The Justice Department just had a big, stupid, embarrassing summer.

The Department conjured a slush fund designed to pay $1.776 billion of taxpayer money to January 6th rioters that was so screamingly asinine it caused a revolt by ordinarily docile Senate Republicans. After bleating at a press conference that she’d rain down hell upon alleged Reflecting Pool liner-ripper David Hearn, D.C. U.S. Attorney Jeanine Pirro dismissed her own case, meekly attempted to deflect blame, and was lambasted publicly by the President for “chok[ing]” and folding “like an umbrella.” A federal judge in Tennessee dismissed the indictment of Kilmar Abrego Garcia because “the evidence before this Court sadly reflects an abuse of prosecuting power.” Justice Department leadership declared proudly that DOJ need not, and should not, be independent of the President. And the man responsible for it all, Attorney General Todd Blanche, was rewarded with Senate confirmation by a single vote cast before dawn on a sleepy Saturday in late August.

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Now, as Labor Day approaches, we can look ahead to a Fall of even more spectacular prosecutorial failures. With Blanche firmly embedded as the boss – his prize for abject maladministration of the nation’s top law enforcement agency – look for DOJ to continue careening down the road to prosecutorial overreach and, ultimately, failure.

The prosecution of former FBI Director James Comey – the second one, after DOJ botched the first – has been circling the drain for months, and it’ll soon get flushed entirely. The Justice Department has strained to make Comey’s social media post depicting seashells arranged to read “86 47” amount to a threat to murder the President. Recognizing that neither leading dictionaries nor ordinary usage support their hysterical interpretation, prosecutors spent much of the summer casting for lifelines. They ran the term “86” through the FBI’s agency-wide database, but found nothing equating it to murder. They scoured the files from a thirty-year-old mob case handled by Comey but again came up empty. The best the Department could do was to dredge up Sammy “The Bull” Gravano – who admitted to 19 murders, got out of prison early because he cooperated, and then began a new life of crime that landed him back in prison – to say that “86” “generally” means to kill, but that no actual gangster would ever use that phrase. (I once spoke to Gravano on the phone during a Gambino Family trial because we needed somebody to testify to a specific event that he had witnessed years ago; after maybe five minutes, I hung up and told the assembled FBI agents there was no way we’d be calling this fraud to the stand.)

We’ve recently learned that the Justice Department’s case is somehow even worse than it initially appeared. Prosecutors disclosed in a new filing that, two minutes before Comey posted the seashells image, his wife had texted him a screenshot showing that “86” means “to get rid of or refuse service.” The Justice Department appears to trumpet this fact as some type of smoking gun, but in fact it all but assures Comey’s acquittal. If the key term is ambiguous – and here, neither construction of “86” plainly means murder – then a threats case will fail. The only remaining questions are when exactly the Comey case will officially collapse, and whether the dismissal will be based on vindictive prosecution or failure of evidence.

Also teetering on the brink is the Justice Department’s hyper-aggressive charge against Trump antagonist (and target) Don Lemon for allegedly interfering with the religious rights of congregants at a Minnesota church; Lemon was present because he was covering the event as a journalist. (Disclosure: Lemon is a former CNN colleague of mine and a friend.) A federal judge in August demanded that prosecutors provide her with records of secret grand jury proceedings, to be reviewed for potential irregularities. It is extraordinarily rare for judges to probe a grand jury presentation, and the mere fact that the judge is taking a look at the transcripts indicates that she harbors some doubt about the prosecution’s tactics. It’s a rare step and often a prelude to dismissal. Don’t be surprised to see the case tossed sometime soon.

While we can expect continued unraveling of these ongoing prosecutions, Justice Department leaders now face precipitous decisions about whether to charge still more futile Trump payback cases. The President unsubtly suggested in mid-August that he’d like to see his prosecutors go after New York Attorney General Letitia James, yet again; DOJ’s first indictment of James was dismissed by a judge, and prosecutors then tried but failed twice to convince grand juries to re-indict. It’ll be up to Blanche whether to pursue James (and fail) for a fourth time.

Blanche and Pirro also must decide whether to seek an indictment of Anthony Fauci, after a contempt referral from Republican Senator Rand Paul. (Paul ever-so-dramatically delivered his referral by hand, which has precisely zero legal effect.) Whatever one thinks of Fauci’s work as an immunologist, any effort to prosecute him for contempt is doomed. Fauci was within his legal rights to invoke the Fifth Amendment when questioned by the Senate Judiciary Committee in early August. And Paul violated ordinary procedure for contempt; he referred the case to DOJ based only on a vote of the Committee, bypassing the full Senate (plainly recognizing he wouldn’t have the votes). Administration officials are now hesitant to charge Fauci because of this procedural screw-up, according to new reporting by the Wall Street Journal. Prosecutors would be wise to show some restraint here. A Fauci indictment would generate massive headlines, and inevitably would crash and burn.

The Summer of 2026 might have seemed like a historic nadir for the once-proud Department of Justice. But it’ll likely get worse for Blanche and DOJ as the leaves turn in the months ahead.

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Democrats have a shot at winning the White House in 2028, but picking the right candidate will be key.

