This is [music] Bloomberg Law with June

Graasso from Bloomberg Radio.

Under the advice of my attorneys, I will

invoke my right under the fifth

amendment to the Constitution

to refrain from answering your

questions.

>> Dr. Anthony Fauci took the fifth

amendment more than 100 times during a

Senate committee hearing on his handling

of the COVID 19 pandemic, arguing that

the hearing was intended to trap him

into committing perjury rather than

uncovering new information. And

committee chair Republican Senator Ran

Paul has made no secret of his desire to

see Fouchy behind bars. Any reasonable

person who has followed his unhinged

obsession with me would readily come to

the same conclusion.

>> The committee voted along party lines to

hold Fouchi in contempt of Congress over

his refusal to answer questions at the

hearing. We are voting on whether a

witness who has received the benefit of

a sweeping federal pardon can be ordered

by this committee to answer questions

and then defy that order without

consequence.

>> But Fouch's pardon from President Joe

Biden only covers acts from 2014 through

January 2025, the day it was issued. It

doesn't protect Fouchy from state level

prosecutions or from prosecutions over

testimony that he gives that lawmakers

think is false. Joining me is Dave

Aaronburgg, former Palm Beach County

state attorney. Dave, explain why Fouchy

took the fifth on advice of his lawyer.

Anthony Fouchi took the fifth amendment

because he knew he was walking into a

perjury trap and his lawyers knew that

and told him that perjury is not part of

the pardon you received that you can

still be prosecuted for that. And even

though it's going to look bad in the

court of public opinion, you have to

realize that public statements made by

Rand Paul and others show that their

intent was to lock Fouchy up. And you

were just walking into a buzzsaw because

they just dropped thousands of pages of

documents right before the hearing. And

you have an 85-year-old man who's going

to be asked all these details and if he

slips up, if he makes a mistake, he's on

a one-way ticket to the Huskow. And if

you had any doubts about that, just ask

James Comey, who was prosecuted for

lying to Congress, even though he didn't

lie to Congress, or Jerome Powell, who

was sent as a referral to the DOJ for

allegedly making a false statement to

Congress when he didn't, or Jack Smith,

who currently is under a referral from

Congress to the DOJ for making a false

statement to Congress that he did not

make. So if Congress wants to weaponize

the DOJ against you, they will under

this administration.

>> Senator Ran Paul continues to say that

Fouchy had no valid Fifth Amendment

claim because the pardon nullified it

and that he waved any remaining

protection by testifying.

>> Okay. First, a pardon does not shield a

witness from potential state level

charges and there are states who could

prosecute him. And so he does have a

legitimate claim to the fifth amendment

against selfinccrimination. Plus, a

pardon does not protect against a

perjury charge because a pardon only

protects you from charges that would

have stemmed from things you've done in

the past, not from something you're

doing now, which is a statement before

Congress. And if Congress thinks that

you are fibbing, they will refer it for

prosecution. Plus, a pardon does not

affect state level charges. And so

that's why he did have a legitimate

claim of the fifth amendment here. It's

Rand Paul's own words being used against

him that he wants to lock this guy up.

And so this was not just a factf finding

enterprise where they had a good faith

discussion about the origins of co. He's

testified many times before about this.

What this was about was to find a

reason, a way to get Fouchy prosecuted,

an 85-year-old man, for slipping up and

then getting what Ran Paul has dreamed

of, which is Anthony Fouchy waking up in

a orange jumpsuit and a pair of steel

bracelets.

>> What is this fixation that Ran Paul has

with Fouchy?

>> It's historic. It's something that's

like the Hatfields and the McCoys except

you're dealing with a one-on-one

situation where they just have this

deep-seated dislike of each other. And

Rand Paul has blamed COVID and the way

that it was handled on Fouchy from the

leak of the lab that he believes was

funded by Fouchy through the the

research that he was doing to the

mistakes made afterwards. And now it was

Ran Paul who leaked Fouch's diary. I

mean, if if Rand Paul was really trying

to act in good faith and trying to get

answers, why embarrass a guy by leaking

his diary? I mean, I thought Rand Paul

was a libertarian. He wanted less

government, but this is the government

getting the diary of a now private

individual and leaking it for the world

to see. Doesn't sound like less

government to me.

