Doctor Fauci And The Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
 

In most cases public Congressional hearings accomplish little. Representatives or Senators from both parties make speeches or ask leading questions. Often the lawmakers are rude and disrespectful to witnesses, other times the witnesses are smug and disrespectful to Congress. Even when an investigative committee uncovers wrongdoing of some kind, a change in administration can make any findings moot. At best, a public hearing can put relevant issues in front of the electorate and influence their votes. Witnesses often sidestep questions, giving vague answers, or invoking their constitutional right to remain silent. Like Dr. Fauci did in a Senate hearing this past week.

The Covid-19 pandemic was a time of incredible confusion. There was much that we didn't know as it began and even the infectious disease experts were scrambling to stay ahead and give appropriate advice for minimizing infections and death. Guidance regarding masking, social distancing, closure of schools and businesses changed as new information became available and even as the virus itself mutated. Public health officials and elected representatives had to balance the risk of the virus' spread with the harm that closing schools or businesses might have. No matter what decisions were made, somebody was going to be mad. 

Dr. Anthony Fauci was one of the main advisors to President Trump when the pandemic began. Not the only one, but somehow he became the face of conspiracy theories dreamed up by those who thought the pandemic was a hoax, while at the same time by those who blamed him for the hundreds of thousands of deaths in the United States. He joins the club of the many people in the "lock her (or him) up" club who committed no crimes but whom the MAGA crowd is convinced below in prison. I'm not going to run through the litany of accusations that have been flung at him, but a key word to consider is "advisor". 

As an advisor to the president, Fauci's job was not a decision-making position. It was to provide Trump with information so that Trump could make decisions. Trump, if you recall, was musing about whether injecting disinfectant was a viable solution. (Many in the MAGA camp claimed that he never said this because many people misquoted him as saying "bleach", or claimed that Trump was joking, or some other ridiculous excuse). Trump chose to not impose national lockdowns and left it up to state and local officials to make their own decisions on how to deal with the spread of Covid-19. Dr. Fauci had no role in how governors and mayors dealt with the pandemic. 

It became clear once Trump was re-elected in 2024 that the federal department headed by the Attorney General could no longer be call the Department of Justice, but more accurately the the Department of Retribution. We have seen over the last year how various people whom Trump considered enemies have been targeted for investigations. President Biden, as one of his final acts in office gave preemptive pardons to people who had been the focus of Trump's and his MAGA followers' ire, including DR. Fauci. In an effort to find something, anything, that didn't fall under the presidential pardon, Sen. Rand Paul requested Dr. Fauci's Covid-era diary. For some reason Fauci made these diary entries on a government server, so they were a matter of public record. Paul made it very clear that he believed that Dr. Fauci belonged in prison and was transparent about his crusade to find a loophole in the pardon, possibly a difference between what he would say in a Senate hearing and what was written in the diary, in order to charge him with perjury. Dr. Fauci chose to claim his constitutional right to decline to answer any questions.

You've probably heard by now that by accepting a pardon, you are no longer exposed to criminal liability for the crime for which you are pardoned and can be compelled to testify. And since Dr. Fauci received a blanket pardon for any acts up through the end of Biden's term in office, he can no longer refuse to testify. This is true, as far as I can determine, up to a point. Rand Paul has made it clear that he is looking for a justification to bring charges against Dr. Fauci, whether it be perjury, lying to Congress, or any hypothetical crime that occurred after January 20, 2025, including state crimes that theoretically took place before 2025. 

One of the things you see on cop shows is that people who are guilty are the ones who "lawyer up" or refuse to answer questions. Whether this is a reflection of how things really are, or we've been collectively brainwashed to believe that, most of the time a refusal to answer questions is assumed to be a sign of guilt. What most of us don't realize, but what any criminal defense lawyer will tell you, is that when the police are asking you questions they are gathering evidence. You know that line: "Anything you say can and will be used against you in a court of law"? Well, they really mean that. Even if you're guilty, it's not your job to convict yourself, but even if you're innocent there's nothing to be gained by giving law enforcement information that could possibly be misinterpreted and used against you. 

