Dr. Anthony Fauci not only had the right to plead the Fifth Amendment before a congressional committee, he was probably right to do so.

The Fifth Amendment protects the innocent and the guilty alike. No one should infer guilt from anyone invoking that constitutional privilege. Had I been Dr. Fauci’s lawyer I probably would have advised him to do exactly what he did, despite the fact that many people will wrongly infer guilt from his refusal to testify.

The committee that was examining Fauci has an agenda. It is not seeking the whole truth. It is seeking partisan advantage.

Members of congress and their staff frequently use these hearings to bully witnesses. They often cut them off in the middle of their answers and refuse to allow them to comply with their oath to “tell the truth, the whole truth and nothing but the truth.” Congressmen and their staff then have the ability to distort the testimony out of context and create soundbites for their campaigns.

Let me begin with Fauci’s constitutional right to invoke the Fifth Amendment. Yes, he was pardoned for any past crimes but the pardon does not operate prospectively. The committee was trying to prove that he had committed crimes not only before his pardon but after it. He surely had the right to invoke the Fifth Amendment as to any potentially incriminating information that would allow prosecution for post-pardoned crimes. To refuse to answer is not to acknowledge guilt; it’s to acknowledge prosecutors can indict innocent defendants using evidence obtained in congressional hearings.

Senator Rand Paul tried to avoid this constitutional barrier by specifically asking him questions that are clearly covered by the pardon President Biden gave him. This may make it appear that Dr. Fauci had nothing to fear from answering questions limited to that period. But that ignores a line of Supreme Court cases that hold that if a defendant answers some questions about a particular subject, he may not refuse to answer other questions about that subject. He may not turn the spigot on and off. Once he opens the door by answering questions about a subject, he may not close it in response to other questions.

So any good lawyer will always advise a client who seeks to invoke the Fifth Amendment to invoke it across the board and not try to pick and choose safe areas. That’s what Dr. Fauci’s lawyer did here, and that’s what I would’ve done had I been Dr. Fauci’s lawyer.

There is of course a price to pay in the court of public opinion for invoking the Fifth Amendment in response to hundreds of questions. Opportunistic politicians are eager to cite the number of times a witness has invoked the privilege, without explaining that there is no real difference between invoking it once and continuing to invoke it as for every question. This tactic was used commonly during the McCarthy era, when witnesses refused even to give their names or dates of birth. Similarly, Dr. Fauci refused to answer questions about the color of his tie for fear that he might be waiving his Fifth Amendment right as to other questions.

So whether you like dr Fauci or not, all Americans who care about const rights should be supporting his fifth amendment right to refuse to incriminate himself. 

The fact that Dr. Fauci was within his constitutional rights does not mean that he is out of trouble. The congressional committee may well recommend that he be held in contempt. And congress may vote to hold him in contempt. The Trump Justice department could indict him and he would have to litigate these issues. Although there is no guarantee that he will win, the law seems clearly to be on his side. Moreover it may take a considerable amount of time for this case to work its way through congress and the courts.

If the committee were seriously interested in learning the facts rather than going after dr Fauci, it could recommend that congress bestow total immunity on dr Fauci up until the present. This would not give him immunity from a perjury prosecution if he were to testify falsely, but it would immunize him from all other crimes and deny him the right to invoke the fifth amendment. But congress seems more interested in Fauci’s blood than in his truthful testimony.

We will never know the whole truth about the sources and causes of the terrible virus that killed so many people. But we can truly learn from our collective mistakes in responding to the pandemic once it occurred. Dr. Fauci almost certainly has useful information that would help in this process. So the best thing for our nation and for the world, would be to give Dr. Fauci total immunity and question him about everything he knows without giving him the right to refuse to answer question on the ground that his answers might tend to incriminate him.

The words goy and goyim are thrown around by Jews and non-Jews to mean very different things and to convey very, very different impressions. Some antisemites try to weaponize these terms to accuse Jews of being exclusionary or discriminatory against goyim (the correct Hebrew pluralization of goy, rather than the anglicized “goys”).

Some Jews have also weaponized the term against their enemies: Ben Shapiro has accused, Tucker Carlson, of “goyslop” for falsely claiming that Jews want “goyim” to die defending Israel.

The original meaning of the word goy is neutral. It simply means “nation.” The Bible describes the Jewish people as “goy Kadosh” – a holy nation. In post-biblical eras goy has come to mean “gentile” – any person or nation that is not Jewish. In its linguistic meaning it is descriptive, neither pejorative nor positive. But in common usage, it has taken both connotations.

When I was a kid growing up in Brooklyn, our non-Jewish neighbors used to do favors for us by performing tasks on the sabbath that we were religiously prohibited from doing, such as turning on lights. We referred to these friend positively as “shabbos goys”– non-Jews who helped us evade our religious strictures. On the other hand, my grandmother who grew up among Polish anti-Semites in the old country, used to word more pejoratively: whenever I whistled, which I loved to do, she would refer to it’s as a “goyish” activity. She also referred to her once a month house cleaner as “the goya” – female for goy.

It all depended on who is saying it and what they intend to convey.