>> Could Rand Paul have given Fouchy

immunity for his testimony?

>> Well, perjury cannot be immunized. Uh,

so you could say that you're getting

immunity for anything you you answer,

but if you lie, that could be

prosecuted. And remember, if you're

trying to get someone to commit perjury,

to set up a perjury trap, then saying

you're immunized from prosecution is not

good enough. You could always find a

way, if Rampaul wants to, to twist

Fouch's words to refer it to the DOJ.

We've seen this. We we saw Jack Smith

and Jerome Powell and James Comey. I

mean, they didn't lie to Congress, but

they were referred for prosecution

because that was the intent of the

politicians who wanted these individuals

prosecuted. Well, that's why Fouchy was

like, "Hey, I know what this is about. I

I've seen this movie before and I'm not

going to be part of it." So, yes, he

takes a hit in the court of public

opinion because it doesn't look good

when you invoke the fifth so many times,

but at the same time, he'll do so as a

free man. Paul said the prosecution

referral would be handd delivered to the

Justice Department. So he bypassed a

vote by the full Senate, perhaps because

it's only voted twice in the past half

century to hold someone in contempt.

>> Well, that's going to be another

argument for Fouch's lawyers if this

ever results in a prosecution because

you're supposed to send it to the full

Senate for the vote and he is

shortcircuiting that process. He's

attempting to bypass a full Senate vote

to send it directly to the DOJ and that

deviates from standard institutional

procedure. Plus, the vote was on a

narrow partyline committee vote. So, I

don't think that's legal, but something

that can be tied up in the courts.

Remember, a lot of this is not

necessarily to convict Fouchy of

anything. It's to make life miserable

for the guy. This is Ran Paul wielding

his power against an 85-year-old man who

served for many decades in public life

and to humiliate him and then to make

him spend hundreds of thousands of

dollars fighting against a criminal

charge. And there's an old saying that

we used to say at the state attorney's

office that you can beat the rap, but

you can't beat the ride. The top

Democrat on the committee, Senator Gary

Peters, said that if the committee tries

to punish a witness for asserting their

Fifth Amendment rights, future witnesses

will argue that appearing before

Congress exposes them to punishment,

regardless of whether they comply with

the subpoena and invoke a constitutional

protection. Do you think that future

witnesses would be chilled by what's

happening here? I think that all future

witnesses who are in the crosshairs of

President Trump and leaders of the MAGA

world are going to think twice. This is

what happens when you weaponize the

Department of Justice to go after

Trump's enemies, whether it's Jerome

Powell or Jack Smith or James Comey.

Future witnesses are going to see that

and they're going to say, "Wait, wait.

These guys didn't lie to Congress and

yet they're being referred for criminal

prosecution for lying to Congress." I

mean, James Comey even was charged with

lying to Congress, and that was based on

an ambiguity. So, you can see why

they're saying, "Okay, this is not just

a figment of our imagination." Normally,

you cannot just take the fifth because

you don't want to enter into a perjury

trap, but this perjury trap is real.

This is a case where the monsters under

your bed really do exist.

>> They're saying that it's now up to the

DC US attorney, Janine Piro, whether to

prosecute or not. I mean, is there any

doubt that she will prosecute a man

who's somewhere near the top of

President Trump's enemies list?

