RESOLVING THE LEDGER
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See the full story · 2 sourcesSilence is golden.
But actions speak louder than words.
That’s the solution which Senate Homeland Security and Governmental Affairs Committee Chairman Rand Paul , R-Ky., is engineering for the reticence of Dr. Anthony Fauci. The head of the National Institute of Allergy and Infectious Diseases for 38 years, Fauci invoked the Fifth Amendment a staggering 111 times when appearing under subpoena before Paul’s panel this week.
RAND PAUL SEEKS CONTEMPT CHARGES AFTER FAUCI INVOKES FIFTH AMENDMENT MORE THAN 100 TIMES
The only words Fauci spoke were his invocation of the Fifth Amendment on the advice of his attorney. But the action promised by Paul is contempt of Congress .
"There will be repercussions to your refusal to testify today," warned Paul after Fauci invoked the Fifth. "The Committee will have to consider after this hearing what appropriate action should be taken against you for the failure to testify after being directed to do so. It's against the law to obstruct an investigation of Congress."
But it’s not as though Fauci was completely mum during the entire hearing. He offered an opening statement before leaning on the Fifth Amendment as a shield for the next three hours.
"The only conclusion I can reach is that the sole reason he is calling me before this committee is to get me to say something, anything, that could vindicate his repeated public pledges that I end up, in his words, quote, ‘behind bars,’ unquote," Fauci said. "Any reasonable person who has followed his unhinged obsession with me would readily come to the same conclusion."
And then Fauci fell mute. He ignored questions about his diary , inquiries about what ignited the pandemic, even interrogatives about the mundane.
TOP 5 MOMENTS FROM FAUCI'S HEARING: PAUL BOOTS LAWYER, MORENO ERUPTS AS CONTEMPT VOTE LOOMS
"What day of the week is it today?" asked Sen. Josh Hawley, R-Mo.
Hawley wasn’t done.
"What color tie are you're wearing?" Hawley continued. "What is the color of the carpeting?"
From a legal standpoint, there is logic behind Hawley’s banal inquiries. These are carefully designed questions which a good prosecutor might ask a witness to trip them up.
To wit: If Fauci had already invoked the Fifth Amendment, why is he suddenly answering questions about the calendar, his tie or carpeting? If Fauci replied "Wednesday," "blue" or "green" as answers to Hawley’s queries, Paul could have asserted that the Fifth Amendment shield no longer applied. Thus, the committee, or the courts, should compel Fauci to respond to any question.
By the same token, Republicans argued that Fauci should have been able to answer such trite questions from Hawley because they had nothing to do with the proceedings. It’s kind of a "we win, you lose" proposition for the GOP.
Yet Fauci never deviated from the script, invoking the Fifth Amendment 111 times .
CAN FAUCI HIDE BEHIND THE FIFTH? GAME-CHANGING BIDEN PARDON MAY NOT PROVIDE COMPLETE COVER, EXPERTS SAY
By the way, Fauci’s repetitive legal recitation of the Fifth is not a Senate record. In 1958, mob boss Vito Genovese appeared before a Senate panel investigating organized crime. Genovese established the mark, invoking the Fifth a stupefying 150 times.
Republicans don’t think that Fauci had any right to invoke the Fifth even once, considering his pardon from former President Joe Biden. On one hand, they asserted he should be free to testify. Democrats took issue with that.
"I’m not surprised that he pled the Fifth because the objective is to put him in jeopardy of criminal prosecution," said Sen. Richard Blumenthal, D-Conn. "So the more prudent course was to claim the Fifth Amendment."
Hawley saw it differently, citing the 1896 Supreme Court case Brown v. Walker.
In the late 19th Century, the Supreme Court granted auditor Theodore Brown immunity to testify in a railway rate-fixing case. But Brown still refused to testify. However, the High Court ruled that Brown had to speak. Writing for the majority, Justice Henry Billings Brown (no relation), who also wrote the opinion in Plessy v. Ferguson, declared the following:
"If it be once conceded that the fact that his testimony may tend to bring the witness into disrepute, though not to incriminate him, does not entitle him to the privilege of silence, it necessarily follows that, if it also tends to incriminate, but at the same time operates as a pardon for the offense, the fact that the disgrace remains no more entitles him to immunity in this case than in the other."
Translation: What you have to say may be embarrassing. But if you enjoy the privilege of immunity, you still have to cough up the goods, despite the Fifth Amendment.
How Fauci conducted himself in the hearing runs parallel to former IRS official Lois Lerner 's conduct in 2014. Republicans believed that Lerner blocked groups affiliated with the Tea Party from tax-exempt status or targeted them for scrutiny. At a 2014 House Oversight Committee hearing, Lerner delivered an opening statement. She then invoked the Fifth.
The full House later voted to hold Lerner in contempt of Congress for not answering questions and referred her to the Justice Department for prosecution. The DOJ, then operating under the administration of former President Barack Obama, did not take action against Lerner.
Whether or not DOJ prosecutes contempt of Congress often comes down to which party on Capitol Hill is doing the referring, and which party controls the Justice Department.
For instance, the Republican House referred former Attorney General Eric Holder to the DOJ for contempt of Congress in 2012. But it was Holder who ran the Justice Department. So that was a dead letter.
The Democratic House referred White House Counsel Harriet Miers to the DOJ in 2008. But the administration of former President George W. Bush was simply not going to prosecute its own lead attorney at 1600 Pennsylvania Ave.
The Democratic House held Trump administration figures Steve Bannon and Peter Nav...
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