Sen. Sheldon Whitehouse gets real: "Todd Blanche's ongoing efforts to hide the truth about Epstein and Trump should not only disqualify him from leading the DOJ, it should open him up to investigation and prosecution"

(Purple Room Politics, Facebook)

Todd Blanche might look back on yesterday as a big win because his controversial nomination to be attorney general of the United States made it through the U.S. Senate Judiciary Committee on a 12-10 party-line vote. That means Blanche probably will go before the full Senate, where he is expected to be confirmed in a body controlled by his own party. It is not, however, expected to be smooth sailing as several Republicans have expressed doubt about whether they will support Blanche. Susan Collins (R-ME) is a definite no, Lisa Murkowski (R-AK) is calling for further conversations, and Bill Cassidy (R-LA) is undecided. Mitch McConnell (R-KY) is not expected to participate in a confirmation vote due to his extended absence for health reasons. That means Blanche can afford to lose no more than two GOP votes if Democrats, as expected, all vote no.

As for Blanche's reputation after yesterday's committee vote, it did not fare so well. It was the target of rough treatment from committee Democrats, especially U.S. Sen. Sheldon Whitehouse (D-RI), who with the use of one word -- "discreditable" -- suggested that Blanche not only did not merit support in the committee hearing, but also hinted that Blanche is the kind of dishonorable individual who should not fill the role as America's chief law-enforcement officer. Will Blanche's well-earned reputation as a Donald Trump bootlicker raise persistent doubts about the traditional independence of his office from White House influence. To borrow a phrase from Billy Joel, it's "A Matter of Trust," and in my view Blanche has a long way to go before the American people can trust him in a role that should revolve around objectivity and respect for the rule of law. Blanche has shown that he has massive shortcomings on both fronts.

Sheldon Whitehouse left little doubt that he holds strong antipathy for Blache, and that isn't likely to change. Will the American people follow the lead of the Rhode Island icon? If they value democracy, the answer will be yes. In his presentation yesterday, Whitehouse made it clear he was ready to do battle, opening with the following statement:

"Today I think is a sad and embarrassing day for this committee. As it looks like, on a party line vote, we are going to advance out of this committee probably the most discreditable person ever to seek the office of Attorney General of the United States.

"The reasons to vote against him number in the hundreds, but let's just focus on a few where my Republican colleagues purport to have great concern . . .

"Let's start with the Epstein files where Todd Blanche participated in the cover-up, continues to participate in the cover-up, and is responsible for a massive screw-up of the release of the documents. Cover-up and screw-up on the Epstein files!"

Sounding like the prosecutor he was for 14 years, Whitehouse laid out his case with facts and precision. He knows what an experienced lawman sounds like, and he gave the distinct impression that Todd Blanche is not that guy:

"What do I mean by cover-up? Well, first, they looked at four FBI 302s that were the testimony of a woman who told the FBI in a formal statement that she had been sexually assaulted and physically assaulted by Donald Trump around 13 or 14 years of age."

"Of those four 302s, they released one, the one that did not mention Donald Trump. Well, fortunately for transparency, these documents had been released in other areas and bait-stamped, so people figured out that some were missing. And with that, the other 302s that mentioned Donald Trump had to be produced."

"Only because they got caught were those 302s produced, and right now, as we sit here, Todd Blanche is still sitting on 37 pages that are almost certainly the agent's notes off of which the 302s were taken. That should be disclosed under the Epstein files law, but instead, those 37 pages remain covered up."

Whitehouse is a persuasive guy, and for Americans who were paying attention, his words had to raise serious doubts about Todd Blanche. For example, the words "only because they got caught were those 302s produced," hinted that Blanche is not above engaging in skulduggery, bordering on criminality. Also, Whitehouse reminded his listeners that Blanche's actions should not be described in the past tense, but rather in the present tense -- as something going on right now. And Whitehouse provides an example -- of 37 pages of FBI agent's notes that "as we sit here, Todd Blanche is still sitting on," and helpfully adding "those 37 pages remain covered up." The obvious question for any reasonably engaged American: "Is Todd Blanche the guy I would want entrusted with sensitive documents about a pedophile's abuse of my teen-aged daughter?"

Financial aspects of Epstein's sex-trafficking operation also do not escape Whitehouse's attention, as he states:

Where else did the cover up go? The DOJ received suspicious activity reports from the treasury department about Epstein's accounts -- many of them related to Russia. You'd think that an investigative body like the Department of Justice could look at a document called "suspicious activity reports" and deduce that there might be suspicious activity. But did they even have a look? Billions of dollars in Epstein funds transferred and the Todd Blanche department never even had a look.

