Four years ago, some Democrats mocked Donald Trump when he took the Fifth, and claimed his invocation was as good as an admission of guilt.
The then-former (and future) President faced questioning under oath at a deposition by New York Attorney General Letitia James – who had promised during her campaign, before she had seen any actual evidence, that Trump had “engaged in a pattern and practice of money laundering” and “can be indicted for criminal offenses.” Accordingly, Trump chose to invoke his constitutional right against self-incrimination.
Trump certainly was guilty of aggravated hypocrisy in the first degree; he had previously declared that “the mob takes the Fifth” and “if you’re innocent, why are you taking the Fifth Amendment?” But when his own liberty interests were on the line, glibness yielded to practicality. “Anyone in my position not taking the Fifth Amendment would be a fool, an absolute fool,” Trump testified – quite sensibly, given James’s stated intent to take him down.
Since then, a parade of prominent officials favored by Democrats have taken the Fifth, and suddenly the invocation of a constitutional right isn’t such a cause for ridicule. Two senior members of Jack Smith’s prosecution team, Jay Bratt and Thomas Windom, invoked their right against self-incrimination when questioned by the House Judiciary Committee. (Smith declined to take the Fifth and testified at length, which resulted in a baseless criminal referral to the Justice Department for a potential perjury prosecution.) Senior aides to Joe and Jill Biden, including former White House Deputy Chief of Staff Annie Tomasini, invoked their Fifth Amendment rights when subpoenaed by the House in an investigation of the former President’s mental acuity. And now, Dr. Anthony Fauci has joined their ranks.
At a wild Senate Homeland Security Committee hearing last week, Fauci took the Fifth over 100 times, on everything from his views on the Covid lab-leak theory to his involvement in school shutdowns to what day of the week it was. Fauci cited Republican Senator Rand Paul’s “obvious obsession with calling for my prosecution” to justify his own silence – just as Trump claimed with respect to James in 2022.
Paul countered that, because Biden had issued a broad pardon to Fauci, Fauci cannot be prosecuted and therefore has no Fifth Amendment right against self-incrimination: “We believe that with his … immunity from criminal liability, that he didn’t need to hide behind the Fifth Amendment and that maybe the Fifth Amendment doesn’t attach when you have a pardon in place.” Republican Senator Josh Hawley concurred, offering a superficially impressive case citation: “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 v. Walker, 1896.”
Both Paul and Hawley are wrong, and Hawley’s cited case actually undermines his position. Whatever one might think of Fauci’s handling of Covid, he is well within his constitutional rights to take the Fifth. None of this is a substantive defense or critique of Fauci or his work; in fact, if any Senator believes Fauci committed a crime (or might have), therein lies the case in favor of taking the Fifth.
It’s true that Fauci’s broad preemptive pardon – issued on Biden’s last full day as President, January 19, 2025, and covering all federal offenses related to his service from 2014 through that date – complicates the legal calculus. A pardon recipient can’t be prosecuted for crimes within the scope of that pardon, and therefore has no basis on which to take the Fifth. But the 1896 case cited by Hawley illustrates the key dividing line: a witness can’t invoke his Fifth Amendment right against self-incrimination for conduct within the scope of a pardon (as Hawley argued), but he certainly can take the Fifth for anything that might fall outside the pardon’s boundaries, for which he still can be prosecuted (which Hawley ignored). And any marginally competent defense attorney would recognize that Fauci faces potential criminal liability beyond the scope of his pardon in two respects.
First, a presidential pardon covers federal crimes, but not state offenses. Therefore, any federal pardon recipient can invoke the Fifth based even on potential state-level prosecution – and Fauci can point to actual state investigative efforts against him, past and present. In February 2025, for example, seventeen Republican state attorneys general announced a joint investigation of Fauci for his handling of Covid, including “any relevant findings that could lead to state investigations and potential prosecutions.” Florida Governor Ron DeSantis in 2025 called publicly on state prosecutors to pursue potential criminal charges against Fauci. Last week, Florida’s Republican state Attorney General announced that he is “launching an investigation of Dr. Fauci.” Fauci has more than enough to worry about on the state level to justify his invocation of the Fifth.
Nor does Fauci’s pardon protect him from prosecution for conduct after the date of its issuance, January 19, 2025 – including, potentially, his testimony at last week’s hearing. Given the oft-stated and recent position of Paul (and many others) that Fauci should be prosecuted for, well, something, he’d have ample basis to seek the legal shelter provided by the Fifth Amendment.
Paul has vowed that Fauci now will face “repercussions for [his] refusal to testify.” Despite the bluster, there’s no meaningful way forward if Paul is interested in punishment – though he and the Senate can still obtain substantive testimony from Fauci if they’re serious about getting answers.
Paul has announced his intent to pursue Senate contempt proceedings, which could trigger a criminal referral to the Justice Department. But there’s no way Paul gets a filibuster-proof 60 votes, which would require all 53 Senate Republicans plus seven Democrats.
Even if he did, a person cannot be validly held in contempt of Congress for a rightful exercise of a constitutional right, and any subsequent effort by DOJ to prosecute Fauci for criminal contempt would surely fail. The courts generally give extraordinarily broad deference when witnesses invoke the Fifth Amendment. In fact, the Supreme Court has held that a witness can take the Fifth unless it is “perfectly clear” that his testimony “cannot possibly have such tendency to incriminate.” Fauci easily clears that bar.
If Paul and his colleagues on the Committee were truly interested in getting answers from Fauci, they could grant him immunity. As we learned from Oliver North during the Iran-Contra scandal in the 1980s, a witness who receives Congressional immunity is effectively insulated from prosecution, and therefore cannot take the Fifth. So if the Senate immunized Fauci, he’d either have to testify or face a valid contempt finding and potential prosecution. But Paul apparently prioritizes his futile quest to prosecute Fauci over any substantive factual inquiry about the nation’s Covid response.
The tricky thing about constitutional principles is sometimes they protect people or causes we might not like. The Fifth Amendment could protect Trump one day, Bratt and Windom and Tomasini the next, and Fauci after that. But if we stand for those principles only when they work in our favor, then we’ve got no principles at all.