In this exclusive segment from the Stay Tuned podcast for paid subscribers, Salazar outlines the qualities of his ideal Democratic presidential candidate. Plus, whether Salazar has considered running himself.

Salazar: “I remember well when I took the job as secretary of interior, there was a sense that the West was forgotten…‘Washington cares about Washington and the East Coast,’ and that has to change.”

If you’re a paid subscriber, thank you for supporting the show. Watch the segment and share your thoughts and questions by commenting below.

And if you’re not yet a paid subscriber, now is a great time to join. You’ll get access to the weekly Insider podcast hosted by Preet and Joyce Vance, exclusive podcast segments like this one, and other subscriber-only content.

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A NOTE FROM THE PRODUCER

is the Lead Producer for the Stay Tuned with Preet podcast.

This week on the Stay Tuned podcast, former U.S. senator and ambassador to Mexico Ken Salazar joins Preet Bharara for a conversation about the state of the U.S.-Mexico border in the context of his new book, Borderlands: My Fight for an Inclusive America.

According to Salazar, President Trump may have been right about one thing concerning the border: it is broken. But the way Trump and his administration have addressed the problem is not the way to fix it.

Salazar: “The Trump value system is counter to everything that I believe, and it’s counter to what Democrats at their heart are about…That said, Trump was right on a number of things. He was right, for example, on the border, on the inattention to the Americas. And so what he’s doing is he’s putting a lot of attention on the border, on Latin America, but it’s coming out of a value system that’s an antiquated one.”

Salazar believes Republicans ultimately don’t want to fix the border because it’s the perfect campaign slogan to help them win elections.

Salazar: “Republicans only care about one thing, and that’s keeping the border and migration as a huge tool in their political arsenal. The border, broken, migration system, broken—that’s music to the Republican ears.”

What will it take to fix it? Or is the border beyond repair?

Listen to the episode to hear Salazar’s solutions and, as always, comment below with your thoughts and questions.

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is the Producer of the Insider podcast.

ABC is suing the Federal Communications Commission, arguing that the agency is using its regulatory power to punish the network for its journalism and programming.

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On a new episode of the Insider podcast, Former FCC Chair Jessica Rosenworcel joins Preet Bharara and Joyce Vance to break down the lawsuit and what it could mean for the FCC’s power over broadcasters.

Rosenworcel: “This amounts to corporate courage. I would like to see more corporations standing up for the First Amendment. To the extent that this administration and its weaponization of the FCC is at odds with free speech, I think we should cheer on those who are willing to stand up in court and say this is unacceptable. The First Amendment [is] a cornerstone of our democracy, and we don’t want the government dictating content coverage or editorial choices. And I think that this is a company that’s saying they’re afraid that the FCC is doing just that with the way it’s approaching broadcast licenses.”

Listen to the episode and comment below with your thoughts and questions. Thank you for being a member of our community here on Substack. If you’re not yet a paying subscriber, you can now listen to a free excerpt from the show. For access to the full analysis, upgrade your subscription.

Stay Informed,

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Donald Trump is no constitutional scholar, but he has long understood and exploited this underrecognized feature of our legal system: it’s hard to be a plaintiff. From New York real estate to the presidency, Trump does his will first and then forces others to run to the courthouse to try to stop him. And, often enough, it works. Now Trump’s (literal) wrecking ball approach will likely enable him to get away with destroying the East Wing and erecting an ostentatious ballroom, despite the patent illegality of it all.

Sure, the President could have requested permits and approvals from regulatory authorities before he demolished one-third of the White House. Or he could have sought authorization from Congress – which, incidentally, is presently controlled by his own party – to rebuild. Instead he just knocked the whole thing down, left a pile of rubble on the ground, and forced objectors to scramble into court as plaintiffs and try to undo what was already mostly done.

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Trump’s conduct here is fairly straightforward in its illegality. Congress, not the President, controls spending, federal buildings, and national parks. Accordingly, Congress could have authorized the proposed demolition and renovation project – but apparently Republican lawmakers aren’t eager to attach themselves to a vanity project supported by only 28% of Americans, according to a recent ABC News / Washington Post / Ipsos poll.

Instead, the President’s lawyers have tried to force the square-peg ballroom construction into an array of round-hole laws passed long ago to authorize very different types of projects. Trump’s team primarily points to a law that permits the President to authorize limited spending for White House maintenance, including “alteration” and “improvement” – which works here only if “alteration” is interpreted to mean “destruction of an entire wing and erection of a 90,000-square-foot behemoth in its place.” Unsurprisingly, a George W. Bush-appointed federal district court judge rejected Trump’s legal position (which relied on a “patent misconstruction” of the law, pun perhaps intended), and the Court of Appeals for the District of Columbia Circuit concurred in a two-to-one ruling. Now the case awaits resolution by the Supreme Court on its emergency docket.

It might seem at first glance that plaintiffs in our legal system hold the power position. Plaintiffs sue, plaintiffs accuse others of wrongdoing, plaintiffs demand money or other redress. Meanwhile defendants deny, defendants sweat it out, and defendants cut the check if they lose. Plaintiffs are the NFL offense looking to score a touchdown and spike the football, while a defendants’ best outcome is to avoid getting lit up.

