Fauci’s Refusal To Answer Congress Puts His Pardon In Jeopardy

Dr. Anthony Fauci’s appearance before the Senate Homeland Security and Governmental Affairs Committee last week quickly stalled when, in his opening statement, Fauci invoked his Fifth Amendment privilege against self-incrimination. He was noticeably nervous, visibly shaking, and devoid of the arrogance he previously brought to congressional hearings.

The smug expression that accompanied Fauci in his public appearances was supplanted by a trembling stare. Earlier in the week, Fauci’s diary was released to the public, having inexplicably been found on a federal government server.

Sen. Rand Paul, R-Ky., chairman of the committee, said at the hearing that the contents of the diary did not align with Fauci’s previous congressional testimony or his public direction to the American people regarding gain-of-function research funding, the efficacy of masks, the likelihood of a Wuhan lab leak causing the outbreak, and more. The “revelatory cringe” of the diary further revealed Fauci’s humiliating hubris while the nation was locked down, loved ones died alone, kids “learned” from home, people lost their careers, and businesses shuttered during the Covid-19 outbreak.

Ultimately, we learned nothing new at the hearing. But what persists is whether Fauci’s invocation of the Fifth Amendment was proper, especially given his pardon from President Biden. Fauci’s pardon reads:

FOR ANY OFFENSES against the United States which he may have committed or taken part in during the period from January 1, 2014, through the date of this pardon arising from or in any manner related to his service as Director of the National Institute of Allergy and Infectious Diseases [NIAID], as a member of the White House Coronavirus Task Force or the White House COVID-19 Response Team, or as Chief Medical Advisor to the President.

This pardon covers all federal crimes related to his government service that may have been committed between January 1, 2014, and January 19, 2025 — the date of the auto-penned signature.  This 11-year period spans nearly all federal statutes of limitations, to include false testimony to Congress (five years). So, was the Fauci Fifth contempt of Congress?

Legal Precedent

In Mason v. United States, the Supreme Court made it clear that pleading the Fifth is “confined to instances where the witness has reasonable cause to apprehend danger from a direct answer.” In Brown v. Walker, the high court further resolves that “the danger to be apprehended must be real and appreciable … not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it.”

With pardon in hand, is there a reasonable danger of federal prosecution for answering questions solely confined to his previous testimony?

The Supreme Court also cautions that self-incrimination refers to past activities only, not impending perjury or false statements resulting from the questions. Also, the Fauci Fifth is not legally appropriate just because truthful answers would “have the tendency to disgrace” him. In other words, even if Fauci’s answers might be embarrassing, he still must answer.

There are myriad testimonial situations where the Fifth Amendment cannot be blanketly asserted. Amnesty, testimonial immunity, statutory immunity, constitutional immunity, expiration of the statute of limitations, double jeopardy, waiver, and, of course, a pardon may prevent an otherwise legitimate invocation of the Fifth Amendment. A person may waive his right against self-incrimination by answering some questions or making denial statements, and then invoking the Fifth for others.

Relevant here is that in Fauci’s opening statement he mentioned his “decades-long cooperation with Congress” before invoking the Fifth Amendment, which is an oblique defense of his previous testimony. Courts have held that such an invocation may have waived or forfeited Fauci’s right to assert the Fifth Amendment altogether.

Several senators asked questions related to Fauci’s former testimony regarding Covid origins, the lab leak theory, masking, school closures, and funding gain-of-function research. Sen. Bernie Moreno, R-Ohio, had more poignant questions.

All repeatedly directed Fauci to answer those questions, to which Fauci repeatedly invoked the Fifth. He was even asked mundane questions about the color of his necktie or the color of the carpet. Same invocation. Same refusal. It was in these moments that the Fauci Fifth may not be worth the paper his lawyers printed it on.

There appears to be no feasible state or local prosecution that could result from alleged previous false testimony before Congress. Only federal law would apply to that false testimony or perjury. Regardless of the promises or strongly worded letters from state attorneys general, there is no possible legal contingency that is not entirely imaginary for state or local prosecution to bring a case against Fauci for false testimony before Congress.

Therefore, and because of Fauci’s pardon for those activities, he had a legal obligation to answer those questions covering his activities at NIAID during the covered pardon period. When Fauci refused, this could constitute criminal contempt. We saw former Trump administration officials prosecuted successfully under the same legal theory during the Biden administration.

Abandoning His Pardon?

Moreover, when asked several questions about activities isolated to his pardon period, did Fauci abandon his pardon altogether by asserting the Fifth? The Supreme Court in Wilson v. United States opined there is no authority for any person or body to force the acceptance of a pardon by anyone but the recipient, and it must be affirmatively asserted.

The Supreme Court case of Burdick v. United States had very similar facts to Fauci’s predicament. There, George Burdick was an editor at the New York Tribune. He was issued a pardon by President Woodrow Wilson for any federal offenses he may have committed in connection with the publication of an article regarding alleged fraud. Burdick had not been charged with a crime and no criminal investigation into Burdick had begun.

Despite the preemptive pardon, Burdick refused to testify before a grand jury, instead asserting his Fifth Amendment right not to provide testimony that would tend to incriminate him. Burdick never affirmatively asserted or declared his pardon. The Supreme Court concluded that “it was Burdick’s right to refuse [the pardon]” and stand on his Fifth Amendment objection. In other words, if you plead the Fifth, you abandon or otherwise refuse your pardon.

If Fauci refused or abandoned his pardon by invoking his right against self-incrimination, then activities covered in the pardon period may again be ripe for prosecution. His diary will be Exhibit A. The legal reality is that Fauci cannot have both the prophylaxis of a pardon and the Fifth Amendment for questioning specifically related to his prior congressional testimony during the covered period.

Fauci chose to avoid self-incrimination, desperate to avoid answering questions about his former congressional testimony as juxtaposed with recently declassified materials, discovered emails, and of course his diary entries. By choosing the Fifth, Fauci may have abandoned his pardon and opened himself to criminal prosecution for any crimes (e.g. false statements to Congress) made during the pardon period.

Conversely, if Fauci argues such activities were covered by the pardon and he is immune from prosecution for those activities, then Fauci may be properly charged for criminal contempt of Congress because he improperly plead the Fifth.

Sen. Paul has promised a criminal referral to DOJ as early as this week. The Justice Department will have to examine these narrow legal concepts and determine if charges should be brought.

The irony is that if Fauci had testified truthfully last week, even if that meant admitting he previously gave false testimony before Congress in the covered pardon period or lied to the American people, he would be facing no legal consequences. Having asserted the Fauci Fifth 111 times under oath in the U.S. Senate on national television, Fauci’s legacy instead is forever the painful perception of a mendacious “megalomaniac,” starved for fame, and dripping in self-interest.

Jay Town is the former U.S. attorney for the Northern District of Alabama and a former United States Marine judge advocate. He is a career prosecutor, a Newsmax legal analyst, and a corporate executive.