Dr. Fauci did the right thing in my opinion. It was made clear that the purpose of the hearing was not to uncover the truth, but to uncover a tenuous excuse to prosecute him but any means necessary. Answering questions would have possibly given Paul and the other Republicans on the committee a pretext to take legal action, no matter how much of a stretch it was. The fact that his lawyer was kicked out of the hearing room gave additional reason to suspect the legitimacy of the whole process. His refusal to answer questions even on some innocuous questions like the color of his tie or whether there was a folder on the table in front of him, gave the middle finger to the whole process.  

It's never wrong to insist on exercising your rights under the Constitution. 

Political & Cultural Change Disguised As Constitutional Interpretation

What do Supreme Court Justices base their decisions on? Most conservative, Republican-nominated, justices claim to adhere to either a textualist, or originalist interpretation of the Constitution. 

Textualism is a theory in which the interpretation of the text is based primarily on the ordinary meaning  of the legal text at the time of its enactment, where little consideration is given to non-textual sources, such as the intention of the law when passed, the problem it was intended to remedy, or questions regarding the justice or rectitude of the law. 

Originalism is a legal theory in the United States which bases constitutional, judicial, and statutory  interpretation of text on the original understanding at the time of its adoption. Originalism consists of a family of different theories of constitutional interpretation and can refer to original intent or original meaning. 

There is a third, rare, theory: Strict Constructionism. Strict construction requires a judge to apply the text only as it is expressly written, i.e., read perfectly literally. This can contradict the commonly-understood meaning of a law. For example, consider a law that specifies "the use of a knife when committing a crime should be punished by ten years in prison." This would commonly be understood as prohibiting the use of a knife to threaten or injure another person. However, read purely literally, the law would also mandate ten years in prison for dining and dashing if the diner were to use a knife to cut their food. 

Theoretically most conservative jurists fall into the originalist camp. They understand that the text must be understood in light of what those who authored the text understood it to mean. They reject the concept of a "Living Constitution" adhered to by most liberal, Democratic-appointed judges. 

"Theoretically" is the operative term. The current conservative majority on the Supreme Court appear to be originalist or textualist only when it supports modern conservative political goals. Originalists claim that if society changes sufficiently that the original text or its meaning is obsolete, then the text itself should be changed  — by an amendment if it's a constitutional question, or by legislation if it's a matter of statutory interpretation. And they are quite strict about this when it comes to striking down liberal policies. When it comes to supporting novel conservative interpretations however, they are happy to deviate from the original interpretation and assign meaning to text that was never there. Reading recent Supreme Court decisions reveals previously unheard of rationales for overturning laws, or retaining others. The current push for the Unitary Executive Theory is one example. 

Most of the federal government's departments were created by Congress to administer various government functions, functions that were written into law by Congress. This goes beyond the modern regulatory agencies and includes the Treasury and Justice departments. Since these departments and agencies are not creating new laws, but are executing laws created by Congress, they are part of the Executive Branch, which is headed by the president. Congress has passed laws partially shielding many of these agencies from partisan politics, for example, prohibiting the president from replacing some agency heads for political reasons. Previous administrations have accepted that this state of affairs. The Unitary Executive Theory pushed by the Heritage Foundation holds that the president is the executive branch and that has unalloyed power and authority over every aspect of the executive branch, despite laws to the contrary. The Supreme Court has supported this theory (albeit inconsistently) bolstering Trump's dictatorial, authoritarian mode of rule. 

The founders would have been very surprised at this position. They were vociferously and consistently against the presidency having king-like powers and envisioned the president executing or implementing the law, not creating it, or ruling by fiat.  The very structure of the Constitution limits a president, rather than giving him unlimited authority. It's clear that the current Supreme Court majority is interested primarily in advancing a conservative political and cultural agenda, not in "calling balls and strikes". This intersects in large part with Trump's agenda, but not completely. To those playing the long game, like the Heritage Foundation, and even Mitch McConnell when he was remaking the federal judiciary, Trump is a means to an end. 

It's much easier to affect political and cultural change through one person, that through the often slow moving legislative process. 

