
Yesterday’s hearing was an unedifying spectacle. In this post I will not, as Kinky Friedman used to say, cast asparagus, either at the good doctor, or at the odious Rand Paul, or in the direction of anyone else. I will not editorialize on anyone’s personality, or on anyone’s scientific acumen, or on public policy questions such as when schools should have been reopened after the covid epidemic began to abate. Nor will I pontificate about whether it’s a good idea to write candid thoughts on a government computer and then, when you leave office, to leave your candid thoughts on said computer, for your many enemies to find.
I will say some things about the Fifth Amendment, and I will say those things in Q&A format. And I’ll also pass along some lucid observations I read in the news today.
Fauci Takes the Fifth: Some Questions and Some Answers
WHEN TESTIFYING UNDER OATH BEFORE A CONGRESSIONAL COMMITTEE, IS IT LAWFUL TO TAKE THE FIFTH BECAUSE YOU DON’T LIKE THE QUESTION OR BECAUSE THE SENATOR POSING THE QUESTION IS A BLOVIATING ASSHOLE?
No, it is not. You have to answer the question.
WHEN TESTIFYING UNDER OATH BEFORE A CONGRESSIONAL COMMITTEE, UNDER WHAT CIRCUMSTANCES IS IT LAWFUL AND PROPER TO PLEAD THE FIFTH AND THUS REFUSE TO GIVE A SUBSTANTIVE STANDARD?
When the witness has a reasonable belief that a truthful answer to the question would risk criminal prosecution.
DID YOU SAY RISK OF PROSECUTION OR RISK OF CONVICTION?
It’s risk of prosecution. If the witness thinks any such prosecution would be in bad faith, and that he would probably escape conviction, he may still refuse to answer if he reasonably fears prosecution.
IN DETERMINING THE REASONABLENESS OF THE WITNESS’S FEAR OF PROSECUTION, IS IT LAWFUL TO TAKE INTO ACCOUNT THAT THE CURRENT ADMINISTRATION IS ON A CAMPAIGN OF BASELESS PROSECUTIONS OF PEOPLE IN THE MUCH SAME POSITION AS THE WITNESS?
I don’t have a case on point, nor have I done any legal research. But yes, the logical answer should be that, if a pattern of bad faith prosecutions is under way, the witness may take that current situation into account.
IN DETERMINING THE REASONABLENESS OF THE WITNESS’S FEAR OF PROSECUTION, IS IT LAWFUL TO TAKE INTO ACCOUNT THAT THE EXAMINING SENATOR HAS REPEATEDLY SAID THAT THE WITNESS SHOULD BE BEHIND BARS—AND THAT THERE IS EVERY REASON TO BELIEVE THAT SENATOR INTENDS TO LAY A PERJURY TRAP FOR THE WITNESS?
Yes.
HOW DOES DR. FAUCI’S PARDON RELATE TO HIS LAWFUL INVOCATION OF HIS FIFTH AMENDMENT RIGHTS?
Dr. Fauci’s pardon was (paraphrasing and shortening slightly) for any criminal acts that he might have committee in the course of his government service between January 1, 2014 and January 19, 2025. It would not cover perjured testimony given in 2026, even if that false testimony related to previous acts that are within the scope of the pardon.
WHY DID DR. FAUCI REFUSE TO ANSWER ABOUT THE COLOR OF HIS TIE?
Lawyers who advise witnesses invoking the Fifth to testify only as to name, rank, and serial number, in order not to risk waiving their Fifth Amendment protection. Sen. Hawley’s question was grandstanding for the cheap seats.
DID DR. FAUCI’S OPENING STATEMENT WAIVE HIS FIFTH AMENDMENT RIGHTS?
In general, it is not lawful for a witness to invoke the Fifth Amendment in a selective way, so that he can testify about facts that make him look good and avoid testifying about facts that make him look bad. Courts would call that a waiver of constitutional rights.
I expect that Sen. Paul and his posse will try their best to make a big damn deal about the opening statement as an alleged waiver of rights. All I can say now is that I’m confident that the matter was considered in great depth by Dr. Fauci’s legal team.
SEN. RAND PAUL SAYS HE WANTS TO SEE DR. FAUCI PROSECUTED FOR CONTEMPT OF CONGRESS. HOW WOULD THAT WORK?
It’s a complicated question, but—very broadly and somewhat inadequately—intentional obstruction of a legitimate congressional investigation would be a legal basis for contempt of Congress.
Sen. Paul only needs for the Senate to act on a contempt resolution. It does not require approval in the House or by the President. If the Senate passes such a resolution, it will be referred to the Department of Justice. The Justice Department maintains that it is not legally required to act on such a referral, but, in this case, they would eagerly take the matter to a grand jury and attempt to get an indictment. If the case proceeds this way, the legal issue in a criminal contempt proceeding would be whether Dr. Fauci can be shown beyond a reasonable doubt to have tried to obstruct a lawful congressional inquiry by unlawful means, including an unlawful assertion of his Fifth Amendment rights. The issue of his reasonable fear of prosecution would be front and center.
WHO IS DR. FAUCI’S LAWYER AND IS HE OR SHE ANY GOOD?
His lead counsel is David Schertler, who enjoys a stellar reputation as a white collar criminal defense attorney. In a world of great uncertainty, we may be highly confident that Dr. Fauci received top notch legal counsel. In fact, all things considered, I think it might have been legal malpractice to advise Dr. Fauci to do anything other than plead the Fifth.
The Washington Post’s “Takeaway” on Dr. Fauci and the Fifth
Today’s WaPo offers five “takeaways” on yesterday’s spectacle, of which Takeaway Number 4 related to the subject of this post. It reads as follows:
4. Paul’s threat to hold Fauci in contempt raises new legal questions
The chairman said his committee plans to hold a vote next week on whether Fauci was in contempt of Congress. But he and his colleagues acknowledged legal uncertainty about how to proceed, complicated by President Joe Biden’s preemptive pardon for Fauci before Biden left office.
Lankford asked Paul if there is guidance on whether Fauci could be held in contempt for refusing to answer questions after making an opening statement. Lankford noted a 2013 episode in the House in which an IRS official made an opening statement and then invoked her Fifth Amendment right to not answer questions about whether her agency had wrongly targeted conservative groups. The GOP-led House concluded that the official had waived her Fifth Amendment rights by making an opening statement, and she was ultimately found in contempt.
Paul said that was among the legal questions lawmakers would consider. He added that the courts may need to settle whether, with “a presidential pardon that offers you complete immunity, you can still claim that you need protection” in a congressional hearing.
“Dr. Fauci isn’t liable for anything as long as he tells the truth,” Paul added.
Some past congressional witnesses have also repeatedly pleaded the Fifth. Martin Shkreli, a controversial pharmaceutical investor, refused to answer questions in front of a House Oversight Committee hearing in 2016, annoying lawmakers with his smirking. While lawmakers discussed holding Shkreli in contempt of Congress, they ultimately did not.
Regina Wallace-Jones, the head of the Democratic fundraising engine ActBlue, also repeatedly invoked the Fifth Amendment during a congressional hearing last month in which Republicans pressed her on the platform’s process for vetting foreign donations.
“It is the only reasonable response to a proceeding that from the beginning has been about harassing a political opponent’s fundraising platform, not genuine oversight,” she wrote in The Washington Post.
House Republicans have threatened to hold ActBlue in contempt.







