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

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

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Speaker 1: This is Bloomberg Law with June Brossel from Bloomberg Radio.
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Speaker 2: Under the advice of my attorneys, I will invoke my
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Speaker 2: right under the Fifth Amendment of the Constitution to refrain
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Speaker 2: from answering your questions.
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Speaker 3: Doctor Anthony Fauci took the Fifth Amendment more than one
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Speaker 3: hundred times during a Senate Committee hearing on his handling
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Speaker 3: of the COVID nineteen pandemic, arguing that the hearing called
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Speaker 3: by Committee Chair Rand Paul was intended to trap him
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Speaker 3: into committing perjury.
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Speaker 2: The only conclusion I can reach is that the sole
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Speaker 2: reason he is calling me before this committee is to
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Speaker 2: get me to say something, anything that could vindicate his
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Speaker 2: repeated public pledges that I end up, in his words,
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Speaker 2: quote behind bars.
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Speaker 3: And on Thursday, or Paul took a step toward putting
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Speaker 3: Fauci behind bars when the Committee voted along party lines
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Speaker 3: to hold Fauci in contempt of Congress.
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Speaker 4: We're voting on whether or witness who has received the
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Speaker 4: benefit of a sweeping federal pardon can be ordered by
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Speaker 4: this committee to answer questions and then defy that order
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Speaker 4: without consequence.
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Speaker 3: A contempt resolution would normally head to the full Senate
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Speaker 3: for a vote. However, Paul bypassed that vote and had
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Speaker 3: the prosecution referral and delivered to the Justice Department. My
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Speaker 3: guest is Dave Ahrenberg, former Palm Beach County State Attorney.
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Speaker 3: David explained why Fauci took the fifth even though he
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Speaker 3: got a preemptive pardon from President Joe Biden covering his
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Speaker 3: actions from twenty fourteen through January nineteenth of twenty twenty five.
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Speaker 5: Anthony Fauci took the Fifth Amendment because he knew he
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Speaker 5: was walking into a perjury trap, and his lawyers knew
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Speaker 5: that and told him that perjury is not part of
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Speaker 5: the pardon you received, that you can still be prosecuted
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Speaker 5: for that. And even though it's going to look bad
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Speaker 5: in the court of public opinion, you have to realize
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Speaker 5: that public statements made by Rand Paul and others show
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Speaker 5: that their intent was to lock Fauci up, and you
2:13
Speaker 5: were just walking into a buzzsaw because they just dropped
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Speaker 5: thousands of pages of documents right before the hearing. And
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Speaker 5: you have an eighty five year old man who's going
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Speaker 5: to be asked all these details in if he slips up,
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Speaker 5: if he makes a mistake, he's on a one way
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Speaker 5: ticket to the HUSCAL And if you had any doubts
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Speaker 5: about that, just ask James Comy, who was prosecuted for
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Speaker 5: lying to Congress even though he didn't lie to Congress,
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Speaker 5: or Jerome Powell, who was sent as a referral to
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Speaker 5: the DOJ for allegedly making a false statement to Congress
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Speaker 5: when he didn't or Jack Smith, who currently is under
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Speaker 5: a referral from Congress to the DOJ for making a
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Speaker 5: false statement to Congress that he did not make. So
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Speaker 5: if Congress wants to weaponize the DOJ against you, they
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Speaker 5: will under this administration.
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Speaker 3: Senator Rand Paul continues to say that Fauci had no
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Speaker 3: valid Fifth Amendment claim because the pardon nullified it, and
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Speaker 3: that he waived any remaining protection by testifying.
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Speaker 5: Okay, First, a pardon does not shield a witness from
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Speaker 5: potential state level charges, and there are states who could
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Speaker 5: prosecute him, and so he does have a legitimate claim
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Speaker 5: to the Fifth Amendment against self incrimination. Plus, a pardon
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Speaker 5: does not protect against a perjury charge because a parton
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Speaker 5: only protects you from charges that would have stemmed from
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Speaker 5: things you've done in the past, not from something you're
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Speaker 5: doing now, which is a statement before Congress, and if
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Speaker 5: the Congress thinks that you are fibbing, they will refer
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Speaker 5: it for prosecution. Plus, a pardon does not affect state
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Speaker 5: level charges. And so that's why he did have a
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Speaker 5: legitimate claim of the Fifth Amendment here. It's Ran Paul's
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Speaker 5: own words being used against him that he wants to
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Speaker 5: lock this guy up. And so this was not just
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Speaker 5: a fact finding enterprise where they had a good faith
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Speaker 5: discussion about the origin of COVID. He's testified many times
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Speaker 5: before about this. What this was about was to find
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Speaker 5: a reason, a way to get Fauci prosecute an eighty
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Speaker 5: five year old man for slipping up and then getting
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Speaker 5: what Rand Paul has dreamed of, which is Anthony Fauci
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Speaker 5: waking up in an orange jumpsuit and a pair of
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Speaker 5: steel bracelets.
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Speaker 3: Paul bypassed a vote by the full Senate. Could there
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Speaker 3: be any consequences for that.
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Speaker 5: Well, that's going to be another argument for Fauci's lawyers
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Speaker 5: if this ever results in a prosecution, because you're supposed
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Speaker 5: to send it to the full Senate for the vote,
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Speaker 5: and he is short circuiting that process to send it
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Speaker 5: directly to the DOJ. And deviates from standard institutional procedure.