"My God," a reasonable listener might say, "do we really need an attorney general who did not investigate Jeffrey Epstein's possible financial ties to Russia?" The same listener might ask this question: "Was Blanche not interested because Trump is tied to both Russia and Epstein -- and Blanche's mission is to protect Trump at all costs?"

Whitehouse turns his attention to one of the most peculiar characters in the Epstein saga, stating:

Then you get to Ghislaine Maxwell, where the deputy attorney general (Blanche) flew to Tallahassee to have a private meeting with a woman convicted of participating in Epstein's depravity. What was the upshot of that meeting? Was it to get more information about who was culpable, about whose secrets were still being kept? No, it was to get exculpatory information about Donald Trump and to reward her with transfer to a ClubFed facility. The excuse was that she was in danger, so they had to move her. How often does a prisoner facing threats or danger get moved to a less secure facility. That doesn't pass the test of common sense.

As he begins to wind down, Whitehouse returns to the subject of a major screw-up that happened on Blanche's watch:

Between the botched disclosure that revealed victims, whose names had not been known, with photographs of addresses, in some cases while they were not fully clothed. . . . Where does the buck stop for that, if not with Mr. Blanche. That was an epic botch that did real harm.

Voting for this guy today gives our blessing for screw-ups that even Pam Bondi pointed at Blanche as being responsible for -- and it gives our blessing to his continuing role in these matters.  

In the end, Whitehouse makes it clear that these issues are of the utmost seriousness -- driven by an unserious president and his unserious lackeys. Even engaged Americans probably do not fully grasp how serious this all could turn out to be. Whitehouse leaves us with this thought:

Blanche's ongoing efforts to hide the truth about Epstein and Trump from the American public should not only disqualify him from leading the Justice Department, it should open him up to investigation and prosecution.

This man has no loyalty to his country or the concept of justice. He's Trump's personal lapdog and he believes in nothing beyond serving his master's interests. If he's confirmed as atorney general, he will happily turn a blind eye to the President's worsening crime wave and use the vast powers of his office to invent manufactured cases against Trump's perceived enemies.

With this Blanche confirmation process, we are witnessing nothing less than the death of the rule of law in the United States of America . . .

Donald Trump keeps claiming vandals caused damage at Reflecting Pool, even as his own DOJ files court documents saying it was a failed rush job

(Katie Couric Media, Facebook)

Donald Trump has been criticizing Jeannie Pirro almost from the moment she announced that her office was dropping criminal charges against former U.S. Olympian David Hearn in a case of alleged "vandalism" at the Lincoln Memorial Reflecting Pool. But yesterday, Trump's words took on a nastier, more personal tone, saying she "choked" and "folded like an umbrella." In fact, Trump's words have become so harsh that some observers speculate that Pirro might get fired for dismissing the case.

Pirro hardly is a sympathetic figure in this matter -- and we will take a closer look at that issue in an upcoming post -- but Trump's scorching criticism says more about him than it does about her. The Associated Press (AP) provides details about the escalating tension between the president and one of his appointees who also has been a longtime friend. Under the headline "Trump says Pirro 'folded like an umbrella' in bid to drop Reflecting Pool vandalism charges," Will Weissert writes:

President Donald Trump said Monday that U.S. Attorney Jeanine Pirro “choked” and “folded like an umbrella” in moving to drop charges against a former Olympian accused of vandalizing the Lincoln Memorial Reflecting Pool.

Speaking at an unrelated Oval Office event, Trump ducked questions about whether he’d fire Pirro, a former Fox News host and longtime ally he handpicked as top federal prosecutor in the nation’s capital. But the president kept up his drumbeat of sharp criticism, saying he remained disappointed by her assessment that damage to the Reflecting Pool was the result of shoddy construction, not vandalism.

“Frankly, I think she choked because the judge was really vicious. Instead of going after the people that did it, the judge went after her and went after her department, and I guess she choked,” Trump said in response to a reporter’s question after he signed an executive order for military spouses. “I don’t know what the hell happened.”

Let's take a close look at that last paragraph and see what it says about the current occupant at 1600 Pennsylvania Avenue:

* Trump says Pirro "choked." Of the endless supply of incompetent males on his cabinet have you ever heard Trump say that Pete Hegseth, RFK Jr., Kash Patel, or Marco Rubio "choked." Gee, is our president a misogynist? My conclusion is yes, and that probably will surprise 0.00002 percent of our readers. 