But in reality, it’s rough to be the plaintiff. It takes money, resources, and attention to bring any lawsuit, never mind one against the President and his taxpayer-funded representatives at the Justice Department. The plaintiff in the ballroom lawsuit is the National Trust for Historic Preservation, a non-profit represented by Foley Hoag, a national law firm that generated over $320 million in revenue in 2025. We don’t know how much the lawyers are charging, or whether they’re working at reduced rates or even for free, but those billable hours are valuable resources and somebody – the National Trust or the firm – is absorbing a substantial cost.

Plaintiffs also can face intense time pressure. Even while the National Trust has prevailed at each stage of the litigation so far, the courts have allowed construction to continue on the ballroom, which on August 13 was “65% complete in its entirety, and moving quickly toward total completion,” according to the government. That number has surely risen since then, as a 250-person crew has been working 20 hours per day to finish the ballroom before some judicial interloper can put a stop to it. As time passes, it becomes increasingly difficult to pause or reverse work that has already been completed, even if done illegally. It’s tough to remove bricks that have already been laid.

Trump plainly understands the cold reality here. After Chief Justice Roberts on Friday gave the Court more time to decide the case and allowed construction to continue in the meantime, Trump crowed that he had won, and thanked “the Supreme Court and the Chief Justice.” He’s wrong as a technical legal matter – the Court has not yet ruled on the merits – but he’s right that every day that passes is a practical win for him.

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The National Trust, as the plaintiff, also must clear a series of threshold procedural bars. Most vexing among them, a plaintiff must establish legal “standing” to sue. Not just anyone who is aggrieved by some government action can bring a lawsuit, and a party can’t generate standing simply by caring a lot or objecting strenuously, even rightfully or passionately. Rather, a plaintiff bears the burden of showing that he has suffered (or will suffer) some direct, concrete injury that can be remedied by a court.

The two Court of Appeals judges in the majority ruled that the National Trust has standing, but they palpably strained to get there. The judges reasoned that the National Trust has “associational standing” because one of its members – Professor Alison Hoagland, an architectural historian – “routinely recreates by walking in front of the White House” and “is a professional academic who continues to study and relies on the architectural design of the White House and President’s Park in her work.” Professor Hoagland, the judges concluded, stands to suffer “aesthetic,” “cultural,” and “recreational” injuries.

The dissenting judge countered that Supreme Court precedent requires injury that is “concrete, particularized, and actual or imminent” and that speculative injury to one person’s aesthetic and artistic sensibilities doesn’t cut it here. As Trump’s lawyers argued to the Supreme Court, an individual’s “subjective preference does not create a concrete, particularized injury, no matter how strongly she feels about the White House’s appearance.”

That argument may well find a sympathetic audience at the Supreme Court, which has taken a hard line on standing – at times to the benefit of liberal causes, including the 2024 decision dismissing a challenge to FDA’s mifepristone rules and thereby preserving broad access to the abortion drug. Do not be remotely surprised if this Court rejects the National Trust’s claim of concrete injury and dismisses the case based on lack of standing.

Who, then, might actually have standing? The answer might well be, nobody. There’s no rule in law or logic that some person or entity must have standing in every public controversy. Vexing as it might seem, not every governmental overstep is fixable through a lawsuit. Indeed, the apparent standing problem here underscores the conspicuous absence of the entity that should have been running the show from the start: Congress. But Congress has chosen to sit this one out, with Republicans who control the majority in both the House and Senate petrified of either defying their leader or embracing a deeply unpopular, wasteful spending project. As a result, the ballroom may well get built even if the construction is illegal and even if it encroaches on the Legislative Branch’s own institutional (if unexercised) prerogatives.

You’ve heard the expression that possession is nine-tenths of the law. Roughly translated, that means that realities on the ground often dictate the result in court. As a practical matter, it’s difficult to imagine an outcome here that would permanently enjoin the ballroom construction and leave the nation with a massive ditch and partially-built structure on the White House grounds. The standing issue provides the Court with a palatable off-ramp to avoid that result. And if that happens, Trump will get his way, even while he runs roughshod over the law.

To lie convincingly, you have to know what the truth is. You have to understand what your audience believes, anticipate what might expose you, and construct a falsehood that fits into the available space. Bullshit operates differently.

In this exclusive segment for paid subscribers, Sam Harris and Preet Bharara revisit philosopher Harry Frankfurt’s influential essay, On Bullshit, and examine Trump’s unusual relationship with the truth.

If you’re a paid subscriber, thank you for supporting the show. Watch the segment and share your thoughts and questions by commenting below or emailing Preet and the team at letters@cafe.com.

And if you’re not yet a paid subscriber, now is a great time to join. You’ll get access to the weekly Insider podcast hosted by Preet and Joyce Vance, exclusive podcast segments like this one, and other subscriber-only content.

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A NOTE FROM THE PRODUCER

is the Executive Producer of the Stay Tuned podcast.

Sam Harris has built his career around difficult conversations: about belief, morality, politics, religion, and the stories people tell themselves about the world. But what happens when the conditions necessary for a real conversation begin to disappear?

