Dr. Kevin O’Connor appeared before the House Oversight Committee, but he had little to say about the investigation into the alleged cover-up of President Joe Biden’s mental and physical decline. The former White House physician invoked his privilege against self-incrimination in refusing to answer any questions. His prescription for the Committee seems clear: take a Fifth and call me in the morning (with an immunity grant). The question is now whether Congress will move to compel his testimony.
O’Connor appeared with counsel and repeatedly read the same line: “On the advice of counsel, I must respectfully decline to answer based on the physician patient privilege and the reliance on my right under the Fifth Amendment.”
GOP members were quick to quote Rep. Dan Goldman (D., N.Y.) who declared that “you don’t take the Fifth if you didn’t do anything wrong.”
The development adds another interesting dimension to the controversy over the alleged cover-up of Biden’s decline.
Dr. O’Connor insists that he cannot compromise a patient’s privacy under federal law and ethical guidelines. However, his client was the president of the United States, and Congress is investigating allegations that he was no longer competent or engaged in running the nation. That raises potential criminal conduct from falsification of documents to perjury that an oversight committee is pursuing.
Generally, courts have waived confidentiality protections for reporters, doctors, and lawyers under a crime or fraud exception in federal criminal cases. A good example is the testimony of the psychiatrist in the Menendez brothers’ murder case.
Dr. O’Connor is an essential witness in that investigation. President Biden has clearly not given him the authority to fully disclose the medical records and testing results from his presidency. The question could become whether Congress can now compel such disclosures. Both Biden and O’Connor could go to court to seek to prevent such compulsion.
Congress often examines private information, including tax records and background investigations, as part of its oversight functions. Moreover, many past investigations would have been obstructed by sweeping privacy claims. Consider the Kennedy assassination investigation into the examinations of the president or confirmation fights over allegations of mental or physical disabilities of nominees.
Under the Health Insurance Portability and Accountability Act (HIPAA), subpoenas are regularly used to obtain otherwise protected medical information. The law specifically allows for disclosures in criminal or fraud investigations.
Moreover, many questions would not trip such wires, including the question that he was asked about whether anyone asked him to falsify medical records.
Congress has a compelling basis for demanding disclosure. However, the question is time. With the approaching midterm elections, the runway is getting shorter for the Oversight Committee. If the Democrats retake the House, these investigations will be halted, as Democratic members have pledged to resume impeachment investigations targeting President Trump.
The House Oversight Committee could grant Dr. O’Connor immunity and compel his testimony. He would then have to either secure a court order of protection or face a contempt of Congress charge for refusing to testify. If he elected to testify, he would still be subject to potential charges for any false statements made to investigators or committee members.
There is sufficient time to compel such testimony, but the Committee will have to move with some dispatch if it wants to hear more from the doctor.