* With that out of the way, Trump blames the judge, who he says "was "really vicious" For good measure, Trump is strongly suggesting the judge is corrupt, that he didn't give the Department of Justice a fair shake. Does Trump cite any unlawful ruling the judge made or any procedural standard he violated? Of course not, and that almost certainly is because Trump knows virtually nothing about the law -- and he cares even less about it. The Brennan Center for Justice has spotlighted some of the most blatant and high-profile attacks Trump has made on the judiciary. As for numbers, I can find no official count, but one online estimate is in the "dozens." My guess is that in the "dozens of dozens" would be more accurate.

Pirro's Motion to Dismiss tells the story of how her department came to realize it had no case. It boils down to this:

Work on installing the liner immediately fell behind due to rainy and windy weather, repeated failures of testing on expansion joints, delays in receiving sealing product at the worksite, and the rush to finish the project led to hasty and botched work.

In short, it had nothing to do with vandalism. That Trump still is saying it did is just another sign -- as if we needed more signs -- that our president is a sorry slug of a human being.

At this point, all of us probably could use some humor, and for that, we turn to Jeff Tiedrich, publisher of the "Everybody is Entitled to My Own Opinion" Substack newsletter. I have become a regular reader of Jeff's work, and he invariably makes me laugh while also giving the sense that I am better informed when I finish reading than I was when I started. (Perhaps I should note that Jeff makes ample use of colorful language, including more than a few F-bombs, but he appears to be a devoted and outspoken liberal with a healthy distaste for all things Trump. That's enough to earn high marks from me, and I encourage our Legal Schnauzer readers to check out his page at the link above. I know there are a lot of smart, funny people on the Web, but I can truthfully say I haven't found anyone quite like Jeff.

As for Jeff's piece on the Reflecting Pool, it comes under the headline "Good news, everyone! Grand theft paint chips is no longer a crime." Jeff writes:

Hey folks, are you sitting down right now?

I hope you are, because it turns out that the lying liars who lied to us about Iran’s nuclear program, and lied to us about Venezuelan fishermen, and lied about tax cuts for the obscenely wealthy, and lied about how tariffs work, and lied about the state of the economy, and the crime rate of migrants, and who won the 2020 election, and Dr. Fauci’s role in the pandemic, and Dear Leader’s rotting hands, bloated cankles and deteriorating brain, and every other fucking thing under the sun, have been lying to us about this so-called vandalism of the Lincoln Memorial Reflecting Pool.

The justice department has moved to dismiss a criminal case charging former Olympian David Hearn with deliberately damaging the Lincoln Memorial‘ reflecting pool, instead blaming damage to the pool liner as “the result of flawed installation by the contractor.”

Oh, so no big gash, huh?

Where did it go? Because for weeks on end, the Donnyverse wouldn’t shut the fuck up about how there was this ginormous gash like no one has ever seen, a gash like few thought possible, the gashiest gash that has ever gashed, man.

Did you clock how the DOJ dropped these charges late on Friday evening, hoping that We the People wouldn’t notice? but oh, we noticed.

We fucking well noticed, because we knew all along that this whole thing was bullshit. There was never a gash. there was never any vandalism. What there was, was a typical Donny clusterfuck. He handed a sweetheart no-bid contract to some unqualified and incompetent crony, who so royally screwed the whole thing up that within a matter of days, the entire Reflecting Pool was choked with broken pieces of liner that curious onlookers were gawking at, and picking up.

Yet, how many times did that smug, cow-cosplaying dipsomaniac go on Fox News and smear the good name of Olympian David Hearn, telling the world he was guilty of the heinous crime of Grand Theft Paint Chips?

Jeanine Pirro, the US attorney for the District of Columbia, said that her office had received documents from the Department of the Interior only “after the return of the indictment” showing that damage occurred prior to Hearn visiting the reflecting pool and put his hand in the water on 19 June.

How do you fuck that up?

Here’s how you fuck that up: by being so horny to make headlines and get your cockeyed face on TV and please that Audience of One back in the Oval Bordello, that you rush an indictment before all the facts are in.

Pro tip: that’s the opposite of justice.

No one could have predicted that an attention-addicted fake TV judge would be so crap at the job of US Attorney.

Meanwhile, when Preznit Fuckwit caught wind of what Jeanine Pirro was up to, he spontaneously power-loaded an infinite series of diapers.

Donny was so triggered by Jeanine’s perfidy that he and the diaper nurse spent three-and-a-half rage-filled hours yesterday posting no less than 42 times to his crappy app.

Jeff winds things down by making a serious point about the difference between Jeanine Pirro's role in all of this, compared to Trump and Interior Secretary Doug Burgum, who continue to falsely claim vandalism was involved:

Here’s the thing, though: Donny and Dougie are morons, shitting their stupidity on social media. Jeanine Pirro, however, is an officer of the court, bound by rules of conduct. That makes a huge difference.

