Dr. Anthony Fauci, former director of the National Institute of Allergy and Infectious Diseases, invoked the Fifth Amendment 111 times during a contentious Senate hearing concerning the COVID-19 pandemic response. The extensive use of the constitutional protection against self-incrimination has prompted Senate Republicans, led by Homeland Security and Governmental Affairs Committee Chairman Rand Paul, R-Ky., to explore options including a contempt of Congress resolution and a criminal referral to the Justice Department.
During the hearing, Fauci stated that his invocation of the Fifth Amendment was a response to what he characterized as Senator Paul's "unhinged obsession" and attempts to elicit statements that could be used to pursue criminal charges against him. "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,’ unquote," Fauci said in his opening statement.
Senator Paul warned Fauci of repercussions for his refusal to answer questions, stating, "There will be repercussions to your refusal to testify today." He added that the committee would consider appropriate actions for failing to testify after being directed to do so, citing that it is "against the law to obstruct an investigation of Congress."
Other Republican senators, such as Josh Hawley of Missouri, posed seemingly simple questions about the day of the week, tie color, and carpeting color. The intent behind these questions, according to legal analysis, was to establish that Fauci was willing to answer some questions, thereby potentially negating his Fifth Amendment shield for other inquiries. However, Fauci consistently invoked the Fifth Amendment, even for these basic questions.
The legal basis for Republicans' push against Fauci's extensive Fifth Amendment use draws parallels to the case of former IRS official Lois Lerner in 2014. Lerner, who faced scrutiny over the handling of tax-exempt applications, also delivered an opening statement before invoking the Fifth Amendment. The House later voted to hold Lerner in contempt of Congress, referring her case to the Justice Department, which ultimately did not prosecute her under the Obama administration.
Legal experts and Republican senators have debated whether Fauci's invoking the Fifth Amendment is permissible, particularly in light of any potential immunity granted. The Supreme Court case Brown v. Walker (1896) established that a witness must testify if granted immunity, even if the testimony might be embarrassing, as long as it does not lead to criminal prosecution. However, the application of this precedent to Fauci's situation, especially considering any pardon from President Biden, remains a point of contention.
Senate Republicans plan to move forward with a contempt of Congress resolution, which would require a simple majority vote in the Senate, and potentially face a filibuster requiring 60 votes for passage. Senator Paul indicated he may bypass a full Senate vote and send a legal brief supporting the argument directly to the Department of Justice. The decision on whether to prosecute Fauci would then rest with the Justice Department, raising questions about how a potential Trump-era DOJ might handle such a referral, especially given past precedents like the Lerner case where no prosecution followed a rose despite a contempt referral.