An Ounce of Prevention

Have you ever had those moments when you thought to yourself - dang, what I should have said was....  Or maybe you did something and later wished you hadn't.

Maybe like when your boss said something condescending to you and at the time the only thing you thought to say was, "That's a good one, boss" then later you thought, what I should have said was "I came here to do good work—not absorb bad management!"

Or maybe when you asked your wife if she minds that you go golfing with your buddies and she says that's "fine" - so you go and when you get back she's pissed off seven ways from Sunday but you don't know why.

Stuff like that.

This got me to thinking the other day when a friend of mine related an interaction he had with a local "Karen" in his neighborhood.  Seems said "Karen" had been riding his backside for the last few months because his Christmas light were still up.

Thing is, there are any number of reasons "Karen's" go off on people but it got me thinking of ways to avoid confrontational neighborhood "Karens."  So, I create a list of ways to keep your neighborhood Susan's or Jennifer's or Laurie's from turning into a Karen.

1. Make your property “boringly compliant”

Most neighbor conflicts come down to things that look like violations—even if they aren’t.  “Make your property ‘boringly compliant’” means keeping everything so clearly within local rules and neighborhood norms that there’s nothing for anyone to latch onto or argue about.  For instance:

• Keep lawns, weeds, trash bins, and parking tidy
• Check your city’s basic ordinances (noise hours, fence height, parking rules)
• If something looks borderline, assume someone will notice

This isn’t about surrender—it’s about removing easy ammunition.

Related Authority:

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) reinforced the authority of municipalities to establish and enforce land-use regulations. NOTE: the standards come from the ordinance, not the loudest neighbor.

 2. Control the first impression

People are far less likely to escalate if they see you as human.  “Control the first impression” means making sure neighbors see you as a normal, reasonable, low-drama person early on—because people tend to interpret everything you do later through that initial lens.  This can be accomplished by:

• A simple wave or quick introduction early on goes a long way
• You don’t need to be friends—just recognizable and polite
• Avoid coming off defensive or standoffish right out of the gate

It’s harder to complain about “that guy” if you’ve already humanized yourself.

Related Authority:

Prah v. Maretti, 108 Wis. 2d 223, 321 N.W.2d 182 (1982) recognized that neighboring landowners owe one another duties of reasonable use and that disputes between neighbors should be evaluated in light of what is reasonable under the circumstances.

3. Don’t feed the escalation loop

“Don’t feed the escalation loop” means resisting the urge to match someone’s intensity when they come at you with complaints, attitude, or accusations. The more emotion, defensiveness, or sarcasm you add, the more the interaction tends to spiral.  If someone nitpicks or complains:

• Stay calm, brief, and neutral
• Don’t argue on the sidewalk—it turns into theater
• If they’re wrong, you don’t need to prove it immediately

Escalation is oxygen. Starve it.

Related Authority:

In Rattigan v. Wile, 445 Mass. 850, 841 N.E.2d 680 (2006), a disagreement between neighbors escalated into a deliberate campaign of retaliation that ultimately resulted in liability for private nuisance. The legal lesson is simple: once a dispute becomes about "getting even" instead of solving the problem, every retaliatory act increases the likelihood that a judge (not just the neighbors) will become involved.

4. Use quiet documentation

Keep a calm, private record of what’s happening instead of reacting in the moment or getting pulled into arguments.  The point isn’t to build a case theatrically; it’s to create clarity and protection for yourself if things escalate.  If someone is persistently difficult:

• Keep records (dates, what happened, photos if relevant)
• Save texts or written communication
• Know your HOA or city complaint process before you need it

This flips the power dynamic without confrontation.

Related Authority:

Courts recognize that memories fade, stories change, and disputes become harder to resolve as time passes. Contemporaneous records—such as photographs, messages, logs, and written observations—can be powerful evidence because they capture events closer to the time they occurred. See United States v. Orr, 68 F.3d 1247, 1251–52 (10th Cir. 1995).

5. Choose your battles (strategically)

Recognize that not every annoyance, comment, or minor rule-bending is worth your time, energy, or reputation to confront.  The strategic part is deciding what actually has long-term impact: safety issues, repeated harassment, property damage, or whether formal violations are worth addressing.  So:

• Minor annoyance → let it go
• Pattern of harassment or false complaints → address formally
• Safety or legal issues → act immediately

Winning every small fight can lose you the bigger war.  What this means is that a person who complains about everything risks looking unreasonable, but a person who ignores a pattern of escalating conduct may lose the ability to prove the seriousness of the problem later. The strategic choice is not "never complain"; it is reserve formal action for things that have legal or practical consequences.