Don’t take my word for it. Listen to an actual lawyer:

Let's close with a final word from Jeff Tiedrich:

We should never normalize the idea of an entire government weaponizing itself against some innocent person, just because the president is a colicky piss-baby who can never admit culpability for any of his disasters.

What kind of shithole country arrests someone for touching water? What kind of penny-ante fascist prosecutes someone for Grand Theft Paint Chips?

These vile shitweasels owe a huge apology to David Hearn.

They owe a huge apology to all of us.

Oh, and this thing isn’t over. here’s Norm Eisen, one of Hearn’s lawyers.

As Jeanine Pirro and DOJ drop Reflecting Pool criminal case against David Hearn, Trump objects and that sets off an intramural feud within the regime

(The Hodgetwins's post, Facebook)

Even one of Donald Trump's staunchest allies cannot figure out what the president is doing by objecting to a Department of Justice decision to drop the destruction of property criminal case against former U.S. Olympic canoeist David "Davy" Hearn. U.S. Sen. John Kennedy (R-LA) ultimately calls the whole episode involving the Lincoln Memorial Reflecting Pool a "a multiple vehicle pile-up." I am assuming, in Kennedyspeak, that is something akin to a "dumpster fire." 

If Trump's actions have that kind of effect on a Republican from a Deep South state, imagine what they do to normal people.

That issue is at the heart of a Trump-generated controversy that to reasonable, sane, non-cultists (and by that, I mean "Democrats') was no controversy at all. Raw Story provides insight on how Trump botched a situation that any relatively normal president would have handled by simply staying out of it. Now, he might have an ongoing drama on his hands, sort of a mini version of the Iran war. As we noted in a post last week, Trump's determination to blame "VANDALS!" for damage to the Reflecting Pool comes with a whole host of legal issues that might not go away soon.

Under the headline "GOP senator thrashes Trump's latest raging 'lie' on NBC News: 'Multiple vehicle pile-up'," Raw Story's Kathleen Culliton tries to make sense of a typical chaos-filled Trumpian moment. She writes:

A Republican Senator called out President Donald Trump for what one independent journalist dubbed "blatant reflecting pool lies."

Sen. John Kennedy (R-LA) appeared on "Meet the Press" Sunday to discuss U.S. Attorney Jeanine Pirro's sudden decision to drop vandalism charges in the Lincoln Memorial Reflecting Pool case she promised would be "open and shut."

"The whole thing is a multiple vehicle pile-up," said Kennedy. "The president says it was caused by vandals. I don't know whether he really believes that or if it's part of his political messaging."

That sounds like a polite way of saying, "Trump probably is lying again. I've voted with him on many issues over the years, but I've developed a pretty strong radar for detecting his lies. And I must say that I'm finding them quite tiresome." Culliton writes:

That pile-up involves the Justice Department, the White House, and the Department of the Interior, all of whom spent the past two days hurling accusations and insults at one another.

Pirro kicked off the dispute by blaming the Interior Department for misleading her prosecutors about when the pool lining began to peel.

In her 20-page court filing Friday, she said there was no evidence that a 67-year-old Olympian canoeist had vandalized the pool — but there was evidence the damage was caused by "flawed installation by the contractor."

The contract, of course, was awarded by Trump himself, via a no-bid process, to a contractor who just happened to be a longtime Trump donor -- surprise! surprise! Naturally, our thin-skinned president took offense at Pirro's assessment of a problem that was caused largely by his own contracting shenanigans. Was Trump about to accept the blame? Hah, surely you're not serious. (And sorry for calling you Shirley.) Here's more from Raw Story:

Trump then took to Truth Social to condemn Pirro, asserting he didn't know "what she was thinking" and that vandalism was to blame.

"I disagree 100% with Jeanine Pirro," Trump raged on X. "There may have been some contractor difficulty, but the major damage was caused by VANDALS!"

Interior Secretary Doug Burgum backed Trump up and defended his department, writing a scathing rebuke on X.

"Vandals have repeatedly caused damage to the Reflecting Pool," Burgum wrote. "We won't back down to deranged people who want to destroy, deface, or degrade our monuments."

Kennedy on Sunday expressed regret that Trump had opened his (figurative) mouth at all.

"He exists loudly, and he grows anxious when he has an unexpressed thought," Kennedy said. 

The Louisiana senator then applauded Pirro for withdrawing her case.

"You can't lie to a federal judge," he said. "She was smart to pull it back." 

