Eight Senators Vote to Criminalize a Constitutional Right

Here’s what happened in the Senate Homeland Security and Governmental Affairs Committee on August 6, in case you missed it between the headlines about whatever Trump said at 3 a.m. Dr. Anthony Fauci sat down for a hearing on COVID origins. He invoked his Fifth Amendment right against self-incrimination 111 times. The committee voted 8-7 on party lines to hold him in contempt of Congress. Chairman Rand Paul is now shipping the referral straight to the Justice Department, skipping a full Senate vote because he knows it would die on the floor.

One hundred and eleven times. That’s the number they want you to fixate on. Say it with enough outrage and it sounds like a confession, doesn’t it? Andrew Weissmann, who actually knows a thing or two about federal prosecution, told Sarah Longwell on her Bulwark podcast exactly what that number means. Nothing. “If you’re in the legal business, you know that that’s bullshit.” His word, not mine, but I’m not going to argue with a man who ran the Enron prosecution.

Here’s the thing nobody in that hearing room wanted to say out loud. The Fifth Amendment is not a loophole. It is not a technicality. It is the thing standing between you and a government that can compel you to testify against yourself. It is the exact same right that Donald Trump used when he sat for a deposition in New York and pled the Fifth hundreds of times. Remember what Trump said about people who invoke the Fifth? “The mob takes the Fifth.” Said it on the campaign trail. Then he did it himself. Nobody held him in contempt. Nobody shipped a referral to DOJ.

But Fauci? Fauci they want behind bars. His words, not mine. Rand Paul has publicly pledged to put him there, and Fauci said as much when he explained why he was invoking his constitutional rights. Paul’s explicit objective was to force testimony that could be used to fulfill that pledge. So let me get this straight. A senator announces he wants to put a witness in prison, calls that witness before his committee, demands answers that could be used in a prosecution, and then votes to punish the witness for not handing him the rope. That’s not oversight. That’s a setup.

Shealeah Craighead (Public domain) via Wikimedia Commons

Now the Republicans have a clever new argument. They say Fauci can’t claim the Fifth because Joe Biden gave him a pre-emptive pardon, which eliminates federal criminal liability. Therefore, no self-incrimination risk, therefore no Fifth Amendment protection. Sounds tidy, doesn’t it? Except it ignores a few inconvenient realities. A federal pardon doesn’t cover state-level prosecutions. It doesn’t cover perjury charges if you say something under oath that contradicts something you said in one of those 200-plus prior testimonies Fauci gave over a 38-year career. The pardon is a shield, not a vacuum.

George Conway laid this out on the same podcast. The situation creates what he called a novel legal test for congressional oversight. Does a presidential pardon strip a citizen of self-incrimination privileges? Do remaining legal risks validate the constitutional protection? These are real questions with real consequences, and the Justice Department is going to have to sort it out while Rand Paul does cable news hits about it.

Here’s what I can see with my own eyes. A man who served seven presidents, Republican and Democrat, sat in a hearing room and was told that the Constitution doesn’t apply to him because the wrong president gave him a pardon. The same people who spent four years screaming about constitutional rights, about due process, about government overreach, voted in lockstep to punish a citizen for using the most basic protection in the Bill of Rights.

You don’t have to like Anthony Fauci. You don’t have to agree with a single thing he said about masks or lockdowns or gain-of-function research. But if they can carve the Fifth Amendment out of the Constitution for one person they don’t like, they can carve it out for you. The number 111 is not the story. The story is that eight senators voted to criminalize a constitutional right because the man using it was inconvenient to them.

If you’re in the business of caring about freedom, you know that that’s bullshit.