Fauci’s Fifth Amendment Strategy May Not End Probe

 Watching the reactions to Wednesday’s “I Take The Fifth” Senate hearing starring Dr. Anthony Fauci was a good bit more illuminating than was the actual hearing. 

I’m going to assume that’s an uncontroversial take — after all, with Fauci invoking the Fifth Amendment some 111 times, even to questions like “what day of the week is it,” “what color is your tie,” and “what color is the carpet in front of you,” the informational value of the hearing itself was close to zero.

And this, after Fauci opened the hearing with a statement whining about Sen. Rand Paul, who chaired the Senate Committee on Homeland Security and Governmental Affairs at whose hearing the cat got Fauci’s tongue, and his “obsession” with prosecuting the architect of our collective COVID nightmare.

But that alone has some value, and a lot of the people, particularly on the Right, who are grousing that dragging Fauci in front of Senate hearings to berate him about subjects he refuses to engage on doesn’t do any good may not quite see it. So accept this column as an attempt at illumination.

The most obvious consequence of the 111 instances of Fauci’s taking the Fifth is a contempt-of-Congress charge, and Paul made prodigious mention of that possibility.

Also, as Florida senator Ashley Moody, who had been the state’s Attorney General, noted that it’s possible he could be in  legal jeopardy from state prosecutions.

To be honest, though, the state-prosecutions angle is a tough one to make work. There aren’t a lot of readily-available state criminal laws which would adhere to Fauci’s conduct, coming as it did from his official capacity as head of the National Institute for Allergy and Infectious Disease now as much as six-plus years ago. The things which appear to have been illegal and not made nugatory as crimes by the statute of limitations would pretty much all be federal laws.

But there is another path to legal problems for Fauci. It’s one that Judge Andrew Napolitano noted on his podcast, in a clip I saw scrolling through Facebook which has disappeared into the ether. And it goes like this.

First, Paul’s committee votes to authorize a civil action. This doesn’t stop them from also voting for a criminal contempt referral. Upon the civil action vote, the Senate committee’s counsel can go to federal district court and file suit seeking an order compelling Fauci to testify. You don’t see a “civil enforcement of subpoena” writ as often as you do a contempt referral — Steve Bannon and Peter Navarro can attest to that fact — but that writ is actually faster and cleaner as a means of compelling Fauci to answer those questions.

The problem with the contempt-of-Congress route is that it has to run through the Department of Justice. And while we assume DOJ would act on that referral, we can also assume that would be a very slow process. With this, Paul’s committee would be able to cut to the main issue very quickly.

Litigating the order to compel Fauci’s testimony and force him to stop invoking the Fifth Amendment gets interesting right away. The Fifth only holds as a protection against the committee’s subpoena where Fauci has a reasonable fear of prosecution. If Biden’s pardon is worth the paper it’s printed on, then there is no self-incrimination argument and Fauci has to testify. 

What would be highly interesting is if Fauci’s lawyers were to argue that Biden’s pardon of their client is problematic based on the fact it was an autopen pardon from a non compos mentis president — my characterization, obviously, but theirs would have to read somewhat similarly. That would be their most direct defense of his Fifth Amendment privilege, but it would also be politically devastating for the Democrats, and at that point it would start to be interesting to see who might turn on him. I am not suggesting they would do this, but it’s conceivable — especially if Camp Fauci thinks that his contradictory statements put him at a greater disadvantage than does his underlying conduct.

Either way, in this scenario, you get a ruling from the judge, and the wheels begin to turn. Clearly, Fauci’s Fifth Amendment invocation isn’t appropriate when Sen. Josh Hawley asks what color his tie is, so there is almost certainly going to be a ruling compelling some testimony not covered by Fifth Amendment privilege. It’s a decent bet that a judge, either at the district court level or somewhere much higher up the judicial food chain, will rule that Fauci has to testify.

And after Wednesday’s struggle session, in which senator after senator — at least on the Republican side — lit into Fauci with the strongest possible language, and I mean that without any limits at all, given that Sen. Bernie Moreno of Ohio actually dropped an F-bomb on Fauci in rebuking him for the arrogance displayed in his diaries and actions as head of NIAID, you can imagine another bite at that apple would be very unappetizing for Fauci. 

But here’s where the civil route gets ugly for him. Once a federal judge has ordered Anthony Fauci to testify, if he goes into that next hearing and starts taking the Fifth on questions within the scope of the judge’s ruling, that is now civil contempt of  court, not just contempt of Congress. Civil contempt of court gets him corrective sanctions, like fines he’ll accrue every day he doesn’t cure the contempt by answering honestly, or even Fauci potentially getting himself locked up.

And remember, that pardon only covers Fauci’s conduct through last January. Once he’s forced to testify, assuming somebody along the judicial chain rules that the pardon grants him immunity from prosecution, anything he says is fair game for examination as perjury. Lying to Congress under an order to testify puts Fauci’s cheese in the wind in a major way.

This is a real problem for him, by the way, because he’s lied repeatedly to Congress — at least, according to those 1,100 pages of a diary he kept on government computers like an absolute blithering imbecile which Paul was able to get his hands on and promptly released to the public.

Naturally, that was the thing Fauci appeared most exercised about when he gave his little petulant monologue before clamming up. Given what’s in that diary, almost 20 percent of which is Fauci bragging about the famous people he was rubbing elbows with, complaining about Paul’s disrespect in releasing a public record just seemed 100 percent on brand.

Don’t think for a second that people won’t notice this. That hearing was an absolute, unmitigated disaster for the Senate Democrats, and if you want to see the definition of “they don’t know what time it is,” go and watch the tongue-bath that Dick Blumenthal and Maggie Hassan tried to give Fauci amid the carnage of that hearing.

Finally there’s one other lever that could drag Fauci into another disastrous hearing, this time with no protections at all from the Fifth Amendment. The Senate could vote to grant Fauci formal use immunity for any actions he took as part of his job performance at NIAID and then subpoena him to come back to the Committee on Homeland Security and Governmental Affairs for a full tell-all session that gets watched awfully closely for any departure from full, maniacal candor and veracity. 

That vote would look like a capitulation by the Senate GOP. Don’t think of it that way if you see it. It would be a way to put Fauci on the rack with no protections from the infamy of history — or a massive  legal exposure for perjury.

Because he can’t exactly go in and testify that his diary is a lie. And the diary exposes him for things he’s said both publicly and under oath in front of previous committee hearings. It’s the classic case of, “So when were you lying, Dr. Fauci?” from which there is no escape.

If you’re a regular reader of this column or TAS in general, chances are you won’t be happy with much other than prosecuting Fauci for the core conduct of his which damaged millions of lives on — at minimum — bad science and even worse ethics. But remember, the feds took down Al Capone on tax evasion. We’ll get all the justice we can out of this and, if we’re smart, check it off our to-do list.

Of course, your other dismissal might be that you don’t think the Senate Republicans have the stones to actually do any of what’s outlined above. And that certainly remains to be seen, I agree. But that’s one reason why senators have phones you can call.

https://spectator.org/anthony-faucis-fifth-amendment-strategy-may-not-end-the-investigation/