Rabbinic law operates on a principle that “a man may not make himself out to be evil,” but the Talmud also states that “silence is like agreement.” That means, two Orthodox rabbis told JNS, that it’s complicated what Jewish tradition has to say about Dr. Anthony Fauci declining to answer questions under the Fifth Amendment 111 times during a Senate Homeland Security Committee hearing last week.
Fauci is a former head of the National Institute for Allergy and Infectious Diseases and chief medical adviser to former U.S. President Joe Biden, who pardoned Fauci on Jan. 19, 2025. The doctor’s response to the COVID-19 pandemic was the focus of the Senate panel hearing.
“As a lawyer and former attorney general of my state, I can tell you that when you get immunity, you can’t invoke the Fifth,” Sen. Josh Hawley (R-Mo.) stated. “Fauci came in and invoked the Fifth because he is guilty as all get out I look forward to voting yes to hold Fauci in contempt next week.”
“No federal bureaucrat should accept cash prizes while on the job,” the senator stated. “That’s why I’m introducing legislation to bar federal employees from accepting cash prizes or soliciting awards. Fauci got rich while millions of people died. It can never happen again.”
During the hearing, Hawley asked Fauci questions like what day of the week it was, what color tie he was wearing and what color the carpet in the room was. The physician declined to answer all those questions.
Mark Goldfeder, a rabbi and CEO and director of the National Jewish Advocacy Center, told JNS that rabbinic law “would be more protective of Fauci than the Fifth Amendment, and that is exactly what convicts him.”
“Jewish criminal law does not merely permit a defendant to stay silent,” according to Goldfeder, who is known to cite medieval rabbinic commentaries in footnotes to court documents. “It refuses to hear his confession even if he volunteers it.”
Moses Maimonides, the 12th century Spanish Jewish scholar and physician, offered “his own psychological rationale about tortured souls confessing to crimes they never committed,” Goldfeder told JNS.
In 1966, U.S. Supreme Court Justice Earl Warren “cited exactly this tradition in Miranda v. Arizona,” Goldfeder said, quoting from Rabbi Norman Lamm’s journal article, from a decade prior, “The Fifth Amendment and Its Equivalent in the Halakha.”
In 1789, Virginia congressman James Madison, who later became president, penned legislation that would become the Fifth Amendment.
“So the Talmud got there 18 centuries before Madison. But in Halacha, the right against self-incrimination was never a right against providing an accounting, especially for a public servant,” Goldfeder told JNS.
The Talmud states, in Aramaic, that the admission of a party in a monetary or civil case “is like 100 witnesses,” he said. “Congressional oversight is not a capital trial”
Goldfeder added that the Mishnah states that officials who entered the chamber of the Temple to collect public tithes had to dress in clothes without hems, pockets or cuffs, so no one could suspect them of theft. The rabbis inferred that practice from a verse in Numbers, which states that “you must be clean from God and Israel.”
“A public servant’s obligation requires demonstrable innocence, Goldfeder told JNS.
Even Moses, “whom God Himself certified as trusted in all His house, nevertheless stood and gave a voluntary line-item accounting of every ounce of Tabernacle gold,” he said.
The rabbinic concept of “silence as admission” has “civil-law limits,” according to Goldfeder, but the rabbis “understood that silence in the face of accusation does carry some meaning, and the meaning depends on what the silence protects.”
Refusing to confess a crime is protected under rabbinic law. “A man refusing to state the color of his own tie is not invoking a privilege,” Goldfeder said. “He is holding an institution in contempt.”
Rabbi Yaakov Menken, executive vice president of the Coalition for Jewish Values, told JNS that he “was never as liable to believe conspiracy theories about what Dr. Fauci knew about the Wuhan Institute of Virology as I am after he refused to testify regarding the color of his tie.”
Menken, the group’s founding chief executive, noted the Talmudic statement that “a man may not make himself out to be evil.”
“That, however, refers to Jewish law exempting a person from bringing a fine, penalty or capital punishment upon himself through his own admission of guilt,” he said. “A person refusing to testify is quite different, as is the case here.”
“A person should be forthright and honest, and he made himself out to be someone with something to hide,” he told JNS.