Sen. Rand Paul pulls out his bully routine at Senate hearing on origins of COVID-19, but Dr. Anthony Fauci responds by calmly refusing to answer questions from Paul's committee

(KYW Radio, Facebook)

Our lead story yesterday was about a Republican attempt to blame damage at the Lincoln Memorial Reflecting Pool on former U.S. Olympian David "Davy" Hearn. Now, less than 24 hours later, our lead story is about Republicans trying to blame Dr. Anthony Fauci for the COVID-19 pandemic. 

Has the sole purpose of the postmodern Republican Party become finding scapegoats to blame for the fallout that lands in America's lap when the GOP's disinterest in governing (along with its general ineptitude) hits home? That is a reasonable question in the wake of a U.S. Senate committee meeting in which Fauci, who became the leading voice for America's response to spread of the coronavirus, was to answer queries from a GOP panel about origins of the pandemic that resulted in more than 1.2 million U.S. deaths. Fauci apparently took note that the panel seemed to be more interested in partisan gamesmanship than eliciting science-based facts about the virus' origins and spread.  

To Fauci's eyes, a particularly dubious character at the hearing probably was U.S. Sen. Rand Paul (R-KY), the committee chair who has carried on a yearslong feud with Fauci. In his opening statement, Paul demonstrated an "elite" level of objectivity by stating that he wanted to see Fauci -- who has worked in the U.S. public-health sector for 50 years and served under every president since Ronald Reagan -- "behind bars." 

Fauci must have sensed that he was not going to get a fair hearing before Paul and his fellow GOPers, so when questions came his way, Fauci invoked his Fifth Amendment rights and refused to answer -- over and over again.

That seemed to agitate Paul, who issued more than one threat to his witness. But Fauci did not seem shaken by the experience or perturbed about what might come next. Was that because he was confident about acting in the right? Perhaps that was the case, and it raises this question: Did Fauci do anything improper or unusual? Let's take a look at what transpired and see what we can take from a sort of play-by-play.

That comes our way via a report at Politico under the headline "Paul says Fauci will face 'repercussions' for taking the Fifth. That could get complicated." The following sub-header provides details: "The Kentucky senator called for a vote on contempt of Congress. President Joe Biden last year granted his former top health official a preemptive pardon." The reporting team of Simon Levien, Josh Gerstein, and Kyle Cheney writes:

Rand Paul says Anthony Fauci can expect consequences for the former Covid czar’s decision to exercise his Fifth Amendment rights against self-incrimination to avoid testifying before Paul’s Senate committee on Wednesday.

“It’s against the law to obstruct an investigation of Congress. There will be repercussions for your refusal to testify,” Paul told Fauci, the longtime top government health official who led the pandemic response. Paul scheduled a vote of his Homeland Security and Governmental Affairs Committee on Aug. 5 on a resolution declaring Fauci in contempt of Congress.

The Politico team reports that Paul might not have a firm leg to stand on. That's because Fauci simply invoked a constitutional right, probably one of the most familiar such rights to the American public. In this instance, any further proceedings might not be smooth sailing for either side. Both seem to have fairly solid arguments for how things should move forward. From the Politico report:

The Fifth Amendment, which gives people the constitutional right to avoid making statements that they believe could incriminate them, usually precludes consequences for rebuffing questions at congressional hearings.

But Fauci is in an unusual position: President Joe Biden pardoned him for all of his official conduct from 2014 to 2025, meaning Fauci cannot be subject to federal criminal prosecutions for many of the pandemic-related decisions and actions Paul sought to grill him about.

Republicans contend it means he cannot claim fear of prosecution for questions about the time the pardon covers. However, Fauci could theoretically face state or local prosecution, as well as federal prosecution for making any false statements to the panel. And Fauci said he was convinced Paul’s goal was to trip him up and trigger a perjury allegation.

The rules governing Congressional testimony tend to be arcane and outside the grasp of the general public -- even the press. One might say the rules hardly are a model of clarity. The Politico team writes:

Complicating the equation further is Congress’ power to hold recalcitrant witnesses in contempt. The Senate could seek civil contempt sanctions against Fauci, pursuing a court order requiring him to testify and exposing him to fines or incarceration for refusing. In theory, the Senate could have its sergeant-at-arms arrest and detain Fauci, but this “inherent contempt” power hasn’t been used for nearly a century.

The Senate could also pursue criminal contempt, voting to turn the matter over to the Justice Department for potential prosecution. Two former Trump aides — Peter Navarro and Steve Bannon — were convicted of contempt misdemeanors for refusing to testify to the Jan. 6 committee. Unlike Fauci, they failed to appear for their depositions and cited executive privilege rather than the Fifth Amendment. Each served four months in prison.

