120 --> 0:12:52.600 bring charges. Does Florida have jurisdiction over a national figure here, 0:12:52.679 --> 0:12:55.800 someone who is a federal official at the time. You're 0:12:55.840 --> 0:12:58.720 not given the ability under the supremacy clause to do that. 0:12:58.760 --> 0:13:02.600 You're a state official. There's the doctor of federal immunity. 0:13:02.760 --> 0:13:06.200 State officials generally lack the jurisdictional authorities to prosecute federal 0:13:06.640 --> 0:13:09.360 executive officers for things that they've done within the scope 0:13:09.400 --> 0:13:12.760 of their official federal duties, so you wouldn't have the jurisdiction. Plus, 0:13:13.000 --> 0:13:17.160 is there a Florida connection to the gain of function research? 0:13:17.240 --> 0:13:19.760 Is there a Florida connection that gives him jurisdiction? Does 0:13:19.800 --> 0:13:23.320 the statue limitations bar any prosecution? There are so many 0:13:23.360 --> 0:13:28.000 reasons why you cannot get a prosecution here, and it 0:13:28.120 --> 0:13:30.600 just shows that it's all political. But the fact that 0:13:30.679 --> 0:13:35.320 the state attorneys general are threatening this gives yet another 0:13:35.400 --> 0:13:38.240 defense to Fauci's lawyers to say, this is why we 0:13:38.280 --> 0:13:39.160 took the Fifth Amendment. 0:13:39.559 --> 0:13:42.840 Peter Navarro was found guilty of contempt of Congress and 0:13:42.960 --> 0:13:46.880 served four months. Steve Bannon also served four months for 0:13:46.960 --> 0:13:52.200 contempt of Congress. Their appeals multiple appeals failed. So is 0:13:52.240 --> 0:13:53.400 Fauci any different? 0:13:54.240 --> 0:13:55.640 Yes, very different. 0:13:55.760 --> 0:13:58.199 You know what the biggest different June, It's that Peter 0:13:58.360 --> 0:14:02.280 Navarro and Steve Banner didn't even show up. Anthony Fauci 0:14:02.320 --> 0:14:05.160 showed up. He showed up to answer questions, but then 0:14:05.400 --> 0:14:07.559 when he realized he was walking into a perjury trap 0:14:07.920 --> 0:14:10.440 where the Senator is saying we're gonna prosecute you, where 0:14:10.480 --> 0:14:13.200 state attorneys general are like chomping at the bit, that's 0:14:13.200 --> 0:14:16.520 when they took the fifth. That's different than Bannon or Navarro, 0:14:16.600 --> 0:14:19.960 who thumbed their noses at the committee, didn't even show up. 0:14:20.600 --> 0:14:24.960 And that's why I think you'll see Fauci defend himself 0:14:25.000 --> 0:14:28.600 and win as opposed to Navarro and Bannon who lost. 0:14:29.160 --> 0:14:32.280 It's always great to talk to you, Dave, Thanks so much. 0:14:32.880 --> 0:14:37.080 That's former Palm Beach County State Attorney Dave Ahrenberg coming 0:14:37.160 --> 0:14:40.960 up complaints from judges at the Fifth Circuit. This is Bloomberg. 0:14:42.400 --> 0:14:44.920 The Fifth Circuit is on its way to making on 0:14:45.120 --> 0:14:50.400 bank history, with fourteen total grants and twelve rehearings scheduled 0:14:50.400 --> 0:14:54.040 this year, and now, in an extremely rare move, some 0:14:54.080 --> 0:14:57.120 of the judges have started dissenting from the grants of 0:14:57.200 --> 0:15:01.200 full court review, voicing their consternation as the number of 0:15:01.200 --> 0:15:05.400 on Bank cases rises. An on Bank review means that 0:15:05.520 --> 0:15:08.440 all the judges in the circuit hear oral arguments and 0:15:08.480 --> 0:15:12.480 decide a case after a party requests a rehearing from 0:15:12.480 --> 0:15:15.160 a decision of