Josh Hawley spent part of Wednesday morning asking Anthony Fauci to identify the color of his necktie and the carpet. Fauci declined both times, invoking his Fifth Amendment right not to give answers that might incriminate him. Hawley responded, “well, nothing says honesty like taking the Fifth, huh, doc?”
Yale Law School never beating the accusation that they don’t teach law at Yale Law School.
Josh Hawley and his Yale Law degree certainly know that exercising one’s Fifth Amendment rights has nothing to do with honesty. And, of course, Hawley never shared these deep concerns about truthfulness in 2022 when Donald Trump invoked his Fifth Amendment privilege more than 440 times over four hours. Years earlier, Trump had told an Iowa rally that he never understood why an innocent person would ever need the Fifth Amendment. After his deposition, Trump issued a statement squaring the two:
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“I once asked, ‘If you’re innocent, why are you taking the Fifth Amendment?’ Now I know the answer to that question. When your family, your company, and all the people in your orbit have become the targets of an unfounded, politically motivated Witch Hunt supported by lawyers, prosecutors, and the Fake News Media, you have no choice.”
Trump wasn’t the target of a Witch Hunt so much as the organization that bears his name faced civil and criminal repercussions for committing tax fraud and falsifying business records. But by converting the privilege into a disingenuous attack on prosecutors, Trump set the stage for Fauci’s strategy yesterday.
The Fauci hearing was a sham from the outset. Committee Chair Rand Paul dumped more than 1,000 pages of Fauci’s private diary into the public record days beforehand and then made a public spectacle out of ordering Capitol Police to physically remove Fauci’s attorney from the room for trying to speak. Nobody learned anything about the origins of COVID because nobody was there to. Paul and his Republican colleagues have hitched their political futures to COVID conspiracy theorists and they will play their roles in this farce to the hilt.
Drawing on Trump’s script, Fauci reached for the Fifth Amendment here because this inquisition really is a witch hunt.
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But that doesn’t necessarily support a Fifth Amendment claim. Trump’s truthful testimony would’ve likely incriminated him because, you know, his organization ultimately was guilty of 17 criminal acts. Fauci, on the other hand, has a pardon for any actions he took in managing the nation’s public health response to a deadly pandemic. There’s no risk of incrimination when he already has immunity.
Whether it’s a pardon or an expired statute of limitations or a prosecutor granting immunity… if there’s no legal possibility of criminal prosecution, the privilege evaporates. That goes all the way back to Brown v. Walker. So is there any arguable justification for Fauci’s Fifth Amendment claim? Professor Michael Dorf ran the analysis and only came up with a couple of unlikely options: (1) Fauci committed some totally unrelated federal crime; or (2) there’s some state criminal liability for his federal health advice that the pardon doesn’t reach.
The other option Dorf doesn’t flag — because it’s stupid — is that Fauci’s pardon is invalid because Biden signed it with an autopen. And yet… that’s exactly what the stupidest people on the internet contend:
I don’t think these people have thought through how this position makes Fauci’s Fifth Amendment claims more legally sound. Then again, these people don’t think through much of anything.
As for state criminal liability, it would seem remote, but attention-seeking Republicans unintentionally came to Fauci’s aid on this count. Florida’s attorney general just announced a state investigation into Fauci. Tommy Tuberville, currently running for governor of Alabama, ran to the cameras to suggest he’d like Alabama to pursue Fauci too. There’s no good reason to believe these charges could hold up, but Fauci can point to this ill-advised GOP grandstanding to establish a reasonable fear of state prosecution.
The real reason Fauci deployed the Fifth Amendment is to shield himself from a perjury trap. Based on Rand Paul’s public statements, Fauci has a more than reasonable belief that the point of this hearing was to elicit inconsistent testimony from Fauci for the purpose of creating a new perjury charge that would not be covered by the backward looking pardon.
Alas, we don’t recognize anticipatory perjury. And for good reason, because if everyone could avoid testifying solely on the fear that they may be harassed over inconsistencies, no one would ever do it. And a perjury charge against Fauci would also suffer from the fact that he hasn’t testified since his pardon, meaning any inconsistency yesterday would be compared to statements covered by the pardon. If the defense to perjury is “well, I was lying then,” that’s covered. There is a statute for prosecuting inconsistencies in front of grand juries without requiring proof of which is false, but that shouldn’t apply here.
But the problem is that, like a lot of America’s rule of law tradition, these principles rest on a presumption of good faith that simply doesn’t exist. We never recognized anticipatory perjury because no one imagined a prosecution based on a hearing held for the sole purpose of conjuring up inconsistencies. In the Haberman and Swan Regime Change book, Trump allegedly told an adviser about Letitia James that he didn’t much care whether they got a conviction — he wanted to make her life miserable. Jim Comey is currently defending himself against charges of aggravated nature picture posting. Having the law on your side is not the same as being safe right now.
Rand Paul actually already referred Fauci to the Justice Department on the crackpot autopen theory. There’s no better distillation of bad faith than simultaneously running the argument that the pardon is worthless and that the pardon is so ironclad it strips Fauci of a constitutional right.
The record of bad faith might be key to Fauci’s legal strategy, as Professor Dorf explains:
The lower federal courts are uniform in applying the Supreme Court’s no-anticipatory-perjury rule without exception. However, I hasten to add that while no case accepts an argument for a bad-faith-prosecution exception to the no-anticipatory-perjury rule, neither does any case expressly reject such an argument. In other words, the federal courts have not squarely addressed a case like Fauci’s, in which the witness reasonably fears that truthful testimony will result in a bad-faith perjury prosecution for that very testimony.
That’s a bold swing to take. Paul is most likely going to refer Fauci to the DOJ claiming contempt of Congress, so Fauci’s lawyers will have an opportunity to find out if the courts are willing to craft such a bad faith exception. It’s just a shame that they’ll have to.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.