Related Authority:

The law recognizes that neighbors will inevitably annoy each other from time to time. Courts generally distinguish between ordinary inconveniences and conduct that creates a substantial interference with property rights. See Armstrong v. Francis Corp., 20 N.J. 320, 120 A.2d 4 (1956). 

6. Set calm boundaries

Clearly define what behavior you will and won’t engage with, but you do it without anger, lectures, or emotional escalation.  In practice, this looks like short, repeatable statements.  You stay consistent—calmly reinforcing the same limit if needed.  If someone crosses a line:

• “I’m happy to follow city rules, but I’m not going to engage beyond that.”
• Repeat as needed, without adding emotion

Consistency beats clever comebacks.

Related Authority:

In Rowan v. United States Post Office Department, 397 U.S. 728 (1970), the Supreme Court upheld a homeowner's right to stop unwanted communications from entering the home. The practical lesson is simple: state the boundary clearly, avoid unnecessary debate, and do not turn every disagreement into a confrontation. 

7. Build a buffer (social proof)

Quietly create a network of normal, neutral, or positive neighbor relationships so you’re not isolated or easy to target if conflict ever pops up.  This is important because neighborhood disputes often aren’t just about facts; they’re about perception and who seems credible.  If you have even one or two neutral-to-positive neighbors:

• Casual friendliness creates a “baseline reputation”
• People are less likely to side against someone who seems reasonable

It’s subtle, but powerful.

Related Authority:

Credibility, reputation, and perception matter when evaluating disputed claims. In Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984), the SCOTUS discussed the importance of reputation and the difficulty of determining truth when competing accounts exist.

8. Worst-case: disengage + formal channels

Recognize when direct, informal interaction has stopped being productive and switching to a more structured, low-contact approach is a better approach.  If someone is truly relentless:

• Stop direct interaction
• Communicate only in writing if necessary
• Use HOA, mediation, or local code enforcement appropriately

At that point, it’s not about winning socially—it’s about protecting your time and sanity.

Related Authority:

Courts recognize that when disputes become persistent and informal efforts fail, the solution is often a structured remedy - not more arguing. See Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312, 257 N.E.2d 870 (1970).  Also, in Rondeau v. Mosinee Paper Corp., 422 U.S. 49 (1975) the SCOTUS discussed the availability of equitable relief when legal rights require structured judicial intervention.

The thing is, most people want to be reasonable.  Rare is the case that people flip out over kids playing in the street, or neighbors having a block party, or someone installing a pool in their backyard.

While most people want to be reasonable, some don't.  In such cases, keep a record, take notes, make friends where you can and, maybe, just maybe, buy one of those REALLY loud 1,000 watt speakers to blast Mozart's Queen of the Night aria at at all hours of the day/night and engage in some serious psychological warfare.

 

I mean, if Karen wants crazy, I suggest going lunatic crazy.  

Go all out.  

Make a scene.  

Give as good as you get.  

It may be counterintuitive, but sometimes crazy is good for the soul.

 

 

Disposable Income

Do you have more money than you know what to do with?  I know a few people like that.  I knew a guy who bought and traded twin-engine planes like most kids trade baseball cards. 

The thing is that people will buy what they want to buy not necessarily what they need to buy.

Recently, I became a card-carrying member of Costco.  Consequently, each week I get an email message from my friendly neighborhood Costco telling me about all the lovely thing I could buy - not things I value or want but someone apparently does.

This week, I got a notice about one such item that caught my attention called La Prairie Skill Caviar Liquid Lift.  Sounds French - which, to be fair, isn't a bad thing - it's just a thing....an expensive thing.  

Anyway, most times when I get these emails, it says how much the thing costs. What caught my attention was that there was no price attached to La Prairie Skill Caviar Liquid Lift which piqued my interest and got me to doing some investigating.

According to the official La Prairie website:

The new Skin Caviar Liquid Lift is augmented with Caviar Micro-Nutrients to help support skin's metabolism for augmented lifting efficacy. Day after day, wrinkles and lines appear faded, skin is firmed and youthful contours are revealed.

Sounds like fancy make-up.  Turns out, La Prairie Skill Caviar Liquid Lift costs an astounding $785 (USD) for a 50 ml/1.7 oz bottle.  

For $785, I'd want someone to come apply the stuff personally!  That's the thing, though.  While I can't see spending that much cash for something I can't even eat, other people clearly will and do.

The reason I'm bringing this all up is because I was talking to someone I met on the street.  Person was standing next to his spanking brand new Chevrolet Stingray Corvette 3LT Convertible. 

It was beautiful.

In the course of our conversation, Person noted that they were looking to provide for their family in case of their demise and was wondering to me whether they should get a will or a living trust.

