Fauci Pleads the Fifth | Interview: Elie Honig | Advisory Opinions

Sarah and David bring in a special guest this week: CNN senior legal analyst Elie Honig, a former federal and state prosecutor and author of When You Come at the King, who joins for a Fifth Amendment deep dive, a pardon-power debate, and a full-blown constitutional amendment game show. They open with Anthony Fauci’s invocation of the Fifth Amendment before Congress, testing it against Elie’s own 2022 defense of Donald Trump doing the exact same thing – and against a pointed rebuttal from Cornell law professor Michael Dorf.

From there it's the pardon power (preemptive pardons, the word “offenses,” and whether Fauci should've been allowed to retain $900,000 in grant money), then a duress-password phone wipe that Elie says is just a high-tech version of flushing gambling slips down the toilet. Then each host picks two amendments to magically ratify and one to veto, covering impeachment, court-packing, the House, natural-born citizenship, the 17th Amendment, judicial term limits, Citizens United, and the electoral college. By the end, Sarah admits she’s “amendment thirsty.”

Agenda

[1:25] Did Anthony Fauci have a right to invoke the 5th?
[15:04] Misappropriation of grant funds
[28:15] Wiping your phone is an obstruction of justice
[33:25] Amending the Constitution!
[40:21] Impeachment reform, resizing Congress, and emergency powers
[51:54] Presidential eligibility, redefining Article II, and repealing the 17th Amendment
[57:52] We will see a 28th Amendment

Episode Takeaways

Pleading the Fifth: Fauci invoked the Fifth before a Senate committee, and Elie leaned on his own 2022 piece defending Trump's identical move during the Letitia James deposition to defend Fauci too, noting that two senior members of Special Counsel Jack Smith’s team and a senior Biden White House official have since taken the Fifth as well. Sarah pressed him on whether Fauci needs to articulate a credible theory rather than just invoke and go silent; Elie says courts give witnesses broad deference. Tangled up in the same conversation: Fauci reportedly kept roughly $900,000 in prize money tied to his government work after getting ethics sign-off, which Sarah says is a much closer call than Elie's initial read suggested. Everyone agreed on one thing: retire the “number of times someone took the Fifth” as a guilt metric – it reflects how long a prosecutor wants to drag out a witness, not evidence of anything.
The pardon power, textually: Prompted by Elie’s question of whether a president could issue a pardon for future conduct, the three worked through the word “offenses” in Article II, Section 2. David lands at 98 percent to 2 percent that “offenses” requires conduct that already happened; Sarah goes further, arguing a pardon for future conduct isn’t a pardon at all but a “license” the Constitution never authorizes. All three oppose preemptive pardons in principle but agree the text doesn't clearly forbid them post-Ford-Nixon.
A duress password is still obstruction: A man charged with a felony after wiping his phone with a duress password in front of FBI agents gets no sympathy from the panel. Elie draws a direct line to a Gambino Mafia family case he prosecuted, where a defendant flushed gambling slips down the toilet as agents entered – same crime, higher tech.
If you could ratify an amendment…: All three share a first pick – amend the Constitution to make amending it easier, since the ratification rate has slowed even as the country has changed faster. Elie’s pick reworks impeachment: raise the House threshold from a majority to 60%, lower Senate conviction from two-thirds to 60%, and replace “treason, bribery, or other high crimes and misdemeanors” with “outrageous abuse of power.” David proposes locking the Supreme Court at nine justices while permanently expanding the House to match the population ratio last used in 1912 – which, Sarah notes, is what the Constitution’s text already requires and which the country has simply stopped following. Sarah’s pick caps any congressional grant of emergency powers, and any “temporary” Vacancies Reform Act appointment, at a hard deadline after which Congress must act.
The vetoes: Elie vetoes the idea that Congress can cap Supreme Court terms at 18 years by ordinary statute; he supports the 18-year cap itself but insists it requires a constitutional amendment, not legislation dressed up as a “suggestion.” David vetoes the National Constitution Center’s “Team Progressive” draft amendment reversing Citizens United, which would let the government regulate campaign financing so long as it’s “reasonably aimed” at equal participation — both he and Sarah call the language dangerously open to incumbent-protecting speech restrictions. Sarah declines to veto abolishing the electoral college outright but offers a compromise instead: Require every state to allocate two electoral votes winner-take-all and the rest proportionally by congressional district.

Show Notes

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