a three judge panel. At the New 0:15:15.320 --> 0:15:19.440 Orleans based Federal Court, three judges, a Ronald Reagan appointee, 0:15:19.640 --> 0:15:23.640 a George W. Bush appointee, and a Barack Obama appointee 0:15:23.920 --> 0:15:28.200 have voiced their consternation at the number of Ombank cases 0:15:28.280 --> 0:15:33.440 being heard. Joining me is Bloomberg Law reporter Jacqueline Thompson. So, 0:15:33.560 --> 0:15:37.560 Jacqueline tell us about the Fifth Circuit hearing more Ombank 0:15:37.680 --> 0:15:38.600 cases lately? 0:15:39.560 --> 0:15:42.680 They definitely have, and I sit in the courtroom for 0:15:42.800 --> 0:15:45.480 all of them, and the judges are even talking about 0:15:45.480 --> 0:15:48.920 how many cases they're hearing. Back in January, they were 0:15:48.960 --> 0:15:52.360 scheduled to hear seven arguments and it ended up once 0:15:52.400 --> 0:15:54.800 got scuttled at the last minute, so they had six 0:15:54.920 --> 0:15:56.600 arguments across seven cases. 0:15:56.720 --> 0:15:58.480 Then they had two more in May. 0:15:59.040 --> 0:16:01.720 They have five hours arguments across four cases set up 0:16:01.720 --> 0:16:04.840 for September, and that number has just been ticking up 0:16:04.920 --> 0:16:07.960 since all the Trump appointees have joined the appeals Court. 0:16:08.360 --> 0:16:10.880 You know, obviously there was a bunch of litigation against 0:16:10.920 --> 0:16:15.160 the Biden administration that ended up within the Fifth Circuit's jurisdiction, 0:16:15.280 --> 0:16:18.360 and those are all really high profile cases. Some judges 0:16:18.440 --> 0:16:21.720 want to, you know, be able to dip their toes 0:16:21.720 --> 0:16:25.160 in and make their voices heard, especially if they disagree 0:16:25.200 --> 0:16:28.520 with the underlying panel opinions. So you know, we have 0:16:28.680 --> 0:16:32.640 been seeing the full slate of active judges be especially 0:16:32.680 --> 0:16:35.320 eager to be taking up en banc cases lately. 0:16:36.120 --> 0:16:38.760 Describe the composition of the Fifth Circuit for US, I 0:16:39.080 --> 0:16:42.720 usually say that it's the most conservative circuit in the country. 0:16:43.720 --> 0:16:48.120 Right, So there are seventeen active judges. Six of those 0:16:48.280 --> 0:16:52.320 currently are Trump appointees, There's two Reagan appointees. 0:16:52.320 --> 0:16:53.720 There's a handful of George W. 0:16:53.800 --> 0:16:58.520 Bush appointees, a handful of Clinton and Obama appointees as well. 0:16:58.560 --> 0:17:02.040 But it's that conservative block which I sort of count 0:17:02.040 --> 0:17:05.080 as the six Trump appointees plus the two Reagan appointees 0:17:05.480 --> 0:17:08.640 that make up you know, the driving force here, because 0:17:08.680 --> 0:17:11.679 that is eight out of seventeen votes. And then if 0:17:11.720 --> 0:17:13.880 you know, you have any judges who have to refuse 0:17:13.920 --> 0:17:16.760 can't hear a case, you know, that gives that block 0:17:16.840 --> 0:17:20.200 even more power. One of those judges, Kurt Engelhart, he's 0:17:20.240 --> 0:17:23.400 a Trump appointee. He's going to be taking senior status, 0:17:23.400 --> 0:17:25.760 so he'll soon no longer be part of the en 0:17:25.800 --> 0:17:30.320 banc proceedings. But another Trump appointed judge will be taking 0:17:30.320 --> 0:17:32.480 his place, we expect in the next few months. 0:17:33.640 --> 0:17:37.119 A descend from a denial of emotion for an on 0:17:37.359 --> 0:17:41.479 bank hearing is more common than these descents, which are 0:17:41.520 --> 0:17:46.040 descents from the granting of emotion for an onbank hearing. Right. 