According to Google, a living will outlines your medical preferences if you become incapacitated - essentially a durable power of attorney.  It addresses end-of-life medical care, such as the use of life support, pain management, and organ donation

A living trust, on the other hand, manages and distributes your assets during your lifetime and after your death allowing you to bypass probate (a costly legal process of distributing assets after death) and ensures your assets are distributed according to your instructions.

Believe it or don't, there are a whole lot of people in legal land who will say they can help you at low cost.  Popular legal website Rocket Lawyer says they'll help you create a trust.  Popular publisher Nolo Press has resources that can help you create a generic trust.  However (and I say this from experience working for an estate planning attorney), nothing beats the confidence knowing that you had a lawyer create your trust/will. 

I can't count the number of people we had to bail out in probate court either because their deceased didn't leave a will or the documents they did have were defective and were tossed by the probate judge.  Sometimes there was a trust but, for whatever reason, the trust was never properly funded and their heirs wound up in probate.

Anyway, I suggested Person take a look at Martindale.com to help locate a reputable estate planning attorney.  Aaaaaand that's about where the conversation fell apart.  

Seems Person was really into his money and wasn't really interested in spending money FOR a trust or a will.  Person was just looking for a way to protect his cash for his loved ones without spending any money or the least amount of money possible.

Yeah, it didn't make sense to me but who am I to argue with someone who was wearing a down payment on a house and driving an $185,000 vehicle? 

Thing is, we all decide what we value and what we're willing to spend our money on.  Person liked expensive things but clearly didn't value legal assistance as much as he (or his heirs) probably should (or will).

Word of the Month for August 2026: Constructive Termination (aka Constructive Discharge)

It's August and you know what that mean, right?!  

Well, for some people it's a time for new beginnings and in the case of others - a new job.

Thing is, any 1st day of any month is a day of new beginnings.  

Today's new beginning was one youngish lady with toddler in tow who I met at the city public library the other day.  

You know the problem with most public city libraries is that they are generally devoid of anything legal related.  Lots of romance novels, young adult mysteries, graphic novels about Batman and the Justice League but try to find anything legal related and you get bupkis.

Anyway, Lady tells me that she recently left her place of employment because her employer was making life at said place of employment too difficult to continue working there and she was now looking for something (at the city public library that has NOTHING legal related in its entire collection) to help her seek retribution against her now former employer.

What, I suspect, Lady was looking for was something related to constructive termination/discharge.   

CONSTRUCTIVE TERMINATION occurs when an employee resigns due to intolerable working conditions that were so severe or pervasive that a reasonable person in their position would feel compelled to quit. It is treated legally as if the employer terminated the employee, even though the resignation was voluntary in form.

So, imagine you love playing at a playground. But the grown-up who runs the playground starts doing mean things every day:

• They take away your toys on purpose.

• They yell at you for no reason.

• They make you play all alone while other kids get to play together.

• You ask for help, but no one listens.

Now you feel so sad and hurt that you decide, “I don’t want to come to this playground anymore!”

Even though you chose to leave, it was really because the grown-up made it so bad that you had no other choice.

That’s what constructive termination means at work:

“I quit…but it’s because you made my job soooo awful, I had to leave.”

From a more grown-up perspective, in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), the plaintiff, Nancy Drew Suders, quit her job as a dispatcher for the Pennsylvania State Police in August 1998.  She claimed that she had been sexually harassed by her supervisor.

In an 8-1 decision, the SCOTUS ruled that an employee faced with a situation in which a "reasonable person ... would have felt compelled to resign" could bring suit even if she had not filed a report with the employer before resigning.

After Suders, in cases of constructive termination, the "reasonable person" standard asks:

Would a hypothetical, reasonable employee — in the same circumstances — have felt that quitting was the only viable option?

It does not ask whether the actual plaintiff personally felt forced to quit. Instead, courts look at:

• What an average person with the same job, status, and in the same workplace would do,
• Under similar pressures or abusive conditions,
• With ordinary emotional resilience, not hypersensitivity.

To prove a constructive dismissal, an employee must be able to show:

• There’s been a serious breach of their contract of employment, and
• They’ve resigned in response to that breach and not for some other reason.

As to the first limb of this twofold test, the employee must be able to show a fundamental breach of their employment contract. This could be a breach of either an express contractual term or breach of the implied term of mutual trust and confidence but, in either case, this must be sufficiently serious so as to justify termination of their contract.

As to the second limb of the test, the employee must show that the actions of the employer resulted in their resignation. This often means that the employee’s decision to resign must quickly follow the conduct complained of, unless they’ve made it clear that they’re working under protest.  

 If there is a marked time gap between the conduct complained of and the employee either lodging a formal grievance or handing in their resignation, an adverse inference can potentially be drawn here from any delay. 