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Speaker 5: This does open the way for a defense alwyer to
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Speaker 5: say this is an illegal procedure. You're supposed to get
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Speaker 5: the approval of the full Senate. You can't just go
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Speaker 5: around that procedure. And now, under federal law, a statutory
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Speaker 5: criminal contempt of Congress charged that obligates the US Attorney
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Speaker 5: to bring the case has to be certified by the
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Speaker 5: full Senate or the Full House. So what they're trying
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Speaker 5: to do here is to send it to the DOJ
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Speaker 5: as a recommendation without a legal mandate to act, just
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Speaker 5: as a request. But I still don't think that holds
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Speaker 5: water because the DJ can always reject vote by the
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Speaker 5: US House or the US Senate. They've done that in
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Speaker 5: the past. Merrick Garland did that when the Democratic House
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Speaker 5: tried to send some people to the DJ for contempt
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Speaker 5: who didn't want to cooperate with the January sixth investigation.
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Speaker 5: It's up to the DOJ. They have prostitutoral discretion. So
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Speaker 5: I don't think you can get around the full Senate
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Speaker 5: having to approve this by saying it's just a recommendation,
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Speaker 5: not a mandate. It's never a mandate to the DOJ.
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Speaker 5: It's always really a recommendation.
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Speaker 3: The top Democrat on the committee, Senator Gary Peters, so
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Speaker 3: that if the committee tries to punish a witness for
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Speaker 3: asserting their Fifth Amendment rights, witnesses will argue that appearing
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Speaker 3: before Congress exposes them to punishment, regardless of whether they
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Speaker 3: comply with the subpoena and invoke a constitutional protection. Do
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Speaker 3: you think that future witnesses would be chilled by what's
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Speaker 3: happening here.
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Speaker 5: I think that all future witnesses who are in the
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Speaker 5: crosshairs of President Trump and leaders of the MAGA world
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Speaker 5: are going to think twice, this is what happens when
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Speaker 5: you weaponize the Department of Justice to go after Trump's enemies,
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Speaker 5: whether it's Jerome Powell or Jack Smith or James Comy.
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Speaker 5: Future witnesses are going to see that, and they're going
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Speaker 5: to say, wait, wait, these guys didn't lie to Congress,
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Speaker 5: and yet they're being referred for criminal prosecution for lying
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Speaker 5: to Congress. I mean, James Comy even was charged with
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Speaker 5: lying to Congress, and that was based on an ambiguity.
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Speaker 5: So you can see why they're saying, Okay, this is
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Speaker 5: not just a figment of our imagination. Normally, you cannot
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Speaker 5: just take the fifth because you don't want to enter
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Speaker 5: into a perjury trap. But this perjury trap is real.
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Speaker 5: This is a case where the monsters under your bed
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Speaker 5: really do exist.
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Speaker 3: The decision on whether to bring charges against Fauci is
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Speaker 3: now in the hands of DCUs attorney Janine Piro. Do
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Speaker 3: you have any doubt that she'll indict him after President
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Speaker 3: Trump suggested on Thursday that Fauci should be prosecuted.
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Speaker 5: They're getting Janine Piro at the perfect time, which is
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Speaker 5: a time of vulnerability where she's worried about being fired
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Speaker 5: by President Trump because she moved to dismiss the case
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Speaker 5: against David Hearn, the guy who was wrongfully prosecuted for
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Speaker 5: vandalizing the reflecting pond, which he didn't do, and so
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Speaker 5: Trump is very upset with her. So to keep her job,
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Speaker 5: she's going to do, in my mind, what the administration
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Speaker 5: expects her to do.
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Speaker 3: So, Dave, let's assume that Fauci is indicted. Is it
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Speaker 3: a good defense that this was a perjury trap?
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Speaker 6: Oh?
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Speaker 5: Absolutely, And they're going to use rand Paul's words against
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Speaker 5: them because ram Paul and others said that, Yeah, we
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Speaker 5: want to prosecut him. He needs to be in handcuffs,
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Speaker 5: and so you can't look at this in a bubble.
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Speaker 5: Normally you would say, no, you can't take the Fifth
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Speaker 5: in a situation like this where you're being asked questions
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Speaker 5: and you've been given a pardon, and the only criminal
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Speaker 5: liability here is just the fact that you may or
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Speaker 5: may not be telling the truth. Now, in response, thousands
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Speaker 5: lawyers are going to say, the perjury trap is real.
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Speaker 5: We're not living in normal times. You can't look at
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Speaker 5: this in a bubble. This is a situation where the
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Speaker 5: senators have said we want to prosecute him. We're bringing
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Speaker 5: him back before this body, not as a fact finding mission,
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Speaker 5: because we've already done that, but to catch him in perjury.
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Speaker 5: And then the defense orders will point to Jack Smith
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Speaker 5: and James Comy and Jerome Palace here, this is what
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Speaker 5: we're trying to avoid. And then on top of that,
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Speaker 5: they can also mention you've got very aggressive Republican state
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Speaker 5: attorney generals who are around the country trying to prosecute Fauci,
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Speaker 5: and Fauci's pardons do not protect him against that. So
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Speaker 5: he does have a legitimate claim to take the Fifth Amendment.
