(CNN) — By now in American politics, we’ve become accustomed to high-profile figures pleading the Fifth to avoid answering questions they believe could be used to incriminate them. That includes President Donald Trump doing it more than 400 times in a civil case in 2022.
But when it comes to Dr. Anthony Fauci invoking the Fifth Amendment — as he did repeatedly in Senate testimony Wednesday — it’s much more complicated.
That’s because Fauci was pardoned last year by then-President Joe Biden.
Indeed, Wednesday’s hearing is very unlikely to be the end of the story. And it could actually grease the skids for Republicans and the Trump administration to do something many of them have openly floated: Trying to put Fauci in prison.
They’re ostensibly not trying to prosecute Fauci for what he did during the Covid pandemic, but have talked about holding him in contempt of Congress — a threat to initiate a process that would result in the Justice Department considering whether to charge him.
GOP efforts to prosecute Fauci formed the basis of his refusal to answer questions Wednesday. Specifically, he cited Senate Homeland Security and Governmental Affairs Chair Rand Paul’s years-long attacks against him.
Fauci claimed the Kentucky Republican was trying to “get me to say something, anything, that could vindicate his repeated public pledges that I end up, in his words, ‘behind bars.’”
But the key difference between Fauci pleading the Fifth and others doing so is that Fauci was pardoned by Biden in early 2025.
On his way out of office, Biden issued preemptive pardons for Fauci and others targeted by incoming President Trump while citing signs the new administration and its allies might try to drum up prosecutions against them. (That fear that has been legitimized, given the Trump Justice Department’s efforts to target Trump foes based on often flimsy evidence.)
And Fauci, the former director of the National Institute of Allergy and Infectious Diseases, was not only pardoned; he received a very broad pardon that covered virtually anything related to his government service between January 2014 and January 2025.
In other words, Fauci is already immune from prosecution for many of the potential alleged crimes Paul and the committee’s Republicans could try to link him to from the Covid era.
But Fauci indicated he was pleading the Fifth because he feared Republicans would try to lay a perjury trap — i.e. try to get him to say something that could be used to bring a perjury case against him.
Indeed, some prominent figures had spoken before the hearing about Fauci possibly still being prosecuted for perjury, despite his pardon. They included Health and Human Services Secretary Robert F. Kennedy, Jr. and conservative lawyer John Yoo, who both suggested as much in interviews on Fox News.
(While Fauci’s medical advice during the Covid pandemic has been roundly criticized by Republicans, there is little to link him to criminal activity. And polling earlier this year showed a majority of Americans still had confidence in him.)
But whether it’s enough for Fauci to plead the Fifth and be done with it is a major unanswered question.
There is a tension between Fifth Amendment protections and Congress’ investigative authority. And witnesses who claim they are protected from answering questions can be called upon to justify that in court and can be held in contempt.
Former Trump adviser Steve Bannon, for instance, invoked executive privilege to avoid testifying about efforts to overturn the 2020 election. He was later convicted of contempt of Congress and sentenced to four months in prison when the courts rejected his claim. (The Trump DOJ has since sought to dismiss his conviction.)
Paul signaled Wednesday that he was scheduling a contempt vote for Fauci in his committee for next week, saying, “It’s against the law to obstruct an investigation of Congress. There will be repercussions for your refusal to testify.”
It’s worth noting that even if the panel votes to hold him in contempt, an actual referral to the Justice Department requires a majority of the full Senate, and that vote would have to clear a filibuster. That means Paul would need a handful of Democrats to get on board to follow through — or convince someone to take up the cause in the House, where it only requires a simple majority.
While there’s a long way to go before Fauci potential charges, some legal experts say his claim to the Fifth Amendment here could be dicey.
“Whether that concern (about prosecution) is sufficient to support a Fifth Amendment invocation would ultimately be for a court to decide,” said former federal prosecutor Danya Perry.
She added: “Fauci would point to Paul’s repeated accusations and threats as evidence that the prospect of prosecution was concrete rather than speculative, even if he believed any such prosecution would ultimately fail.”
Mark Osler, a law professor at the University of St. Thomas, wrote in an email that “the pardon would seem to cover Fauci’s previous congressional testimony prior to January 19, 2025. Thus, he can’t assert the 5th based on the fact that he may be asked questions that reveal his prior testimony as false (or at least subject to such a charge).”
But Osler said Fauci could argue his pardon has some holes that could be exploited — such as conduct that occurred before 2014 or that didn’t relate to his government service.
CNN senior legal analyst Elie Honig wagered that Fauci would have a strong claim not just because of the time limit of the pardon, but also because he could fear being prosecuted for potential state crimes, which aren’t covered by a federal pardon.
“He certainly can take the Fifth if he has exposure outside of the pardon, which he certainly does,” Honig argued on CNN.
If courts found that Fifth Amendment protections didn’t apply to Fauci’s testimony, he could conceivably agree to testify at that point and avoid possible contempt charges. But he would have to balance that against whatever potential prosecution he might fear his testimony could lead to.
Interestingly, this is a scenario that was often previewed during and shortly after Trump’s first term, but with the roles somewhat reversed.
Back then, the thought was that Trump could pardon his allies, but that meant it could potentially be easier to make them testify against him.
Now some Republicans are girding to continue the fight with Fauci.
“Let’s just get one thing straight: You don’t have any rights under the Fifth Amendment, because you’ve been pardoned, as you very well know, as the Supreme Court has been clear for a century and more,” GOP Sen. Josh Hawley of Missouri said at Wednesday’s hearing.
Hawley went on to cite Fauci’s lawyers, one of whom was escorted out of the hearing at Paul’s request after a tense back-and-forth.
“Your lawyers sitting behind you, now shifting nervously in their chairs — they know it,” Hawley said. “This isn’t about the Constitution. This isn’t about the law. This is about contempt — contempt for this body and contempt for the American people.”
The-CNN-Wire
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