Reporter's Notebook: Why Fauci's 111 Fifth Amendment pleas could end up before the courts
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Video GOP calls for Fauci contempt charges after wild COVID hearing Dr. Anthony Fauci faces potential contempt charges and criminal referral from Senate Republicans after his contentious testimony. He invoked the Fifth Amendment over 100 times during questioning about the COVID-19 pandemic response. Senators Rand Paul and James Lankford, along with legal expert Jonathan Turley, discuss the legal hurdles and public frustration surrounding Fauci's actions.
That’s the solution which Senate Homeland Security and Governmental Affairs Committee Chairman Rand Paul , R-Ky., is engineering for the reticence of Dr. Anthony Fauci. The head of the National Institute of Allergy and Infectious Diseases for 38 years, Fauci invoked the Fifth Amendment a staggering 111 times when appearing under subpoena before Paul’s panel this week.
Anthony Fauci declined to testify in a Senate committee hearing on his role in the U.S. response to COVID-19, invoking his Fifth Amendment rights. (Left (Alex WROBLEWSKI / AFP via Getty Images), Right (Al Drago/Bloomberg via Getty Images))
The only words Fauci spoke were his invocation of the Fifth Amendment on the advice of his attorney. But the action promised by Paul is contempt of Congress .
"There will be repercussions to your refusal to testify today," warned Paul after Fauci invoked the Fifth. "The Committee will have to consider after this hearing what appropriate action should be taken against you for the failure to testify after being directed to do so. It's against the law to obstruct an investigation of Congress."
But it’s not as though Fauci was completely mum during the entire hearing. He offered an opening statement before leaning on the Fifth Amendment as a shield for the next three hours.
"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."
And then Fauci fell mute. He ignored questions about his diary , inquiries about what ignited the pandemic, even interrogatives about the mundane.
Fauci said Rand Paul, who recently released more than 1,000 pages of his personal diary entries, has an "obvious obsession" with pushing for his prosecution. (CNN)
TOP 5 MOMENTS FROM FAUCI'S HEARING: PAUL BOOTS LAWYER, MORENO ERUPTS AS CONTEMPT VOTE LOOMS
"What day of the week is it today?" asked Sen. Josh Hawley, R-Mo.
"What color tie are you're wearing?" Hawley continued. "What is the color of the carpeting?"
From a legal standpoint, there is logic behind Hawley’s banal inquiries. These are carefully designed questions which a good prosecutor might ask a witness to trip them up.
Sen. Josh Hawley, R-Mo., speaks in front of a board with an image of Anthony Fauci, the former Director of the National Institute of Allergy and Infectious Diseases and medical advisor to several U.S. presidents, as Fauci (not pictured) attends a U.S. Senate Homeland Security and Governmental Affairs Committee on Capitol Hill in Washington, D.C., U.S., July 29, 2026. Anthony Fauci declined to answer questions, invoking his Fifth Amendment right against self-incrimination. (REUTERS/Nathan Howard)
To wit: If Fauci had already invoked the Fifth Amendment, why is he suddenly answering questions about the calendar, his tie or carpeting? If Fauci replied "Wednesday," "blue" or "green" as answers to Hawley’s queries, Paul could have asserted that the Fifth Amendment shield no longer applied. Thus, the committee, or the courts, should compel Fauci to respond to any question.
By the same token, Republicans argued that Fauci should have been able to answer such trite questions from Hawley because they had nothing to do with the proceedings. It’s kind of a "we win, you lose" proposition for the GOP.
Yet Fauci never deviated from the script, invoking the Fifth Amendment 111 times .
CAN FAUCI HIDE BEHIND THE FIFTH? GAME-CHANGING BIDEN PARDON MAY NOT PROVIDE COMPLETE COVER, EXPERTS SAY
By the way, Fauci’s repetitive legal recitation of the Fifth is not a Senate record. In 1958, mob boss Vito Genovese appeared before a Senate panel investigating organized crime. Genovese established the mark, invoking the Fifth a stupefying 150 times.
Republicans don’t think that Fauci had any right to invoke the Fifth even once, considering his pardon from former President Joe Biden. On one hand, they asserted he should be free to testify. Democrats took issue with that.
"I’m not surprised that he pled the Fifth because the objective is to put him in jeopardy of criminal prosecution," said Sen. Richard Blumenthal, D-Conn. "So the more prudent course was to claim the Fifth Amendment."
Hawley saw it differently, citing the 1896 Supreme Court case Brown v. Walker.
In the late 19th Century, the Supreme Court granted auditor Theodore Brown immunity to testify in a railway rate-fixing case. But Brown still refused to testify. However, the High Court ruled that Brown had to speak. Writing for the majority, Justice Henry Billings Brown (no relation), who also wrote the opinion in Plessy v. Ferguson, declared the following:
"If it be once conceded that the fact that his testimony may tend to bring the witness into disrepute, though not to incriminate him, does not entitle him to the privilege of silence, it necessarily follows that, if it also tends to incriminate, but at the same time operates as a pardon for the offense, the fact that the disgrace remains no more entitles him to immunity in this case than in the other."
Translation: What you have to say may be embarrassing. But if you enjoy the privilege of immunity, you still have to cough up the goods, despite the Fifth Amendment.
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