Fauci Fifth Follow-up
Yesterday on this blog I discussed Dr. Anthony Fauci's invocation of his Fifth Amendment right against self-incrimination when testifying before the Senate Committee on Homeland Security and Governmental Affairs. I explained why it's not clear that Fauci had such a right, given: (1) that there is no privilege with respect to "anticipatory perjury"; (2) his pardon from President Biden on federal charges for pre-January 20, 2025 conduct; and (3) the implausibility that anything he said would tend to incriminate him for state crimes not covered by the presidential pardon.
In response, a number of readers pushed back on (3), pointing to the fact that almost immediately after Fauci's testimony, Florida Attorney General James Uthmeier took to X to announce: "Fauci's lack of candor to Congress is unbelievable. My office is launching an investigation into Dr. Fauci. It's past time we get the truth of what happened during COVID." To state the obvious, an investigation that was launched after Fauci took the Fifth before Congress and in apparent response to his doing so cannot have been the basis for Fauci fearing prosecution in Florida before he announced that he was taking the Fifth.
Still, my critical readers might have pointed to earlier indications that Fauci was under scrutiny by state prosecutors. In February of last year, 17 Republican Attorneys General announced that they were opening an investigation into what they called Fauci's false statements about the origins of the COVID-19 virus and alleged mismanagement of the government's response. Yet neither that statement nor any subsequent one referred to any specific state law crimes the red-state AGs suspected Fauci committed. And the thrust of the February 2025 statement--styled as a letter to House Speaker Mike Johnson and Senate Majority Leader John Thune--was an effort to spur Congress to investigate further and to share information. Among other things, the AGs accused Fauci of having given misleading testimony to Congress--which would be a crime if the statements were intentionally false and material, but a federal crime, not any state crime.
That is not to say that the sorts of conspiracy-theory-peddling characters who serve as Attorneys General in various red states could not find something with which to charge Fauci. I'm not an expert in the law of any of the states whose AG signed the February letter, and while I am extremely dubious that a good-faith investigation would find that Fauci violated any state laws as ordinarily understood, the AGs are not acting in good faith, and at least some of them would be likely to advance charges based on very novel legal theories.
But that conclusion is based on the miserable character and conduct of the AGs at issue, not on any announcements they have made. The case law in the Supreme Court and lower courts requires that a party invoking the privilege have a "real" and "substantial" fear of prosecution, although there need not be a pending indictment. Generally, an active investigation will suffice. Whether what the state AGs announced is an active investigation is not clear. It might well have been mere political grandstanding. Nonetheless, viewed in retrospect given the Florida AG's tweet on Wednesday, we can say that whatever the threat was, it has not grown stale since February 2025.
Upon reflection, I'm inclined to think that the February 2025 statement of the state AGs probably was enough to substantiate Fauci's fears. The Supreme Court has said that to discount a witness's fears of self-incrimination for Fifth Amendment purposes, it must be "perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken" in apprehending a criminal prosecution risk and that the answers the witness would give to questions "cannot possibly have [a] tendency to incriminate." (Internal quotation marks omitted.)
Since February 2025, the state AGs who announced their investigation do not appear to have taken any further steps against Fauci, but they haven't gotten any less nakedly partisan, vindictive, or aggressive. Accordingly, my considered view is that Fauci probably was legally justified in invoking the privilege based on the fear of state prosecution. Even though Florida AG Uthmeier's tweet is not strictly relevant to the ex ante reasonableness of Fauci's fears before taking the Fifth, it does tend to vindicate his apprehensions based on the February 2025 statement (which his predecessor as Florida AG signed). Uthmeier thus inadvertently undercut Senator Paul's contempt case against Fauci.
Finally, AG Uthmeier is not the only Republican politician unwittingly undermining the prosecution/persecution of Dr. Fauci. Just over a year ago, Senator Paul himself sent a letter to then-AG Pam Bondi renewing previous requests that the DOJ open an investigation into Dr. Fauci for allegedly lying to Congress. In that letter, Paul questioned the validity of Fauci's pardon based on reporting that President Biden had used an autopen to sign it. If July 2025 Paul is right that Fauci's pardon is invalid, then July 2026 Paul is wrong in asserting that Fauci can't assert his Fifth Amendment privilege (even setting aside the fear of state prosecutions).
-- Michael C. Dorf