Republicans examining Anthony Fauci’s repeated Fifth Amendment claims say his opening statement may have waived that protection, drawing comparisons to former IRS official Lois Lerner’s 2013 congressional testimony.
By yourNEWS Media Newsroom
Senate Republicans are examining whether Anthony Fauci’s decision to deliver an opening statement before repeatedly invoking the Fifth Amendment could expose him to contempt proceedings, citing a similar dispute involving former Internal Revenue Service official Lois Lerner.
Fauci declined to answer questions Wednesday before the Senate Homeland Security Committee about the origins of COVID-19, federal funding for coronavirus research and allegations that he attempted to conceal government records, as detailed by Just the News.
The former National Institute of Allergy and Infectious Diseases director invoked his Fifth Amendment rights repeatedly, refusing to respond even to questions about the color of the hearing room’s carpet. His appearance followed the release of more than 1,100 pages of diary-like notes that lawmakers say raise new questions about the accuracy of his pandemic-era public statements.
Committee Republicans argued that Fauci’s reliance on the Fifth Amendment was undermined by former President Joe Biden’s sweeping preemptive pardon. They maintained that the pardon removed the danger of federal prosecution for covered conduct and therefore weakened Fauci’s claim that truthful testimony could incriminate him.
Some senators argued that Fauci could not simply refuse to answer, while others questioned whether Biden’s pardon is valid because it was signed by autopen during concerns over Biden’s cognitive condition. Legal analysts also outlined circumstances under which Fauci could potentially still face prosecution.
Sen. James Lankford, R-Okla., disagreed with some colleagues’ broad interpretation of the Fifth Amendment issue but raised a separate argument near the end of the hearing. He compared Fauci’s testimony to Lerner’s appearance before a House committee in 2013.
Lerner delivered an opening statement denying wrongdoing in the IRS’s treatment of conservative organizations seeking tax-exempt status and then invoked the Fifth Amendment when lawmakers questioned her. The House later held her in contempt, concluding that her voluntary statements on the subject had waived her right to refuse further questioning about the same matters.
Fauci similarly used his opening statement Wednesday to dispute allegations against him before declining to answer committee questions.
Lankford asked Chairman Rand Paul, R-Ky., whether the Lerner precedent would determine how the committee proceeds against Fauci. Paul said lawmakers would have one week to study the legal question before voting on a contempt resolution.
Paul said courts may ultimately have to decide whether Biden’s pardon eliminates Fauci’s right against self-incrimination because he cannot be prosecuted for covered conduct “as long as he answers truthfully.” He also noted that statutes of limitations may already bar some possible charges.
George Washington University law professor John Banzhaf identified two other ways Fauci could testify without criminal exposure. A two-thirds committee vote or a simple House majority could grant immunity, he said. Fauci could also make statements during media interviews without being under oath because “it is not a crime to lie to the public.”
The hearing largely followed the partisan divisions seen during previous congressional examinations of the government’s COVID-19 response. Republicans accused Fauci of misleading the public and concealing records, while Democrats defended his decades of government service and said the proceeding was designed to trap him.
Committee Republicans traced their concerns back to 2011, when NIAID supported research at an American laboratory that altered avian influenza to make it easily transmissible through the air among mammals. The study was ultimately published despite early objections from federal biosecurity experts.
Sen. Bernie Moreno, R-Ohio, said his decision to enter politics was partly motivated by the 2020 arrest and tasing of an Ohio woman who refused to wear a COVID-19 mask at a middle school football game. Moreno blamed the incident on masking policies promoted by Fauci.
“Who the f— do you think you were?” Moreno asked.
He also suggested Fauci believed he was “in deep sh—” because he hired criminal defense attorney David Schertler, who represented former Sen. Bob Menendez, D-N.J. Menendez is serving an 11-year prison sentence following convictions that included bribery.
Paul ordered Schertler removed from the hearing after the attorney repeatedly attempted to speak for Fauci.