This week on Stay Tuned, the neuroscientist, philosopher, author, and host of the Making Sense podcast joins Preet to examine what he calls a “great unraveling” in American public life.

Listen to the episode, and as always, share your thoughts and questions by commenting below.

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is the Supervising Producer of the Stay Tuned with Preet and Insider podcasts.

Luigi Mangione has pled guilty to federal stalking charges in connection with his killing of healthcare CEO Brian Thompson, setting up a fight over whether New York can still prosecute him for murder.

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On a new episode of the Insider podcast, Preet Bharara and Joyce Vance break down the double jeopardy questions raised by Mangione’s plea, the complications of bringing both federal and state charges, and why they are troubled by some of the public reaction to Thompson's killing.

Joyce says Mangione’s lawyers appear to be trying to use the federal plea to block the state prosecution: “They anticipated that they could use the double jeopardy argument as a bar to the state prosecution…As a practical matter, the state prosecution may end up being dismissed, or the judge may end up saying that it can’t happen.”

Meanwhile, Preet says some of the broader response—that criticism of the health care industry justifies murder—is disturbing: “It is difficult, it seems, for more people than ever to hold two things to be true in their mind at the same time.”

Listen to the episode and comment below with your thoughts and questions. Thank you for being a member of our community here on Substack. If you’re not yet a paying subscriber, you can now listen to a free excerpt from the show. For access to the full analysis, upgrade your subscription.

Stay Informed,

Jake

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For all its splendor, our Constitution does have this vexing tendency to leave some concepts a bit murky. What exactly counts as “high crimes and misdemeanors” sufficient for impeachment? Are we all just agreeing to ignore the part about how each House member can represent a maximum of 30,000 people? What even is a “Letter of Marque and Reprisal”?

But when it comes to elections, our founding document is blessedly clear. It’s up to the states to set “times, places, and manner of holding elections,” and Congress can pass laws that override the states as it deems necessary. That’s it – direct and easy. The Constitution conspicuously omits the president here; the Founders understood the risk of centralizing power to run elections in the hands of the one person who already sits atop our government.

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But now Donald Trump seems to be crafting a workaround, or perhaps a work-through, for the 2026 midterms. All indications are that he’s quite serious about stealing the upcoming elections, including through dubious if inventive means. If he tries, it will get ugly — but he will ultimately fail in the courts.

In an interview last week, Wayne Allyn Root of Real America’s Voice could barely keep from hyperventilating as he told the president that he has “the right to declare a national security emergency for elections” and that “if you declare a national security emergency as the president of the United States, they can’t challenge it. It can only be overturned by a two-thirds vote by both houses of Congress.” Trump interjected suggestively, “Let me just say that stranger things have happened, OK? I’ll leave it at that.”

He’s not joking. Trump is already hard at work laying a foundation of doubt about election security for 2026, and his history makes plain that he will never accept electoral defeat. January 6 marked a historic nadir, of course, and the president’s 2020 election denialism continues, exasperatingly, to this day. When Trump lost the Iowa Republican primary in 2016, he alleged that his own party cheated and that a new election should be held because of “fraud.” Even after he won the presidency in 2016, Trump claimed falsely that “millions” voted illegally, and that he won the popular vote in addition to the electoral count. The man has never lost an election, if you ask him, and never will.

Trump isn’t on the ballot in 2026, but the president – with his current approval rating in the low-to-mid 30s – will be the central figure in the congressional midterms. If Republicans lose the House (which appears likely) or the Senate (a coin flip, more or less), his second term will descend into the muck of legislative gridlock, oversight hearings, and investigative subpoenas. Recognizing the stakes, Trump has already begun crying fraud, even in the other party’s primaries; he proclaimed without proof that Abdul El-Sayed won the Democratic Senate primary in Michigan because of “more votes being cast than there are voters, by a lot.”

So what happens if Trump follows Root’s wacko suggestion to declare a national emergency and seize control of the 2026 elections?

First, it simply doesn’t work that way. The president cannot declare an emergency in a vacuum and then do whatever he wants. Rather, he must (1) point to a specific emergency powers statute passed by Congress, (2) demonstrate that there is in fact an emergency, and then (3) take the specific steps authorized by that emergency law. Here, of course, there are no facts to support a claim of a 2026 election emergency and there is no law giving the president emergency powers over elections. He can shout out “Emergency!” all day long, but there’s no legal or governmental mechanism to actually do anything with it.

Root has not discovered some magical workaround. His analysis is jumbled but he appears to refer to an obscure law called the National Emergencies Act. But that statute creates no new powers for the president. Rather, it establishes expedited procedures and gives Congress the power to override certain declared emergencies by a two-thirds vote. As constitutional law professor James Sample concludes in his Substack, it’s a Congressional off switch, not a presidential power source.

Root authoritatively invoked a 1983 Supreme Court decision, INS v. Chadha – and then completely misrepresented what it actually holds. The question in that case was whether one house of Congress, acting alone, can veto executive action; the Court ruled that votes of both House and Senate are necessary for an override. But the Chadha decision did not create or acknowledge any new powers, emergency or otherwise. The president had no authority over elections before Chadha, through normal channels or emergency declarations, and he hasn’t been granted any such powers by Congress or the courts since then.