0:17:46.119 --> 0:17:49.119 Yeah, we see descents from denial all the time, and 0:17:49.440 --> 0:17:52.000 that could be because a judge wants to flag it 0:17:52.080 --> 0:17:55.320 for the Supreme Court. Sometimes judges want to say, we 0:17:55.359 --> 0:17:58.119 should have heard this case, we should have reviewed it 0:17:58.200 --> 0:18:00.240 as a full court, and here are the reasons why 0:18:00.280 --> 0:18:03.080 I think this is the situation. I think we need 0:18:03.119 --> 0:18:06.600 to revisit bad precedent. I think we need to realign 0:18:06.640 --> 0:18:08.960 what the court is doing with what the Supreme Court 0:18:09.040 --> 0:18:11.720 has told us to do, you know, things along those lines. 0:18:11.800 --> 0:18:14.040 So often when they put out those ascents, it can 0:18:14.400 --> 0:18:17.439 either be to a get their opinions out on the 0:18:17.480 --> 0:18:19.640 record or to be sort of raise a hand up 0:18:19.680 --> 0:18:22.800 to the Supreme Court and say, hey, our full court 0:18:22.880 --> 0:18:25.479 messed up. You should take a look at this and 0:18:25.560 --> 0:18:26.960 review of what the panel did. 0:18:27.520 --> 0:18:31.640 How are the descents from the grant of on bank hearing? 0:18:31.680 --> 0:18:33.960 I mean, can you categorize what they're like? 0:18:34.640 --> 0:18:37.600 So there's been so few of them that it's kind 0:18:37.640 --> 0:18:40.479 of hard to say with a broad sweep of what 0:18:40.600 --> 0:18:44.160 exactly they're like. But you know what's interesting about them 0:18:44.440 --> 0:18:46.560 is you would think with an no Bank case, you 0:18:46.560 --> 0:18:50.360 know that it's getting argued before the full court, judges 0:18:50.440 --> 0:18:53.840 have the opportunity then to share their feelings about them 0:18:53.880 --> 0:18:56.639 hearing the case. They have the opportunity when the opinions 0:18:56.680 --> 0:18:59.920 are issued to lay out how they feel about here 0:19:00.200 --> 0:19:03.280 a case. But here they're sort of you know, dipping 0:19:03.320 --> 0:19:06.480 in early in the process and they're going, hey, before 0:19:06.480 --> 0:19:08.760 we do anything else of this, I just want to 0:19:08.800 --> 0:19:11.280 stick my hand up and say we're wrong. 0:19:11.640 --> 0:19:12.680 We are wrong to. 0:19:12.680 --> 0:19:15.159 Even hear this case in the first place. I was 0:19:15.240 --> 0:19:18.480 till recently apparently the term for this is actually a discrantle, 0:19:19.600 --> 0:19:23.400 and that is what the judges are doing here. They 0:19:23.520 --> 0:19:27.280 are disgruntled and they've issued a discrantle. And you know, 0:19:27.320 --> 0:19:29.960 there are various reasons why they might want to be 0:19:30.080 --> 0:19:32.240 saying all of this, they might want to flag it 0:19:32.359 --> 0:19:35.800 for briefing in the case in the future, you know, 0:19:35.840 --> 0:19:38.840 before the parties step up and say anything and give 0:19:38.880 --> 0:19:42.840 an opportunity for outside parties to file anarchist briefs and 0:19:43.400 --> 0:19:47.120 raise issues here, or they're saying, Hey, we're wielding our 0:19:47.240 --> 0:19:50.760 en banc power weirdly, and I don't like it, and 0:19:50.960 --> 0:19:54.600 I think we need to revisit exactly when we're hearing 0:19:54.640 --> 0:19:56.240 these cases, and why. 0:19:56.680 --> 0:19:59.720 Tell us about some of the cases where we've had 0:19:59.760 --> 0:20:03.879 these disgruntled disgruntled whatever is so. 0:20:04.160 --> 0:20:07.240 The first one I had noticed was last year's judge 0:20:07.320 --> 0:20:10.680 Leslie Southwick. He's a George W. Bush appointing on the Court. 