Jeanine Pirro’s Crucible

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.

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.

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.