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Ultimately, any attempt by Trump to enact Root’s nuthouse plan would be resolved through litigation. Criticize the federal courts as you please – I’d likely concur in some part – but the judiciary has been a bulwark against Trump’s abuse of emergency powers. The Supreme Court has recently rejected the president’s invocations of emergency powers to impose global tariffs, to deploy the National Guard, and to deport people under the Alien Enemies Act.

Nor have the courts countenanced Trump’s encroachments on election processes. Federal and state courts across the country, including the Supreme Court, rebuffed dozens of lawsuits contesting the 2020 election. And judges have roundly rejected Trump’s preliminary 2026 midterm election interference attempts, including his ongoing efforts to impose federal oversight of voting rolls and to severely curtail mail-in ballots.

Trump’s mad quest to tamper with the 2026 midterms has already caused confusion and concern, and if he keeps down this road it’ll wreak chaos and maybe worse than that. But it won’t work.

In this exclusive segment for paid subscribers, Acemoglu defines some key concepts and explains how terms like “liberalism” can encompass different meanings.

Acemoglu: “Liberalism is a big tent. I am more concerned with the left-leaning part of liberalism because enabling people to benefit from the progress that liberalism has the capacity to undergird is an emphasis of the liberal part.”

Precision matters.

If you’re a paid subscriber, thank you for supporting the show. Watch the segment and share your thoughts and questions by commenting below.

And if you’re not yet a paid subscriber, now is a great time to join. You’ll get access to the weekly Insider podcast hosted by Preet and Joyce Vance, exclusive podcast segments like this one, and other exclusive subscriber-only content.

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A NOTE FROM THE PRODUCER

is a Producer for the Stay Tuned and Insider podcasts.

This week on the Stay Tuned podcast, Nobel Prize-winning economist Daron Acemoglu joins Preet Bharara to discuss his latest book: What Happened to Liberal Democracy? Remaking a Politics of Shared Prosperity.

Acemoglu explains American politics is undergoing a moment of crisis and, in moments of crisis, people want change.

Acemoglu: “A lot of the politics of both left and right cannot be understood but through the lens of that crisis. That crisis creates a strong anti-establishment feeling. And one aspect of the anti-establishment feeling on the Left is to find more radical labels.”

With this in mind, the Democratic socialist movement can be seen as a natural response to the current political turmoil. However, Acemoglu argues defining terms like “socialism” correctly is key to getting people on board.

Acemoglu: “I think today when people call themselves democratic socialists, it’s a bit unclear whether they are in favor of a more radical economic agenda based on redistribution of opportunities or whether they are still aspiring for partial nationalisation of means of production. That’s why I think it’s not a particularly good label, especially in the US context where the public’s sympathy for socialist ideas has always been weaker than in Europe.”

Though “radical ideas” are welcome, Acemoglu believes the solution should not stray too far from the foundational principles of liberalism.

Acemoglu: “We do need some radical ideas as well as a new governing philosophy for liberalism and liberal democracy. But it would be unfortunate if that objective conflicted with other core liberal principles like freedom of speech, pluralism, inclusivity, and if it took the form of looking at the world always through oppressor-oppressed dynamics, which I think ultimately is not very inviting for liberalism’s best instincts to develop, and it creates backlash.”

Listen to the episode to hear more of Acemoglu’s analysis and, as always, comment below with your thoughts and questions.

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Donald Trump is furious at Jeanine Pirro because she wasn’t quite batty enough.

Last week, the president lashed out at Pirro, his chosen U.S. Attorney for the District of Columbia and a fervent political loyalist, for her decision to accede to reality and dump the galactically stupid reflecting pool prosecution. Now Pirro faces an even bigger decision: whether to pursue a criminal case against Anthony Fauci. The cold calculus of political self-interest tells us Pirro likely will indict the polarizing immunologist (or try to), that the case ultimately will fail in the courts, and that she’ll save her own hide in the process. This is the state of play in Trump’s Justice Department.

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After the reflecting pool debacle, Trump publicly lambasted Pirro, telling the world she “choked” and “folded like an umbrella” when she dismissed her indictment of David Hearn, a former Olympian who had been charged with destruction of government property. Upon the indictment in July, Pirro crowed to the national press that “we can state and prove beyond a reasonable doubt that he caused damage and that damage is over $1000” and any doubter should “come to the trial!” A month later, she looked to deflect blame for her own overheated charge and rhetoric, reportedly complaining that she hadn’t been given full information by the Interior Department.

As pathetic as Pirro’s attempt at self-preservation was – it’s the prosecutor’s most basic job to gather all the relevant facts before indicting, and not to scramble around after slapping on handcuffs – it seemed to do the trick. After a tense White House meeting, the President let his public reprimand stand as Pirro’s punishment, and spared her the further humiliation of a firing. Trump later doubled back and publicly pressured her to “re-visit her hastily made decision” to drop the case.

Pirro should be roundly excoriated for bringing the reflecting pool indictment in the first place. But in Trump’s mind, she failed because she relented on a prosecution that had no basis in evidence and no chance of resulting in a conviction.

