Fauci’s Fifth Amendment answers may test Biden pardon as GOP eyes contempt

Dr. Anthony Fauci invoked his Fifth Amendment right against self-incrimination more than 100 times on Wednesday, a move legal experts described as strategically sound despite the politically damaging optics. Sen. Rand Paul (R-KY), chairman of the Senate homeland security and governmental affairs committee, scheduled an Aug. 5 vote on a resolution to hold the nation’s […]

Dr. Anthony Fauci invoked his Fifth Amendment right against self-incrimination more than 100 times on Wednesday, a move legal experts described as strategically sound despite the politically damaging optics.

Sen. Rand Paul (R-KY), chairman of the Senate homeland security and governmental affairs committee, scheduled an Aug. 5 vote on a resolution to hold the nation’s former leading expert on the COVID-19 pandemic in contempt of Congress.

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“It’s against the law to obstruct an investigation of Congress,” Paul told Fauci. “There will be repercussions for your refusal to testify.”

Two legal experts told the Washington Examiner following the hearing that the preemptive pardon Fauci received from former President Joe Biden does not eliminate every potential source of criminal exposure — but that Fauci followed the safest legal strategy by appearing under subpoena but refusing to answer.

“Legally, he played it perfectly,” former federal prosecutor Neama Rahmani said. “Now politically, obviously, this is a disaster.”

Fauci’s pardon may not eliminate Fifth Amendment privilege

Biden pardoned Fauci, the former head of the National Institute of Allergy and Infectious Diseases, of any federal offenses arising from his government service between 2014 and Jan. 20, 2025. Some Republicans contend the pardon removed Fauci’s right to remain silent about conduct during that period because he can no longer be prosecuted for it.

“You don’t have any rights under the Fifth Amendment, because you’ve been pardoned, as you very well know,” Sen. Josh Hawley (R-MO) said, citing the Supreme Court’s 1896 decision in Brown v. Walker.

Sen. Josh Hawley (R-MO), left, next to Sen. Rick Scott (R-FL), speaks as Dr. Anthony Fauci appears before the Senate homeland security and governmental affairs committee at the Capitol on Wednesday, July 29, 2026, in Washington. (AP Photo/Allison Robbert)

The court said in that case that a witness generally cannot invoke the privilege for a pardoned offense because the threat of prosecution has been removed.

But Biden’s pardon was retroactive, not prospective, Rahmani said. It would not cover perjury or false statements made during Wednesday’s hearing.

“It’s not a license to commit crimes,” Rahmani said. “Biden’s pardon doesn’t apply to future conduct.”

Hans von Spakovsky, a senior legal fellow and constitutional expert at the conservative Advancing American Freedom, agreed that Fauci could be prosecuted if his present testimony were proved false.

“If he lies to the committee now about something that he said back then, he’s not being prosecuted for what he said back then,” von Spakovsky said. “He’s being prosecuted for lying to the committee now.”

A presidential pardon also applies only to federal offenses. Von Spakovsky said it cannot prevent a state from prosecuting conduct covered by the federal pardon if the conduct violated state law and the applicable limitation period remained open.

Eugene Volokh of the UCLA School of Law and the Hoover Institution made the same distinction in a 2024 analysis, writing that the Fifth Amendment privilege disappears only when there is no realistic prospect of prosecution by any federal or state government.

Fauci accuses Paul of seeking to entrap him

Fauci used his opening statement to accuse Paul of conducting the hearing to fulfill his public pledges to put him “behind bars.”

“The only conclusion I can reach is that the sole reason he is calling me before this committee is to get me to say something — anything — that could vindicate his repeated public pledges that I end up, in his words, quote, ‘behind bars,’” Fauci said.

Paul, left, sitting next to Sen. Gary Peters (D-MI), the committee’s ranking member. (AP Photo/Allison Robbert)

Fauci said Paul’s goal was to entrap him and trigger an allegation that he had lied. He then repeatedly responded to questions: “On the advice of counsel, I respectfully decline to answer based upon my rights under the Fifth Amendment to the Constitution.”

Republicans questioned Fauci about a newly released private diary that they said conflicted with his public statements about the origins of the coronavirus, research conducted at a laboratory in Wuhan, China, and social-distancing policies.

Von Spakovsky rejected Fauci’s claim that the hearing amounted to entrapment but said the diary made invoking the Fifth Amendment the smartest legal option.

“Were you lying then, or are you lying now?” von Spakovsky said, describing the question Fauci could have faced. Taking the Fifth was “the only way for him not to have to admit to the truth of his diaries,” he argued.

Capitol Police escort out Fauci’s lawyer, David Schertler, during the Senate hearing. (Graeme Jennings/Washington Examiner)

After Paul warned Fauci of consequences, Fauci’s lawyer, David Schertler, attempted to raise a constitutional objection. Paul ordered security to remove him from the hearing room.

Contempt vote faces legal obstacles

The Senate could seek a civil order compelling Fauci to testify or approve a criminal contempt referral to the Justice Department. In theory, it could also employ its long-dormant inherent contempt power to detain him.

Rahmani said those avenues are unlikely to succeed as long as Fauci maintains a valid Fifth Amendment claim.

“No judge in any courtroom in this country would hold that what he did today was legally inappropriate or unsound,” Rahmani said. “The optics are really bad, but as far as legal recourse, there’s nothing that Congress can do.”

However, a 1961 federal appeals court decision presents an additional danger if a court rejects Fauci’s privilege claim: Reliance on a lawyer’s advice is not a defense to willfully defying Congress. Some judges have questioned that rule, but the D.C. Circuit has declined to overturn it.

Sen. James Lankford (R-OK) speaks during the hearing. (AP Photo/Allison Robbert)

Meanwhile, Sen. James Lankford (R-OK) compared Fauci’s testimony to that of former IRS official Lois Lerner, whom the House held in contempt after she asserted her innocence in an opening statement and then invoked the Fifth Amendment when faced with questions about the IRS’s targeting of conservative groups during the Obama administration.

The Justice Department declined to prosecute Lerner in 2015 for her 2013 testimony to Congress, finding that her general assertions did not waive the privilege and that the Fifth Amendment would provide an “absolute defense.”

Fauci’s opening statement was less ambitious. He criticized Paul’s motives and announced that he would invoke the privilege but offered no factual account of the pandemic response and made no general claim of innocence.

Immunity may be Congress’s only path

Both legal experts said Congress could compel Fauci’s testimony by granting immunity broad enough to eliminate his remaining criminal exposure.

“The only exception is if Congress grants him immunity,” Rahmani said. “Then, of course, he can be compelled to testify.”

Rahmani called that option a likely political “non-starter.” Immunity could help the committee obtain information, but it would also protect Fauci from prosecution based on the compelled testimony.

Some Republicans, including Rep. James Comer (R-KY), chairman of the House oversight committee, have further complicated their position by questioning whether Biden’s “autopen pardon” is valid. If the pardon was somehow found to be invalid, however, the renewed prospect of federal prosecution would serve only to bolster Fauci’s Fifth Amendment invocation.

Biden used an autopen device to sign the pardon for Fauci and many others just before leaving office.

RAND PAUL TO HOLD COMMITTEE VOTE ON HOLDING FAUCI IN CONTEMPT FOR REFUSING TO TESTIFY

Rahmani said the use of an autopen is legally established when authorized by the president. “It’s a question of authorization, not the instrument itself,” he said.

The contempt vote could push the competing theories toward court. But if the experts are right, Fauci’s strategy was both legally smart and politically costly — and the pardon some Republicans question may leave immunity as their only viable route to his testimony.

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