Sen. Josh Hawley, R-Mo., said Wednesday that Dr. Anthony Fauci has no rights under the Fifth Amendment because Fauci was pre-emptively pardoned by then-President Joe Biden. Yet the longtime public health official repeatedly invoked the right against self-incrimination during his Senate appearance, as Hawley and other Republicans sought to elicit damning testimony regarding his handling of the government’s Covid-19 response.
The precise scope of Fauci’s rights in this situation is something that only the courts can answer, if it gets to that point. Sen. Rand Paul, R-Ky., who chaired the hearing and has been a top Fauci antagonist, suggested it would get to that point.
Fauci said in his opening statement that he would be invoking the constitutional protection due to what he called Paul’s unhinged obsession with him and the fact that the senator had repeatedly called for Fauci’s jailing. He said the sole reason Paul called the hearing was to achieve that carceral goal.
But if, as Hawley pointed out, Fauci has been pardoned, what prosecution could the former official have to fear?
There are at least three possibilities.
One stems from the fact that pardons are backward-looking. They aren’t get-out-of-jail-free cards forever into the future. When it comes to Fauci’s pardon from Biden, that means it only covers him up until when it was issued, in January 2025. Anything after that is unprotected, including any potential perjury charges that the Trump Justice Department may be tempted to pursue from his testimony. The DOJ has been targeting political opponents in President Donald Trump’s second term, which we were just reminded of by former FBI Director James Comey’s motion to dismiss his latest charges on the grounds of vindictive and selective prosecution.
Another is that a presidential pardon doesn’t cover state prosecutions. Republican-led states have expressed interest in pursuing Fauci. Just on Wednesday, Alabama gubernatorial hopeful Tommy Tuberville, a Senate Republican, said he wants to go after Fauci on the state level. Similarly, Florida’s Republican attorney general said Wednesday: “My office is launching an investigation into Dr. Fauci.”
There’s also the fact that Republicans, led by Trump, have questioned the validity of Biden’s pardons, which would include the one for Fauci that they have been holding out as the reason he must testify. There doesn’t appear to be any sound basis to question Biden’s pardons, but it’s nonetheless something that the leader of the GOP has put in play. If nothing else, it could put Republicans in a position of having to affirm the validity of Biden’s pardons, at least the validity of this one.
Those three possibilities don’t necessarily cover everything that Fauci’s legal team has in mind, nor is it guaranteed that these or any other claims will be winning ones for him if the matter goes to court. But this brief discussion shows that it’s not as simple as Hawley put it. Where this all goes next may become clearer next week, with Paul saying the committee will vote then on whether to hold Fauci in contempt.
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