>> They're getting Janine Piro at the

perfect time, which is time of

vulnerability, where she's worried about

being fired by President Trump, because

she moved to dismiss the case against

David Hearn, the guy who was wrongfully

prosecuted for vandalizing the

reflecting pond, which he didn't do. And

so, Trump is very upset with her. So to

keep her job, she's going to do in my

mind what the administration expects her

to do. But the issue is that this does

open the way for a defense lawyer to say

this is an illegal procedure. You're

supposed to get the approval of the full

Senate. You can't just go around that

procedure. Now, under federal law, a

statutory criminal contempt of Congress

charge that obligates the US attorney to

bring the case has to be certified by

the full Senate or the full house. So

what they're trying to do here is to

send it to the DOJ as a recommendation

without a legal mandate to act just as a

you know request. But I still don't

think that holds water because the DOJ

can always reject a vote by the US House

or the US Senate. They've done that in

the past. Merrick Garland did that when

the Democratic House tried to send some

people to the DOJ for contempt who

didn't want to cooperate with the

January 6th investigation. It's up to

the DOJ. They have prosecutorial

discretion. So, I don't think you can

get around the full Senate having to

approve this by saying it's just a

recommendation, not a mandate. It's

never a mandate to the DOJ. It's always

really a recommendation. Dave, so let's

say he is indicted. Is it a good defense

that this was a perjury trap?

>> Oh, absolutely. And they're going to use

Rand Paul's words against him because

Ran Paul and others said that, "Yeah, we

want to prosecute him. He needs to be in

handcuffs." And so, you can't look at

this in a bubble. Normally, you would

say, "No, you can't take the fifth in a

situation like this where you're being

asked questions and you've been given a

pardon." And the only criminal liability

here is just the fact that you may or

may not be telling the truth. Now, in

response, Fouchi's lawyers are going to

say, "The perjury trap is real. We're

not living in normal times. You can't

look at this in a bubble. This is a

situation where the senators have said,

"We want to prosecute him. We're

bringing him back before this body, not

as a factf finding mission because we've

already done that, but to catch him in

perjury." And then the defense lawyers

will point to Jack Smith and James Comey

and Jerome Palace saying, "Here, this is

what we're trying to avoid." And then on

top of that, they can also mention

you've got very aggressive Republican

state attorney generals who are around

the country trying to prosecute Fouchy

and Fouch's pardons do not protect him

against that. So he does have a

legitimate claim to take the fifth

amendment.

>> Yes. So state attorneys general in

Florida, Alabama, Louisiana, and

Oklahoma are launching inquiries. And

the Florida AG in your neck of the

woods, Dave, said that Florida law on

deceptive trade practices, fraud, or

public nuisances could be invoked. I

mean, these sound like uphill battles to

say the least. And you've also got

statute of limitations problems.

>> So, number one, the attorney general of

Florida is up for election in November.

And this is the type of thing that'll

motivate his political base. And it's

one thing to say you're investigating.

It's another thing to actually bring

charges. Does state of Florida have

jurisdiction over a national figure

here, someone who is a federal official

at the time. You're not given the

ability under the supremacy clause to do

that. You're a state official. There's

the doctrine of federal immunity. State

officials generally lack the

jurisdictional authorities to prosecute

federal executive officers for things

that they've done within the scope of

their official federal duties. So, you

wouldn't have the jurisdiction. Plus, is

there a Florida connection to the gain

of function research? Is there a Florida

connection that gives him jurisdiction?

Does the statute of limitations bar any

prosecution? There are so many reasons

why you cannot get a prosecution here.

And it just shows that it's all

political. But the fact that the state

attorneys general are threatening this

gives yet another defense to Fouch's

lawyers to say, "This is why we took the

fifth amendment." Peter Navaro was found

guilty of contempt of Congress and

served four months. Steve Bannon also

served four months for contempt of

Congress. Their appeals, multiple

appeals, failed. So, is Fouchy any

different?

>> Yes, very different. You know what the

biggest difference, June, is that Peter

Navaro and Steve Bannon didn't even show

up. Anthony Fouchi showed up. He showed

up to answer questions, but then when he

realized he was walking into a perjury

trap where the senators saying, "We're

going to prosecute you where state

attorneys general are like chomping at

the bit." That's when they took the

fifth. That's different than Bannon or

Navaro who thumb their noses at the

committee. Didn't even show up. And

that's why I think you'll see Fouchy

defend himself and win as opposed to

Navaro and Bannon who lost.

