Fox News contributor and legal analyst Jonathan Turley reportedly cautioned Wednesday that Sen. Rand Paul’s effort to hold Dr. Anthony Fauci in contempt of Congress raises complex legal questions, describing the issue as a “murky area” that will likely have to be settled in court.
Turley appeared on Fox News with Harris Faulkner following a contentious Senate hearing in which Fauci repeatedly invoked his Fifth Amendment privilege against self-incrimination. During the hearing, the former director of the National Institute of Allergy and Infectious Diseases declined to answer more than 100 questions related to the COVID-19 pandemic, lockdown policies, his tenure at NIAID and other matters.
The hearing concluded with Paul announcing that a vote would be scheduled next week to hold Fauci in contempt of Congress.
According to the Kentucky Republican, Fauci’s repeated reliance on the Fifth Amendment was “unsupported” because the former health official delivered an opening statement before invoking the privilege and because he had received a presidential pardon.
Turley told Faulkner that Paul’s final line of questioning was significant because it focused specifically on the period covered by Fauci’s pardon.
“Well, Harris, this is a bit of a murky question with regard to the impact of a presidential pardon,” Turley said.
He explained that Fauci’s legal team likely has a strong argument that courts could adopt a broad interpretation of the pardon and its protections while still allowing Fauci to invoke the Fifth Amendment.
“His attorneys are probably on good ground that the courts are likely to adopt an expansive view of the pardon in terms of its protection but also allow him to avoid any further culpability by invoking the privilege, that the pardon would not extinguish that ability,” Turley said.
However, Turley also pointed to what he described as the most significant moment of the hearing, when Paul carefully framed his final question around the time period before the presidential pardon.
“But really the tough moment for him came at the end when Senator Paul crafted a question that said, I’m asking you this question within the limits of the period of your pardon,” Turley explained.
According to Turley, that distinction was important because Paul made clear he was not asking Fauci about events occurring after the pardon.
“That was a very important framing because he is saying, I’m not asking you to say anything after the pardon where he could obviously claim privilege. I’m talking about the period before which you were pardoned,” Turley said.
The legal debate extended beyond Fox News.
CNN legal analyst Elie Honig also addressed Fauci’s repeated invocation of the Fifth Amendment, saying on his network that Fauci was “probably within his rights.”
Turley also discussed another legal issue that could arise if the contempt matter proceeds. He noted questions about whether Fauci may have waived his Fifth Amendment privilege by making what he described as a relatively lengthy opening statement before refusing to answer questions.
“That’s also a type of murky area,” Turley said.
While acknowledging the legal arguments on both sides, Turley concluded that the dispute ultimately presents unresolved questions that will need judicial review.
He said Paul’s final question “will present this in the clearest way to the court,” but emphasized that the legal issues surrounding Fauci’s Fifth Amendment invocation and the effect of the presidential pardon remain gray areas that “have to be resolved in the courts.”
