Will Fauci Suffer Any Consequences?
On Thursday, Senator Rand Paul (R-Ky.) made good on his promise. He led a successful effort to hold Anthony Fauci in contempt for refusing to answer any questions during last week’s congressional hearing. Republicans said Fauci did not have the right to remain silent by asserting the Fifth Amendment because he received a presidential pardon. But many legal experts disagree. The contempt referral was sent to the Justice Department (DOJ), but will anything come of it?
“A million Americans died and I think they deserve to know the truth,” Paul told reporters after the vote. “Anthony Fauci has advocated for dangerous gain-of-function research for two decades now. The question ‘why’ is not a question that he can have liability for. He was given a pardon. Interestingly, the pardon starts in 2014 and that’s when the funding of the lab in Wuhan started.”
Paul believes Fauci signed off on the very gain-of-function experimentation that created the Covid-19 virus. He summarized it this way in a June 22 social-media post:
Here is what we know: U.S. taxpayer money, funneled through USAID and NIH [the National Institutes of Health], funded gain-of-function research at the Wuhan Institute of Virology. That research likely caused the COVID pandemic that killed millions and cost trillions. Dr. Fauci personally signed off on these experiments, then lied to Congress about it. [Former President Joe] Biden tried to protect him with a last-minute pardon. That’s the very definition of a cover-up.
Biden’s Preemptive Pardon
Paul is referring to a preemptive pardon Fauci received from the Biden administration. The pardon extends from January 1, 2014 to January 19, 2025, and it covers “any offenses against the United States which he may have committed or taken part in” during that period “related to his service as Director of the National Institute of Allergy and Infectious Diseases [NIAID], as a member of the White House Coronavirus Task Force or the White House COVID-19 Response Team, or as Chief Medical Advisor to the President.” The pardon does not cover anything Fauci has done since Biden left office. People have rightly observed that the pardon is curious: If he didn’t do anything wrong, why issue it?
Investigations
Fauci, the former director of the National Institute of Allergy and Infectious Diseases and the public face of America’s disastrous response to the Covid-19 pandemic, pleaded the Fifth more than 100 times during last week’s hearing before the Senate Homeland Security and Governmental Affairs Committee. The point of the amendment is to protect people from self-incrimination.
Meanwhile, while Republicans are pushing for accountability, they’re also working to obtain more documentation they hope will turn up the heat on Fauci. The Wall Street Journal, in an exclusive article published Wednesday, reported that the Senate Homeland Security Permanent Subcommittee on Investigations, chaired by Sen. Ron Johnson (R-Wis.), got a copy of Fauci’s phone that he used during the Covid era. Health and Human Services is the parent agency of NIAID, which Fauci led at the time. HHS was responsible for providing Fauci’s phone and diary entries to Paul’s committee. Fauci, interestingly, journaled on a government-run server.
The big question now is: Will Fauci suffer any consequences?
Not the First in Contempt
This isn’t the first time a government official has been held in contempt. In 2013, IRS official Lois Lerner was held in contempt for refusing to answer questions before Congress. Republicans dragged her before Congress after learning that the IRS unjustly targeted conservative groups. Lerner, however, was never held responsible. The feds refused to prosecute her.
However, Steve Bannon and Peter Navarro, officials in President Donald Trump’s first administration, both went to prison for contempt. The difference is that they simply refused to show up to their hearings, whereas Fauci showed up but said nothing.
In this case, Democrats are accusing Paul of violating procedure. They say this contempt resolution means nothing because he circumvented the long-standing practice of sending it to the full chamber, where it would need 60 votes to advance. However, as Paul pointed out, “it’s not really a law.” Paul is correct. Legislative attorney Clay Wild explained in a congressional document that contempt “does not expressly require a full chamber to approve a referral to DOJ, but each chamber typically does so as a matter of longstanding congressional practice.” However, he noted that one judicial decision “recognized a full-chamber vote as necessary for referral.”
Legal experts are not confident that Fauci will get in trouble. Jonathan Turley, a constitutional law expert at George Washington University Law School who is no defender of Fauci, said that although Americans deserve answers, we’re more likely to get them through an immunity grant:
The most likely course to gain such answers would be through an immunity grant. The impact of a pardon on invocations is a bit murky but, as I stated yesterday, the odds favor Fauci in a court finding that he can still invoke the privilege. In any challenge, a court would likely find that there remains a risk of self-incrimination.
When asked if he’d consider immunity, Paul said it would make more sense to offer immunity to people who worked with Fauci, including his longtime assistant David Morens.
Experts Weigh In
Kimberly Wehle, a professor at the University of Baltimore School of Law and supposed expert on the pardon power, told The New York Times that pleading the Fifth was a good strategy “given the pretext of the investigation, which is that they are looking for a way to put him in jail, and given the president’s own track record of vindictive prosecutions.”
Former federal prosecutor Neama Rahmani said Fauci “played it perfectly” by refusing to answer questions, even if the optics were bad. The pardon is not a license for future crimes, but avenues like criminal contempt or civil compulsion are unlikely to succeed while a valid Fifth Amendment claim exists, she said.
Aziz Huq, a University of Chicago law professor, told WIRED:
Pardons cannot apply to future conduct. Ergo, to the extent the concern was a prosecution for perjury or material omissions in statements to Congress, then those offenses would be a basis for Fifth Amendment invocation, and so not amenable to contempt.
Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan, echoed Huq’s sentiment:
“Each of us has a constitutionally guaranteed right against self-incrimination as long as we have a reasonable fear of criminal prosecution,” McQuade tells WIRED. “Just because Fauci got a pardon for crimes he ‘may’ have committed in the past does not give him a get-out-of-jail free card for any crimes he might commit after the date of the pardon.”
From One Swamp to Another?
But even if Fauci successfully ducks federal consequences, which appears very possible, he might be dragged from the swamp of D.C. to the swamp of Florida. Officials there are already looking to get him on state charges, which aren’t covered by a presidential pardon. The office of the Republican attorney general of the Sunshine State, James Uthmeier, announced on Wednesday that he has subpoenaed Fauci “as part of an official investigation into awards, professional opportunities, financial incentives, grants, and COVID-19 guidance that impacted Florida businesses and consumers.” Uthmeier elaborated:
Government officials have a certain level of immunity in their official capacities, but if Fauci personally profited off of the “guidance” he issued, that very well could have broken Florida law. Fauci’s diary focused more on self-promotion than the legitimate safety concerns from the mRNA vaccines. While Fauci was pushing for book deals, awards, and fortune and fame, Floridians were being deceived and harmed by his misrepresentations.
Uthmeier has support from two other attorneys general. “The American people deserve to know if they or their elected leaders were misled or manipulated. Both my Office and I support Attorney General Uthmeier’s efforts to uncover the truth,” said West Virginia Attorney General John McCuskey. Louisiana Attorney General Liz Murrill is also offering collaborative support. Said Murrill:
The public deserves answers to about a million questions related to the pandemic, its origins, and the government’s actions in response. What we know already is Fauci lied — we just don’t know yet how much. But he lied about something as basic as keeping a diary. The truth will come out.
