Anthony Fauci thought he had the perfect legal strategy. Come in with a prepared opening statement defending your legacy. Then plead the Fifth 111 times on everything else. Walk out protected by Biden’s pardon, constitutional rights intact, accountability avoided.Ace investigative reporter and Fox News alum Catherine Herridge just identified the flaw.
The precedent comes from Lois Lerner — the IRS official who targeted Tea Party groups during the Obama administration. In 2013, Lerner appeared before a House oversight committee, delivered a brief opening statement, and then invoked her Fifth Amendment rights. The committee — and a growing number of legal analysts afterward — argued she had partially waived the privilege for the topics she voluntarily addressed in her prepared remarks. You cannot affirmatively put your version of events on the record and then refuse to answer questions about that same subject matter. The constitutional protection doesn’t work as a one-way shield.
Fauci did the same thing. He read prepared remarks defending his pandemic record — his decisions on COVID origins, on gain-of-function research, on his public statements. Then he invoked the Fifth Amendment when asked anything substantive about those exact same topics.
Oklahoma Republican Sen. James Lankford pointed this out explicitly at the hearing, citing the Lerner precedent. If the same legal principle applies to Fauci — and there’s a credible argument it does — he may have inadvertently stripped himself of Fifth Amendment protection for everything he voluntarily touched on in his opening statement.
There’s more. Kentucky Republican Sen. Rand Paul noted at the hearing that it is a federal crime to destroy government documents. Fauci’s own records contain a February 2020 email in which he allegedly instructed then-NIH Director Francis Collins to “Please delete this e-mail after you read it” — sent right after a phone call about COVID-19 origins. That email and the instruction to destroy it were discovered in HHS records. Destroying federal documents is not a pardoned offense if it constitutes obstruction of a federal investigation. And it is not necessarily covered by Biden’s preemptive pardon, depending on exactly when and how the conduct occurred.
Tulsi Gabbard’s reaction to the hearing was visceral and accurate: “Smug arrogance. Zero remorse. Zero accountability.” She also reminded anyone who missed it that taxpayer dollars funded the coronavirus lab research in Wuhan, and that Fauci worked with intelligence community officials to cover it up. Her boxes of declassified documents — seized by the CIA before she could release them — reportedly contained far more of that evidence:
The contempt vote is this week. If it passes, a criminal referral goes to the Justice Department. Peter Navarro went to prison for contempt of Congress. Steve Bannon went to prison for contempt of Congress. Fauci is not legally immune from the same treatment — especially if his opening statement partially waived the very protection he’s been hiding behind.
His lawyers may have made a critical error. If Herridge’s analysis holds, Fauci opened the door he was trying to keep shut.