“On the advice of my lawyers, I am invoking my Fifth Amendment right not to answer any questions.”
So said America’s former COVID czar, Anthony Fauci, appearing this week before a US Senate committee conducting hearings into the federal government’s response to COVID-19.
Fauci’s justification for the decision, as given to the committee, is that he is being persecuted.
“Given Senator [Rand] Paul’s obvious obsession with calling for my prosecution, his repeated slanderous comments about me and, recently, his publicly releasing my unredacted personal diary aimed at embarrassing and intimidating me, 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.
“Any reasonable person who has followed his unhinged obsession with me would readily come to the same conclusion”, he added.
It is true, of course, that Senator Paul – himself a licensed doctor – has been a harsh critic of Fauci. It is further true that the senator has expressed a desire to see Fauci behind bars.
The Fifth Is Not Absolute
Yet it is also true that the Fifth Amendment to the United States Constitution guarantees protection against self-incrimination. It is based on the principle that one cannot be compelled to be a witness against oneself – but it is generally invoked only when a truthful answer to a question could tend to implicate the speaker in criminality.
As such, while Fauci is not being prosecuted for any crime, and while the evidence against him remains relatively thin, his decision to invoke the amendment is stunning. It says to the world: “If I answer some of these questions honestly, I believe I may implicate myself in crimes.”
The decision is astounding for another reason: Fauci has already been pre-emptively pardoned.
As Joe Biden was leaving office, one of his final and most controversial decisions was to grant Fauci and others blanket, unconditional pardons for any federal crimes they might have committed in the course of their duties for the federal government.
That means, in effect, that even were Fauci to admit to serious criminality covered by the pardon, he could not be federally prosecuted for it. Unless he commits some new crime, or reveals conduct beyond the pardon’s scope, he is unlikely ever to see the inside of a federal courtroom.
That should, in theory, make pleading the Fifth Amendment largely unnecessary. Even were crimes to be exposed, they would be of no direct criminal consequence to Fauci – at least at the federal level.
Fauci's Possible Reasons
This gives rise to three possible explanations for why Fauci might nevertheless take the Fifth.
The first is that his answers, if given honestly, might tend to implicate him in criminality but might also – by extension – implicate others who have not been granted pardons by President Biden.
While Fauci cannot constitutionally be compelled to be a witness against himself, there is no equivalent prohibition on his being compelled to provide evidence against others. Given the seniority of the position he held, it seems at least reasonably likely that any breaches of the law he ordered or authorized would have been carried out by subordinates.
A second explanation concerns civil litigation.
While Fauci is protected by virtue of his pardon from federal criminal prosecution for covered conduct, testimony given to the Senate could potentially be cited in civil proceedings brought by a third party who believed that unlawful conduct by Fauci had materially disadvantaged or harmed them.
Civil liability alone would not ordinarily be sufficient grounds for invoking the Fifth Amendment. But the possibility that testimony could expose Fauci to both residual criminal jeopardy and subsequent civil claims would give his lawyers every reason to advise caution.
Students of American judicial history will recall, for example, that while O.J. Simpson was acquitted of the murders of Nicole Brown Simpson and Ron Goldman, he was later found civilly liable for their deaths and ordered to pay financially ruinous damages.
Finally, and perhaps most obviously, there are two broad limitations to the pardon Fauci possesses.
The first is that it does not protect him against prosecution under state law. He could still, in principle, be prosecuted in Virginia, Maryland or another state if his testimony disclosed conduct violating the laws of that jurisdiction.
The second is that an answer revealing pardoned conduct could lead investigators toward other conduct not encompassed by the pardon. It might furnish a link in a chain of evidence leading somewhere Fauci’s legal protection does not extend.
These are real risks.
Serious Questions for Biden
Whatever the reason, one of the primary observations that should – and will – be made about Fauci’s decision to take the Fifth is that it raises serious questions for former President Biden.
When Biden issued his pardon, he did so on the basis that he had no knowledge of any crimes or misconduct by Fauci, and that the pardon was intended simply to insulate the doctor from a malicious criminal investigation by a Trump-controlled Department of Justice. On its face, there is more than a little honor in that.
Yet it is cast in an entirely different light if it is apparent that Fauci himself – and his lawyers – believe that truthful answers from the doctor might incriminate him.
That does not prove that Fauci committed a crime. It does, however, suggest that his lawyers believe there is at least some plausible criminal jeopardy from which he requires protection.
Was Biden aware of that possibility when he issued the pardon?
An Enduring Political Football Guaranteed
Even this, of course, is ultimately more a political question than a legal one. Presidential immunity may protect Biden from criminal prosecution for official acts undertaken while in office, but it does not literally mean that a president cannot break the law or that he cannot be questioned about his decisions.
In practice, however, Biden is unlikely ever to be compelled to give a meaningful public account of precisely why he believed Fauci required such extraordinary protection – assuming he is capable of providing one in any case.
Fauci’s silence proves none of the allegations against him. But it ensures that they will survive.
A pardon may protect him from prosecution; it cannot compel the public to stop asking what, precisely, he believed he needed to be pardoned for.