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Speaker 3: Right so Fauci is being investigated by state attorneys general
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Speaker 3: in four states, three of them have joined forces to
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Speaker 3: subpoena him, and Florida's Attorney general in your neck of
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Speaker 3: the Woods, Dave said Fauci could have broken Florida law
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Speaker 3: if he personally profited off the guidance he issued during COVID.
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Speaker 3: I mean these sound like up ill battles, to say
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Speaker 3: the least.
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Speaker 5: So Number one, the Attorney General Florida is up for
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Speaker 5: election in November, and this is the type of thing
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Speaker 5: that will motivate his political base. And it's one thing
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Speaker 5: to say you're investigating, another thing to actually bring charges.
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Speaker 5: Does Florida have jurisdiction over someone who is a federal
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Speaker 5: official at the time. You're not given the ability under
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Speaker 5: the supremacy clause to do that. You're a state official.
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Speaker 5: There's the doctor and a federal mas unity. State officials
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Speaker 5: generally lack the jurisdictional authorities to prosecute federal executive officers
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Speaker 5: for things that they've done within the scope of their
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Speaker 5: official federal duties, so you wouldn't have the jurisdiction. Plus,
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Speaker 5: is there a Florida connection that gives him jurisdiction? Does
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Speaker 5: the statue limitations bar any prosecution. There are so many
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Speaker 5: reasons why you cannot get a prosecution here, and it
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Speaker 5: just shows that it's all political. But the fact that
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Speaker 5: the state attorneys general are threatening this gives yet another
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Speaker 5: defense to Fauci's lawyers to say, this is why we
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Speaker 5: took the Fifth Amendment.
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Speaker 3: Peter Navarro was found guilty of contempt of Congress and
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Speaker 3: served four months. Steve Bannon also served four months for
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Speaker 3: contempt of Congress. Their appeals, multiple appeals failed. So is
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Speaker 3: Fauci any different?
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Speaker 5: Yes, very different. You know what the biggest different June,
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Speaker 5: It's that Peter Navarro and Steve Bannon didn't even show up.
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Speaker 5: Anthony Fauci showed up. He showed up to answer questions,
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Speaker 5: but then when he realized he was walking into a
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Speaker 5: perjury trap where the senator is saying we're going to
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Speaker 5: prosecute you, where state attorneys general are like chomping at
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Speaker 5: the bit, that's when they took the fifth That's different
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Speaker 5: than Bannon or Navarro, who thumbed their noses at the committee,
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Speaker 5: didn't even show up. And that's why I think you'll
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Speaker 5: see Fauci defend himself and win as opposed to Navarro
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Speaker 5: and Bannon, who lost.
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Speaker 3: This is guaranteed to be another saga at the Justice Department.
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Speaker 3: Always a pleasure to talk to you, Dave. That's former
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Speaker 3: Palm Beach County State Attorney Dave Ehrenberg coming up next
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Speaker 3: on the Bloomberg Law Show. Despite strong opposition, even from
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Speaker 3: two Republican Senators, Todd Blant will be the next Attorney
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Speaker 3: General of the United States. Remember you can always get
11:44
Speaker 3: the latest legal news by listening to our Bloomberg Law
11:47
Speaker 3: podcast wherever you get your favorite podcasts. I'm June Grosso
11:52
Speaker 3: and this is Bloomberg.
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Speaker 1: All considered, I will vote for mister Blanche. I'll be
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Speaker 1: criticized for this vote.
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Speaker 3: What's new And with the vote of Republican Senator Bill Cassidy,
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Speaker 3: Todd Bland secured enough votes to become the next Attorney
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Speaker 3: General of the United States, putting the difficult confirmation battle
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Speaker 3: behind him. As acting Attorney General, Blanche had aggressively pushed
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Speaker 3: to meet all of President Trump's demands, including targeting his
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Speaker 3: political enemies, thus eroding the traditional independence of the Justice Department.
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Speaker 7: The problem with confirming Todd Blanche is that he has
12:31
Speaker 7: never been able to shed his role as criminal defense
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Speaker 7: lawyer for Donald Trump. He just can't do it. He
12:40
Speaker 7: does not represent the American people now. He will never
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Speaker 7: represent the American people.
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Speaker 8: When he has sworn in as Attorney General, he will
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Speaker 8: have to swear to uphol, support and defend the Constitution.
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Speaker 8: But we know that oath will take a back seat
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Speaker 8: to his to the president.
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Speaker 3: Blanche's absolute loyalty to Trump was raised as a concern
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Speaker 3: by many Democratic senators like Adam Schiff and Masihrono, and
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Speaker 3: also by Republican senator Susan Collins and Lisa Murkowski, who
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Speaker 3: refused to support him. But it was Blanche's unprecedented deal
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Speaker 3: to settle Trump's IRS lawsuit with a one point eight
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Speaker 3: billion dollar fund to compensate his allies that almost tanked
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Speaker 3: Blanche's nomination. Republican Senators John Cornyn and Tom Tillis only
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Speaker 3: dropped their opposition after Blanche posted an order last Sunday
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Speaker 3: rescinding the so called Anti Weaponization Fund and narrowing Trump's
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Speaker 3: tax immunity deal.
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Speaker 5: I've never liked this seventeen seventy six fund.
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Speaker 9: It made no sense to me, and I thought it
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Speaker 9: was an insult to the police officers of the people
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Speaker 9: that defended us on January the sixth.
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Speaker 10: It's done.
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Speaker 6: It's been rescinded, and I am said satisfied.
