When a former Defense Department counsel appointed by Barack Obama goes on CNN to say that Anthony Fauci made his legal situation worse by pleading the Fifth 111 times, you know the strategy failed in a way that even the friendliest possible analysis cannot rescue.
That’s exactly what Ryan Goodman told Erin Burnett Wednesday night. Goodman — an NYU law professor, Obama DoD counsel, and not someone who has any reason to help Republicans make their case — said it plainly: “I think it makes it worse.”
He then explained why in terms that every American can understand. Biden’s pardon, if valid, covers Fauci’s past conduct — which means Fauci cannot be criminally prosecuted for anything he did before January 2025. Which means his testimony cannot incriminate him for those actions. Which means he has no legitimate Fifth Amendment claim. The Fifth Amendment protects you from being compelled to incriminate yourself. If you cannot be incriminated because you’re pardoned, the protection evaporates.
“He does not face criminal jeopardy for the pardon,” Goodman said. “In all likelihood, he’s pardoned for all actions before January 2025. But that also means that you’re forced to testify.” And if you refuse to testify when you’re legally required to — when the constitutional protection doesn’t apply — you could be held in contempt. “There could be, theoretically at least, a Justice Department that goes after him for not answering when he is not really facing that criminal charge.”
Rand Paul has already scheduled a contempt vote for next week. The legal architecture Goodman described maps exactly onto what Paul is building.
But there’s a second, potentially more dangerous reason Fauci may have chosen the Fifth anyway — and it has nothing to do with federal criminal jeopardy. Florida has opened a state investigation. Biden’s federal pardon covers federal offenses. It covers exactly nothing at the state level. If Fauci testified freely under the federal pardon and said something that could be used against him in a Florida state prosecution, the pardon wouldn’t shield him. So his lawyers may have calculated that accepting the risk of a federal contempt charge was preferable to providing testimony that could follow him into state court.
That calculation, if accurate, reveals something important: Fauci’s own legal team doesn’t believe the federal pardon provides the complete protection it appears to on its face. You don’t refuse to testify when you’re fully protected. You refuse when you think there are gaps in that protection — state charges, autopen validity questions, post-pardon perjury exposure, conduct outside the pardon’s scope.
An Obama lawyer said it made things worse. Rand Paul has a contempt vote scheduled. Florida has opened an investigation. The autopen question is before the courts.
Anthony Fauci sat behind a security detail, read an opening statement defending his legacy, and then pleaded the Fifth 111 times.
“Science” had a rough Tuesday.