Now, Pirro faces another fraught prosecutorial decision that is sure to capture the President’s attention. Last week, the Senate Homeland Security Committee, in a straight party-line eight-to-seven vote, held Fauci in contempt of Congress for invoking his Fifth Amendment rights during a July 29 hearing.

Senator Rand Paul, the Republican Committee Chair, maintains Fauci was not entitled to take the Fifth because he had received a broad preemptive pardon from Joe Biden, and therefore faces no criminal liability and cannot invoke the Constitutional protection against self-incrimination. Every other Republican on the Committee fell in line – including Senator James Lankford, who originally told Fauci at the hearing that taking the Fifth was “your right to be able to do.”

But Paul and his cohort are wrong on the law. They’re correct that a pardon recipient cannot invoke the Fifth for any conduct covered by the pardon – but they conveniently omit the legal (and commonsense) doctrine that a witness still can take the Fifth if he has potential criminal exposure outside the scope of the pardon. Here, Fauci could face state-level criminal jeopardy (which a presidential pardon would not cover); over a dozen Republican state attorneys general have launched investigations of him since 2025. And Fauci could face potential liability for conduct after issuance of his presidential pardon on January 19, 2025. So long as Fauci has some even hypothetical concern about potential prosecution, he’s entitled to invoke his Fifth Amendment rights. In fact, the more that Paul or anyone else believes that Fauci committed a crime, the stronger is Fauci’s argument for taking the Fifth.

Ordinarily after a Congressional committee votes for contempt, the issue goes to the full Senate or House. But Paul, plainly recognizing he wouldn’t have enough votes, short-circuited the established process and sent his referral directly over to DOJ without ever proposing it to the Republican-controlled Senate for a full chamber vote. Paul hand-delivered paperwork to the Justice Department authorities, a silly theatrical gambit that carries exactly zero legal effect.

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Now the case lands on Pirro’s desk, and she’s got quite a conundrum. If she does seek to indict Fauci for contempt, the end result is plain: the case won’t stick. To carry the prosecutor’s burden of proof, Pirro will have to prove beyond a reasonable doubt – the highest evidentiary standard in our judicial system – that Fauci had no legal right to take the Fifth. Here, it’s not even clear a grand jury would find the lower “probable cause” standard necessary to indict.

If Fauci properly invoked his Fifth Amendment protections (as I’ve argued), or even if the legal question is reasonably debatable, then Pirro’s prosecution will fail. She’ll somehow need to convince twelve laypeople unanimously that Fauci had absolutely no basis to take the Fifth – when even Fox News’s in-house right-wing legal scholar concedes the question is “murky” and the conservative National Review acknowledges that Fauci’s “legal calculation is understandable.” Either of those conclusions would mandate an acquittal.

Even if prosecutors somehow had a half-decent case against Fauci, it couldn’t possibly land in a worse place. The populace of Washington, D.C. – from which a jury would be drawn, at random – despises the President and his political agenda; in three presidential runs, Trump has never topped 7 percent of the vote there. And D.C. judges, trial juries, and grand juries already are in revolt against Trump’s tainted DOJ, rejecting Pirro’s prior efforts to indict Senator Mark Kelly and other Democratic lawmakers, to indict anti-ICE protesters, to subpoena the Federal Reserve, and to try the infamous D.C. Subway sandwich footlong-thrower. Any case against Fauci – with its obvious legal defects and its inevitable political overtones – stands little chance of success anywhere, and none in a D.C. courtroom.

The calculus for Pirro is simple: Either indict Fauci, lose in court, and save her job – or stand up, do the right thing, decline to indict, and get fired by the man she worships. Given Pirro’s history, the former is all but a foregone conclusion.

is the Supervising Producer of the Stay Tuned with Preet and Insider podcasts.

Dr. Anthony Fauci could face a criminal investigation after refusing to answer questions about the government’s response to COVID-19. After Fauci invoked the Fifth Amendment over 100 times during questioning by a Senate committee, Republicans voted to hold him in contempt of Congress and referred the matter to the Justice Department.

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On a new episode of the Insider podcast, Preet Bharara and Joyce Vance explain why Fauci could rightfully invoke the Fifth Amendment despite President Biden’s pardon and what DOJ could do next.

Joyce argues that a contempt charge would be a tough case for prosecutors to bring: “I think he is [on solid ground], and I think that makes this one a tough case to get past a grand jury if you’re playing it fair and square.”

Preet says Fauci had good reason to stay silent, even with a presidential pardon protecting him from some criminal exposure: “The mere act of testifying, even with a pardon in your back pocket, is dangerous.”

Listen to the episode and comment below with your thoughts and questions. Thank you for being a member of our community here on Substack. If you’re not yet a paying subscriber, you can now listen to a free excerpt from the show. For access to the full analysis, upgrade your subscription.

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A NOTE FROM THE PRODUCER

is a Producer for the Stay Tuned and Insider podcasts.

As President Trump’s popularity has declined, Democratic socialists have gained prominence. Are voters looking for significant change? And what could that mean for the midterm elections?