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Speaker 3: Though Senator Tillis may think the fund is done, Democratic
14:05
Speaker 3: senators like Corey Booker say the papers attached to Blanche's
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Speaker 3: post have no legal significance at all.
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Speaker 1: This is ridiculous. We got nothing, no guarantees whatsoever that
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Speaker 1: this slush one still can't go forward. We got nothing
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Speaker 1: that the President of the United States can't cheat on
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Speaker 1: his taxes and have no accountability.
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Speaker 3: Joining me is an expert in constitutional law, David Super,
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Speaker 3: a professor at Georgetown Law. David tell us about the
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Speaker 3: two pages that Blanche posted that led Senators Cornin and
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Speaker 3: Tillis to fold. One is in order signed by Blanche
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Speaker 3: and the other is an unsigned memo from the Justice Department.
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Speaker 6: He basically typed up what he said that the hearing
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Speaker 6: and posted it. There's literally nothing new there, and indeed
14:57
Speaker 6: he said there was nothing new there. He's telling the
14:59
Speaker 6: truth on them. I'm sure he prepared his talking points
15:03
Speaker 6: for the hearing very very carefully, that those words were
15:06
Speaker 6: not extemporaneous, and these are the same words he says,
15:11
Speaker 6: looking entirely retrospectively that the so called weaponization fund did
15:19
Speaker 6: not get off the ground. He does not make any
15:22
Speaker 6: promises that they won't do something like that tomorrow, but
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Speaker 6: he says, and I think this is historically actually it
15:28
Speaker 6: did not start. And then he says that the immunity
15:32
Speaker 6: for Trump is limited to Trump, his family, and his organization,
15:37
Speaker 6: which were the parties to the case. We always knew them.
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Speaker 6: So he is setting to rest the fears of people
15:45
Speaker 6: who can't read, but he is leaving the rest of
15:49
Speaker 6: us just as nervous as we were before.
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Speaker 3: The settlement agreement. Says, this settlement agreement may be modified
15:56
Speaker 3: only with the written agreement of the parties. And President
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Speaker 3: Trump didn't sign anything, and he told reporters on Wednesday
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Speaker 3: that he didn't even look at this.
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Speaker 6: Yeah, there's so many holes here, it's hard to count them.
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Speaker 6: Blanche says, the agreement didn't go forward, but as you note,
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Speaker 6: they don't modify it, and he doesn't have authority to
16:20
Speaker 6: modify it unless you say, well, actually, he's Trump's lawyer
16:24
Speaker 6: in all respects, so he can modify it on behalf
16:27
Speaker 6: of both the plaintiffs and the defendants, which I don't
16:30
Speaker 6: think is quite the case, but he has no authority
16:32
Speaker 6: to modify it because it requires the agreement of the
16:36
Speaker 6: plaintiff's council, so he didn't modify it. He just said
16:39
Speaker 6: they didn't act on it, which is true, but doesn't
16:42
Speaker 6: mean they won't act on it in the immediate future
16:45
Speaker 6: as soon as he's confirmed. And he says that they
16:50
Speaker 6: haven't put the money out there, but he doesn't promise
16:52
Speaker 6: not to raid the Justice Fund for payoffs for more
16:56
Speaker 6: Trump affiliated law breakers. The judgment fund is still there,
17:00
Speaker 6: and if Senator Cornin really was concerned about this, he
17:06
Speaker 6: should have asked mister Blanche for the administration's agreement to
17:10
Speaker 6: an amendment to the Justice Fund, a quick unanimous consent
17:13
Speaker 6: bill amending the Justice Fund to make it unavailable to
17:17
Speaker 6: pay for settlements with anyone affiliated with the president. That
17:21
Speaker 6: would be an easy fixed to make sure this never
17:23
Speaker 6: happens again. As far as we can tell, that was
17:25
Speaker 6: even requested, much less done.
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Speaker 3: Also, a federal judge in Florida had issued a ruling
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Speaker 3: preventing Trump from enforcing the one point eight billion dollar
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Speaker 3: fund and the tax immunity deal. She said his IRS
17:40
Speaker 3: lawsuit was a sham and had no basis in law
17:43
Speaker 3: or fact. Well, on July thirty first, Trump filed a
17:47
Speaker 3: notice that he would appeal her ruling. What does that
17:50
Speaker 3: tell you?
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Speaker 6: It tells you that the weaponization fund is not dead,
17:55
Speaker 6: that the tax immunity is not gone, and that this
18:00
Speaker 6: is just a second saga in the collusive litigation. Because,
18:05
Speaker 6: of course Trump appeals that decision, and then he orders
18:08
Speaker 6: the Justice Department not to fight the appeal so it
18:12
Speaker 6: will be uncontested in the appellate court. I hope the
18:17
Speaker 6: Eleventh Circuit has the integrity to appoint someone to participate
18:22
Speaker 6: as a friend of the court to make the arguments
18:24
Speaker 6: for affirming what the district court did. But saying we're
18:28
Speaker 6: going through more judicial proceedings where we control both sides
18:31
Speaker 6: of the case should give nobody any reassurance. The whole
18:35
Speaker 6: point of our system is that is an adversary system,
18:38
Speaker 6: and it only works well, it only purports to work
18:40
Speaker 6: well when there are serious advocates on both sides. There's
18:44
Speaker 6: never been that in this case.
