The contempt vote will start a process that is fraught with political and legal challenges. Even putting aside the objections to the direct referral from the Committee to the Justice Department (rather than submit the matter to a full Senate vote), there remain serious questions about whether Fauci can be held in contempt after invoking his right to remain silent under the Fifth Amendment. As I have previously stated, this area is rather murky and Fauci likely has the advantage in any litigation.
At the outset, it is important to note that Fauci always faced a risk of perjury in his prior appearances. Even if immunized, a witness can always be prosecuted for false statements. Fauci is in a much stronger position today than he was in prior hearings due to the sweeping pardon he received from former President Joe Biden. Yet, he suddenly decided to remain silent when his own words came back to contradict him.
Now for the legal questions.
If a witness is immunized, they can be compelled to testify. If, for example, the Senate granted Fauci immunity, there would be little question about his answering these questions as well as the ability to charge him for any false statements.
The Senate Committee is arguing that the Biden pardon had the same impact. Since Fauci cannot be prosecuted for any acts during the extended period of the pardon (going back to 2014 when the government allegedly funded “gain-of-function research). Chairman Rand Paul did an excellent job in putting this issue into sharp relief in his final set of questions by framing his inquiry as confined to the period of his pardon.
The argument is credible and, for many, compelling: since Fauci cannot be prosecuted for any conduct during the pardon period, he has no legal exposure so long as he speaks truthfully.
For Fauci, that is a question that could be highly subjective. He referred to the risk of a “perjury trap” in his opening statement. He declared, “The only conclusion I can reach is that the sole reason he is calling me before this committee is to get me to say something — anything — that could vindicate his repeated public pledges that I end up, in his words, quote, ‘behind bars.’”
Even that statement could present a matter for litigation. Congress previously found in 2013 when high-ranking IRS leader Lois Lerner also pleaded the Fifth after giving an opening statement before the House Oversight and Government Reform Committee.
The Justice Department under the Obama Administration refused to prosecute. Fauci will argue that such a general statement does not waive the privilege and that, when asked a question, he promptly and consistently invoked it.
Of course, this is the Trump Administration, not the Obama Administration. Ironically, if the matter is litigated, the Administration will be in the position of defending the pardon, which it has long questioned, as the result of Joe Biden’s infamous autopen. The ability to hold Fauci in contempt becomes dependent on that pardon being valid.
The Justice Department can argue that the Supreme Court has consistently held that the mere fear of a perjury charge is insufficient to compel witnesses who are immunized, dating back to 1896 in Brown v. Walker.
Moreover, the Supreme Court has held that “anticipatory perjury” is not a basis for such a refusal to testify in cases such as United States v. Apfelbaum.
However, Fauci can cite new state investigations as unaffected by the federal pardon, as well as new questions arising outside the pardon that could theoretically pose ongoing risks of criminal prosecution.
Courts have generally adopted broad interpretations to protect the right to remain silent, a touchstone of our legal system. That is why I believe Fauci likely has the edge in any challenge.
The fact is that it is uncertain. The cases in this area remain relatively sparse, and any pardon case is highly case-specific to the confines and scope of the specific pardon.
If so, Fauci can remain silent, but that silence will remain deafening for many in this country.
The right to do something does not make it the right thing to do. Fauci, in my view, was wrong to invoke the privilege against self-incrimination even if it was his right to do so. Millions of Americans lost loved ones during the pandemic, and the United States had one of the worst records in dealing with COVID-19 in terms of costs and deaths. Fauci’s diaries exposed disturbing contradictions between what he previously stated publicly and what he actually believed. Americans have a right to know the truth, and Fauci was not saying a thing, invoking the privilege 111 times.
He will say nothing to the families who lost loved ones or the business owners ruined by now-debunked pandemic measures.
He will say nothing to the scientists who were canceled, blacklisted, and fired for opposing these policies. Those scientists did not get the bobbleheads and celebrity photos that Fauci celebrated in his diaries. As the mob hounded them, Fauci said nothing as he gushed about his own fame in his diary.
He will say nothing despite the protection of a presidential pardon. For that, he should be rightfully condemned. Fauci’s contempt of Congress is challengeable, but his contempt for the public is undeniable.
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”