>> It's always great to talk to you, Dave.

Thanks so much. That's former Palm Beach

County State Attorney Dave Aaronburgg.

Coming up, complaints from judges at the

Fifth Circuit. This is Bloomberg.

The Fifth Circuit is on its way to

making on bank history with 14 total

grants and 12 reharings scheduled this

year. And now in an extremely rare move,

some of the judges have started

dissenting from the grants of full court

review, voicing their consternation as

the number of onbank cases rises. An

onbank review means that all the judges

in the circuit hear oral arguments and

decide a case after a party requests a

reharing from a decision of a three

judge panel. At the New Orleans-based

federal court, three judges, a Ronald

Reagan appointee, a George W. Bush

appointee and a Barack Obama appointee

have voiced their consternation at the

number of bank cases being heard.

Joining me is Bloomberg Law reporter

Jacqueline Thompson. So Jacqueline, tell

us about the fifth circuit hearing more

on bank cases lately. They definitely

have and I sit in the courtroom for all

of them and the judges are even talking

about how many cases they're hearing.

Back in January, they were scheduled to

hear seven arguments and it ended up

once got scuttled at the last minute. So

they had six arguments across seven

cases. Then they had two more in May.

They have five arguments across four

cases set up for September. And that

number has just been ticking up since

all the Trump appointees have joined the

appeals court. You know, obviously there

was a bunch of litigation against the

Biden administration that ended up

within the Fifth Circuit's jurisdiction,

and those are all really high-profile

cases. Some judges want to, you know, be

able to dip their toes in and make their

voices heard, especially if they

disagree with the underlying panel

opinion. So, you know, we've have been

seeing the full slate of active judges

be especially eager to be taking up on

bond cases lately. describe the

composition of the fifth circuit for us.

I usually say that it's the most

conservative circuit in the country.

>> Right. So, there are 17 active judges.

Um, six of those currently are Trump

appointees. Uh, there's two Reagan

appointees. There's a handful of George

W. Bush appointees, a handful of Clinton

and Obama appointees as well. But it's

that conservative block which I sort of

count as the six Trump appointees plus

the two Reagan appointees that make up

you know the driving force here because

that is eight out of 17 votes. And then

if you know you have any judges who have

to recuse can't hear a case you know

that gives that block even more power.

Um one of those judges Kurt Englehart

he's a Trump appointee. He's going to be

taking senior status. So, he'll soon no

longer be part of the on proceedings.

But another Trump appointed judge will

be taking his place, we expect, in the

next few months. A descent from a denial

of a motion for an onbank hearing is

more common than these dissents, which

are dissents from the granting of a

motion for an onbank hearing.

>> Right. Yeah. We see dissents from denial

all the time and that could be because a

judge wants to flag it for the Supreme

Court. Sometimes judges want to say, "We

should have heard this case. We should

have reviewed it as a full court and

here are the reasons why I think this is

the situation. I think we need to

revisit bad precedent. I think we need

to realign what the court is doing with

what the Supreme Court has told us to

do." You know, things along those lines.

So often when they put out those

descents, it can either be to a get

their opinions out on the record or to b

sort of raise a hand up to the Supreme

Court and say, "Hey, our full court

messed up. You should take a look at

this and review of what the panel did."

>> How are the dissents from the grant of

bank hearing? I mean, can you categorize

what they're like? So there's been so

few of them that it's kind of hard to

say with a broad sweep of what exactly

they're like. But you know what's

interesting about them is you would

think with an case, you know, that it's

getting argued before the full court.

Judges have the opportunity then to

share their feelings about them hearing

the case. They have the opportunity when

the opinions are issued to lay out how

they feel about hearing a case. But here

they're sort of, you know, dipping in

early in the process and they're going,

"Hey, before we do anything else in

this, I just want to stick my hand up

and say, we're wrong. We are wrong to

even hear this case in the first place."