18:46
Speaker 3: Democratic centers voice their opposition to blanch for other reasons,
18:51
Speaker 3: the departure of thousands of attorneys and staff at the
18:55
Speaker 3: Justice Department, the weaponization of the Department to pursue Trump's
18:59
Speaker 3: political enemies, his protecting Trump in the bungle release of
19:03
Speaker 3: the Epstein files, to name a few, how do you
19:07
Speaker 3: judge his performance as acting Attorney General?
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Speaker 6: Mister Blanche has taken more than two hundred years of careful,
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Speaker 6: mostly nonpartisan professionalism at the Justice Department, thrown it in
19:24
Speaker 6: the trash, and he has shown everybody just how politicized
19:29
Speaker 6: the Department could be. When someone single handedly destroys the
19:35
Speaker 6: tradition of an agency, he should not be continued in
19:38
Speaker 6: a position of leading that agency. The argument that was
19:42
Speaker 6: floated is we won't get a better nominee from the President.
19:47
Speaker 6: I'm not sure they would, but getting someone who has
19:51
Speaker 6: not committed the gross violations of public trusts that mister
19:55
Speaker 6: Blanche already has is better than waiving someone through who
20:00
Speaker 6: has committed those acts. And if mister Trump is determined
20:04
Speaker 6: to have Todd Blanche there, he should be serving in
20:07
Speaker 6: an unconfirmed capacity. What he will now have is the
20:11
Speaker 6: blessing of the United States Senate, which was well aware
20:15
Speaker 6: of all the things that he did. This will of
20:17
Speaker 6: course become enormously controversial. Next time we have a democratic
20:22
Speaker 6: administration and a democratic attorney General tries to follow some
20:27
Speaker 6: of the precedents that mister Blanche set. I hope a
20:30
Speaker 6: Democratic attorney general won't follow these precedents because they're just
20:34
Speaker 6: bad for the country, whatever side of the artisan eili're on.
20:38
Speaker 6: But he has completely reconceived the Justice Department. Mister Trump
20:43
Speaker 6: has famously complained that he needed a roy Cohne, he
20:48
Speaker 6: needed a dirty lawyer to push the limits and get
20:51
Speaker 6: him what he wants, and I think he's found one.
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Speaker 3: I was surprised that the Epstein victim's opposition to Blanch
21:00
Speaker 3: and all that went on there didn't cause more Republicans
21:04
Speaker 3: to hesitate about Blench, because that's been an issue that
21:08
Speaker 3: President Trump has been unable to put behind him.
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Speaker 6: I think the word must have gone out that they've
21:15
Speaker 6: released pretty much everything they have that doesn't terribly incriminate
21:19
Speaker 6: the President or perhaps some members of Congress as well,
21:23
Speaker 6: and that the word is that they don't dare push
21:26
Speaker 6: any farther because the results will be catastrophic. I think
21:30
Speaker 6: a great many people who voted for the president, and
21:33
Speaker 6: who voted for Republican members of Congress to support the
21:36
Speaker 6: president would be shocked, appalled, and deeply disillusioned if they
21:42
Speaker 6: found out that the president was as closely involved in
21:46
Speaker 6: mister Epstein's criminal activities as we keep being told. And
21:52
Speaker 6: the presence in these files of references to documents that
21:56
Speaker 6: have not been released is an ongoing problem. I think
22:01
Speaker 6: the decision has been made by Republicans and that they're
22:04
Speaker 6: largely following the party line to not press further on
22:07
Speaker 6: this because there's nothing else that can be done that
22:10
Speaker 6: wouldn't be destructive.
22:12
Speaker 3: David, what kind of an attorney general do you think
22:14
Speaker 3: Blanche will be? Sometimes when people get a new position,
22:19
Speaker 3: they step up.
22:20
Speaker 6: Oh, I think this is what you see is what
22:22
Speaker 6: you get, situation. He by all accounts, was a competent
22:27
Speaker 6: and not particularly ideological prosecutor when he started out as
22:31
Speaker 6: a lawyer, so he knows how to be a good lawyer.
22:33
Speaker 6: But he's made a decision in his life and there's
22:36
Speaker 6: no reason to think he would change, particularly since he
22:39
Speaker 6: can be dismissed at any time. So I would not
22:42
Speaker 6: expect him to stand up to the president now. I
22:46
Speaker 6: would not expect him to say no to the president.
22:48
Speaker 6: I would not expect any scintilla of moderation out of him.
22:53
Speaker 6: The Justice Department is just a great, big, Trump Law firm. Now,
22:57
Speaker 6: obviously Pam Bondi looked like a complete Trump acolyte coming in,
23:04
Speaker 6: and she served as attorney general in exactly that way.
23:08
Speaker 6: She was fired basically for doing something that she had
23:13
Speaker 6: promised to do with Trump's blessing that blew up in
23:17
Speaker 6: his face. Concerning the Epstein files, I think that Todd
23:21
Speaker 6: Blanche has seen how even complete loyalty like hers was
23:26
Speaker 6: not good enough to save her job. So he's not
23:28
Speaker 6: going to be under any illusions that he can show
23:31
Speaker 6: any independence at all and keep his job. And he
23:34
Speaker 6: has made very clear he is not the sort of
23:37
Speaker 6: person who will resign on principle, because just about any
23:41
Speaker 6: significant principle that is relevant to serving as attorney general
23:45
Speaker 6: he's been asked to violate already.