This week on the Stay Tuned podcast, David Axelrod, a former Obama advisor, CNN commentator, and co-host of the Hacks on Tap podcast, joins Preet Bharara to make sense of the current political landscape.

Axelrod explains: “There is a real sense of disaffection and outrage among younger voters about a system that they feel is corrupt, that is rigged against them, that is rigged against values that they believe in. In some ways, saying, ‘I’m a socialist,’ is an expression of discontent with a system that has, in their views, run into the rocks.”

Despite approval ratings lower than ever, Preet and Axelrod discuss why we might not be able to count Trump out of a political comeback just yet.

Axelrod: “He’s had these peaks and troughs, but one thing that has served him well in all this time is even though he is in some ways the biggest bullsh*t artist who ever lived, he is also utterly authentic in some ways…he really doesn’t give a sh*t about the struggles of everyday people…he is basically right now pursuing the money and pursuing what he thinks is the monumentalizing of his legacy through all of these building projects and so on…and you know what this is saying to people out there? It’s saying he’s working on everything but the things that I elected him to work on.”

Listen to the episode to hear more of Axelrod’s analysis and, as always, comment below with your thoughts and questions.

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As Republicans push the SAVE Act and President Trump continues to cast doubt on the integrity of elections, the debate over election security and voter confidence has become more polarized than ever.

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On a new episode of the Insider podcast, Preet Bharara and Joyce Vance are joined by veteran Republican election lawyer Ben Ginsberg, who served as counsel to the presidential campaigns of George W. Bush and Mitt Romney. They break down the state of voting rights and what can be done to strengthen confidence in American elections.

Ginsberg argues that President Trump’s years of baseless election fraud allegations have damaged trust in elections far more than any evidence ever has: “The Trump administration has had the keys to the kingdom. They’ve had the FBI, they’ve had the national security infrastructure, they’ve had the Justice Department looking to investigate elections…There is still no substantive evidence to back up the charges that our elections aren’t accurate and certainly not that they’re fraudulent.”

Listen to the episode and comment below with your thoughts and questions. Thank you for being a member of our community here on Substack. If you’re not yet a paying subscriber, you can now listen to a free excerpt from the show. For access to the full analysis, upgrade your subscription.

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Four years ago, some Democrats mocked Donald Trump when he took the Fifth, and claimed his invocation was as good as an admission of guilt.

The then-former (and future) President faced questioning under oath at a deposition by New York Attorney General Letitia James – who had promised during her campaign, before she had seen any actual evidence, that Trump had “engaged in a pattern and practice of money laundering” and “can be indicted for criminal offenses.” Accordingly, Trump chose to invoke his constitutional right against self-incrimination.

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Trump certainly was guilty of aggravated hypocrisy in the first degree; he had previously declared that “the mob takes the Fifth” and “if you’re innocent, why are you taking the Fifth Amendment?” But when his own liberty interests were on the line, glibness yielded to practicality. “Anyone in my position not taking the Fifth Amendment would be a fool, an absolute fool,” Trump testified – quite sensibly, given James’s stated intent to take him down.

Since then, a parade of prominent officials favored by Democrats have taken the Fifth, and suddenly the invocation of a constitutional right isn’t such a cause for ridicule. Two senior members of Jack Smith’s prosecution team, Jay Bratt and Thomas Windom, invoked their right against self-incrimination when questioned by the House Judiciary Committee. (Smith declined to take the Fifth and testified at length, which resulted in a baseless criminal referral to the Justice Department for a potential perjury prosecution.) Senior aides to Joe and Jill Biden, including former White House Deputy Chief of Staff Annie Tomasini, invoked their Fifth Amendment rights when subpoenaed by the House in an investigation of the former President’s mental acuity. And now, Dr. Anthony Fauci has joined their ranks.

At a wild Senate Homeland Security Committee hearing last week, Fauci took the Fifth over 100 times, on everything from his views on the Covid lab-leak theory to his involvement in school shutdowns to what day of the week it was. Fauci cited Republican Senator Rand Paul’s “obvious obsession with calling for my prosecution” to justify his own silence – just as Trump claimed with respect to James in 2022.

Paul countered that, because Biden had issued a broad pardon to Fauci, Fauci cannot be prosecuted and therefore has no Fifth Amendment right against self-incrimination: “We believe that with his … immunity from criminal liability, that he didn’t need to hide behind the Fifth Amendment and that maybe the Fifth Amendment doesn’t attach when you have a pardon in place.” Republican Senator Josh Hawley concurred, offering a superficially impressive case citation: “You don’t have any rights under the Fifth Amendment because you’ve been pardoned, as you very well know, as the Supreme Court has been clear for a century and more. Brown v. Walker, 1896.”

Both Paul and Hawley are wrong, and Hawley’s cited case actually undermines his position. Whatever one might think of Fauci’s handling of Covid, he is well within his constitutional rights to take the Fifth. None of this is a substantive defense or critique of Fauci or his work; in fact, if any Senator believes Fauci committed a crime (or might have), therein lies the case in favor of taking the Fifth.