Inflation, Gas Prices, and The Cult

It's a truism that presidential elections are determined by the economy. People claim that they care about foreign affairs, wars, infrastructure — but it's really the state of the economy that drives the bus. In the 2024 election the perception was that for most Americans the economy was bad. Inflation had peaked around 8% in 2022. Even though there were a number of reasons that were completely outside the control of President Biden, people predictably blamed him for the mess. It wasn't unreasonable to point out that during Trump's first term inflation was around the 2% Federal Reserve Board target, suggesting that Trump and the Republicans were better for the economy. Of course the truth was more complex. Trump's economy was fine until Covid, and Trump's mismanagement of that crisis, caused cascading issues leading to supply-chain disruptions, whipsawing supply and demand, all coming to a head after the 2020 election of Joe Biden. But enough voters were unconvinced by logic (or facts) and chose to vote for Trump based on the economy — or rationalize their support for the more odious aspects of his reign by citing the economy. 

The problem with relying on Trump to fix the economy is that he has a third grader's grasp of economics. His unshakable belief that a trade deficit indicates that we are losing money and that tariffs are paid for by foreign governments is the most obvious recurring example. He also seems to be enamored of magical thinking believing — that his mere presence will solve any and all problems. He campaigned on ending inflation on Day One. He promised to return prices to pre-2022 levels. He vowed to cut energy prices in half. Those of us not in the thrall of Trump worship knew that the lingering high prices had little to do with any Biden policies and that there was little that Trump could do to fix them. A president isn't a magician with the ability to singlehandedly cause a boom or a bust. Ironically, with inflation and gas prices trending downward throughout 2023 and 2024, both the consumer price index and gas prices would have returned to normal if he had done absolutely nothing. By just coasting on the trends he could have claimed to have fixed the economy. Gas prices had dropped to well below $3.00/gallon and were expected to get even lower. But Trump did the two things that were guaranteed to cause prices to rise: impose irrational tariffs and start a war in the Middle East.  

Unless every tariffed business suddenly voluntarily and altruistically decides to reduce their profits, the cost of tariffs will get passed on to the consumer. Not to mention the unpredictability and confusion that the constantly changing tariff rates cause. Businesses crave stability. They have to have enough information to make financial projections. Not only are the Trump tariffs being regularly found illegal by the courts, but Trump himself constantly changes his mind on who he is going to punish and by how much. The failure of the inflation rate to return to normal is entirely Trump's. Of course, the Iran War, with the Strait of Hormuz being blocked (by Iran and  by the United States!) is the direct cause of the rise in gas prices. Trump has mocked "affordability" as fake news, and belittled (or is it be-liddl'ed) the concern over rising gas prices by assuring us that it's only temporary and true patriots are willing to pay the price. 

Trump's justifications are unsurprising. Politicians always attempt to portray their screw ups in a positive light. The reactions of his supporters, even those who are negatively affected by his economy-busting policies, makes no sense. The villagers who had the torches, pitchforks and sickles ready to go, who were adamant that the economy was why they voted for Trump, now aren't as concerned about inflation or high gas prices. A common excuse is "inflation and gas prices were higher under Biden", which is true for the peak in 2022. Both inflation and gas prices were steadily decreasing, and would likely have continued to decrease if Trump, as I wrote in a previous paragraph, had done nothing. But the point that they intentionally miss is that even during the last half of 2024, when inflation was pretty much under control, and gas prices were actually lower than they are now, Trumpists were losing their minds about how terrible things were. Their other excuse is that "Biden caused it". Even if we concede that Biden caused the economic mess that Trump inherited, they brush off Trump's promises to fix it all. On Day One. 

The most egregious example of Trumpists changing their tune when Trump changes his is their newfound support for foreign adventurism and their acceptance of the economic fallout from it. One of Trump's promises in his campaign was that he wouldn't start wars, he would end them. Despite that promise, the Trump Cult is now expressing thankfulness that we are now safe from a country we were never in any danger from and viewing skyrocketing energy prices as an acceptable tradeoff. 

Yes, there are voices within the Republican Party and the MAGA base who are upset at the affordability crisis and opposed to the Iran War, and media jump on that as if the cultists are abandoning their leader. We've seen this before. There's some rumblings and a few people from the cult speak out, but pretty soon it all settles down and he reasserts his control.