Was Dr. Fauci Entitled to Invoke the Fifth Amendment?

In response to a subpoena, yesterday, Dr. Anthony Fauci appeared before the Senate Committee on Homeland Security and Governmental Affairs. Citing the fact that Senator Rand Paul is out to get him, Fauci invoked his Fifth Amendment right against self-incrimination. Fauci's characterization of Paul was not fanciful. Paul has said Fauci should be behind bars, and on the eve of Fauci's appearance before the committee, Paul released over 1,100 pages of Fauci's diaries from the latter's time in office. (The diary entries were found on computers in the Department of Health and Human Services and turned over by RFK Jr. to Paul, who chose to release them to the public.)

Hold on! Didn't President Biden give Fauci a pardon just before he left office? Indeed he did. So what was Fauci afraid of?

The most straightforward answer might be that between receiving his pardon in January 2025 and invoking his Fifth Amendment right on Wednesday, Fauci committed a crime he had reason to fear he would be asked to testify about. Let's imagine that Fauci is the thus-far-undiscovered mastermind of the Louvre heist and the godfather of a multinational art theft organization. If so, and if he had reason to fear that he would be questioned about his art theft masterminding, then he would have been plainly entitled to invoke his Fifth Amendment rights.

That doesn't seem very likely, though. In fact, we can be pretty confident that Fauci does not believe himself to be guilty of any post-pardon crimes. So what does he have to fear?

Here's another possibility: because the pardon applies only to federal crimes, perhaps Fauci fears that under aggressive questioning from Senate Republicans he would make statements that would tend to show him guilty of some state crime. However, that seems about as far-fetched as the supposition that Fauci is secretly a jewel theft mastermind.

One might think that Fauci is worried that he would say something that could be the basis for a perjury prosecution, but the Supreme Court has made clear that there "is no doctrine of 'anticipatory perjury.'" In other words, a witness cannot invoke the possibility that something he is about to say would subject him to a perjury prosecution for that very statement. A witness can invoke the fear of a prosecution for perjury only if the worry is that by testifying truthfully now, the witness will reveal that what he said in prior testimony was false and that he will thus be subject to a perjury prosecution for that past testimony. But that's not a possibility for Fauci because until yesterday, the last time he testified before Congress (or anywhere) was in 2024, and his pardon prevents a perjury prosecution for anything he said then.

Suppose that Fauci testified truthfully but in the course of his testimony he made an error or got confused  so that he ended up saying something that contradicts either past testimony, something in his diaries, or something in his book or other public statements. And suppose further that Senator Paul then referred the matter to the Justice Department, which, acting in bad faith, brought a perjury prosecution. Fauci might eventually beat the rap, but his decision to testify truthfully but potentially mistakenly in one or another respect would have been a contributing factor to his prosecution. Should that be a sufficient basis for Fauci to invoke the Fifth?

Maybe, but to the best of my knowledge (after some legal research), it isn't--at least not yet. 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.

If I were to predict how the lower federal courts and Supreme Court would address such a case, I'd say they probably wouldn't fashion a bad-faith prosecution exception for two basic reasons. First, conservative jurists are unlikely to expand the scope of the privilege against self-incrimination. Second, conceptually, a bad-faith prosecution exception is an awkward fit with the privilege, which has been understood as a right to avoid making statements that tend to incriminate. A truthful statement that nonetheless leads to a bad-faith prosecution is not a statement that tends to incriminate.

And maybe that's the right answer. After all, as we have seen in the absurd prosecution against James Comey for his seashell Instagram post, the current administration doesn't need a perceived enemy or critic to testify under oath to manufacture a bad-faith prosecution against him. The privilege against self-incrimination is designed to protect against compelled incrimination, not bad-faith prosecution.

Thus, I conclude: (1) Dr. Fauci probably was not entitled to invoke the Fifth Amendment; (2) Senator Paul may therefore be able to successfully refer Fauci to the DOJ for a contempt prosecution, as he has said he hopes to do; (3) that's ironic, to say the least, because Fauci would have had a very good defense against a perjury prosecution if he had testified truthfully but was charged based on some minor inconsistency with past statements, but the contempt case will be easier for the government to prove.

Accordingly, I question the wisdom of the lawyers who advised Fauci to invoke his Fifth Amendment right against self-incrimination. They traded the risk of enduring bad-faith perjury charges that might not even have made it out of a grand jury and, if they did, would almost certainly result in an acquittal for the risk of facing much more solid contempt charges.

-- Michael C. Dorf