Fauci’s Biden autopen pardon won’t spare him from prosecution for 5th Amendment spectacle: GOP senators

WASHINGTON – Dr. Anthony Fauci’s pardon from Joe Biden won’t save him from prosecution for obstructing Congress, Sen. Rand Paul warned on Wednesday.

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Fauci, in a shocking move, repeatedly invoked the Fifth Amendment like a broken record at least 70 times during his testimony before the Senate Homeland Security and Governmental Affairs Committee, saying he believed Paul (R-Ky.) was trying to entrap him.

The former head of infectious diseases is no longer protected by the blanket pardon given to him by the former president. The pardon only covers Fauci to the date former President Biden’s autopen signed it: January 19, 2025. 

Sen. Josh Hawley (R-Mo.) warned Fauci that the Fifth Amendment doesn’t apply to his situation.

“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. Brown vs. Walker, 1896, ‘When he has been pardoned, he may not stand upon his privilege,’” Hawley noted.

“You know that. Your lawyers sitting behind you now, shifting nervously in their chairs, they know it,” he 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.”

Fauci was subpoenaed to appear by Paul, who has long sparred with the senator over the origins of COVID-19, which killed more than 7 million worldwide, shut down the economy and forced kids out of schools — stunting learning and social development.

Fauci, who led the country’s COVID response, was given the “full and unconditional” pardon dating from “January 1, 2014, through the date of this pardon arising,” his pardon says.

Biden also gave Fauci clemency for any actions taken while he was Director of the National Institute of Allergy and Infectious Diseases, a member of the White House Coronavirus Task Force or the White House COVID-19 Response Team, and as Chief Medical Advisor to the President.

Fauci could still be held in contempt of Congress for his refusal to answer questions. That is a criminal offense, and Fauci could face federal prosecution on that count.

Paul indicated he may take that route.

“It’s against the law to obstruct an investigation of Congress. There will be repercussions to your refusal to testify,” Paul, who chairs the Senate committee, warned Fauci.

He said the committee would meet after the hearing to determine what actions it will take in response to Fauci’s refusal to answer questions.

But any attempt by Paul to charge Fauci with contempt would face a full vote from the Senate. To be approved, it would also need to meet the 60-vote threshold known as cloture to advance to a final vote. That would give Democrats the opportunity to filibuster.

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.

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In the end, Fauci’s use of the Fifth Amendment is likely to end up in the courts.

Fauci said he was using his constitutional right of protection from self-incrimination because he feared he was vulnerable to prosecution.

But it’s unclear if fear of a future perjury trap is enough of a reason to plead the Fifth Amendment, which applies only when there is a reasonable fear of prosecution.

The 1986 case United States v. Whittington examined the use of the Fifth Amendment and found: “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.”

Paul argued the pardon doesn’t erase Fauci’s actions regarding the origins of the COVID pandemic. 

“A pardon may protect a person from criminal prosecution, [but it] doesn’t rewrite history. It does not erase documents. It does not convert a misleading statement into a truthful one,” he said.

Fauci said he pleaded the Fifth because he feared Paul was trying to trap him into making a mistake that wouldn’t be covered by his clemency.

“The only conclusion I can reach is that the sole reason he is calling me before this committee is to get me to say something — anything — that could vindicate his repeated public pledges that I end up, in his words — quote — ‘behind bars,’” Fauci said.

“Any reasonable person who has followed his unhinged obsession with me would readily come to the same conclusion,” he continued. “Therefore, although it pains me to do so because of the respect I have for the legislative branch of government and my decades-long record of cooperating with Congress, under the advice of my attorneys, I will invoke my right under the 5th Amendment of the Constitution to refrain from answering your questions.”

Paul has long accused Fauci of lying about the pandemic and its origins, which Fauci has constantly denied. The senator claims Fauci funded research in China that sparked the pandemic, and then lied about it to Congress, which Fauci denies.

Fauci was warned before the hearing began that Biden’s pardon no longer protected him.

“Biden’s pardon doesn’t cover Dr. Fauci’s testimony this week and if he continues to lie, he must be held accountable,” House Oversight Committee Chairman Rep. James Comer (R-Ky.) told Fox News.

Paul issued a subpoena in June to require Fauci’s testimony on Wednesday after the doctor refused to voluntarily come before Congress. Ahead of his testimony, Paul released thousands of pages of Fauci’s diary that focused on the COVID pandemic. 

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