The thing is that not all situations qualify as constructive termination and in some instances, courts have considered facts on a case-by-case basis.  It is important to know what's what before acting.  Some situations which MIGHT qualify as constructive termination where:

1. Demotion Without Cause

• An employee is suddenly demoted without explanation or justification.  If accompanied by humiliation, pay cuts, or loss of duties, this may cross the line into constructive discharge.

2. Unwarranted Reassignments

• A manager repeatedly transfers an employee to undesirable shifts or far-away locations to “encourage” resignation.  Example: Moving a single mother from a daytime role to an overnight one without justification. 

3. Unrealistic or Punitive Workload

• A high-performing employee is suddenly assigned an impossible workload with the goal of setting them up to fail. If this is targeted retaliation (e.g., after reporting harassment), it could support a claim. 

4. Exclusion and Isolation

• An employee is systematically excluded from meetings, communications, or work-related decisions.  If this is retaliatory or based on discrimination, it may be grounds for constructive discharge.

5. Microaggressions or Patterned Disrespect

• Persistent subtle discrimination (e.g., sexist jokes, mocking religious beliefs) that creates a hostile work environment. Even if no single act is severe, the cumulative effect can rise to an intolerable level.

6. Ignoring Workplace Harassment

• An employer fails to act after multiple reports of harassment (verbal, physical, or online), leaving the employee feeling unsafe or unsupported.  Courts often consider employer inaction or retaliation as critical in these cases. 

7. Forced “Resignation” Under Pressure

• A supervisor tells an employee: “Resign or be fired.”  Even if the employee chooses to resign, courts may find this is constructive termination due to coercion.

In case you were wondering, there are a number of REAL cases involving constructive termination, such as:

1. Green v. Brennan, 578 U.S. 547 (2016) 

Holding: In a federal employment constructive discharge claim, the limitations period begins when the employee resigns, not when the last discriminatory act occurs.

Key Takeaway: This case clarified the timing for filing a claim — constructive discharge claims accrue on the date of resignation, not earlier. 

2. Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 876 P.2d 1022 (1994)

Court: Supreme Court of California

• Facts: Employee resigned alleging intolerable working conditions, including employer inaction over workplace misconduct.

• Holding: The court ruled that constructive termination exists when the employer knowingly permits conditions so intolerable that a reasonable person would be forced to resign. The court set the standard for California constructive discharge claims.

Key takeaway: This is the leading California case that explains when resignation counts as wrongful termination.

3. MacKenzie v. Miller Brewing Co., 241 F.3d 870 (7th Cir. 2001)

Court: U.S. Court of Appeals, 7th Circuit

• Facts: Plaintiff alleged gender discrimination and a hostile work environment, leading her to resign.

• Holding: The court ruled against her, emphasizing that conditions must be objectively intolerable, not just unpleasant or stressful.

Key takeaway: Demonstrates that courts require more than subjective dissatisfaction; conditions must meet an objective threshold of severity.

4. Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000)

Court: U.S. Court of Appeals, 9th Circuit

• Facts: A city employee claimed constructive termination after a co-worker groped her and management failed to act.

• Holding: The court found the single incident, though serious, did not create such intolerable conditions as to support constructive discharge.

Key takeaway: Failure to act can sometimes support a claim, but courts still require the conditions to be pervasive or ongoing.

5. Fischer v. AT&T Mobility, LLC, 742 F.3d 377 (9th Cir. 2014)

Court: U.S. Court of Appeals, 9th Circuit

• Facts: Employee alleged retaliation, demotion, and emotional stress that forced resignation.

• Holding: The court held that while the workplace was unpleasant, it did not meet the threshold for constructive discharge.

Key takeaway: Not every demotion, reassignment, or unpleasant condition rises to the level of constructive termination.

Bottom line, constructive termination cases can be tricky.  Just because you feel that you were treated unfairly doesn't mean that said treatment raises to the "reasonable person" standard.  Best to document everything and consult with an attorney before doing anything. 

Fauci, the Fifth, and the Pardon: Can He Have His Cake and Eat It Too?

As many of you in Blog-land may recall, at the end of President Biden’s term, Dr. Anthony Fauci received a pardon for any federal crimes he may have committed during the covered period (2020-2025). 

After a diary attributed to Fauci reportedly came to light, questions arose about whether it showed evidence of wrongdoing or whether he may have provided inaccurate testimony to Congress. 

When Fauci later appeared before Congress and invoked the Fifth Amendment, several legal questions emerged: What protections does the Fifth Amendment provide, does a pardon eliminate the right to remain silent, and can someone still be accused of lying to Congress if they have already received a pardon?

This is actually an interesting constitutional problem (if you're into these sorts of things) because it sits at the intersection of executive pardons, the Fifth Amendment privilege against self-incrimination, congressional oversight, and perjury statutes. 

