Watch the full 3-hour hearing: YouTube · C-SPAN · Senate Committee page
“On the advice of counsel, I respectfully decline to answer based upon my rights under the Fifth Amendment of the Constitution.” Anthony Fauci
He Was Still in the Chair
Nearly three hours had produced that one sentence, delivered more than a hundred times, read off a card each time. Then, before the room emptied, Chairman Rand Paul said the thing that converts a hearing into a proceeding.
The committee, he announced, has scheduled a vote next week on a resolution certifying Dr. Fauci’s contempt.
Not we will consider it. Not we may refer this. Scheduled.
Watch what Paul did in the first ten minutes, and the vote stops looking like temper.
He placed a red folder on the witness table containing a printout of 2 U.S.C. § 192 — the statute making it a crime for subpoenaed Congressional witnesses to refuse questions pertinent to the inquiry. Paul asked Fauci whether the folder was there in front of him. Fauci claimed the Fifth. He then read the presidential (auto-penned) pardon into the record: full and unconditional, dated January 19, 2025, reaching back to January 1, 2014. He asked whether Fauci had refused it, or believed it still required him to plead the Fifth. Fauci ‘Fifthed’ again.
Then the sentence that matters more than any of the questions:
“The chairman has denied your assertion of privilege and directed you to answer.”
Fifth. And again. And roughly a hundred more times, through the many important questions asked by Senators Johnson, Lankford, Scott, Hawley, Moreno, Ernst, and Moody.
Every one of those steps is a box on a form. The form is § 192. A witness must be asked a pertinent question, must refuse, must be directed by the chair to answer, and must refuse again. All four boxes are checked, on video, under oath.
D2D Take: The theatrics got the coverage. The paperwork is what will matter in a year (let’s hope sooner).
📋 SIDEBAR — THE LADDER
Rung 1 — Criminal contempt. 2 U.S.C. § 192. Committee vote, then full Senate. Certified to the U.S. Attorney for D.C. under § 194. A misdemeanor: up to twelve months in prison, plus a fine.
Rung 2 — Civil enforcement. 2 U.S.C. § 288d. The Senate directs its Legal Counsel to sue for a court order compelling testimony. This is the rung that puts the pardon question in front of a federal judge— which is exactly what Paul has said he wants.
Rung 3 — Immunity. 18 U.S.C. §§ 6002–6005. A two-thirds committee vote and a court order extinguish the privilege of the 5th Amendment outright, allowing the government to compel testimony. Refusal afterward is coercive contempt.Next week’s vote is Rung 1 only. Anyone telling you a jail cell is imminent is skipping two rungs and a courthouse.
Most coverage has fixated on the Biden (autopen) pardon. There are actually two independent arguments that Fauci had no privilege to assert, and the second is the stronger one.
The pardon theory. Sen. Hawley put it on the record by name: Brown v. Walker, 1896 — when a witness has been pardoned, he may not stand upon his privilege of 5th Amendment rights. No prosecution possible, no self-incrimination possible, no privilege.
The waiver theory. Sen. Lankford raised it at the very end, and it’s cleaner. Lois Lerner gave an opening statement to a House committee in 2013 and then took the Fifth. She was held in contempt precisely because you cannot do both — testify, then refuse questions. Fauci delivered a three-paragraph opening statement under oath before invoking anything.
The waiver theory doesn’t require litigating whether a pardon strips a constitutional privilege. It only requires that he opened his mouth first, which he did.
D2D Take: His attorneys prepared for the pardon fight. It isn’t obvious they prepared for the opening statement.
We are not going to tell you Fauci is going to prison.
Rung 1 ends at the Department of Justice, and DOJ decides whether to charge for criminal contempt. Congressional contempt referrals die there routinely, under both parties. Can you imagine Fauci’s criminally contemptuous actions escaping justice at rung #1?
Rung 2 is slower than it sounds. The full Senate has to vote, and then a federal judge has to agree. Federal Judges have not been friendly to the Fauci ‘file.’ And Fauci’s lawyers are not bluffing. Here is their argument in plain English: A presidential pardon covers federal crimes. It cannot reach a state prosecutor.
Seventeen state attorneys general have already announced that Biden’s pardon does not bind them. That matters because of a 1964 Supreme Court decision, Murphy v. Waterfront Commission. The rule is simple: you may refuse to answer a question in a FEDERAL proceeding if a truthful answer could get you charged by a STATE.
The pardon closed the federal door. Murphy says the state door is still open — and as long as one door is open, the Fifth Amendment still works. So this is not a dodge, though it looks like one. It is real law, and it is the strongest card Fauci holds.
Now the bitter part. The state attorneys general already came after Fauci to increase his exposure. In doing so, they handed him the one thing he needed to stay silent.
So the sober forecast is…a wrist slap, or nothing.
And yet. For the first time, the machinery is moving in the right direction. The subpoena of Fauci was enforced by court order. He appeared under compulsion. A privilege was formally denied on the record.
A contempt resolution has a date on it. More than a hundred questions from the Republican senators now sit in the Congressional Record, unanswered, permanently, under oath — about gain-of-function funding, about deleted federal records, about cash awards solicited with federal employees, about fifteen million dead.
Silence is not acquittal. It is a procedural posture. The receipts don’t take the Fifth.
The vote is on the calendar. Between now and then, every member of that committee is reachable — including the five Democrat senators who sat through three hours and never asked the witness a single question.
That’s the next installment.
📢 Make the Call (even if you’re a Democrat) — U.S. Capitol Switchboard: (202) 224-3121. State the names of your two Senators. Operator will transfer you. One sentence: “I support the Fauci contempt resolution. Please vote yes so that it goes to the full Senate.”
📄 Read the Record — 2 U.S.C. § 192 and § 194 - only about four hundred words combined. Read the statute Fauci wouldn’t confirm was sitting in front of him.
🎥 Watch It Yourself — Paul’s directive and the folder exchange land in the first fifteen minutes of questioning.
🔗 Break the Blackout — Most outlets report that Fauci pled the Fifth. Far fewer report that a contempt-of-Congress vote is already scheduled. Fix that.
❤️ Hit the Heart — He had a hundred chances to say something. You get one click.
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