On August 10, 2022, Donald Trump sat for a deposition in the New York Attorney General’s civil investigation of his company. It lasted four hours. According to his own attorney, the only question he answered was his name.
He then released a statement explaining himself, and the statement is the most useful document in the entire Fauci affair, because Trump wrote it about himself and it describes Anthony Fauci exactly.
He said he had once asked why an innocent person would take the Fifth Amendment, and that he now knew the answer. The answer, he wrote, was that when your family and your company and everyone in your orbit have become the targets of a politically motivated investigation backed by lawyers, prosecutors, and hostile media, you have no choice.
That is not a dodge. It is a complete and coherent theory of the privilege, published under his own name, and it happens to be correct. It is also, line for line, the situation of an eighty-five-year-old man who sat before Rand Paul’s committee last week and declined to answer one hundred and eleven times.
What he used to say
The reason the 2022 statement opens with a concession is that he had spent years arguing the opposite, loudly, in public.
At a campaign stop in September 2016, going after Hillary Clinton’s staffers who had invoked the privilege during the email investigation, he told a crowd that the mob takes the Fifth, and asked why an innocent person would.
He said it again in April 2018.
It was one of his more effective lines, because it sounds like common sense and because most people have never had to think carefully about what the Fifth Amendment is for. It is not a shield for the guilty. It is a limit on the government’s ability to compel a person to build a case against himself, and it exists because the alternative, which is a state that can order you to talk and punish you for silence, is the thing the founders had recently escaped.
Trump did not know that in 2016. He learned it in 2022, the way people generally learn it, which is by needing it.
About the number
You will see it reported that he invoked the privilege more than four hundred and forty times. NBC News, the Washington Post, and the New York Times all reported a figure above four hundred in August 2022, each citing sources with knowledge of the deposition.
Snopes examined the claim last week and declined to rate it, because all three reports rest on anonymous sourcing and the Attorney General’s office never released a complete transcript.
So the number is probably right and is not confirmed, and it does not matter, because the number was never the point. His attorney said he answered one question. Trump himself confirmed the invocation in writing. His two eldest children sat for the same investigation and did not invoke.
What happened last week
At the July 29 hearing, Josh Hawley asked Fauci what day it was. He asked what color his tie was. He asked what color the carpet was. Fauci invoked the Fifth each time, as any competent attorney would advise a client to do once the privilege has been asserted, because answering selectively is how a witness loses it.
Hawley then announced that no honest person pleads the Fifth, and that innocent people do not hide behind it.
That is the 2016 line, delivered in 2026, by a member of the party whose leader abandoned it in 2022 in a written statement he issued voluntarily and has never retracted.
Nobody at that hearing mentioned this. It did not come up.
Why it is not just hypocrisy
The obvious framing here is that they are hypocrites, and they are, and that framing is also the least interesting thing available.
The interesting thing is that Trump’s statement is not a bad argument. It is a good one. He identified the precise circumstance in which an innocent person must refuse to speak, which is when an investigation has been organized around a predetermined conclusion about him personally, and when anything he says will be mined for a charge that does not yet exist.
Then look at what Rand Paul has said about Fauci. He has promised for years, in public, that Fauci belongs in prison. He released a thousand pages of the man’s private diaries before the hearing. Fauci told the committee to its face that the purpose of the proceeding was to produce something that could be used to prosecute him.
If Trump’s 2022 reasoning is sound, and it is, then it applies with more force to Fauci than it did to Trump, because Trump was facing a civil fraud investigation and Fauci is facing a chairman who has named the desired outcome in advance.
The party has adopted the president’s legal theory of the Fifth Amendment for the president and the president alone. Outside that one application it reverts to 2016, where taking the Fifth is what the mob does.
The part that should worry the people running this
Paul’s argument for contempt is that Biden’s pardon removed Fauci’s criminal exposure, so the privilege has nothing left to protect.
Follow that where it goes.
Trump has issued a great many pardons, including roughly fifteen hundred connected to January 6 and a set of preemptive ones. If a congressional committee can rule that a pardon extinguishes the Fifth Amendment, then every one of those people becomes a compellable witness, before any committee, in any future Congress, under threat of criminal referral for declining.
A pardon stops being protection and becomes an obligation to testify. That is a considerable amount of exposure to hand to whoever controls the House in January, in exchange for one referral against one retired scientist that the Justice Department may not even take up.
The record
Two men were asked questions under oath. Both declined to answer. One of them explained why in a written statement that the other could have submitted verbatim.
The one who wrote it is the president. The one who could have used it is being referred for prosecution by the president’s party, which is arguing, this week, that only guilty men stay silent.
They have the argument. It is on their letterhead. They wrote it four years ago and they are pretending they cannot read it.
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Rand Paul Couldn't Win the Senate Vote, So He Removed the Senate
The Senate Homeland Security and Governmental Affairs Committee voted 8 to 5 this morning, on party lines, with two additional no votes by proxy, to hold Anthony Fauci in contempt of Congress. Democrats moved to table. They moved to postpone. Both were blocked by the majority.