Fauci invokes Fifth Amendment 111 times before Senate panel, contempt vote looms
WASHINGTON. Dr. Anthony Fauci invoked the Fifth Amendment 111 times during a subpoena appearance before the Senate Homeland Security and Governmental Affairs Committee this week, triggering a potential contempt of Congress referral from Chairman Rand Paul, R-Ky. Fauci delivered an opening statement before falling silent for three hours, leaning on the constitutional privilege in response to every question the panel posed.
Key takeaways
- Dr. Anthony Fauci invoked the Fifth Amendment 111 times during a subpoenaed appearance before the Senate Homeland Security and Governmental Affairs Committee this week.
- After delivering an opening statement, Fauci stayed silent for three hours, invoking the privilege in response to every question.
- Committee Chairman Rand Paul, R-Ky., warned of repercussions and plans to ask the committee to prepare a contempt resolution in coming days.
- Republicans including Sen. Josh Hawley argued Fauci had no basis to plead the Fifth because Biden pardoned him, citing the 1896 case Brown v. Walker.
- A Senate contempt citation requires a simple majority plus clearing a 60-vote filibuster, a higher bar than a House citation.
WASHINGTON. Dr. Anthony Fauci invoked the Fifth Amendment 111 times during a subpoena appearance before the Senate Homeland Security and Governmental Affairs Committee this week, triggering a potential contempt of Congress referral from Chairman Rand Paul, R-Ky. Fauci delivered an opening statement before falling silent for three hours, leaning on the constitutional privilege in response to every question the panel posed.
Paul signals contempt action
Paul warned Fauci directly that "there will be repercussions" for refusing to testify and said the committee would consider "appropriate action" against him for failing to respond after being directed to do so by subpoena. He plans to ask the committee to prepare a contempt resolution in coming days.
A Senate contempt citation faces a higher bar than a House one. While a simple majority passes such a resolution in either chamber, Senate action must also clear a filibuster requiring 60 votes. Paul told Fox News he intends to send a legal brief supporting the contempt argument directly to the Department of Justice. He added that he had already sent criminal referrals against Fauci twice under former President Biden and twice under President Trump.
The pardon question and Brown v. Walker
Republicans argued Fauci had no legal basis to invoke the Fifth because Biden pardoned him before leaving office. Sen. Josh Hawley, R-Mo., cited the 1896 Supreme Court case Brown v. Walker, in which the Court ruled that a witness granted immunity must still testify even when the testimony carries personal embarrassment.
Hawley tested the principle directly, asking Fauci what day of the week it was, the color of his tie, and the color of the carpeting. The questions were designed to probe whether Fauci would break from the Fifth on trivial matters, which could have opened him to compelled answers more broadly. Fauci did not deviate from the privilege once.
Sen. Richard Blumenthal, D-Conn., defended the approach, saying the hearing's purpose was to expose Fauci to criminal prosecution and that invoking the Fifth was the prudent course given that risk.
The Lerner precedent and what comes next
Fauci's conduct tracks closely with former IRS official Lois Lerner, who gave an opening statement at a 2014 House Oversight Committee hearing and then invoked the Fifth for all remaining questions. The full House voted to hold Lerner in contempt and referred her to the Justice Department. The Obama-era DOJ declined to prosecute, citing her use of the Fifth after her opening statement.
Whether the Trump Justice Department follows that model or treats Fauci's hearing differently is now the live legal question. The 1896 Brown v. Walker ruling remains an unresolved variable if the matter reaches the courts. Vito Genovese holds the Senate record for Fifth Amendment invocations, pleading the privilege 150 times before a panel investigating organized crime in 1958.