Paul acted in a heavy-handed fashion when it came to dealing with Fauci's attorney, and that might prove to be a mistake on the chair's part. The role for attorneys in Congress is different from their role in courtrooms. They are allowed to be present under what is called a regulated privilege, guided by rules established by the House and Senate. They can quietly advise their client on Constitutional rights. They cannot object to the committee's questions, and they cannot interrupt the proceedings. They cannot cross-examine members of Congress or make formal legal arguments during the hearing. 

How did Paul handle Fauci's attorney? Not well, in my view, essentially denying Fauci even the presence of his lawyer:

After Paul said Fauci would face consequences, David Schertler, Fauci’s lawyer, sought to speak, arguing the Constitution should shield his client. Paul had security remove Schertler from the hearing room.

“It was outrageous for Sen. Paul to exclude his counsel for making a legitimate legal point,” Schertler said in a statement. “It proves the baseless and vindictive nature of this proceeding and Rand Paul’s personal vendetta against Dr. Fauci.”

Any event that has the trappings of a legal proceeding comes with risk, and that applies even to a respected, well-known figure such as Fauci. The Politico team reports: 

A key risk Fauci, 85, faces is that if a court rejects his Fifth Amendment claim, he may have no sanctuary in arguing he was relying on his attorneys’ advice in declining to answer the committee’s questions. The D.C. Circuit Court of Appeals ruled in 1961 that the so-called advice-of-counsel defense isn’t available to those charged with willfully defying Congress.

In recent rulings, some judges have expressed skepticism about the rationale of that decision but the appeals court has thus far refused to revisit it.

After Paul at his committee hearing accused Fauci of covering up Covid’s origins — Paul believes the disease emerged from a Chinese lab that had received U.S. research funding — and of unnecessarily closing schools and churches, Fauci repeatedly refused to answer questions.

“On the advice of counsel, I respectfully decline to answer based upon my rights under the Fifth Amendment to the Constitution,” he said. 

Is it possible Fauci chose relative silence because it appeared Paul was not informed enough to even ask intelligent questions about COVID and steps that were taken to help limit its spread. He accused Fauci of "unnecessarily closing schools and churches." But it's a matter of public record that Fauci did not order such closures and did not have the authority to issue such orders. Fauci has correctly stated that closure orders for schools, churches, and businesses were issued by state governors, local health departments, and municipal leaders, rather than federal scientists.

Either way, it's  clear Fauci does not trust Paul -- and probably with good reason. From the Politico report:

Fauci said in his opening statement he thought Paul aimed to entrap him, citing his “obvious obsession with calling for my prosecution, his repeated slanderous comments about me, and recently his publicly releasing my unredacted personal diary aimed at embarrassing and intimidating me.”

Paul said he would explore “appropriate actions” to pursue Fauci further.

Dozens of witnesses in recent high-profile congressional probes have pleaded the Fifth to avoid testifying, from Joe Biden’s physician to a slew of witnesses called by the House’s Jan. 6 select committee. Those assertions effectively doomed that committee’s bid to compel their testimony — since litigation would likely have taken months or years to resolve.

From grand-jury "irregularities" to "state-sanctioned kidnapping" to "false arrest," and defamation with damages, Trump's Reflecting Pool case appears to be falling apart and "exploding" at the same time

(Reuters, Kylie Cooper)

Lawyers for a man who was arrested for allegedly vandalizing the Lincoln Memorial Reflecting Pool are asking a court to release documents they say likely will reveal flaws in the grand-jury process that led to their client being indicted. That is just one of several relatively new issues that could arise in court before a scheduled trial date of Sept. 28. Some legal analysts have said the government's case is so weak it already is "leaking."

The Reflecting Pool case might seem like a relatively minor event at a time when the U.S. is at war with Iran, the words "explosive diarrhea" have become an unwelcome addition to the American lexicon, and ICE agents have developed a disturbing habit of fatally shooting people under questionable circumstances. But here is the No. 1 reason the Reflecting Pool case, which involves former U.S. Olympic canoeist David "Davy" Hearn, matters: Throughout Donald Trump's nightmarish second term as president, the number of individuals and institutions that have caved when the administration brought or threatened to bring criminal or civil actions against them runs well into the dozens. These include universities, law firms, corporations, media organizations and more.

David Hearn, on the other hand appears determined to fight back -- and with the highly regarded Norm Eisen as lead counsel, he has the legal support needed to wage a serious battle with the White House.

