Hours after Dr. Anthony Fauci invoked the Fifth Amendment in response to all questions during a Senate hearing, Republican Sen. Rand Paul of Kentucky told CBS News he believes the former infectious disease official could be prosecuted for not answering questions.
The testimony followed years of fiery disputes between Paul and Fauci — both medical doctors — over the response to the COVID-19 pandemic and the origins of the virus that caused it. Fauci has long defended his handling of both issues, and Paul has repeatedly accused him of lying. Last weekend, Paul’s office released a trove of journal entries penned by Fauci.
In a brief opening statement in Wednesday’s hearing, Fauci said he planned to assert the Fifth Amendment, arguing that Paul has an “obvious obsession with calling for my prosecution” and has made “slanderous comments” about him. He then invoked the Fifth Amendment for several hours as Paul and other Republicans criticized him and Democrats defended him.
In an interview later Wednesday on CBS News’ “The Takeout with Major Garrett,” Paul argued Fauci’s lack of answers could lead to federal criminal charges for contempt of Congress or obstructing a congressional proceeding.
“I think there is a very real chance that he could be prosecuted for that,” Paul said.
The Fifth Amendment to the U.S. Constitution grants people the right not to incriminate themselves, which generally allows them to decline to answer questions.
But in this case, Paul argues, a preemptive pardon that former President Joe Biden issued to Fauci just hours before leaving office could prevent Fauci from invoking the Fifth Amendment since he cannot be prosecuted for any of the issues that lawmakers asked about.
Fauci’s attorney, David Schertler, pushed back in an email to CBS News.
“We are completely confident that Dr. Fauci has a valid Fifth Amendment privilege here and is on solid legal ground in asserting it,” he said. “Rand Paul may be a doctor, but he is not a lawyer.”
Paul called it an unsettled legal question.
“I don’t think this has ever been truly and fully adjudicated. There aren’t that many people with pardons who have come before a congressional committee and refuse to testify,” Paul told CBS News. “A court ultimately would have to determine: Does the Fifth Amendment apply to someone who already has a pardon?”
A federal law often cited in contempt-of-Congress proceedings makes it a crime for witnesses to “willfully” refuse to answer questions when called to testify before Congress. Another law bars obstructing an investigation by a congressional committee.
Paul has said the Senate Homeland Security Committee, which he chairs, will hold a vote next week on whether to recommend holding Fauci in contempt of Congress. If the majority-GOP committee votes in favor, the matter would head to the full Senate for a vote. Final adoption of that measure would require a simple majority, but ending debate might need 60 votes, which would require some Democrats to vote in favor.
After that, whether to pursue criminal charges against Fauci would be up to the Justice Department. The department has chosen to charge people referred by Congress for contempt in a handful of cases — most recently, under the Biden administration, Trump advisers Steve Bannon and Peter Navarro — but it has declined to bring charges in other cases.
Senators spent Wednesday’s hearing raising some of the most controversial elements of the federal government’s response to the COVID-19 pandemic, including recommendations around mask-wearing, social distancing and closures of schools and businesses. But some of the most contentious moments involved the debate over the origins of the coronavirus.
Paul backs the theory that the virus emerged from a laboratory in Wuhan, China, rather than naturally jumping from animals to humans in a wet market in that city, and he has long accused Fauci and other top health officials of downplaying the possibility of a lab leak.
The senator has also focused on whether the virus was manipulated in the lab through “gain-of-function” research, typically defined as modifying or enhancing viruses to study how they evolve. He has accused Fauci of lying to Congress about whether such research took place in Wuhan with U.S. government-funded grants. Paul argued on CBS News that the coronavirus may have been “adapted in the lab to be very transmissible.”
Fauci has denied that he rejected or downplayed the lab leak theory, insisting that he always kept an open mind about the origins of the coronavirus, though he has asserted at times that the evidence suggests a natural spillover was more likely.
He has also denied lying about the research in Wuhan, arguing the studies Paul cited did not constitute gain-of-function research under federal definitions.
Fauci has also said it would be “molecularly impossible” for the bat viruses at the center of that research to be linked to the virus that causes COVID-19.
Some entries in Fauci’s diaries that were released by Paul last weekend reflect scientists’ early efforts to understand how the virus emerged. In January 2020, he wrote that “we know the market was not the source, it was the amplifier,” though he added that “somewhere the virus jumped from animals to humans.” About a week later, he described a conference call with a dozen infectious disease experts, most of whom felt it was “possible” that mutations to the virus were inserted by humans.