During Wednesday’s Senate Homeland Security and Governmental Affairs Committee hearing, the Fifth Amendment was excessively invoked by former National Institute of Allergy and Infectious Diseases Director Dr. Anthony Fauci, refusing to provide insight into the federal government’s response to COVID-19, as The Gateway Pundit previously reported.  

Despite this, one of the most revealing developments occurred before Chairman Rand Paul (R-KY) even asked any substantive questions. 

Paul did not immediately press Fauci regarding COVID origins, gain-of-function, or pandemic-era decisions. 

Rather, he began by establishing a solid legal foundation: confirming that Fauci was appearing under subpoena, outlining the committee’s investigative authority, and reviewing the scope of President Biden’s pardon before asking whether Fauci still intended to invoke the Fifth Amendment.

These procedural details may be the most consequential moments of the hearing from a legal standpoint. 

Gathering testimony is not the sole purpose of a given congressional hearing. They can also create an official record to support later legislation, referrals, or legal proceedings. In this way, it serves both investigative and record-keeping functions; Congress’s own oversight guidance recognizes this role. Paul appeared to be laying that foundation.

That approach could help explain why Paul continually returned to the same procedural issues throughout the hearing.

It is possible that Congress was intentionally positioning itself favorably for the legal questions that it anticipated would arise later on if the debate extended beyond committee. 

The Fifth Amendment provides protections against self-incriminating testimony. The argument that Republicans are attempting to make is that Biden’s pardon altered this because it removed criminal exposure for any conduct that is covered by the pardon. If Congress decides to proceed by holding contempt, the disagreements between the GOP and Fauci’s lawyers could extend into the courts. 

Fauci repeatedly responded to questions with the same statement: “On the advice of counsel, I respectfully decline to answer based upon my rights under the Fifth Amendment of the Constitution.”

The question of whether a presidential pardon eliminated Fauci’s ability to answer in such a manner remains unanswered and has not been litigated often. 

However, the issue is not entirely without precedent. Republican senators cited Brown v. Walker (1896), in which the Supreme Court decided that a witness may not invoke the Fifth Amendment where immunity already exists. 

By the conclusion of the hearing, Paul announced a contempt vote to be scheduled for next week, which now appears to be taking place on August 5. 

It remains uncertain whether the contempt vote will succeed. As it stands, Congress retains the ability to determine whether a witness unlawfully refused to answer questions, but it cannot litigate the case itself. Instead, it must refer to the Justice Department. 

Additionally, civil enforcement can also be pursued. In this scenario, Congress would ask a federal court to order a witness to comply. A judge, not Congress, would determine the legality of the refusal. 

Finally, there is inherent contempt, a congressional power that is rarely used in which Congress attempts to enforce its own power directly. 

Given that Congress has largely abandoned the use of this power, the fundamental question is whether it can present a convincing case to the Justice Department or the courts. 

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The post ANALYSIS: The Obscure Constitutional Fight That Could Decide Fauci’s Fate (VIDEO) appeared first on The Gateway Pundit.