It’s true that Fauci’s broad preemptive pardon – issued on Biden’s last full day as President, January 19, 2025, and covering all federal offenses related to his service from 2014 through that date – complicates the legal calculus. A pardon recipient can’t be prosecuted for crimes within the scope of that pardon, and therefore has no basis on which to take the Fifth. But the 1896 case cited by Hawley illustrates the key dividing line: a witness can’t invoke his Fifth Amendment right against self-incrimination for conduct within the scope of a pardon (as Hawley argued), but he certainly can take the Fifth for anything that might fall outside the pardon’s boundaries, for which he still can be prosecuted (which Hawley ignored). And any marginally competent defense attorney would recognize that Fauci faces potential criminal liability beyond the scope of his pardon in two respects.

First, a presidential pardon covers federal crimes, but not state offenses. Therefore, any federal pardon recipient can invoke the Fifth based even on potential state-level prosecution – and Fauci can point to actual state investigative efforts against him, past and present. In February 2025, for example, seventeen Republican state attorneys general announced a joint investigation of Fauci for his handling of Covid, including “any relevant findings that could lead to state investigations and potential prosecutions.” Florida Governor Ron DeSantis in 2025 called publicly on state prosecutors to pursue potential criminal charges against Fauci. Last week, Florida’s Republican state Attorney General announced that he is “launching an investigation of Dr. Fauci.” Fauci has more than enough to worry about on the state level to justify his invocation of the Fifth.

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Nor does Fauci’s pardon protect him from prosecution for conduct after the date of its issuance, January 19, 2025 – including, potentially, his testimony at last week’s hearing. Given the oft-stated and recent position of Paul (and many others) that Fauci should be prosecuted for, well, something, he’d have ample basis to seek the legal shelter provided by the Fifth Amendment.

Paul has vowed that Fauci now will face “repercussions for [his] refusal to testify.” Despite the bluster, there’s no meaningful way forward if Paul is interested in punishment – though he and the Senate can still obtain substantive testimony from Fauci if they’re serious about getting answers.

Paul has announced his intent to pursue Senate contempt proceedings, which could trigger a criminal referral to the Justice Department. But there’s no way Paul gets a filibuster-proof 60 votes, which would require all 53 Senate Republicans plus seven Democrats.

Even if he did, a person cannot be validly held in contempt of Congress for a rightful exercise of a constitutional right, and any subsequent effort by DOJ to prosecute Fauci for criminal contempt would surely fail. The courts generally give extraordinarily broad deference when witnesses invoke the Fifth Amendment. In fact, the Supreme Court has held that a witness can take the Fifth unless it is “perfectly clear” that his testimony “cannot possibly have such tendency to incriminate.” Fauci easily clears that bar.

If Paul and his colleagues on the Committee were truly interested in getting answers from Fauci, they could grant him immunity. As we learned from Oliver North during the Iran-Contra scandal in the 1980s, a witness who receives Congressional immunity is effectively insulated from prosecution, and therefore cannot take the Fifth. So if the Senate immunized Fauci, he’d either have to testify or face a valid contempt finding and potential prosecution. But Paul apparently prioritizes his futile quest to prosecute Fauci over any substantive factual inquiry about the nation’s Covid response.

The tricky thing about constitutional principles is sometimes they protect people or causes we might not like. The Fifth Amendment could protect Trump one day, Bratt and Windom and Tomasini the next, and Fauci after that. But if we stand for those principles only when they work in our favor, then we’ve got no principles at all.

Plus, Todd Blanche’s confirmation is suddenly in limbo. Can he remain acting attorney general indefinitely?

Preet Bharara, Joyce Vance, and Elie Honig broke down these developments live. Watch the video and share your thoughts and questions by commenting below or email Preet, Joyce, and Elie at letters@cafe.com

For access to the weekly Insider podcast co-hosted by Preet and Joyce upgrade to a paid membership. Thank you for supporting our work!

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A NOTE FROM THE PRODUCER

is a Producer for the Stay Tuned and Insider podcasts.

President Trump’s Iran war shows no signs of ending, while questions are growing about whether Trump’s advisors are giving him an accurate picture of the war.

This week on the Stay Tuned podcast, Ian Bremmer, a political scientist and the President and founder of Eurasia Group, a leading global risk firm, joins Preet Bharara to unpack the latest in the war with Iran.

As Bremmer explains, Trump’s advisors may not be telling him the truth about the United States’s standing in the war: “I think that the memories of the people that are actually [advising Trump] have cognitive dissonance. They’re skewed towards heroic courage in being the one person that is telling Trump the truth and the hard message, when in reality they are sugarcoating it, they’re glazing the guy because they have to.”

At the same time, Bremmer argues that Trump’s public threats against Iran have been counterproductive: “Trump came out and said that we, the Americans, were gonna charge all the ships going through [the Strait of Hormuz] a 20% toll…No way to actually execute on it, no way to enforce it, no agreement from anybody in the administration, no agreement from any allies. It was on its face impossible, and it undermines Trump’s credibility, his negotiating position, his ability to get to something useful with the Iranians. It was self-defeating on every front.”

What will it take to end the war?

Listen to the episode to hear more of Bremmer’s analysis and, as always, comment below with your thoughts and questions.

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