I was told recently, apparently the term

for this is actually a disgrantle. Uh,

and that is what the judges are doing

here. They are disgruntled and they've

issued a disgrantle. And you know there

are various reasons why they might want

to be saying all of this. They might

want to flag it for briefing in the case

in the future. Uh you know before the

parties step up and say anything and

give an opportunity for outside parties

to file amicus briefs and raise issues

here. or they're saying, "Hey, we're

wielding our ambong power weirdly and I

don't like it and I think we need to

revisit exactly when we're hearing these

cases and why."

>> Tell us about some of the cases where

we've had these disgruntled disgruntled

whatever.

>> So, the first one I had noticed was last

year's Judge Leslie Southwick. He's a

George W. Bush appointee on the court.

He's sort of a more moderate voice in

this day and age. um maybe in an earlier

version of the court, not so much, but

he had been on the initial panel for the

case, which was over the Trump

administration's use of the Alien

Enemies Act to deport Venezuelan

nationals from the country. And what he

said there was, I don't understand why

our full court is hearing this case. I

think this should have just gone

straight to the Supreme Court. This is

obviously an issue of high importance

and we need them to be able to weigh in

on it and it's going to end up there

anyway. So why are we delaying all of

this? One of the Trump appointees on the

court, Judge James Hoe, he stepped in.

He filed a concurrence. He said, you

know, DOJ asked us to hear this case.

It's compelling. It's interesting. It's

important. So we're going to hear it.

And that's the deal there. So, you know,

that could be sort of the circuit trying

to hold on to their power and influence

too and saying, "No, we also can issue

very important decisions. It's not just

the Supreme Court." So, that was one

instance. A few weeks ago, Judge Jerry

Smith, a Reagan appointee, there was a

criminal case that they took up on Bon.

Uh it was a discovery dispute in a long

litigated murder trial and he had

written the underlying panel opinion and

said you know I wrote my panel opinion.

Judge Southwick wrote a disscent that

should have been totally fine. We don't

need to revisit this as an court. We

hear very important cases as an onbank

court. I love onbank proceedings. We

should have more of them but this is not

the case. And then the last one was

Judge Steven Hegginson. He's a Barack

Obama appointing on the court. Um the

court has taken up a constitutional

challenge to the felon gun in possession

law which has been really widely

litigated over the last few years given

recent second amendment rulings from the

US Supreme Court. And then most

recently, the Justice Clarence Thomas

wrote an opinion where he said, "Hey, I

think that maybe this gun ban is

unconstitutional under the commerce

clause of the Constitution." Now, four

weeks later, the Fifth Circuit says,

"Hey, let's take up this felon gun and

possession case." And Judge Higginson

says, "I I think this is actually about

the commerce clause thing and not

applying another precedent, which is

what had been raised in the briefing uh

below." So he started say bringing up

all the issues he had with revisiting

these sorts of issues with taking up a

commerce clause challenge. He said, you

know, this brings up the potential that

our circuit is going to completely upend

the US code. We could get challenges to

all certain kinds of laws. It could be

security regulations. It could be child

sexual abuse possession charges. You

know, we're sort of opening Pandora's

box here. And he put out a list of uh

groups that he thinks will want to file

briefing in the case. And it seemed to

be a little bit of him going to the

outside world. Hey everyone, take a look

and make sure your voice is heard when

we hear this case. I mean, the Supreme

Court has been taking a lot of cases

from the fifth circuit the last few

years. In fact, last term it took more

cases from the fifth circuit than any

other circuit. The circuit is sort of

known for pushing the envelope as far as

the laws concerned. That is what some

observers say. And this last term was a

little weird at the Supreme Court. The

fifth circuit cases seem to just be

cases that happened to come out of the

fifth circuit. Now, there were a few

that were definitely what I think of as

quintessential fifth circuit cases. Um,

for example, if you are voting on

election day, can you only vote on

election day? Or can your vote that was

postmarked after the fact still be

counted? And that was over a Mississippi

statute allowing uh military members to

vote from overseas by mail. So there are

always a few of those cases, but this

past term was a little more things just

happened to happen within the fifth

circuit and that case just happened to

be taken up by the Supreme Court.