23:47
Speaker 3: Let's end with the historical question. Can you think of
23:50
Speaker 3: any other attorney general in our recent history who was
23:54
Speaker 3: as willing to do the president's bidding as Blanche appears
23:59
Speaker 3: to be.
24:00
Speaker 6: Well, the only name that comes to mind, of course,
24:02
Speaker 6: is John Mitchell, Nixon's attorney general. And Nixon's attorney general
24:07
Speaker 6: was a frequent visitor to the White House, but they
24:10
Speaker 6: ended up in the Big House.
24:12
Speaker 3: You're right, of course, I looked it up. Mitchell did
24:14
Speaker 3: serve nineteen months in prison for his role in the
24:17
Speaker 3: Watergate scandal. Thanks so much for joining me, David, I
24:21
Speaker 3: always appreciate your insights. That's Professor David super of Georgetown
24:26
Speaker 3: Law coming up next. A judge dismisses the felony case
24:30
Speaker 3: against a former olympian for damage to the reflecting pool.
24:34
Speaker 3: But the case isn't over yet. I'm June Grosso and
24:37
Speaker 3: you're listening to Bloomberg.
24:40
Speaker 10: The evidence shows, and we will prove beyond a reasonable
24:44
Speaker 10: doubt that Hern wilfully destroyed property at the Lincoln Memorial
24:49
Speaker 10: reflecting pool. This was a delivered act to damage the
24:54
Speaker 10: reflecting pool at the National Mall.
24:57
Speaker 3: At a press conference a little over a month ago,
25:00
Speaker 3: DCUs attorney Janine Piro repeatedly said that her office had evidence,
25:06
Speaker 3: including witnesses, to prove that former Olympic rower David Hearn
25:11
Speaker 3: had damaged the reflecting pool at the Lincoln Memorial by
25:15
Speaker 3: violently ripping up sealant from the bottom of the pool.
25:18
Speaker 3: Piero charged Herne with felony vandalism and rejected any suggestion
25:24
Speaker 3: that the pool had already been damaged.
25:26
Speaker 10: Oh he damaged it.
25:28
Speaker 5: Further, But do you had already been damaged.
25:30
Speaker 10: Before he damaged the pool?
25:32
Speaker 3: But then a stunning about face. Piero's office admitted in
25:37
Speaker 3: a court filing that they didn't have the evidence against
25:41
Speaker 3: herne and that the damage was actually the result of
25:44
Speaker 3: a botched installation by the contractor. They asked the court
25:49
Speaker 3: to dismiss the case, but President Trump continues to insist
25:53
Speaker 3: that the pool was damaged by vandals.
25:56
Speaker 4: I was disappointed with Jennie Piro, really disappointed with j Nibor.
26:03
Speaker 1: She folded like an umbrella.
26:05
Speaker 3: On Thursday, a judge dismissed the felony vandalism charge against
26:09
Speaker 3: hern My guest is former federal prosecutor Robert Mintz, a
26:13
Speaker 3: partner maccarter and English Bob Pierro blamed the Interior Department
26:18
Speaker 3: for providing less than fulsome information, but also wrote the
26:23
Speaker 3: filing that a visual inspection showed damage throughout the reflecting pool,
26:27
Speaker 3: even in the middle, where a vandal wouldn't likely attempt
26:31
Speaker 3: to peel the learning. I mean, shouldn't the US Attorney's
26:34
Speaker 3: office have done a minimal at least investigation before they
26:38
Speaker 3: file felony charges against someone.
26:41
Speaker 9: That's exactly the question here and why this is such
26:44
Speaker 9: an embarrassing setback for the Department of Justice, because typically
26:48
Speaker 9: the Department of Justice does not rely on another agency
26:53
Speaker 9: to do its own investigation, and in this particular case,
26:57
Speaker 9: there was no real rush. In other words, we didn't
27:00
Speaker 9: have a circumstance where there was a potential danger to
27:03
Speaker 9: the community or where the potential defendant was a flight risk.
27:08
Speaker 9: There was no reason the Department of Justice had to
27:10
Speaker 9: move to indict him so quickly, and for them to
27:14
Speaker 9: now turn around and say that the information that they
27:18
Speaker 9: had been given by the Interior Department was incorrect. And
27:21
Speaker 9: as you said, the visual inspection revealed damage throughout the
27:25
Speaker 9: reflecting pool such that a vandal would not likely have
27:28
Speaker 9: attempted to peel. The lining back really undermines the Department
27:33
Speaker 9: of Justice position because it shows that they never did
27:36
Speaker 9: a thorough investigation before going into the grand jury and
27:40
Speaker 9: seeking an indictment in this case.
27:42
Speaker 3: I mean, you don't often hear about a federal prosecutor
27:46
Speaker 3: sort of taking back an indictment.
27:49
Speaker 9: The idea of the Department of Justice simply outright dismissing
27:54
Speaker 9: charges after an indictment is brought is exceedingly rare. It
27:59
Speaker 9: almost never happens, and the reason it doesn't happen is
28:02
Speaker 9: because federal prosecutors typically take their time to investigate cases
28:08
Speaker 9: to make sure that they have enough evidence to gain
28:12
Speaker 9: a conviction if their case goes to trial. In fact,
28:15
Speaker 9: the guidelines for the US Attorney's Office require that prosecutors
28:20
Speaker 9: cannot go into a grand jury and present a case
28:23
Speaker 9: or indictment unless they believe that they have evidence that
28:28
Speaker 9: would be admissible at trial that is likely to result
28:32
Speaker 9: in a conviction. So here it seems like there was
28:35
Speaker 9: a real rush to judgment where they went out and
28:37
Speaker 9: they indicted based on limited information that was coming from
28:41
Speaker 9: the Interior Department, and it turned out, according to the
28:44
Speaker 9: Department of Justice, to not be true.
