There was no doubt when Dr. Anthony Fauci appeared before the Senate Committee that the Republicans had every intention of demonizing Fauci in the hope of pleasing the MAGA faithful by finding some means to put the hated Fauci in prison for, as Alabama Senator and 5th grade graduate Tommy Tuberville said, killing 9 million people. It was thus no surprise that Dr. Fauci, upon recommendation of counsel, took the Fifth, 

After Dr. Anthony S. Fauci invoked his Fifth Amendment right not to incriminate himself at the start of a Senate hearing on Wednesday, Republicans spent the next three hours battering him with questions and allegations as he sat in silence.

Citing thousands of pages of government records, they held Dr. Fauci, the government’s top Covid adviser during the pandemic, responsible for school closures and lockdowns; accused him of enriching himself as people died; and even mocked his interactions with celebrities. Most significantly, they accused him of funding research that led to the creation of the coronavirus that causes Covid, and of lying about it under oath to Congress.

But Biden, on his way out the door, issued Fauci a pardon. How then could he invoke his constitutional right against self-incrimination, which Senator Josh Hawley asserted was something innocent people didn’t do, when he was already pardoned, crimes or not?

And they threatened to hold him in contempt of Congress, saying he was not even eligible to invoke the Fifth Amendment because President Joseph R. Biden Jr. had granted him an unconditional pardon.

Because Dr. Fauci, on the advice of his lawyer, refused to respond, many people were left confused about the issues.

The pardon, which Republicans claimed was unconstitutional and ineffective, would not protect Fauci from subsequent perjury, and the invocation of the Fifth cannot be used to protect a witness from anticipatory perjury. In other words, he could not invoke the Fifth to protect himself from a subsequent accusation that his testimony was perjurious. There is no doubt that the committee desperately sought to create a perjury trap through the nature of questions and statements, begging the question based upon bizarre and baseless conspiracy theories, to which Fauci would be incapable of answering without creating at least the appearance of perjury. That would have been more than sufficient to get the Blanche DoJ to go after him.

But on a more substantive level, what was Fauci afraid of? Prawf Michael Dorf came up empty.

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?

Believing himself to be guilty, whether of the Louvre heist or anything else, misses the point by a mile. The concern is that the Senate Republicans, plus the Blanche DoJ, want to vilify, prosecute and imprison Fauci, as they made overwhelmingly clear during the hearing. A witness neither has to believe he’s guilty nor be guilty to invoke his constitutional rights to protect himself from a wrongful, baseless prosecution. That’s kinda the point of the Fifth, not to protect the guilty so much as to protect the innocent from having his own words manipulated into the basis for prosecution. There is no question but that was the intent of the committee majority.

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.

Tuberville states that when he’s elected governor of Alabama, he will prosecute and imprison Fauci. An array of red state Attorneys General have called for Fauci’s prosecution. Florida Attorney General James Uthmeier has already launched an investigation into Fauci. Yet Dorf dismissed this as far-fetched because, well, no reason given.

Dorf concludes that Fauci lacked the right to assert the Fifth.

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.

It’s hard to imagine that there would be any way for Fauci to make it through the hearing without giving rise to a cry for prosecution one way or another. If he answered questions, his responses would be manipulated into some sort of idiot’s confession. If he asserted the Fifth, he would be presumed guilty plus subject to contempt for his refusal to address the myriad conspiracies thrown in his face without opportunity to provide explanations for why the premise was false. Fauci, and his lawyers, knew he was in the lion’s den one way or the other.

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.

Fauci’s lawyers could not indulge in such naivete. Had Fauci tried to address the crazy, his answers would have be cut and clipped, shaped and molded into proof of him being responsible for all the harms, real and imagined, caused by Covid. Granted, Fauci enjoyed his fame and celebrity too much as his diaries showed, and he might not have been right about everything, even if he didn’t suggest injecting Clorox or shoving a light bulb up one’s butt, that did not mean he didn’t do his best to prevent a very real, very deadly pandemic from killing more people.

If Fauci is to be hated by the MAGA faithful for trying to save America from a pandemic, then let it be for his refusal to play a role in the Senate Republicans performative hearing than to allow himself to be cast as the evil cause of the deaths of millions. Either way, Fauci and his lawyers knew it would be nearly impossible to walk out of that hearing unscathed, and so they chose to path of holding contemptuous senators in contempt rather than cosplaying the villain in their MAGA fever dream.