There are also some factual premises in our hypothetical that need to be separated from the legal analysis: whether a particular diary exists, what it says, whether it proves a crime, and whether a pardon covered particular conduct are factual questions. The legal principles, however, are fairly well established.

Let's walk through it. 

1. What is the Fifth Amendment, and what was it designed to protect?

As it relates to the issue at hand, the relevant language of the 5th Amendment is:

“No person … shall be compelled in any criminal case to be a witness against himself…”

This is the "self-Incrimination clause" of the Fifth Amendment.  The historical purpose was to prevent the government from using coercive interrogation practices to force people to convict themselves. 

The Framers were reacting in part to practices in England where religious and political suspects could be compelled to answer accusatory questions under oath, even when those answers would lead to punishment.

The basic idea here is that the government has the burden of proving guilt. It cannot force the accused to help build the case against himself.  The Supreme Court has repeatedly emphasized that the privilege protects human dignity, autonomy, and the accusatorial nature of our criminal justice system.

I'd like to point your attention to a few major cases as they relate to this issue:

Miranda v. Arizona, 384, U.S. 436 (1966)

This is the famous "you have the right to remain silent" case.  The SCOTUS held that custodial interrogation requires warnings because people must be aware of their Fifth Amendment rights.

The important point here is that Miranda is only one application of the Fifth Amendment. The underlying privilege is much broader. 

Griffin v. California, 380 U.S. 609 (1965)

The SCOTUS held that prosecutors cannot tell a jury: "The defendant didn't testify, so that proves guilt."

Consequently, the government cannot penalize someone for exercising the privilege. 

Kastigar v. United States, 406 U.S. 441 (1972)

This is probably the most relevant case to our 2nd question.

In Kastigar, the SCOTUS held that a person may be forced to testify if they receive immunity that is at least as broad as the Fifth Amendment protection.

In other words:

• The Fifth Amendment protects against being forced to incriminate yourself.
• If the government removes the possibility of prosecution, the reason for the privilege disappears.
• Therefore, immunity can replace the privilege.

That becomes important with pardons. 

The case law about immunity is important because a pardon functions in a similar way to immunity when analyzing the Fifth Amendment.

Let's unpack that.

The Fifth Amendment says:  A person cannot be forced to testify if the testimony could be used to incriminate them.

The key word here is "could."  The person does not have to prove they will be prosecuted. They only have to show a reasonable possibility that their answers could expose them to criminal liability.

For example, if Congress asks "Did you knowingly falsify documents?"

...and the witness responds, "If I answer yes, the government could prosecute me for that."

...then the Fifth Amendment applies.

But now let's change the facts.  The president grants that person a valid pardon covering that exact conduct.  Now the witness says, "If I answer yes, the government could prosecute me."

The government responds, "No, it cannot. You have already been pardoned."

That is where Kastigar v. United States becomes important.

The principle from Kastigar is that the Fifth Amendment exists because testimony can lead to criminal punishment.  If the government removes the possibility of criminal punishment through immunity, the person can be compelled to testify.  As such, a pardon can serve a similar function because it removes criminal exposure for the pardoned conduct.

So the logical chain is:

1. Fifth Amendment protects against self-incrimination;
2. Self-incrimination requires possible criminal consequences;
3. Pardon removes criminal consequences;
4. Fifth Amendment privilege may disappear.

2. If someone receives a pardon, can they still invoke the Fifth Amendment?

This is where it gets interesting and the short answer is usually, no.  A valid pardon generally removes the Fifth Amendment privilege for the crimes covered by the pardon.

Why?

Because the Fifth Amendment protects against being forced to provide evidence that could later be used to prosecute you.

But if you cannot legally be prosecuted for that conduct, there is no criminal exposure.

The Supreme Court addressed this in Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52 (1964).

The SCOTUS explained the rationale behind the privilege: it exists because compelled testimony could expose a person to criminal liability.  Remove the possibility of prosecution and the privilege generally disappears.

A pardon operates similarly to immunity. 

A classic example of this can be found in Burdick v. United States, 236 U.S. 79 (1915).

This case involved a newspaper editor who refused to accept a pardon.  The SCOTUS recognized something important: A pardon is not simply a gift; it carries an implication that "you are forgiven because there was something to forgive."

That is why a pardon can have consequences beyond just wiping away punishment. 

But here is the catch:  A pardon only protects against the crimes covered by the pardon.  It does not create a magical shield against every possible question.  

For example, President Biden pardons Fauci for "Any federal offenses committed from 2020 through 2024 relating to COVID-19 policy."

That might eliminate prosecution for those crimes.  But if Congress asks "did you lie under oath during this hearing last month?"

That is a different question.  A pardon cannot cover a future crime that has not happened. 

