By Lucretia Hughes Klucken
WASHINGTON — Dr. Anthony Fauci invoked the Fifth Amendment 111 times Wednesday while refusing to answer questions before the Senate Homeland Security and Governmental Affairs Committee, according to a count reported by Fox News.
The Associated Press and Reuters separately reported that Fauci declined to answer more than 100 questions.
Fauci’s repeated refusal immediately raised an obvious question: Why would a man who received a full and unconditional presidential pardon need protection against self-incrimination?
Former President Joe Biden issued Fauci a sweeping preemptive pardon on Jan. 19, 2025, one day before leaving office. The pardon was among several last-minute executive actions reportedly signed using an autopen, a device that reproduces a person’s signature.
The pardon covered any federal offenses Fauci “may have committed or taken part in” between Jan. 1, 2014, and Jan. 19, 2025, arising from or related to his service as director of the National Institute of Allergy and Infectious Diseases, a member of the White House coronavirus task force or chief medical adviser to the president.
That language is not narrow. It was written to protect Fauci from federal prosecution for nearly every action connected to his government service during the covered period.
Yet when Fauci appeared under subpoena Wednesday, he repeatedly invoked his constitutional right against self-incrimination.
Fauci refused to answer questions concerning federal funding for coronavirus research, the Wuhan Institute of Virology, gain-of-function experiments, deleted government communications, his pandemic-era diary and statements he previously made to Congress.
He even invoked the Fifth Amendment when Sen. Josh Hawley, R-Mo., asked him what day it was and what color his tie and the carpet were.
Fauci said he followed the advice of his attorneys because Sen. Rand Paul, R-Ky., had publicly vowed to seek his prosecution. Fauci accused Paul of conducting an “unhinged” campaign to send him to prison.
Paul, chairman of the committee, said Fauci could face consequences for refusing to testify. The committee is expected to vote Aug. 5 on whether to hold him in contempt of Congress.
Can a pardoned person still invoke the Fifth?
The Fifth Amendment protects a witness from being compelled to provide testimony that could be used in a criminal prosecution.
However, the U.S. Supreme Court has held that a person generally cannot invoke the privilege for an offense covered by a valid pardon because the danger of prosecution for that offense has been removed.
The Congressional Constitution Annotated cites the 1896 Supreme Court decision in Brown v. Walker for the principle that an accepted pardon can eliminate a Fifth Amendment objection to testifying about the pardoned conduct.
That is why Fauci’s blanket refusal created such a legal and political contradiction.
If the pardon is valid and covers the conduct senators were investigating, Fauci may no longer face federal prosecution for those actions. If he cannot be prosecuted, his attorneys would have to explain what specific criminal exposure justified refusing to answer each question.
House Oversight Committee Chairman James Comer, R-Ky., said Fauci’s conduct placed him in a legal trap.
“If former President Biden’s blanket autopen pardon is valid, then Dr. Fauci has no right to refuse to answer questions,” Comer said in a statement.
However, Fauci’s pardon does not protect him from everything.
It does not cover conduct occurring after Jan. 19, 2025. It could not protect him from making a new false statement to Congress, obstructing a current investigation or committing perjury during Wednesday’s hearing.
A presidential pardon also applies only to federal crimes. It does not prevent a state from investigating or prosecuting violations of state law.
Those potential risks could give Fauci’s attorneys grounds to advise caution. But they do not automatically justify refusing to answer harmless questions or invoking the Fifth Amendment 111 times as a blanket response.
What about the autopen?
Republican lawmakers have questioned whether Biden personally authorized Fauci’s pardon or whether White House staff used the autopen without obtaining his informed approval.
That is the real legal issue.
The mere use of an autopen does not automatically invalidate a presidential action. A 2005 Justice Department legal opinion concluded that a president may direct a subordinate to affix his signature using an autopen after the president has personally made the decision to approve the document.
The physical signature is considered a ministerial act. The decision itself must still belong to the president.
Therefore, proving that an autopen was used is not enough to void Fauci’s pardon. Investigators would need evidence that Biden did not personally approve the pardon or that someone else exercised the presidential pardon power without his authorization.
No court has ruled that Fauci’s pardon is invalid.
President Donald Trump and several Republican lawmakers have argued that some of Biden’s autopen actions should be considered void. Legal scholars have responded that one president cannot simply cancel a predecessor’s pardon through a public declaration.
The dispute would probably have to be resolved in court if the Justice Department attempted to prosecute Fauci for conduct covered by the pardon.
The pardon creates more questions
Biden said he issued the pardon to protect Fauci from politically motivated prosecution. The pardon did not state that Fauci had committed a crime, and accepting a pardon is not a criminal conviction.
Still, the breadth of the document cannot be ignored.
The official clemency warrant protected Fauci from prosecution for any federal offense related to more than a decade of government service — even though Fauci had not been charged with a crime.
Now the recipient of that extraordinary protection is refusing to answer basic questions because he claims his answers could expose him to prosecution.
Americans are entitled to ask why.
The Fifth Amendment is a constitutional right, not an admission of guilt. Fauci is entitled to assert it when he faces a genuine risk of self-incrimination.
But Congress is also entitled to challenge an improper assertion of that privilege, seek immunity, pursue contempt proceedings and ask a court to determine whether Fauci must testify.
For years, Fauci appeared before cameras, news programs and congressional committees presenting himself as the voice of science. He spoke with confidence when Americans were ordered to close their businesses, remove their children from classrooms and comply with constantly changing public-health directives.
When the questions became more difficult, that voice disappeared behind the Fifth Amendment.
Fauci’s pardon may prevent prosecution for covered federal offenses. It should not prevent the American people from learning the truth.
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