Dr. Anthony Fauci’s pardon from Joe Biden won’t save him from prosecution for obstructing Congress, Sen. Rand Paul warned on Wednesday.
Fauci, in a shocking move, invoked the Fifth Amendment more than 100 times before the Senate Homeland Security and Governmental Affairs Committee, saying he believed Paul (R-Ky.) was trying to entrap him with the goal of throwing him in jail.
The former head of the federal infectious diseases agency is no longer protected by Biden’s autopen-signed pardon, which only excuses potential illegal acts committed by Fauci between Jan. 1, 2014, and Jan. 19, 2025.
“Let’s just get one thing straight,” Sen. Josh Hawley (R-Mo.) warned Fauci when his turn came to grill the 85-year-old doctor. “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. Brown vs. Walker, 1896, ‘When he has been pardoned, he may not stand upon his privilege.'”
“You know that. Your lawyers sitting behind you now, shifting nervously in their chairs, they know it,” Hawley went on. “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.”
Fauci was subpoenaed to appear Wednesday by Paul, who has long sparred with the former White House chief medical adviser over the origins of COVID-19 and the practice of government-funded gain of function research, in which pathogens are made more virulent for purpose of preventing global pandemics.
The COVID outbreak, which began in late 2019 in the city of Wuhan, China, is confirmed to have killed more than 7 million people worldwide while shutting down the global economy and forcing millions of American kids out of schools for a full academic year — stunting learning and social development.
Biden gave Fauci clemency for any actions taken while he was Director of the National Institute of Allergy and Infectious Diseases (NIAID), a member of the White House Coronavirus Task Force or COVID-19 Response Team, or Chief Medical Advisor to the President.
Republicans contend the pardon left Fauci with no reason not to truthfully answer questions about the pandemic.
But Fauci claimed Wednesday he feared Paul was setting a perjury trap and use any slip of the tongue as a pretext to make a criminal referral to the Justice Department.
Paul indicated he may take that route anyway after the doctor exercised his right against self-incrimination.
“It’s against the law to obstruct an investigation of Congress. There will be repercussions to your refusal to testify,” warned Paul before tentatively setting an Aug. 5 vote on a resolution holding Fauci in contempt.
In his closing statement, the Kentucky Republican outlined the purported states of his committee’s investigation, saying he was trying to answer whether Fauci’s actions caused “the largest man-made plague in history.”
The full Senate would need to vote to approve any referral of Fauci by Paul to the DOJ, giving Democrats the opportunity to filibuster.
The most recent case resembling that of Fauci involved former IRS official Lois Lerner, whom House Republicans voted to hold in contempt of Congress in 2014 for repeatedly refusing to answer questions about her alleged involvement in targeting conservative groups seeking tax-exempt status
Lerner, like Fauci, appeared for a hearing under subpoena, but invoked the Fifth Amendment.
The Justice Department, under then-Attorney General Eric Holder, declined to seek an indictment on the charges.
The DOJ has moved aggressively in contempt cases against Trump supporters and allies in the recent past.
Peter Navarro, now a White House trade and manufacturing adviser, was convicted by a federal jury in September 2023 on two counts of contempt of Congress after he defied a subpoena by a House select committee investigating the Jan. 6, 2021, Capitol riot. He served four months in prison.
Former Trump White House chief strategist Steve Bannon was also found guilty of contempt of Congress for ignoring a subpoena from the same panel, but that conviction was vacated by the U.S. Supreme Court in April 2026 — albeit after Bannon had already served his four-month prison sentence.
Fauci is similarly likely to face prosecution by the Trump administration if a Senate referral is made.
The president has repeatedly expressed his frustration with the advice he received from Fauci during the pandemic and accused the doctor in a Truth Social post of “trying to protect China.”
“I Inherited Fauci, who was there since the 1980’s, but with each passing day, relied less and less on him. He made too many bad calls,” Trump wrote.
Paul showed repeated impatience with Fauci’s refusal to answer questions Wednesday, even ordering a rare second round of inquiries for the infectious disease expert.
The Kentucky senator also warned Fauci’s lawyer David Schertler not to speak and ordered security to remove him from the room when Schertler attempted to do so.
“It was outrageous for Sen. Paul to exclude his counsel for counsel making a legitimate legal point,” the attorney responded. “It proves the baseless and vindictive nature of this proceeding and Rand Paul’s personal vendetta against Dr. Fauci.”
In the end, Fauci’s use of the Fifth Amendment is likely to end up in the courts, which may order the doctor to testify again without the benefit of the constitutional crutch.
Legal precedent, as outlined in the 1986 case United States v. Whittington, holds that a “witness may not claim the privilege of the Fifth Amendment out of fear that he will be prosecuted for perjury for what he is about to say. The shield against self-incrimination in such a situation is to testify truthfully, not to refuse to testify on the basis that the witness may be prosecuted for a lie not yet told. A witness may, however, claim the privilege if his testimony may suggest that he has already committed a crime, for example, perjury in a prior proceeding.”
“A pardon may protect a person from criminal prosecution, [but it] doesn’t rewrite history,” Paul noted. “It does not erase documents. It does not convert a misleading statement into a truthful one.”
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