28:47
Speaker 3: It seemed from the start that the US Attorney was overcharging. Here.
28:52
Speaker 3: It reminded me of the case where a guy who
28:55
Speaker 3: became known as the sandwich guy through a subway sandwich
28:59
Speaker 3: at an ice officer PIO. Tried to get a felony
29:02
Speaker 3: indictment and the grand jury refused, so the office then
29:07
Speaker 3: tried him for a misdemeanor and a trial jury acquitted him.
29:11
Speaker 9: Even of that, no, I think that's a fair point,
29:13
Speaker 9: because let's keep in mind that this case turned on
29:17
Speaker 9: a single count of property destruction, which carries a maximum
29:21
Speaker 9: sentence of up to ten years in prison if there's
29:24
Speaker 9: a conviction. And the key to removing this case from
29:29
Speaker 9: a misdemeanor which would only allow a prison sentence of
29:32
Speaker 9: up to a year, to a felony, which in this
29:34
Speaker 9: case allows a prison sentence of up to ten years,
29:38
Speaker 9: is the government's ability to prove that the defendant caused
29:41
Speaker 9: at least one thousand dollars in damage to the pool.
29:45
Speaker 9: What ended up happening here is that the defense council
29:49
Speaker 9: focused on that damages issue, because what they were trying
29:52
Speaker 9: to do is at a minimum, move this case from
29:55
Speaker 9: a felony back to a misdemeanor by trying to show
29:58
Speaker 9: that the government could not meet that one thousand dollars threshold,
30:02
Speaker 9: and they focused on testimony that apparently occurred in the
30:05
Speaker 9: grand jury in order to obtain this indictment, where the
30:09
Speaker 9: government apparently presented only one witness on that element, on
30:13
Speaker 9: that critical element of showing that the damage caused allegedly
30:17
Speaker 9: by this defendant was at least one thousand dollars. According
30:21
Speaker 9: to the defense, that witness testified that the property had
30:25
Speaker 9: already deteriorated, that the pool had already begun to fall
30:30
Speaker 9: apart in terms of the lining coming up from the bottom,
30:33
Speaker 9: and that the repairs that would have been needed would
30:35
Speaker 9: have been needed even without mister Hearn's alleged conduct, and
30:40
Speaker 9: that the witness testified also that he could not quantify
30:44
Speaker 9: any loss caused by the alleged conduct of the defendant.
30:48
Speaker 9: So they were really already attacking not only the question
30:53
Speaker 9: of whether their client committed any crime at all, but
30:55
Speaker 9: they were focusing on whether the government could meet this
30:58
Speaker 9: thousand dollars threshold that they used to turn this case
31:01
Speaker 9: from a misdemeanor into a felony.
31:04
Speaker 3: I'm wondering about the timing here, because they dropped the
31:07
Speaker 3: charges shortly after the defense was trying to get the
31:12
Speaker 3: grand jury transcripts because of what they said were irregularities
31:16
Speaker 3: in the process. And we have seen in several instances
31:20
Speaker 3: irregularities in the presentation of cases by federal prosecutors to
31:27
Speaker 3: grand juries, and I'm wondering if that might have been
31:31
Speaker 3: an impetus for dropping the case as well, that those
31:34
Speaker 3: would have been revealed.
31:36
Speaker 9: Now that's exactly right, that was what the defense had
31:38
Speaker 9: focused on. And according to the defense, the sole witness
31:42
Speaker 9: that the government relied on to prove damages did not
31:46
Speaker 9: even say or suggest that the alleged conduct by mister
31:49
Speaker 9: Hearn had compromised the liner at all, And in fact,
31:54
Speaker 9: in the charging document he was simply charged with touching
31:59
Speaker 9: some of the liner that had floated to the surface.
32:02
Speaker 9: According to the prosecution, even in the indictment, he was
32:06
Speaker 9: accused of pulling up a two foot square piece of
32:10
Speaker 9: the pool's lining. Now, the defendant's version of what happened,
32:13
Speaker 9: and this is a statement he gave just before his arrest,
32:16
Speaker 9: is that he was biking and he pulled over to
32:20
Speaker 9: the pool there and put his hand in the reflecting pool,
32:24
Speaker 9: and he said that he reached in to examine the
32:26
Speaker 9: pool's newly peeled coating and briefly touched a chunk attached
32:30
Speaker 9: to the side of the pool. But he said that
32:32
Speaker 9: he obeyed a part worker who was standing right there
32:35
Speaker 9: with him and told him to let it go. So
32:38
Speaker 9: he basically said he did absolutely nothing to in any
32:42
Speaker 9: way vandalize the reflecting pool. And it seems that the
32:46
Speaker 9: government's witness largely corroborated the defendant statement, and that is
32:51
Speaker 9: perhaps the reason why we're seeing this sudden dismissal of
32:55
Speaker 9: this indictment, because again, it's so exceedingly rare that prosecute
33:00
Speaker 9: will fully dismiss the case rather than try to plete
33:04
Speaker 9: it down to a misdemeanor or work out some kind
33:07
Speaker 9: of a plea deal. Here, it seems that the grand
33:10
Speaker 9: jury testimony that the defense was pressing for and that
33:14
Speaker 9: a judge would likely require prosecutors to turn over, may
33:19
Speaker 9: have completely undermined the prosecution's case. And before that happened,
33:23
Speaker 9: it seems that Janine Piro, the US Attorney for the
33:26
Speaker 9: District of Columbia, felt that she had no choice but
33:30
Speaker 9: to dismiss the case.
