The Next Victim of Trump’s Political Prosecutions? Congressional Oversight.

Fauci appearing before a Senate panel on Wednesday.Douliery Olivier/Abaca/Zuma Get your news from a source that’s not owned and controlled by oligarchs. Sign up for the free Mother Jones Daily. Dr. Anthony Fauci, who helped lead the national response to the Covid-19 pandemic as the country’s longtime chief infectious disease expert, invoked his Fifth Amendment right against self-incrimination at least 90 times Wednesday in a contentious hearing focused on the origins of the virus in China. Fauci was clear about his reason for pleading the 5th: He believes the hearing was a set-up for a perjury investigation by the Justice Department—a realistic assessment of how the Trump administration is wielding its prosecutorial powers to go after people the president doesn’t like. The hearing was chaired by Sen. Rand Paul (R-Ky.), a harsh Fauci critic. “Given Senator Paul’s obvious obsession with calling for my prosecution, his repeated slanderous comments about me, and recently his publicly releasing my unredacted personal diary aimed at embarrassing and intimidating me,” the NIH veteran said in his opening statement, “the only conclusion I can reach is that the sole reason he is calling me before this committee is to get me to say something that could vindicate his repeated public pledges that I end up, in his words, ‘behind bars.’” This isn’t a hypothetical concern, and it’s not simply animated by Paul’s animosity toward Fauci. Congressional Republicans and the Justice Department, now under the control of former Trump lawyer Todd Blanche, have repeatedly used testimony to gin up perjury investigations and charges against people the president doesn’t like. That’s turned testimony before Congress—which should be a public service sharing information to inform our laws—into the first step toward a criminal investigation. Pleading the Fifth is not a clean solution. Just a week ago, House Judiciary Committee chairman Rep. Jim Jordan (R-Ohio) sent the DOJ a criminal referral accusing former special counsel Jack Smith of lying to Congress in testimony last December. During his confirmation hearing, Blanche told the Senate that the department, like his boss the president, is serious about investigating Smith. Similarly, federal prosecutors are already investigating former CIA director John Brennan, a Trump critic, over testimony he gave in 2023, also via a Jordan referral. Perjury before Congress is also one of the specious charges the department unsuccessfully brought against former FBI Director James Comey. An accusation of lying to Congress is also how the DOJ set out to pressure and possibly oust Federal Reserve Chairman Jerome Powell before that investigation was dropped to smooth the way for Senate confirmation of Kevin Warsh as Fed chair. Though wise as a form of self-preservation, it’s unclear if Fauci’s use of the Fifth is kosher. On Bluesky, Georgetown Law professor Josh Chafetz commented that he didn’t see a legal basis for it. “It certainly sounds like Fauci is saying that he thinks Paul is trying to trick him into perjuring himself,” he posted. “But that can’t justify invoking the Fifth Amendment, otherwise anyone could get out of testifying anytime by claiming that, if they testified, they might lie. That can’t be right.” Later, he added, “I don’t want a world in which witnesses get to decide for themselves whether or not a congressional investigation is a farce and therefore whether or not they’ll ‘play along.’” Clearly, Fauci’s lawyers don’t think the threat of prosecution is idle, and there are at least four other former officials they can point to explain why. At the close of the hearing, Paul said the committee would meet next week to vote on holding Fauci in contempt of Congress, which would have to be upheld by a vote in the full Senate. Paul could have assuaged Fauci’s fears and elicited testimony in the public interest if the Senate Homeland Security and Governmental Affairs Committee had granted him immunity for anything said in his testimony, a rare move but one within the committee’s power. In Fauci’s case, this would not have let him off the hook for any crime that theoretically could come to light during questioning—because President Joe Biden already did that when he granted Fauci a sweeping, preemptive pardon covering the his last nine years in government. Some Republicans on the committee argued that this pardon means Fauci shouldn’t be able to plead the Fifth. “You don’t have any rights under the Fifth Amendment because you’ve been pardoned, as you very well know,” Sen. Josh Hawley (R-Mo.) said. Paul said the question is unsettled. But Fauci’s lawyers evidently disagree; indeed, it makes little sense that a perjury investigation into current statements would be ruled out by a pardon for past offenses. Either way, the politicization of DOJ complicates the situation: Fauci might not fear actually committing perjury, but it is reasonable to assume that he was at risk of saying something that could form the basis of an investigation that could drain his bank account and make life much more difficult for years, even if it doesn’t end in a guilty verdict. By not offering immunity, Republicans on the committee are preserving the possibility of an investigation based on his testimony. That tells us that Paul and his fellow Republicans are more interested in prosecuting Fauci than learning more about the origins of Covid-19. Wherever the courts come down on Fauci pleading the Fifth, it’s yet another example of how the theory of expansive presidential power endorsed by the Supreme Court and deployed by this president crashes into not just norms, but also laws and the Constitution. Over the past few years, the court’s Republican-appointed majority has increasingly expanded the powers of the president and clarified that the prosecutorial functions at DOJ are not independent enforcement of the rule of law but rather under the sole purview of the president, who can even direct completely unfounded prosecutions. In his second term, Trump has embraced this power as he demands the prosecutions of his perceived enemies. One result is a loss of faith in the Justice Department. Ironically, on Wednesday evening, Senate Republicans delayed a vote to confirm Trump’s next pick for attorney general, Todd Blanche, because Blanche would not commit to reversing his decision to give Trump immunity from tax investigations—an indication that Blanche, currently the acting attorney general, is not just working at the behest of Trump to punish the president’s critics, but using the DOJ to prevent any scrutiny of his actions. It’s the latest sign that the DOJ has been transformed from an entity walled-off from presidential interference to one in which the president calls all the shots. But the Fauci debacle shows that the blast radius goes far beyond DOJ’s sullied reputation and political vendettas. Prosecutors going on fishing expeditions through congressional testimony at the behest of a vengeful president will ultimately harm lawmakers’ ability to do the critical work of holding hearings and gathering testimony, along with witnesses’ ability to give that testimony. Fauci was compelled to testify under subpoena, and yet Congress was still deprived of his answers. Pleading the Fifth is not a clean solution for Fauci either; he could still be prosecuted if the Senate votes to hold him in contempt. If that happens, then the courts—even the Supreme Court, which helped create this mess—may ultimately decide how to resolve the spreading fallout from a politicized prosecutorial machine. Will Fifth Amendment rights win out over Congress’ fact-finding powers? Or will Congressional testimony become an accepted precursor to unwarranted criminal investigation? Either way, the problem lies not with Fauci, but with the weaponization of the Justice Department.