>> Are there any other circuits that are

hearing more cases on bank than they

used to?

>> I don't know if it's more than they've

used to. Um the Ninth Circuit has always

been incredibly active on UNB cases. Um

and they even have their own procedure

because they have so many judges. I

believe they have 29 active judges. So

they have a situation where not all of

the judges sit on on the onbanc court

when they're reviewing underlying panel

opinions and as a result we actually do

see more of the dissents from grants of

review on that circuit because judges

are going oh gosh I don't know if I'm

going to be on this court and I got

something to say so I'm going to say it

right now. on the DC circuit. It seems

that a lot of times when there is a two

to one decision with two Republican

appointees in the majority, the full DC

circuit will take the case and then it

ends up getting reversed. And I'm

wondering if the opposite is true here.

If when you have two Democratic

appointees in the majority in a two to

one case that then the full circuit

takes the case and reverses. Yeah,

that's a trend I've seen pop up. I'll

say that I haven't crunched the numbers

for the most recent six cases or so. But

earlier in the year, I actually took a

look at um the number of underlying

panel rulings that senior judges were

on. And the senior judges on the fifth

circuit are more moderate. They tend to

not be in the same camp necessarily as

the Trump and the active Reagan

appointees. And as a result, the

conservative majority of active judges

says, "Okay, we'll we'll take up this

case."

>> Thanks for keeping such a close eye on

the fifth circuit for us, Jacqueline. I

really like to talk about trends on the

circuit courts. It's so interesting.

That's Bloomberg Law reporter Jacqueline

Thompson. Coming up next on the

Bloomberg Law Show, FBI Director Cash

Patel is planning to reduce lawyers at

the FBI, deepening divisions with his

general counsel. I'm June Grao and

you're listening to Bloomberg.

FBI Director Cash Patel is planning to

shrink his legal advisory office,

deepening divisions with his general

counsel as outside lawsuits are

challenging prior staff termination.

That's according to Bloomberg sources.

And the FBI's office of the general

counsel has begun carrying out Patel's

instructions by pushing its workforce to

take early retirement. Joining me is the

Bloomberg Law reporter who covers the

Justice Department, Ben Penn. He wrote

this story on the FBI. Ben, start by

telling us about the FBI office of the

general counsel.

>> Sure. It has a number of functions

behind the scenes. There are uh couple

hundred lawyers. As of recently or as of

at least before the start of this

administration uh when people started

taking uh the uh fork in the road, there

were about 300 lawyers there who are

split into national security uh criminal

investigation and uh litigation

branches. And so they do, you know, they

whenever there are sensitive

investigations going on, they will be

advising agents, they'll be advising

senior FBI executives up to the director

on uh ensuring that uh investigations

are conducted in a lawful manner, that

they're complying with the constitution

with ethical guidelines. Um it's also

the general counsel's office is also

going to be coordinating with

prosecutors at main justice uh to to

have those lawyerto lawyer conversations

so that the uh FBI um you know is on the

same page with the lawyers who are

actually going into court to bring cases

based on the investigations that the

bureau has conducted. They're also going

to be working with DOJ lawyers in

responding to lawsuits that the FBI uh

faces from say in this administration,

this has been a recurrence from former

agents and officials who've been

terminated by director Cash Patel. The

general counsel's office is going to

play a significant role behind the

scenes in coming up with the litigation

strategy.

Project 2025 advocated for the

elimination of this office. Why?

>> Yeah. They felt that it was duplicative

that uh the work you you know could be

handled instead by attorneys at Justice

Department headquarters. That's the uh

where the legal uh work should be done

that the FBI doesn't need to have this

function as well.