To be sure, Hearn is not the only person or entity to fight back against Trump in court. The Lawfare blog keeps a litigation tracker that currently shows 332 active cases challenging Trump administration actions. The cases highlighted at Lawfare are ongoing -- and many appear to involve complex legal matters -- so the outcomes might not be known for some time. The Hearn case, however, is moving quickly so far, and he appears to have a solid chance of reaching a favorable outcome on multiple fronts. A motion to dismiss the charges already has been filed, and in our view, it should be granted. But if it is denied, Hearn still has plenty of avenues for prevailing. If that happens, I can see a movie being made someday with a title like "America's lone canoeist uses moxie and legal grit to beat down Trump's Evil Empire." I Think I'm going to reserve tickets now, and we suggest you follow suit. So, how is the Hearn case shaping up? Let's take a look . . . 

For now, the grand-jury issue is front and center, and a jointly published article at Associated Press (AP) and Yahoo! News has details. Under the headline "Ex-Olympian charged with damaging Reflecting Pool sees 'irregularities' in grand jury proceedings," Michael Kunzelman writes: 

A former Olympian charged with deliberately damaging the Lincoln Memorial Reflecting Pool is seeking access to all of the closed-door testimony that led to his indictment, pointing to "irregularities" in those grand jury proceedings.

In a court filing Monday, David Hearn's attorneys requested an order for the government to turn over a complete transcript of all grand jury proceedings. They also want prosecutors to disclose the legal instructions they gave to grand jurors about the elements of Hearn's alleged crime.

Hearn pleaded not guilty earlier this month to one felony count of property destruction and has a trial scheduled to start Sept. 28 in D.C. Superior Court. The charge, which carries a maximum prison sentence of 10 years upon conviction, accuses Hearn of causing at least $1,000 in damage to the pool.

But his lawyers question whether prosecutors properly presented the grand jury with adequate evidence to support the amount of damage alleged in Hearn's indictment. A National Park Service official testified that the pool already was damaged before Hearn allegedly touched it, couldn't quantify any damage attributable to Hearn and said the same repairs would have been required regardless of his conduct, defense attorneys said.

According to NBC News, prosecutor Jeanine Pirro presented only one witness to the grand jury, and much of what he said was favorable to Hearn. How in the world did Pirro, under those conditions, land an indictment? That might be a question for the D.C. Bar Association to ponder, with possible sanctions in mind -- especially since the Trump-controlled U.S. Department of Justice is not likely to do anything about possible skulduggery. This is from the NBC report:

The witness’ testimony, according to Hearn’s lawyers, “established that the pool had substantial preexisting damage requiring repair before any alleged conduct by Mr. Hearn.”

“Simply put, the government’s witness could not identify any additional cost caused by Mr. Hearn’s alleged conduct. Indeed, the witness did not even say or suggest that the alleged conduct had compromised the liner at all,” they wrote.

The witness testimony also raised questions about whether the grand jury was properly instructed about the core elements of the alleged crime, which “bears directly on whether the felony indictment was lawfully returned,” Hearn’s attorneys wrote. 

“The Government’s only witness on that element testified that the property was already deteriorated, that the identified repairs would have been needed even without Mr. Hearn’s alleged conduct, and that he could not quantify any loss caused by that conduct,” they wrote. “Consequently, the grand jury’s indictment of Mr. Hearn is hard to explain. Mr. Hearn needs to learn whether the grand jury was properly instructed that the charge required him to have caused over $1,000 in damages, when the testimony failed to establish that he caused any damage at all.” 

What other issues might come before the court? Here are several to keep an eye on:

*  Hearn has said he was detained for five hours following his arrest for touching a piece of detached coating. If a court finds that Hearn was arrested without probable cause, that might bring false arrest -- into the equation. In some jurisdictions, false arrest can be brought as a criminal charge, usually a misdemeanor As a prosecutor, Pirro probably would enjoy immunity from a false arrest lawsuit. But such a claim might successfully be brought against the officers who made the arrest and the department for which they work, perhaps alleging that they did not have lawful authority to take such a step. A classic example of such a case would involve a department store clerk or security officer who arrests someone for suspected shoplifting. 

* Here is where the Hearn case could get very interesting. What if it is determined that Donald Trump ordered Hearn's arrest and ordered Pirro to prosecute regardless of whether she had a valid case. The U.S Supreme Court (SCOTUS), of course, famously granted former presidents absolute immunity from criminal prosecution for official acts. But what about civil immunity? In the 1982 case of Nixon v. Fitzgerald, SCOTUS found that a former president has absolute immunity from civil damages for official acts while he was president. Civil immunity, however, does not apply to unofficial conduct or actions taken before the president was in office. 

