GOP senators see path for Fauci prosecution through IRS official's similar Fifth Amendment flub

The San Francisco 49ers trounced the Denver Broncos 55-10 in Super Bowl XXIV, the biggest blowout in the game's history. The Seattle Seahawks snatched defeat from the jaws of victory in Super Bowl XLIX through the most notorious goal-line decision in history, delaying the Emerald City's second Vince Lombardi Trophy for 11 years.

Wednesday's Senate Homeland Security Committee inquisition of former National Institute of Allergy and Infectious Diseases Director Dr. Anthony Fauci, about his suspected role in the origin of COVID-19 and allegations that he tried to cover his tracks, similarly displayed elements of both tedious romp and last-minute shocker.

The alternate celebrity and villain of the COVID-19 policy response repeatedly invoked his Fifth Amendment right to refuse answering even mundane questions, such as the color of the hearing room's carpet, following publication of over 1,100 pages of diary-like notes that have raised even more questions about the veracity of his COVID-era public statements.

Committee Republicans repeatedly argued Fauci could not opt out of answering questions due to President Biden's sweeping preemptive pardon, the validity of which has been questioned because it was signed by autopen amid Biden's cognitive decline. Legal analysts explained Wednesday how Fauci could still be prosecuted.

Oklahoma GOP Sen. James Lankford, who pointedly disagreed with colleagues on the Fifth Amendment issue, waited until the hearing's end to recall that Congress went through a near-identical exercise in President Obama's second term.

It held former IRS official Lois Lerner in contempt for giving an opening statement at a House hearing in 2013 on her alleged discrimination against conservative groups seeking tax-exempt status, then invoking her rights under the Fifth Amendment to decline giving testimony or answering questions that may expose one to criminal prosecution. 

Fauci did the same Wednesday.

Lankford asked committee Chairman Sen. Rand Paul, R-Ky., whether the Lerner vote determined the Fauci outcome. Paul, who has called for Fauci's prosecution for years, said lawmakers have a week to study the issue before voting on a contempt resolution. 

The question that courts may have to answer is whether Biden's pardon preempts Fauci's right against self-incrimination, since he can't be prosecuted "as long as he answers truthfully" and the statute of limitations forecloses some claims anyway, Paul said.

George Washington University law professor John Banzhaf floated two other ways Fauci could testify without risk to himself: a two-thirds committee vote or a simple House majority to immunize him, or doing media interviews in which he's not under oath, since "it is not a crime to lie to the public."

Fauci is Roosevelt's 'Man in the Arena'

Republicans and Democrats largely repeated their dynamics from COVID-related hearings since the GOP took back the House in 2022 and full Congress in 2024.

The committee majority repeatedly confronted a visibly weary Fauci with the costs of his decisions going back to 2011, when NIAID funded an American lab mutating avian flu to easily transmit through the air among mammals and published the research over the initial objections of government biosecurity experts.

Sen. Bernie Moreno, R-Ohio, credited his decision to enter politics to the tasing and arrest of an Ohio woman in 2020 for not wearing a COVID mask at a middle-school football game, a policy he blamed on Fauci's masking recommendations. 

"Who the f— do you think you were?" Moreno bellowed, already speculating Fauci knew he was "in deep sh–" because he hired criminal defense lawyer David Schertler, who represented ex-Sen. Bob Menendez, D-N.J., now serving 11 years for convictions including bribery.

Paul ejected Schertler from the hearing for repeatedly trying to speak on behalf of his client. 

"In no courtroom in America can you have your witness plead the Fifth Amendment and then your attorney gets to testify," Paul responded when Connecticut Democrat Sen. Richard Blumenthal said he had "gagged" Schertler.

Democrats deflected from the evidence of Fauci's alleged duplicity in his diary, given to Paul and Permanent Subcommittee on Investigations Chairman Ron Johnson, R-Wis., by Health and Human Services Secretary Robert F. Kennedy Jr., who called Fauci's notes "government records created on a government computer by a federal employee."

They repeatedly blamed President Trump, Kennedy and other MAGA bogeymen for gutting public health, increasing vaccine hesitancy, failing to control cyclospora and enabling a spike in measles cases, though Fauci's diary complicated the latter by predicting children's measles deaths caused by COVID lockdowns would vastly outnumber their COVID deaths.

"This hearing is designed to entrap you," Sen. Maggie Hassan, D-N.H., told Fauci, like other Democrats praising his five decades of public service. She called Kennedy the most unqualified HHS secretary ever, who "pursues conspiracy theories, degrades people with disabilities, and continues to promote disproved science."

Sen. Andy Kim, D-N.J., went so far as to dub Fauci the "Man in the Arena" from President Teddy Roosevelt's "Citizenship in a Republic" speech, which elevates the man who "strives valiantly" and "comes short again and again" over "cold and timid souls" who don't try. Sen. Ashley Moody, R-Fla., mocked Kim specifically and other Democrats for fawning over Fauci.

Fauci made staff 'full-time application machine' for 'cash prizes'

Fauci risked his Fifth Amendment argument by broadly challenging the allegations against him before clamming up Wednesday.

He has testified before and briefed congressional committees more than 200 times, appeared for pandemic-era hearings "usually under oath" and sat for several days-long transcribed interviews, but Paul has an "unhinged obsession" with getting him prosecuted, Fauci said.

The chairman has made "repeated slanderous comments" about Fauci and released his "unredacted" diary with the purpose of "embarrassing and intimidating me," Fauci said. Paul's sole purpose is "to get me to say something, anything that could vindicate his repeated public pledges that I end up, in his words, 'behind bars.'"

Paul said Fauci's fingerprints are all over COVID's emergence. Fauci argued the value of gain-of-function research would exceed a hypothetical virus leak when he funded Ron Fouchier's avian flu mutations, then NIAID funded bat research in a "totalitarian country" that excluded U.S. health officials, in a lab designed for pathogens with "moderate" risks, Paul said.

Fauci then turned around and invoked the narrow definition of GOF to tell Congress research at China's Wuhan Institute of Virology, from which COVID possibly leaked, didn't count, but "the real question is, was it dangerous," Paul said. The American public doesn't want a "semantics debate."

Republicans threw the kitchen sink at Fauci to see whether he'd answer any question, from his specific relationship with former scientific adviser David Morens — charged with conspiracy and destruction of federal records for describing in emails how he helped Fauci avoid the Freedom of Information Act – to his tie color.

Sen. Josh Hawley, R-Mo., seized on Fauci diary entries in which he discussed using federal employees on the clock to apply for "cash prizes" for himself, eventually earning about $1 million in awards. 

"You turned your staff into a full-time application machine," with Fauci's chief of staff also pressuring ethics officials to greenlight Fauci receiving the money, Hawley said.

Sen. Joni Ernst, R-Iowa, asked whether Fauci intentionally used "sub-award funding" to the EcoHealth Alliance to obscure NIAID's funding of "Chinese biolabs" and coronavirus research. She asked whether NIAID awarded "Proximal Origin" author Kristian Andersen's lab $8.9 million as a "bribe" for co-writing the paper that ruled out a lab origin for COVID.

Fauci occasionally turned to his lawyers sitting behind him for guidance, as when Sen. Moreno asked audience members to stand if they had faced repercussions for violating Fauci's recommendations and directed Fauci to face them. He only departed from his rote recitation of his Fifth Amendment rights when asked about measles deaths from COVID lockdown.