>> So up to this point, have they been

letting people go?

>> No. That's what's interesting is that uh

even as there have been terminations of

uh senior and line level employees of

the FBI uh under director Patel, we have

not seen those sort of adverse personnel

actions at the general counsel's office

and uh the current general counsel Sam

Rymer has been able to save off until

now at least has been able to save off

the kind of uh workforce reductions that

we've seen. elsewhere in the bureau.

>> Tell us about um your story and this

plan to shrink the office.

>> Sure. So the reporting has evolved

essentially that in recent months you

know there have been tensions between

the general counsel and the FBI director

according to my sources and we saw that

that play out in a number of ways. A

couple months ago, there was a demand

from the director's office that the

general counsel's office find any

attorney to fire to sort of send a

message to the staff. And that wound up

going away and nobody was fired. And

then more recently, it was the

understanding of my sources that there

was a demand that 25% of the attorneys

at the general counsel's office be cut.

And even more recently than that, that

has evolved a bit into uh less of a uh

firm demand. 25% is no longer understood

to be a hard expectation. And now what

is happening is FBI lawyers are being

offered voluntary early retirement as a

means of uh getting out the door before

they'd otherwise um be eligible for

retirement. And uh the FBI is not

denying this reporting, but they're

characterizing it as part of a

reorganization that they say is long

overdue at the general counsel's office.

>> So you said that they they were trying

to send a message or Cash Patel was

trying to send a message. What's the

message they were trying to send?

>> The assumption again this is what uh you

know this is understanding my sources.

It's not uh we would have to ask Hash

Patel or his uh inner circle exactly

what their intention was, but the um you

know the understanding from from the

people I talked to was that it was sort

of to ensure that nobody feels too

secure in their in their jobs and that

they need to ensure that they are uh

serving serving the mission. Um there

was a statement provided by Patel's

spokesperson that uh was something to

the effect of anybody who is weaponized

uh would deserve to be terminated. You

know we we have seen people you know

lose their jobs under this FBI director

if they got crosswise with the

director's you know agenda which has

been very closely aligned with the White

House in this administration. Ben, give

us an example of one of the

investigations closely aligned with the

White House.

>> The six Democratic lawmakers who posted

a social media video last year reminding

military officers of their duty not to

uh obey unlawful orders. And that led to

an FBI investigation and DOJ failed

attempt at criminal prosecution. That's

an example uh a very stark example of

this. FBI being willing to initiate

investigations that many veterans of the

bureau have uh criticized for lacking

any predication that a crime even

existed.

>> So what is the relationship between the

general counsel and Patel?

>> The general counsel and cash Patel there

is no known history between them as far

as I understand. Sam Rymer is somebody

who's a very experienced uh government

lawyer and a GOP uh attorney on Capitol

Hill and he worked in the uh Trump White

House Council's office in the

president's first term. I don't know for

sure. There is no apparent history that

the two of them have until they started

working together in this administration.

Um Sam Rymer by all accounts is hardly

an obstructionist. He's somebody who has

made it clear to his staff that they

need to view it as their jobs as doing

everything they can to uh get to yes

when they are advising um the director

on and his uh team on whether they are

legally permitted to undertake certain

actions that they want to take. And uh

it is not their job unless something in

their minds is very blatantly illegal to

recommend against it. And uh that has

been a shift that was uh somewhat

shocking to some of the people I talked

to uh in how the FBI general counsel's

office would approach its role. And uh

you know that would seem to suggest that

Rymer could fit in in the long run

continuing to work for this director.

But more recently um their uh

relationship has been strained. This is

something that the uh director's

spokesman said is false. But according

to my reports, they are no longer as

sympotico as they once were. And that um

you know there there are several

examples that people pointed to of the

general council's office uh having

waning influence in recent months

including a sense that they had to

justify their existence by scrambling to

put together a list of accomplishments

to the director to show their worth.