What if Donald Trump is found to have ordered David Hearn to be unlawfully arrested and prosecuted. Could the president face criminal charges and/or civil claims because of that? I think the answer might be yes, if Democrats unleash a Blue Wave in the midterms, take back both houses of Congress and start undoing the massive damage Trump has done to our justice system. On the criminal side, a key question would be "Does any president have the authority to order federal arrests or prosecutions? The Justice Department Manual plainly says the president should not be involved in charging or non-charging decisions. I think that language would make it difficult for Trump to argue that ordering criminal charges against David Hearn is part of his official duties. On the civil side, any actions Trump took against Hearn would almost have to be seen as unofficial conduct that would not trigger immunity. At least, that's how I think an uncompromised court of law -- if we can return to the days of having such entities (at least sometimes) -- would see it.

* That Hearn was detained brings "false imprisonment" into the matter. Imprisonment does not refer only to situations where a subject is placed in a cell, behind bars. It also refers to any detention that takes away a person's freedom of movement. And if that detention (five hours in Hearn's case) is unlawful -- and his almost certainly was -- then he would have grounds for a false imprisonment lawsuit. (Note: This brings us to the idea of what I call "state-sanctioned kidnappings." Such actions have exploded during the second Trump administration, as he has granted extraordinary powers to ICE, promoted the militarization of law enforcement, unlawfully used the military for domestic purposes, and demonized migrants while attacking their right to due process.

I know from firsthand experience that state-sanctioned kidnappings predate the political rise of Donald Trump and MAGA. I was the victim of a state-sanctioned kidnapping in Alabama, one that took away my freedom of movement for five months and drew national and international press coverage. It also drew the attention of several groups devoted to First Amendment freedoms. My wife, Carol, also was targeted for a state-sanctioned kidnapping, but she managed to elude capture and played an essential role in getting our story out to the world. She and I have been denied justice at every turn and at almost every level in our court system, short of the U.S. Supreme Court. We obviously have a strong personal interest in the subject of "state-sanctioned kidnapping," and we will address the issue in upcoming posts. That it happens routinely under Trump and predates his second term by at least a dozen years or so should terrify everyone who still believes in democracy and the rule of law.

For now, David Hearn and the Reflecting Pool case are the matter at hand, and we have one more issue that we think might become prominent in that case . . . 

* For weeks, Trump has been blaming damage to the Reflecting Pool on vandals, although he has provided no evidence to support that claim. David Hearn was the first person to be publicly identified as an arrestee. According to NBC News three other individuals -- Justin Carreno, Cameron Thiers, and Sophie Dennison-Gibby -- now face misdemeanor destruction of property charges. Hearn remains the only person charted with a felony.

The legal landscape became more complicated when The Independent reported on July 14 that Trump had  stated the following in a Truth Social post: 

“The Parks Department had to empty the water in order to fix the water tight basin. It will be refilled and put back into service soon. These country-hating sleazebags should pay a big price for the damage done.”

The sentence highlighted in yellow could bring defamation into play. In general, a defamation plaintiff must prove (1) a false statement of fact; (2) publication to a third party; and (3) resulting harm to their reputation.

Hearn, as the only person charged with a felony, is by far the best-known defendant in the case. Trump, however, did not mention Hearn by name, so could a defamation claim still exist? The answer is yes, based on the following from the Digital Media Law Project under the heading "Who can sue for defamation": 

In order to be actionable, a defamatory statement must be "of and concerning" the plaintiff. This means that a defamation plaintiff must show that a reasonable person would understand that the statement was referring to him or her. Of course, if a blog post or online article identifies the plaintiff by name, this requirement will be easily met. The plaintiff need not be specifically named, however, if there are enough identifying facts that any (but not necessarily every) person reading or hearing it would reasonably understand it to refer to the plaintiff. 

Once Hearn can establish the Trump statement is "of and concerning" him, he probably could claim the statement is false in two respects. One, Trump refers to Hearn as a "country-hating sleazebag." Hearn can make a strong case that he, in fact, loves his country. He represented the United States in three consecutive Summer Olympic Games and multiple World Championships/World Cups. He won 13 World Championship medals (including eight golds) and 23 World Cup medals.  Two, Trump says Hearn should "pay a big price" for the "damage done." But what if there is no evidence that Hearn did any damage, and he is found "not guilty." That means Trump falsely claimed he had "done damage" and owed a "big price" for it.

What about the issue of civil immunity for Trump? Is he going to try to claim that it is an "official act" for him to call a decorated U.S. Olympian a "country-hating sleazebag." As a matter of law, a judge with integrity should hold that Trump is not protected by immunity.

As for damages, the main evidence probably would involve loss of income, and expert testimony could show the extent of harm Hearn has suffered. In an age where fame, media, endorsements, and reputation matter, Hearn's damages could be considerable, and we can hope they come right out of Trump's pocket -- unless one of his authoritarian buddies, such as Vladimir Putin, is willing to pick up the check.