The problem that exists is that if you look at the wording of many of Biden's pardons, they almost all refer to all or any related crimes suggesting that people are pardoned for things that did happen or may yet happen. So, how does this jive with our statement that: A pardon cannot cover a future crime that has not happened.

The short answer is that a president can issue a pardon that covers past conduct that has not yet been discovered, charged, or prosecuted, but a president cannot pardon a person for conduct that has not yet occurred.

The key difference is unknown past crimes versus future crimes.

When a pardon says something like "all offenses against the United States which the person may have committed or taken part in during a certain period," it does not mean anything this person might do in the future.  It means if this person committed a federal crime during the specified past period, whether we know about it today or not, that crime is forgiven.

The classic example is Richard Nixon. When Gerald Ford pardoned Nixon, the pardon covered:

"all offenses against the United States which he, Richard Nixon, has committed or may have committed..."

The purpose was to prevent a situation where prosecutors later discovered additional Watergate-related crimes and argued that those were not covered because they were not known at the time.

The Supreme Court has recognized that a pardon can cover offenses that are unknown at the time of issuance. In Ex parte Garland, 71 U.S. 333 (1866), the SCOTUS described the pardon power as extending to offenses already committed, whether known or unknown.

But there is a constitutional limit.  A president cannot say "I pardon John Smith for any crimes he commits in the next ten years."

Why? 

Because there is no "offense" yet.  A pardon forgives an act; it does not create advance immunity for future criminal behavior.

Think of it like this:

Valid:  "I pardon you for any federal crimes you committed between January 1, 2020 and January 1, 2025, whether known or unknown."

Not valid:  "I pardon you for any federal crimes you commit from January 1, 2026 onward."

The reason many modern pardons sound extremely broad is because lawyers drafting them are trying to capture the first category: unknown acts that already happened.

Where it gets complicated, and where our question about Fauci fits, is that a broad pardon can create a practical problem. 

Suppose a pardon covers "any federal offenses relating to COVID-19 policies, research, or responses between 2020 and 2025."

That might protect someone from prosecution for undiscovered crimes in that category. 

But then the next question becomes does that same pardon protect against a separate crime, such as lying under oath to Congress, if that lie occurred during the same period?   

That depends on the language of the pardon and how courts interpret whether the false statement itself is one of the "offenses" covered. 

3. Does a pardon eliminate the Fifth Amendment privilege entirely?

Short answer: No, and this is the subtle part.

A pardon removes Fifth Amendment protection only where the pardon eliminates criminal exposure.

Suppose Fauci was pardoned for:

• fraud related to COVID research
• false statements from 2020–2024
• conspiracy related to pandemic response

But Congress asks:  "Did you commit tax fraud in 2025?"

The pardon does nothing.  He could still invoke the Fifth.

The analysis is always could this answer expose me to criminal prosecution?

If yes → Fifth Amendment may apply.

If no → Fifth Amendment generally unavailable. 

4. Can Fauci still be accused of lying to Congress after  receiving a pardon?

Another short answer: Yes.

A pardon does not erase history and this is a common misunderstanding.

A pardon does not mean "The person did nothing wrong."  Rather, it means the government will not prosecute this person for covered offenses.

The SCOTUS made that clear in United States v. Wilson, 32 U.S. 150 (1833) when Chief Justice Marshall described a pardon as an act of forgiveness, not a declaration of innocence. 

So if Congress determines "You lied under oath," the pardon does not stop Congress from saying that.  Rather, the pardon mainly prevents criminal punishment for the pardoned offense. 

5. But can Fauci be prosecuted for lying to Congress if the underlying conduct was pardoned?

This is where the distinction gets important.

There are two separate crimes here.

Crime #1:  The underlying conduct.  Example:  "You hid information about a government program."

Crime #2:  The false testimony.  Example:  "You lied under oath when Congress asked about it."

Those are separate offenses.  A pardon for Crime #1 does not automatically pardon Crime #2 unless the pardon language covers it.

The SCOTUS has long recognized that a pardon must be interpreted according to its language.

A person cannot generally say "I was pardoned for stealing money, therefore I cannot be prosecuted for lying about stealing the money"...unless the pardon covers both. 

6. So does Fauci get to "have his cake and eat it too"?

The answer depends entirely on what the pardon actually covered.

The scenario describe above raises a legitimate constitutional tension:

• A pardon removes criminal exposure.
• Removing criminal exposure usually removes Fifth Amendment protection.
• Therefore, a person who has been fully pardoned generally cannot refuse to answer questions about the pardoned conduct.

Congress could potentially argue that a person cannot invoke the Fifth because they have already been protected from prosecution.  If Fauci refused anyway, Congress could consider contempt proceedings.

However, there is another wrinkle.  

