"Did Fauci Properly Take the Fifth?"
An excerpt from a detailed analysis at FoxNews.com from John Malcolm, a former federal prosecutor and current VP of the Meese Institute for the Rule of Law at Advancing American Freedom:
Several factors suggest Fauci’s invocation [of the Fifth Amendment privilege] was improper. Two are critical.
The first is Fauci’s pardon…. The second is time: Fauci retired in 2022, making it unlikely that any state crime he might have committed would fall within the applicable statute of limitations, assuming any state could credibly claim that he committed a crime or that venue was proper in that state. In Hoffman v. United States (1951), the Supreme Court said the privilege against self-incrimination protects against real dangers, not remote or speculative possibilities.
Two other things are clear. First, a witness can refuse to answer questions that might implicate him in a crime, not to avoid embarrassment…. Second, a witness cannot invoke the Fifth Amendment because he thinks he will be charged with perjury even if he provides truthful testimony.
On the other hand, there are factors in Fauci’s favor. First, President Trump and several Republican congressmen are arguing that Biden’s last-minute pardons, which would include Fauci’s, are null and void because, they claim, Biden’s staff used his autopen to sign those pardons without Biden’s knowledge or approval. If Fauci’s pardon is invalidated, he could be prosecuted by the Justice Department for federal crimes he might have committed during the period covered by the Biden pardon.
Second, several state attorneys general have now said they are initiating investigations to see whether Fauci committed any state crimes related to his government service. Perhaps they envision a perjury charge for deposition testimony Fauci provided in Covid-related litigation. That effort might end up going nowhere, but Fauci is certainly entitled to take them at their word that he still faces legal jeopardy. These statements alone make it far more likely that a judge would ultimately determine that Fauci’s invocation of the Fifth was proper….
The whole thing is much worth reading.
The post “Did Fauci Properly Take the Fifth?” appeared first on Reason.com.
Source: https://reason.com/volokh/2026/08/05/did-fauci-properly-take-the-fifth/
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