(The Center Square) – Former National Institute of Allergy and Infectious Diseases Director Anthony Fauci and leader of the White House House COVID-19 Response Team was back in the national spotlight last week when he repeatedly exorcized his Fifth Amendment right against self-incrimination at a congressional hearing.
U.S. Sen. Rand Paul, R-Ky., subpoenaed Fauci after obtaining more than 1,000 pages of the former director’s pandemic-era personal musings. Paul said they showed a discrepancy between Fauci’s public health decisions and statements and his personal beliefs, as well as clear indications of what he said was unethical conduct. Republican leaders used Fauci’s writings to underscore their repeated accusations that he knowingly misled the American people and attempted to profit off of the health emergency. But whether any of those accusations or others will lead to legal consequences for Fauci remains unknown.
The pardon and the ‘autopen presidency’
Some take Fauci’s repeated pleadings of the Fifth Amendment as an implicit admission of insecurity in his federal pardon.
Fauci was pardoned by former President Joe Biden on the last day of his term in 2025. The full and unconditional pardon covers any offenses Fauci may have committed in connection with his service as NIAID director, a member of the White House Coronavirus Task Force or COVID-19 Response Team, or as chief medical adviser to the president from Jan. 1, 2014, through Jan. 19, 2025.
The pardon uses clear and plain language and just tops 200 words, including the former president’s signature. It’s the signature that some take issue with – less so the signature itself, but what some believe it represents.
The GOP-led House Committee on Oversight and Government Reform conducted an investigation into Biden’s “diminishing mental and physical capabilities” toward the end of his presidency and concluded in a report that the findings indicated others close to the president were unconstitutionally making decisions for him.
“The investigation’s findings… make clear that, as President Biden was losing command of himself throughout his time in office, his executive actions – especially pardons, of which there are many – cannot all be deemed his own,” the report reads.
“The authority to grant pardons is not provided to the president’s inner circle. Nor can it be delegated to particular staff when a president’s competency is in question,” it continues.
The October report takes readers through an example of the behavior it describes when, according to congressional testimony, Biden had a meeting with select staff on his last day in office, Jan. 19, 2025. There was no “contemporaneous documentation” of the meeting, but one or more of those present in the meeting said they communicated to an aide that Biden had approved the final cluster of pardons. That aide, Rosa Po, called then White House Chief of Staff Jeff Zients, who was not on site, and he directed her to send an email on his behalf authorizing the use of the autopen for those signings.
“I approve the use of the autopen for the execution of all of the following pardons. Thanks, JZ,” Po wrote.
“Zients did not even know who actually used the autopen to apply the signature after his aide,” nor did he “[confirm] with President Biden that he had, in fact, granted these pardons after repeatedly telling the American people he would not pardon his son, Hunter, let alone the five other members of the Biden family,” the report reads.
Mike Howell, president of the Oversight Project, which broke the news of the widespread use of the autopen in the Biden presidency, thought it was plausible that Fauci repeatedly pleaded the Fifth on Wednesday because of a real lack of confidence in the legitimacy of his pardon.
“I feel validation that Fauci was unable to offer a single word in his own defense,” Howell said in a statement. “That validation is vastly increased by the fact that our work on breaking the ‘scandal of the century’ in the autopen matter has put Fauci in a no-win scenario. Fauci shouldn’t be able to rely on a bogus pardon.”
Despite this, Howell said he didn’t “get the sense” that the committee’s investigation into the use of autopen signings in the Biden administration was “top of mind” at the moment, and the Department of Justice reportedly shelved its investigation in March.
State-level vulnerabilities
Other analysts say proving that Biden was incapable of giving his full consent for the pardons that day and that he did not verbally do so is virtually impossible.
“Maybe if we find another diary out there or something that says Biden had nothing to do with it… [Otherwise], you're gonna have an evidence problem right off the bat,” said Joe Luppino-Esposito, federal policy director at the Pacific Legal Foundation, in an interview with The Center Square. “And then the other issue is that pardons generally are just not reviewable, right? You'd have to even get to a point where you're questioning how the pardon was done, which is gonna be a hard threshold to even get in the door on, so there's a lot of things that would have to happen to kind of knock it out on those terms.”
Esposito said that though Fauci is protected by the pardon at the federal level, he and his legal team could be concerned about cases forming at the state level using information shared in hearings.
Florida Attorney General James Uthmeier announced that he was launching an investigation into Fauci. Alabama and Louisiana subsequently joined the investigation.
Lying to Congress or contempt of Congress
Fauci said the reason he repeatedly pleaded the Fifth was because he believed Republicans were trying to entrap him into committing perjury, a crime that bears a sentence of up to five years in prison. Though Fauci’s historical actions back to 2014 are protected at the federal level, he could still be convicted on perjury if he were found lying at Wednesday's hearing.
Abhishek Kambli, an attorney at Holzman Vogel who recently served as deputy associate attorney general at the Justice Department, said that even so, solely pleading the Fifth more than 100 times was an aggressive legal strategy.
“It’s a little bit of a tough defense to just have a blanket assertion of the Fifth Amendment,” Kambli told The Center Square, because some questions wouldn’t render a perjury response, regardless of the answer.
Besides potential state-level action, Fauci's greatest remaining legal exposure appears to be criminal contempt of Congress.
Though the Constitution protects the right of people testifying before Congress or in court to invoke the Fifth Amendment to avoid self-incrimination, Republican senators questioned whether Fauci could properly do so because, if his past conduct is covered by a federal pardon, they argued he should not reasonably fear incriminating himself. If they legally have the right to compel his testimony and Fauci refuses to answer questions, he could be found in contempt of Congress.
“Senator Rand Paul has a good argument that it's still obstructed conduct if he refuses to answer any question based on pleading the Fifth for something he already has a pardon for,” Kambli said.
Sen. Josh Hawley, R-Miss., directly challenged Fauci on his use of the Fifth Amendment.
"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 versus Walker, 1896. When he has been pardoned, he may not stand upon his privilege,” Hawley said.
To hold Fauci in criminal contempt of Congress, a majority of the Senate Homeland Security and Governmental Affairs Committee would first have to vote in favor of a contempt citation. It’s scheduled to vote in the upcoming week. The full Senate would then have to approve the referral by a simple majority. The matter would then be referred to the Justice Department, which would decide whether to pursue criminal charges. If prosecutors brought a case and Fauci were ultimately convicted, he could face up to one year in prison.
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