There was a legal conference uh for FBI

lawyers nationwide that was cancelled on

a very short notice. I have other

reporting too to suggest that the uh

general counsel's office uh may not be

in uh good graces right now with the

director.

>> So, and you wrote that they don't voice

recommendations against particular

actions. That's something that they used

to evaluate.

>> Yeah. I mean that the people I talked to

said that that has the default has

become to avoid voicing objections,

legal objections that now people are

trying to lay low and to uh help the FBI

director get to yes and that if they

even have objections that they are going

to be very careful and how they voice

them, not to overtly advise against

doing something, but maybe to more

subtly lay out what the risk might be in

order to uh avoid being cast as an

obstructionist uh wing of the Justice

Department.

>> Let's turn to another one of your

stories. This about the Justice

Department overstating the extent to

which the Nevada US Attorney's Office

has increased criminal charges and

indictments while losing prosecutors

during President Trump's second term.

To make a long story short, I spent

months reporting on some of the uh

troubles uh that have been uh happening

at the US attorney's office based in Las

Vegas in the current administration and

under the leadership of the office's top

prosecutor Sagal Chada. And uh after

writing a sort of a deep dive on um the

tumultuous past year that Chhatta has

had leading the office, you know, I was

struck by a statement that they provided

in that story in which they said that

they the office is essentially doing

more with less. That they have increased

their criminal charges or cases charged

by 15% despite losing 20% of their

prosecutors. So we asked them to show

their work and where they were getting

those numbers from and never got a

response. So um here at Bloomberg Law,

our sharp uh data analyst uh did our own

analysis and uh came up with numbers

showing that indictments, criminal

indictments, grand jury indictments are

down by 6.4%

year-over-year from 2024 to 2025. and

that the offic's overall charges which

would include cases that uh were brought

without just indictments in would

include complaints that those increased

by 4% contrary to the 15% figure that

the office presented to us. We came back

to them with our findings. they started

changing their narrative a bit to say

that um they were now measuring their

productivity in just indictments now and

they said that indictments had increased

by 10.7%

year-over-year last year and uh despite

our findings that they had actually gone

down by 6.4% 4% they were never able to

show us their work, explain where they

were getting those numbers from. We

showed them all of our work. Basically,

long story short, what this is getting

at is this is a justice department right

now that is increasingly relying on

statistics to try to refute the

narrative that uh we are seeing in

outlets, not just here at Bloomberg,

that the Justice Department has been

losing quite a bit of prosecutorial

experience over the past year and a

half. and they are trying to use

statistics that in their minds

demonstrate that DOJ is still able to do

more with less and that prosecutions are

at a record high. And uh this is just a

snapshot. This is just one office out of

93. But our analysis shows that the

Nevada US Attorney's Office, which is

one of the many offices that have

suffered from significant attrition,

that the uh indictments are down over

the past year. And the other point

that's uh that's missing here is that

measuring a DOJ prosecution offic's

success can't be done solely by looking

at the total number of cases charged.

that that requires a much more

exhaustive and really complicated review

if we want to really uh get under the

hood and see how an office is performing

because it's not just the quantity of

cases, it's the quality of cases and

some sometimes you can have much more

impact by uh bringing fewer cases but

much more meaningful cases. So I I want

to make that that point clear. But um

you know in this case if this is how DOJ

wants to uh show the public that they

are still performing and that losing

bodies doesn't actually have an impact.

I believe that that we deserve a little

more transparency into where they are

deriving their numbers from.

>> It's an interesting time to be covering

the Justice Department. Thanks so much

Ben. That's Ben Penn, Bloomberg Law

reporter. And that's it for this edition

of the Bloomberg Law Show. Remember, you

can always get the latest legal news on

our Bloomberg Law podcasts. You can find

them on Apple Podcast, Spotify, and at

www.bloomberg.com/mpodcast/law.

And remember to tune in to the Bloomberg

Law Show every weekn night at 10 p.m.

Wall Street time. I'm June Graasso and

you're listening [music] to Bloomberg.