33:31
Speaker 3: President Trump is very angry about this. It looked for
33:35
Speaker 3: a while like Janeine Piro's job was on the line,
33:38
Speaker 3: and when Pierro's office asked the judge to dismiss the case,
33:42
Speaker 3: they asked to dismiss it without prejudice, meaning they could
33:46
Speaker 3: bring it again. I mean, could you see the office
33:49
Speaker 3: bringing these charges again.
33:51
Speaker 9: I think the defense would have an ample basis to
33:55
Speaker 9: try to move to dismiss them. And at the end
33:57
Speaker 9: of the day, it doesn't seem like the facts here
34:00
Speaker 9: are going to change.
34:01
Speaker 6: What was really.
34:02
Speaker 9: Extraordinary here was that not only did Misspiro dismiss these charges,
34:08
Speaker 9: but the government did so in a twenty page court filing,
34:12
Speaker 9: with the judge in the case saying that they had
34:15
Speaker 9: been provided with additional documents by the Interior Department since
34:19
Speaker 9: the indictment showing that the damage was a result of
34:23
Speaker 9: a botched installation by a contractor, as well as the
34:27
Speaker 9: quote rushed to complete the project prior to events associated
34:31
Speaker 9: with the America two fifty celebration in the week surrounding
34:35
Speaker 9: Independence Day twenty twenty six. So what's really unusual here
34:40
Speaker 9: is that this dismissal didn't solely focus on the conduct
34:45
Speaker 9: of this defendant. In other words, it wasn't simply saying,
34:49
Speaker 9: this is why we have to dismiss this case against
34:51
Speaker 9: this defendant.
34:52
Speaker 6: Instead, it was.
34:53
Speaker 9: A broad rebuke of the entire concept that any of
34:57
Speaker 9: the damage caused by the reflecting pool was done by vandals.
35:02
Speaker 9: It really completely undermined the narrative that came not only
35:07
Speaker 9: from President Trump, but also from the Interior Secretary, who
35:11
Speaker 9: took a completely different position and immediately issued a statement
35:15
Speaker 9: saying that the Interior Department provided the US Attorney's Office
35:19
Speaker 9: with expert and eyewitness testimonies to the damage done by vandals,
35:24
Speaker 9: and provided every piece of evidence they asked for and
35:27
Speaker 9: in the requested timeline detailing each area of damage to
35:31
Speaker 9: the pool. So what we're seeing here is really an
35:35
Speaker 9: unheard of scenario where you have one branch of government
35:39
Speaker 9: blaming and criticizing the other, a dispute between the Department
35:43
Speaker 9: of Justice and the President, the dispute between the Department
35:46
Speaker 9: of Justice and the Interior Department, and all of this
35:49
Speaker 9: is playing out in full public view. It's really something
35:52
Speaker 9: that is extraordinary and is unheard of where you see
35:56
Speaker 9: this type of internal debate within the government being played
36:00
Speaker 9: out on the national stage in full public view, on
36:04
Speaker 9: such a high profile issue. And given the high profile
36:07
Speaker 9: nature of this prosecution, because of all of the publicity
36:12
Speaker 9: surrounding the reflecting pool and Independence Day and the very
36:16
Speaker 9: high profile repairs and having it ready in time for
36:20
Speaker 9: Independence Day, it really is extraordinary that the US Attorney
36:24
Speaker 9: has blamed the Interior Department and really come very close
36:28
Speaker 9: to saying that they were misled. Janein Piro actually said
36:32
Speaker 9: that they would never have brought this case had they
36:35
Speaker 9: known of the evidence that was being withheld withheld from
36:40
Speaker 9: the Department of Justice by the Interior Department. That is
36:43
Speaker 9: an extraordinary charge from one agency to another.
36:46
Speaker 3: And the case is an over Bob. The judge still
36:49
Speaker 3: hasn't decided whether to dismiss the charges with prejudice meaning
36:54
Speaker 3: they can't be brought again, or to dismiss them without prejudice,
36:58
Speaker 3: meaning they can be again. There'll be arguments on that,
37:03
Speaker 3: I believe in September, so we'll talk again. That's Robert
37:07
Speaker 3: Mints of Macarter and English. And that's it for this
37:10
Speaker 3: edition of The Bloomberg Law Show. Remember you can always
37:12
Speaker 3: get the latest legal news on our Bloomberg Law Podcast.
37:16
Speaker 3: You can find them on Apple Podcasts, Spotify, and at
37:19
Speaker 3: www dot Bloomberg dot com, slash podcast, Slash Law, and
37:24
Speaker 3: remember to tune into The Bloomberg Law Show every weeknight
37:27
Speaker 3: at ten pm Wall Street Time. I'm June Grosso and
37:31
Speaker 3: you're listening to Bloomberg