A witness does not get to simply say I was pardoned, therefore I must answer.  The witness can still invoke the Fifth if answering could expose him to another crime not covered by the pardon.

Courts often resolve this through a process called a "Kastigar hearing," where the government must show that the testimony cannot be used against the witness.

In a Kastigar hearing:

• Government Proof: Prosecutors present evidence, case files, dates, and witness testimony showing how they found their proof before the defendant spoke, or through separate investigative work.
• Tracing Evidence: The government traces the timeline of its investigation to demonstrate zero contamination or "taint" from the immunized statements.
• Defense Challenge: The defense attorney cross-examines government agents and argues that certain evidence wouldn't exist without the protected statements.
• Judge's Decision: The judge decides if the prosecution met its high burden. If the state fails, the tainted evidence is thrown out, or the whole case may be dismissed.

So, the "upshot" of a Kastigar hearing is essentially: The government does not get to give you immunity with one hand and then use your compelled words against you with the other. If it wants your testimony, it must give you protection equivalent to the Fifth Amendment.

I guess the moral to this story is that the Fifth Amendment protects people from being forced to incriminate themselves, but a pardon may remove that danger by eliminating the possibility of prosecution for the pardoned conduct. 

The REAL question is whether Fauci's pardon was broad enough to cover everything Congress is asking about; if it was, refusing to answer in a Congressional hearing becomes much, much harder to justify.  

 

 

 

It's a National Sport in Some States

I've lived on the west coast, the east coast, up north, and down south in the great country that is America.

The one thing that I've found in most any state is that many (no, make that most) people who drive love to tailgate.  Heck in Utah, it's a national sport.

For reference sake, Tailgating = driving too close behind another vehicle without maintaining a safe stopping distance.  Most statutes define it as failing to leave sufficient space “so as to be able to stop safely without colliding.”

When I took driver training in high school many moons ago, "safe stopping distance" meant 2 car lengths or 2 seconds behind the car in front of you (whichever is greater).  Note, that's car lengths like about how long a typical sedan is - not how long a "smart" car is (which is, essentially, a roller skate).

However, according to the Federal Motor Carrier Safety Administration (FMCSA), National Highway Traffic Safety Administration (NHTSA), State Departments of Motor Vehicles (DMV), Department of Transportation (DOT), National Safety Council (NSC), and every single Insurance provider,  "safe stopping distance" equates to:

• The Three-Second Rule: This is the most common guideline for passenger vehicles in ideal conditions. You should count three seconds from the time the vehicle in front of you passes a fixed object (like a road sign) until your vehicle passes the same point.
• Expanded Rules: Driving experts recommend extending the following distance in certain situations:
• In poor weather (rain, snow): Increase your following distance to four to six seconds or more.
• At night or with low visibility: Leave extra space for your reaction time.
• With larger or heavier vehicles: Increase your following distance, as more weight increases the braking distance.
• On slippery surfaces (ice): Give yourself 10 times the normal braking distance

Essentially, "safe stopping distance is based on the road surface at the point and time you are driving your vehicle.

Maybe the reason people love to tailgate is because they don't know or realize what the danger is?  Tailgating is dangerous because:

• Reduced reaction time – You can’t stop fast enough if the car ahead brakes suddenly.

• Rear-end collisions – One of the most common types of crashes, is often caused by tailgating.

• Chain-reaction crashes – On highways, tailgating leads to multi-car pileups.

• Aggressive driving risk – Often linked with road rage, intimidation, or reckless driving.

I remember one time I was driving up the I-5 north just past the Tejon Pass and dropped into a swamp of fog 100 miles long up through the San Joaquin Valley (the bread basket of California).  I mean, you couldn't see 3 feet in front of you.  Cars were reduced from driving 55-100 MPH to a measly 3-5 mph.  

Well, most people.  

There was one idiot who was honking and hugging everyone's bumper like the fog was our fault.  We found him a couple miles up the road wrapped around the rear axle of a semi truck.

The thing is, tailgating is a crime in every state of the union.  For example:

California – Cal. Vehicle Code § 21703: Drivers “shall not follow another vehicle more closely than is reasonable and prudent.”

Texas – Tex. Transp. Code § 545.062: Must maintain “assured clear distance.”

New York – N.Y. Veh. & Traf. Law § 1129(a): Must not follow more closely than is “reasonable and prudent.”

Florida – Fla. Stat. § 316.0895: Prohibits following more closely than is reasonable.

Illinois – 625 ILCS 5/11-710: Cannot follow “more closely than is reasonable and prudent.”

Pennsylvania – 75 Pa. Cons. Stat. § 3310: Drivers shall not follow more closely than reasonable.

Ohio – Ohio Rev. Code § 4511.34: “Assured clear distance” and prohibits following too closely.