When Jeffrey Epstein used that word, as he frequently did in his emails, he meant it pejoratively, as he did when he used the word shvartza to refer to African-American people. Epstein was racist, in every sense of that horrible concept, and he was proud of it. I told him never to use either pejorative in my presence, but I couldn’t control his emails or his conversations with others.

I personally never use the word goy because of its possible negative connotation and the risk of being misunderstood, and I know that others do the same. Even Holocaust museums, which honor “righteous Gentiles”, stay away from using the technical Hebrew word for gentile (goy) and use the euphemism “righteous among the nations” which they translate into Hebrew as “chasidai umot haolam”– pious among the nations of the world.

So context is everything. When a Jew-hating organization names itself “the Goyim Defense League” – a takeoff on “The Jewish Defense League” – you don’t need a dictionary or history lesson to understand what they are trying to do: use the word goyim to disparage Jews.

In light of all this, can the biblical word goy or its derivatives goyim, goyish or goya now be used in its original neutral way? Or has it been so corrupted by its misuse and weaponization that it has become too loaded to employ without the risk of misunderstanding?

The Yiddish word svartza has suffered a similar fate. In its original definition it means “black person.” Svartch means dark or black. Many Jews are named Swartz, suggesting that their forebears were dark-skinned. The name Weiss suggests light skin, as the names Gross and Klein suggest tall and short. But polite people no longer call black people svartzas, because the connotation has become pejorative.

Language is a living organism with no fixed boundaries. So perhaps we should retire the word goy, rather than try to explain that it is not intended pejoratively. Fortunately, we have other synonyms – such as nation and gentile – which are less ambiguous and subject to misunderstanding and weaponization.

I like Congressman Jamie Raskin (D-MD). He was my former student at Harvard Law School, a distinguished professor of constitutional law and now a progressive member of Congress leading the House impeachment managers in their effort to have the Senate convict and disqualify former President Donald Trump.

During one of his Senate speeches this week, he quoted his late, great father Marcus Raskin. I also knew Marcus: I met him, a prominent left-wing intellectual, when he was indicted for conspiracy to obstruct the Vietnam War effort by encouraging young men to resist the draft. He coauthored a call to resist illegitimate authority and stood trial along with doctor Benjamin Spock and others who advocated the burning of draft cards, break-ins at draft boards and other unlawful actions to obstruct the war effort. Many young people did what was advocated and were punished for their unlawful acts.

Marcus, who was charged only with inciting these unlawful acts by others, was represented by my mentor, teacher and dear friend, General Telford Taylor, who had been America's chief prosecutor at the Nuremberg trials. I consulted with Taylor on Marcus' defense, which ultimately prevailed.

Unsurprisingly, the defense was that the First Amendment protected Marcus’ advocacy of resistance to the draft, even if such resistance then took a form of unlawful actions by others. Civil libertarians and liberals from all across the country rallied to the defense of “the Spock 5,” invoking the First Amendment.

The jury acquitted Marcus, and the court of appeals reversed the convictions of the other defendants. They were all saved by a broad reading of the First Amendment.

Several years later, Marcus was once again protected by a broad reading of the First Amendment, when he served as an intermediary between Daniel Ellsberg, who unlawfully stole the Pentagon Papers, and The New York Times, which published them despite their being classified. But for the First Amendment, Marcus would have been charged with conspiracy to publish classified material.

Now, Marcus’ son Jamie is quoting his father in a speech that would cut the heart out the very First Amendment that twice saved his father. If Jamie Raskin’s current view of the First Amendment had prevailed back in the day, his father would likely have been convicted of two felonies. If President Trump incited his followers to commit unlawful conduct, so did Marcus. I believe that neither incited violence and that both were protected by the First Amendment.

Nor is he alone. Hundreds of members of Congress, academics and ordinary Americans seem willing to compromise our fundamental freedoms of speech, expression and assembly in order to create a “Trump exception” to the First Amendment.

I would have thought that Jamie Raskin—in light of his history as a constitutional law professor, his family history under the First Amendment and his own protests against the 2016 election—would be leading the charge to protect the First Amendment. But no! He is leading the charge to compromise President Trump’s free speech rights—and thus the rights of all Americans to express controversial, even wrongheaded and provocative, views.

Jamie Raskin has sought to distinguish his father’s invocation of the First Amendment from Donald Trump’s on the ground that his father was an ordinary citizen protesting the actions of the government, whereas President Trump was the government itself. But the First Amendment recognizes no such distinction. Moreover, President Trump was protesting the actions of other branches of government—wrongly in my view, but constitutionally nonetheless.

Marcus Raskin’s broad invocation of the First Amendment to protect his advocacy of unlawful acts of protest sets the correct standard under which such constitutional protections for speech should be judged. Jamie Raskin’s far narrower and more partisan view of the First Amendment is inconsistent with that view. I hope that the next time Jamie Raskin quotes his wonderful father, he will remind his listeners how the same First Amendment that he is now seeking to narrow protected his father’s just and righteous protests against the Vietnam War—as well his own unrighteousness protests after the 2016 presidential election. Free speech for me and my father, but not for Donald Trump, is not the American way.