Fauci had every right to take the Fifth

Opinion>Opinions - Criminal Justice The views expressed by contributors are their own and not the view of The Hill Fauci had every right to take the Fifth Comments: by Kim Wehle, opinion contributor - 08/05/26 9:30 AM ET Comments: Link copied by Kim Wehle, opinion contributor - 08/05/26 9:30 AM ET Comments: Link copied

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Anthony Fauci’s congressional testimony last week set up a clash between two parts of the Constitution: the president’s pardon power and an individual’s Fifth Amendment right against self-incrimination.

Sen. Josh Hawley (R-Mo.), a former state attorney general, chided Fauci for exercising his constitutional right more than 100 times in the hearing. “Nothing says honesty like taking the Fifth,” he remarked. “You don’t have any rights under the Fifth Amendment because you have been pardoned. … This isn’t the law, this is about contempt. … You don’t want to answer questions. … It is because you got rich while people were dying.”

Feigning outrage over Fauci’s decision not to answer questions, Republicans vowed to vote to hold him in contempt.

The Senate’s focus on Fauci — years after he left government service, and with the United States in multiple legal, economic, and political meltdowns under their leader, President Trump — is an obvious scapegoating exercise. Fauci was the director of the National Institute of Allergy and Infectious Diseases at the National Institutes of Health from 1984-2022, serving seven U.S. Presidents, including Ronald Reagan, George H.W. Bush, Bill Clinton, Barack Obama, Donald Trump, and Joe Biden. He had testified before Congress without incident more than 200 times.

Trump was president when an estimated 400,000 people died of COVID-19 (that number climbed to over 1.1 million by July of 2023). On January 19, 2021, Trump awarded Fauci a presidential commendation for his exceptional efforts during the pandemic. Since retaking office, it is Trump who has amassed a personal fortune of at least $2.2 billion, with more than $1.4 billion coming from his cryptocurrency ventures alone. Congressional Republicans don’t care about that part.

As to whether Fauci didn’t “have any rights” not to answer questions, Hawley, a graduate of Yale Law School, didn’t do his homework. President Joe Biden pardoned Fauci on January 19, 2025 “for offenses against the United States which he may have committed or taken part in during the period from January 1, 2014, through the date of this pardon arising from or in any matter related to” his government service. For one thing, this wouldn’t apply to any potential charges at the state level, whether legitimate or purely vindictive.

For another, anything Fauci has done since January 19, 2025, is not covered by the pardon — including sworn testimony before Congress in July of 2026. In his opening statement, Fauci explained his decision: “The only conclusion I can reach is that the sole reason” he was called “before this committee is to get me to say something, anything, that could vindicate [Sen. Rand Paul’s (R-Ky.)] repeated public pledges that I end up, in his words, quote, behind bars, unquote.”

If Hawley’s claim had been made in good faith, his argument would seem to be that Fauci didn’t realistically face criminal liability for providing truthful answers. But tellingly, public criticism of Fauci’s decision to invoke the Fifth Amendment has been conspicuously silent on whether he reasonably believed that he would otherwise be vulnerable to a vindictive prosecution by the Department of Justice without any legitimate basis in fact.

The nonprofit Protect Democracy has identified 36 retaliatory arrests, prosecutions and investigations by the Trump administration to date, including those targeting high-profile adversaries like California Gov. Gavin Newsom (D), Minnesota Governor Tim Walz (D), former FBI Director James Comey, and New York Attorney General Letitia James (D).

And let’s not forget that after stating his name and reading a prepared statement at the beginning his August 10, 2022 deposition in James’s civil fraud investigation, Trump announced that he would invoke the Fifth Amendment for all remaining questions, just like Fauci did. And just like Fauci, Trump wound up repeatedly referring back to Fifth Amendment — for Trump, over 400 times — during his testimony.

In any event, no member of Congress is constitutionally authorized to resolve legal questions like the proper use of the Fifth Amendment or the scope of a presidential pardon. Only a judge can do that. If Republicans manage to get a contempt vote out of the Senate Homeland Security and Governmental Affairs Committee, the full chamber must vote to move forward. If that happens, the Senate would refer the matter to Jeanine Pirro, the U.S. Attorney for the District of Columbia who would have to investigate and identify sufficient facts to justify an indictment.

Pirro’s track record on bogus prosecutions is disturbing. Just last week, she was forced to withdraw the felony vandalism charge against David Hearn in a case involving the Lincoln Reflecting Pool, after conceding in court that the government had provided misleading information about the cause of the damage to the pool. She also failed to get a federal grand jury to return indictments against six Democratic members of Congress over a social media video discussing servicemembers’ obligation to refuse unlawful military orders.

The same went for alleged misconduct by former Federal Reserve Chair Jerome Powell related to a building renovation and the case against Sean Dunn, the so-called “sandwich guy,” who was charged with a misdemeanor for tossing a sandwich at an ICE officer in Washington. A jury ultimately acquitted him.

Perhaps Hawley’s best argument for disputing the legitimacy of Fauci’s actions is the Justice Department’s utter incompetence. That won’t carry the day in court.

Kimberly Wehle is a law professor and author of “How to Read the Constitution — and Why,” “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer — and Why,” and the Substack newsletter, “The Little Law School.“

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