0:20:10.800 --> 0:20:13.720 He's sort of a more moderate voice in this day 0:20:13.760 --> 0:20:16.480 and age. Maybe in an earlier version of the Court 0:20:16.560 --> 0:20:19.680 not so much. But he had been on the initial 0:20:19.720 --> 0:20:22.560 panel for the case, which was over the Trump administration's 0:20:22.760 --> 0:20:27.480 use of the Alien Enemies Act to deport Venezuelan nationals 0:20:27.520 --> 0:20:31.560 from the country, and what he said there was I 0:20:31.600 --> 0:20:34.840 don't understand why our full court is hearing this case. 0:20:35.000 --> 0:20:37.000 I think this should have just gone straight to the 0:20:37.000 --> 0:20:41.320 Supreme Court. This is obviously an issue of high importance. 0:20:41.840 --> 0:20:43.639 And we need them to be able to weigh in 0:20:43.720 --> 0:20:45.639 on it. And it's going to end up there anyway, 0:20:45.720 --> 0:20:47.960 So why are we delaying all of this? One of 0:20:47.960 --> 0:20:50.720 the Trump appointees on the court, Judge James Hoe, he 0:20:50.840 --> 0:20:54.080 stepped in. He filed a concurrence. He said, you know, 0:20:54.200 --> 0:20:59.000 DOJ asked us to hear this case. It's compelling, it's interesting, 0:20:59.240 --> 0:21:02.679 it's important, So we're gonna hear it. And that's the 0:21:02.720 --> 0:21:05.280 deal there. So you know, that could be sort of 0:21:05.320 --> 0:21:08.600 the Circuit trying to hold onto their power and influence 0:21:08.680 --> 0:21:13.119 too and saying no, we also can issue very important decisions. 0:21:13.520 --> 0:21:16.680 It's not just the Supreme Court. So that was one instance. 0:21:17.080 --> 0:21:17.920 A few weeks ago. 0:21:18.080 --> 0:21:20.880 Judge Jerry Smith, a Reagan appointee, there was a criminal 0:21:20.920 --> 0:21:23.960 case that they took up bom banc. It was a 0:21:24.040 --> 0:21:29.000 discovery dispute in a long litigated murder trial, and he 0:21:29.080 --> 0:21:33.080 had written the underlying panel opinion and said, you know, 0:21:33.720 --> 0:21:37.719 I wrote my panel opinion. Judge Southwick wrote a dissent 0:21:38.520 --> 0:21:40.720 that should have been totally fine. We don't need to 0:21:40.760 --> 0:21:43.040 revisit this. As a non banc court. We hear very 0:21:43.040 --> 0:21:45.800 important cases as a non bank court. I love en 0:21:45.880 --> 0:21:48.960 banc proceedings. We should have more of them, but this 0:21:49.200 --> 0:21:52.280 is not the case. And then the last one was 0:21:52.440 --> 0:21:56.200 Judge Stephen Higginson. He's a Barack Obama appointing on the court. 0:21:57.600 --> 0:22:02.080 The court has taken up a constitutional challenge to the 0:22:02.359 --> 0:22:06.160 felon gun in possession law, which has been really widely 0:22:06.200 --> 0:22:09.679 litigated over the last few years, given recent Second Amendment 0:22:09.760 --> 0:22:13.320 rulings from the US Supreme Court, and then most recently, 0:22:13.520 --> 0:22:17.920 the Justice Clarence Thomas wrote an opinion where he said, hey, 0:22:18.000 --> 0:22:22.520 I think that maybe this gun ban is unconstitutional under 0:22:22.560 --> 0:22:24.560 the Commerce Clause of the Constitution. 0:22:25.160 --> 0:22:26.080 Now four weeks. 0:22:25.920 --> 0:22:29.320 Later, the Fifth Circuit says, hey, let's take up this 0:22:29.400 --> 0:22:32.840