Navarro Went To Prison For Less Than Fauci’s Bogus 5th-Pleading

One hundred and eleven. That is how many times Anthony Fauci invoked the Fifth Amendment before a congressional committee this week, reading the same canned sentence no matter what he was asked.

Four. That is how many months Peter Navarro spent in federal prison under the very same statute, after telling Congress exactly why he believed he could not comply: President Trump had invoked executive privilege, and the privilege was not Navarro’s to waive.

The two contempt-of-Congress cases could not be more different, and the difference is not politics. It is written into the text of the statute on contempt of Congress, which Congress split into two distinct crimes with two distinct standards. Understanding that difference tells you two things at once: why a contempt charge against Fauci might actually stick — and why Navarro’s conviction should not survive the appeal now.

If Fauci is charged with contempt of Congress, it will be under 2 U.S.C. § 192 — the same statute the Biden Department of Justice charged Navarro with. After someone receives a subpoena from Congress compelling his testimony, Section 192 prohibits two different actions: (1) “willfully” defaulting (that is, neither producing requested documents nor showing up for the hearing); and (2) refusing to answer relevant questions without a justifiable excuse.

Fauci would be charged under the second clause, refusal to answer relevant questions. While the prosecution would have to prove that this refusal was deliberate rather than accidental, that would be easy here. Fauci deliberately and intentionally refused to answer nearly every question put to him on matters big or small.

The only defense available to Fauci under the second clause would be if he had a justifiable excuse for refusing to answer questions. The Supreme Court has said that the Fifth Amendment, properly invoked, trumps the investigative powers of Congress. So if Fauci properly invoked the Fifth Amendment, he would defeat a Section 192 charge.

Fauci’s Improper Use of the Fifth

But Fauci did not properly invoke the Fifth Amendment, for three reasons.

First, the Fifth Amendment is not absolute. When someone pleads the Fifth outside of his own trial, it must be because he reasonably apprehends a risk of self-incrimination in future prosecution. But because Fauci received a sweeping pardon of more than a decade from President Biden, there is no federal prosecution he could fear. If he told the truth, the pardon absolves him of the need — and ability — to plead the Fifth.

The only exception would be if he intentionally lied during the hearing, because that would then be a new crime not covered by the sweeping pardon. But a person cannot plead the Fifth on the basis that he believes he is going to lie during a hearing. That would certainly create perverse results.

Second, courts have recognized that the Fifth Amendment privilege against self-incrimination “cannot be invoked on a blanket basis.” This is to make sure that the person claiming privilege does so in response to a particular question “with the understanding that the danger of self-incrimination must be real, not remote or speculative.”

Thus, the requirement that the invocation be made under a legitimate risk of prosecution must be applied to each invocation. There are serious questions of whether Fauci’s canned responses, seemingly having nothing to do with the questions asked, meet this standard.

Lastly, it would be of no avail for Fauci to hide behind his oft-repeated phrase “on the advice of counsel.” For the refusal to testify clause, it does not matter if he had a subjective belief that he correctly invoked privilege or relied on counsel in good faith. This clause is all about the objective sufficiency of his excuse. If the Fifth Amendment doesn’t objectively provide an excuse for Fauci, neither would his subjective faith in counsel.

This isn’t a question of word games. The law allows a person to invoke the Fifth Amendment for each question that raises a legitimate risk of future prosecution. But that is not what Fauci did. He refused to answer any question at all, regardless of what was asked or the reason.  That does not cut it.

Biden’s Anti-Navarro Lawfare

The lawfare against Peter Navarro could not stand in starker contrast. Rather than blanketly pleading the Fifth with the same rote response, Navarro specifically communicated to Congress that he was obligated to withhold a response to the subpoena because he believed President Trump invoked executive privilege.

That difference is crucial because Navarro was charged under a different part of the statute which has — or should have — a different standard. While Fauci would need an objective excuse to defeat a Section 192 charge, the clause Navarro was charged under has something the second clause does not have: an extra mens rea element.

Mens rea is the state of mind that a criminal must have to make his actions criminal. While Fauci would just need to intentionally refuse to answer, the government had to prove that Navarro willfully defaulted on his subpoena.

In the criminal context, “willfully” almost always means that the person acted with the knowledge that his conduct is illegal. The Supreme Court has been confirming that for 150 years. In Navarro’s case, he should have been able to defeat the charge by showing he defaulted because of his good-faith belief that President Trump invoked executive privilege.

But the D.C. Court departed from decades of Supreme Court precedent, relying on a D.C. Circuit case to “read the willfulness requirement out of the statute.” It prevented Navarro from even having the opportunity to explain to the jury why he thought his actions were lawful, that is — or at least should be — why he did not default “willfully.” But the D.C. Court shut him down and sent him into trial with one hand tied behind his back.

Navarro went to prison for four months because of this error in the law. But even after he finished his time, he continues to seek the vindication of his rights in court.

The statute Congress wrote already draws the line. The witness who appears and stonewalls needs an objectively valid excuse; Fauci’s blanket Fifth is not one. The witness accused of willful default must be shown to have known his conduct was unlawful; Navarro’s jury was never even allowed to hear why he believed the opposite.

Applied as written, Section 192 reaches the first man and acquits the second. Navarro will continue to fight to ensure that law is applied as written.

Abhi Kambli is a partner at Holtzman Vogel representing clients in high-stakes appellate and complex litigation, constitutional challenges, and matters involving state attorneys general and federal agencies. Abhi previously served as deputy associate attorney general at the United States Department of Justice, where he acted as lead counsel in high-priority matters for the Trump administration, oversaw the department’s civil components on behalf of the associate attorney general, advised the White House Counsel’s Office and federal agencies on litigation risk and strategy, and developed the department’s national affirmative civil litigation strategy. Ryan Burbage is a law student at the University of Alabama School of Law and a summer associate at Holtzman Vogel.