“In no courtroom in America can you have your witness plead the Fifth Amendment and then your attorney gets to testify,” Paul said after Sen. Richard Blumenthal, D-Conn., accused him of having “gagged” Schertler.
Democrats challenged the Republicans’ interpretation of Fauci’s records, which were provided to Paul and Permanent Subcommittee on Investigations Chairman Ron Johnson, R-Wis., by Health and Human Services Secretary Robert F. Kennedy Jr..
Kennedy described the notes as “government records” created by a federal employee on a government computer.
Democratic senators instead criticized Trump, Kennedy and Republican public health policies, blaming them for weakened vaccination efforts, vaccine hesitancy, failures involving cyclospora and rising measles cases. Republicans countered that Fauci’s diary predicted that measles deaths caused by lockdown-related disruptions would greatly exceed children’s COVID-19 deaths.
“This hearing is designed to entrap you,” Sen. Maggie Hassan, D-N.H., told Fauci.
Hassan called Kennedy the least qualified HHS secretary in history and said he “pursues conspiracy theories, degrades people with disabilities, and continues to promote disproved science.”
Sen. Andy Kim, D-N.J., compared Fauci to Roosevelt’s “Man in the Arena,” a reference to the former president’s “Citizenship in a Republic” speech, which praises the person who “strives valiantly” and “comes short again and again” over “cold and timid souls” who never attempt difficult work.
Sen. Ashley Moody, R-Fla., mocked Kim and other Democrats for praising Fauci during the hearing.
Fauci argued in his opening statement that he had testified or briefed Congress more than 200 times, frequently under oath, and had participated in several lengthy transcribed interviews. He accused Paul of having an “unhinged obsession” with prosecuting him.
Fauci said Paul had made “repeated slanderous comments” and released his “unredacted” diary to embarrass and intimidate him. He accused the chairman of trying “to get me to say something, anything that could vindicate his repeated public pledges that I end up, in his words, ‘behind bars.’”
Paul responded that Fauci’s actions were closely connected to the emergence of COVID-19. He said Fauci had argued that the potential benefits of gain-of-function research outweighed the danger of an accidental leak when NIAID funded Ron Fouchier’s avian influenza experiments.
NIAID later supported bat coronavirus research in a “totalitarian country” that limited access by American health officials and conducted work in a laboratory designed for pathogens presenting “moderate” risks, Paul said.
Paul accused Fauci of later relying on a narrow definition of gain-of-function research to tell Congress that work at the Wuhan Institute of Virology did not qualify.
“The real question is, was it dangerous,” Paul said, arguing that the public does not want a “semantics debate.”
Republicans asked Fauci questions ranging from his relationship with former scientific adviser David Morens to the color of his necktie. Morens was charged with conspiracy and destruction of federal records after emails described how he helped Fauci avoid Freedom of Information Act requirements.
Sen. Josh Hawley, R-Mo., focused on diary entries in which Fauci discussed having federal employees prepare applications for private “cash prizes” that eventually totaled approximately $1 million.
“You turned your staff into a full-time application machine,” Hawley said, alleging that Fauci’s chief of staff also pressured ethics officials to approve the payments.
Sen. Joni Ernst, R-Iowa, questioned whether Fauci deliberately used subaward funding through EcoHealth Alliance to obscure NIAID’s support for Chinese laboratories and coronavirus research.
She also asked whether NIAID’s award of $8.9 million to Kristian Andersen’s laboratory amounted to a “bribe” connected to Andersen’s work on the “Proximal Origin” paper, which argued against a laboratory origin for COVID-19.
Fauci occasionally turned to his attorneys for guidance but continued repeating his Fifth Amendment invocation. He departed from that response only when questioned about his diary entry predicting measles deaths associated with pandemic lockdowns.
The committee’s next step will depend in part on whether members conclude that Fauci’s opening statement waived his right to remain silent in the same manner Congress determined Lerner’s statement had done. Paul has said the panel will consider a contempt resolution after lawmakers review the precedent and the effect of Biden’s pardon.
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