Michigan – Mich. Comp. Laws § 257.643: Must not follow closer than is “reasonable and prudent.”

Georgia – O.C.G.A. § 40-6-49: Following too closely prohibited.

Arizona – Ariz. Rev. Stat. § 28-730: Must not follow too closely for speed, traffic, and road conditions.

Washington – RCW 46.61.145: Drivers shall not follow “more closely than is reasonable and prudent.”

Colorado – Colo. Rev. Stat. § 42-4-1008: Prohibits following more closely than reasonable.

Virginia – Va. Code § 46.2-816: Following too closely prohibited.

North Carolina – N.C. Gen. Stat. § 20-152: Prohibits following more closely than is reasonable and prudent.

Massachusetts – Mass. Gen. Laws ch. 90, § 14B: Must not follow more closely than is reasonable. 

Utah - Utah Code, Title 41 § 41-6a-711 (Following too closely): The operator of a vehicle may not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles, the traffic upon, and the condition of the highway. 

Wait, what does "reasonable and prudent" mean?  The phrase “reasonable and prudent” is the key standard in almost every state’s tailgating statute. It’s intentionally flexible, because lawmakers can’t write a one-size-fits-all “exact number of feet” that works at every speed and in every road condition.

Like I said up above, when a statute says you must not follow more closely than is “reasonable and prudent”, it means:

• You must leave enough space to stop safely if the car ahead slows or stops suddenly.

• The space must adjust based on:

  • Speed (faster = more stopping distance)

  • Traffic density (congested traffic = more caution)

  • Road conditions (wet, icy, or gravel roads require more distance)

  • Vehicle size/weight (trucks need more braking distance than cars)

Legislatures avoid setting a specific distance (like “100 feet”) because safe following distance changes constantly. Instead, “reasonable and prudent” makes it a case-by-case standard, enforced by officers, judges, and juries.

Got that?  It's to the cops discretion whether you were tailgating.

So, if the cop says you were driving too close, you probably were.  Don't argue the issue because you'll just wind up in cuffs with a resisting arrest charge tacked on for your efforts.  

Just sign the ticket and move along. 

So, how have courts viewed tailgating?  Turns out, not well for the tailgater.

Bexar County, Texas – Manslaughter from Tailgating and Reckless Driving (2025)

• A jury convicted a driver for manslaughter following a fatal motorcycle crash near San Antonio, centered on tailgating, speeding, and passing in a no-passing zone. The defendant received a 10-year sentence, plus a concurrent 3-year term for carrying a weapon.

• Relevance: Demonstrates how tailgating combined with other dangerous behaviors can elevate charges to serious crimes—even unintentionally causing death.

Roux v. Coffey, Docket #AC46898 (2025)

• Case summary: A Connecticut appellate court ruled in January 2025 that Live Nation, the concert promoter, was not liable for the death of a 17-year-old, Luke Roux, who was killed by a driver (Jacob Coffey) who had tailgated outside the Xfinity Theater after drinking and then ran a red light. The court determined that property owners don’t generally bear liability for individuals who consume alcohol on their property and later drive and cause harm.

• Significance: The case underscores legal boundaries on premises liability when alcohol and tailgating precede a DUI crash.

Fassett v. Santiam Loggers, Inc., 267 Or. 505, 517 P.2d 1059 (1973) – Truck rear-ended a car after following too closely. Court held that violation of Oregon’s tailgating statute constituted negligence per se, making the trucking company liable.

Harris v. Harman, 253 Va. 336, 486 S.E.2d 99 (1997)

• Court: Virginia Supreme Court

• Issue: Whether tailgating contributed to the plaintiff's accident.

• Outcome: The court found that Harris had been tailgating Harman for a considerable period, which distracted Harman. The jury had to determine if this tailgating was the cause of the accident. This case highlights how tailgating can be a factor in determining negligence.

Garnot v. Johnson, 239 Va. 81, 387 S.E.2d 473 (1990)

• Court: Virginia Supreme Court

• Issue: Whether the rear driver's tailgating was the proximate cause of the rear-end collision.

• Outcome: The court concluded that the plaintiff was entitled to an instruction on following too closely, emphasizing the rear driver's responsibility in maintaining a safe distance.

Meeks v. Hodges, 226 Va. 106, 306 S.E.2d 879 (1983)

• Court: Virginia Supreme Court

• Issue: Whether the rear driver was following too closely, leading to the accident.

• Outcome: The court found that there was a jury question as to whether the rear driver was following too closely, which contributed to the accident.

Bottom line:  Slow down, back off and pay attention to the conditions of the road.  If you think you're too close or the driver in front of you suddenly taps their breaks and you're having to smash the brakes to avoid an accident, you probably are too close.  

 

So, back the @#%# off my bumper!