Dr. Anthony Fauci, the former Director of the National Institute of Allergy and Infectious Diseases (NIAID) and medical advisor to several U.S. presidents, attended a U.S. Senate Homeland Security and Governmental Affairs Committee hearing on Capitol Hill.
During the hearing, Fauci refused to answer more than 100 Senate questions spurring a Senate panel to consider a contempt referral.
The hearing was led by Sen. Rand Paul and others who have accused Fauci of lying in previous testimony to Congress about the NIAID’s role in funding bat virus research in Wuhan, China, that has been alleged to lead to the COVID-19 pandemic.
Fauci refused to answer questions, stating “Under the advice of my attorneys, I will invoke my right under the Fifth Amendment of the Constitution to refrain from answering your questions.”
During the hearing, Republicans accused Fauci of contradicting his public stances in private. Fauci wrote on Jan. 26, 2020 on whether the virus could have jumped to humans from live animals being sold at a “wet market” in Wuhan. Saying, “Now we know the market was not the source, it was the amplifier.” Yet a few weeks later, Fauci made a similar comment in an interview with USA Today, saying the pandemic virus most likely leaped from an animal into people, though perhaps not at the market.
Paul has called that sentence evidence that Fauci hid his belief that the pandemic coronavirus, SARSCoV-2, leaked from a Wuhan lab.
Another committee member focused on documents released by Paul showing that during the pandemic NIH staff helped Fauci solicit nominations and ethics approvals for awards, including a $900,000 cash prize that he received.
Though the funding was provided indirectly through a U.S.based nonprofit orgarganization.The timeline, mechanisms, and official acknowledgments of this funding include that the NIAID, a sub-agency of the NIH, awarded a $3.7 million grant to the U.S.-based nonprofit EcoHealth Alliance to study bat coronaviruses; and the Wuhan Institute Sub-Award, which Eco-Health Alliance distributed a sub-award of approximately $600,000 directly to the Wuhan Institute of Virology (WIV).
“You use federal employees so that you could go and get cash money,” said Senator Josh Hawley.
Following investigations by the House Select Subcommittee on the Coronavirus Pandemic, the U.S. Department of Health and Human Services (HHS) officially debarred EcoHealth Alliance and its former president from receiving further taxpayer funding. The debarment cited violations of grant terms, including withholding reports on viral growth experiments conducted in Wuhan.
Fauci previously maintained to Congress that the research did not fit the precise regulatory definition of “gain-of-function”.
However, independent scientists reviewing the unredacted grant documents obtained by journalists via FOIA lawsuits concluded that the experiments did meet the standard definition by enhancing the transmissibility or pathogenicity of bat coronaviruses.
The 85-year-old immunologist and infectious disease researcher received a preemptive pardon for his conduct during the pandemic from then– President Joe Biden.
But U.S. law makes it a crime for anyone summoned to appear before Congress to refuse to hand over documents or answer questions.
Congress does not have the authority to initiate criminal prosecutions on its own so it instead refers potential cases to the Justice Department. A contempt referral must first be approved by a congressional committee and then by the full Senate or House of Representatives.
A referral for Fauci in this instance would likely need a 60-vote majority, which would require Democratic support in a closely divided 100-member Senate.
The U.S. Attorney’s Office in Washington then reviews the referral and decides whether to seek a criminal indictment before a grand jury. Prosecutors would have to prove that Fauci willfully declined to answer questions relevant to a Senate inquiry.
Fauci will likely not be able to argue that his refusal was based on legal advice. Judges barred Trump advisers Steve Bannon and Peter Navarro from raising that defense when they faced criminal contempt charges for refusing to cooperate with the House committee that investigated the Jan. 6, 2021, attack on the U.S. Capitol.
If Fauci is indicted, his lawyers will likely argue that he cannot face contempt charges for exercising his right under the U.S. Constitution’s Fifth Amendment to refuse to answer questions that could expose him to criminal liability.
Fauci’s pardon does not cover any conduct that has happened since Biden left office, but it could complicate Fauci’s ability to rely on the Fifth Amendment defense.