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Dr. Anthony Fauci’s refusal to answer more than 100 questions during Wednesday’s fiery Senate hearing has sparked a legal showdown over whether a witness granted a sweeping presidential pardon can still invoke the Fifth Amendment.
Sen. Rand Paul, R-Ky., who chairs the Senate Homeland Security and Governmental Affairs Committee, announced after the hearing that he plans to pursue contempt proceedings against Fauci following the repeated invocations of the Fof whetherth Amendment and his refusal to answer lawmakers’ questions.
“We’re going to have a vote next week on contempt,” Paul said. “I think there’s another legal question that the courts may have to decide upon, and that is whether or not a presidential pardon offers you complete immunity.”
RAND PAUL SEEKS CONTEMPT CHARGES AFTER FAUCI INVOKES FIFTH AMENDMENT MORE THAN 100 TIMES
Former President Joe Biden issued Fauci, who served as the chief architect for the government’s COVID-19 guidelines, a full and unconditional pardon for all actions taken between Jan. 1, 2014, and Jan. 19, 2025. Biden’s broad pardon protected Fauci from prosecution for the actions being investigated by the committee, leaving only the possibility of charges if he lied under oath.
Abhishek Kambli, a former Justice Department official who now represents former Trump advisor Peter Navarro in his contempt of Congress case, told Fox News Digital that the issue presents a novel legal question about whether Fauci can invoke the Fifth Amendment at all.
“Obviously, if he tells the truth, then he would be protected by that blanket pardon, since the past conduct that he reveals he’s fully immunized from,” Kambli told Fox News Digital.
Kambli questioned whether the Fifth Amendment privilege properly applies if truthful testimony could no longer expose Fauci to prosecution for the underlying conduct.
“His theory is that it’s a witch hunt and that they’re looking for perjury traps to charge him with, so that’s why he needs to invoke the Fifth Amendment,” Kambli said.
But Kambli said the argument becomes more difficult to sustain if lawmakers are asking straightforward factual questions.
“I think it gets a little problematic,” Kambli said of Fauci invoking the Fifth Amendment for common knowledge questions like what day of the week it is.
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“If it’s just factual questions that he should know the answer on, it’s hard to see how he would walk into a perjury trap if he’s just telling the truth, because perjury also requires that you knowingly made a false statement,” Kambli said. “If he had an incorrect recollection, that was an innocent mistake that typically wouldn’t lead to a perjury charge.”
Kambli said federal law distinguishes between witnesses who ignore a congressional subpoena and those who appear before Congress but refuse to answer questions. In the latter case, he said, prosecutors generally do not have to prove the witness intentionally violated the law. Instead, the central question is whether the witness had a valid legal basis for refusing to answer, such as a legitimate claim under the Fifth Amendment.
“The issue is [the witness] is already protected if he tells the truth, and it’s only if he knowingly lies about something material that he can be charged,” Kambli said. “So the issue becomes whether the Senate can make a referral to DOJ based on that.”
George Washington University law professor Jonathan Turley said the legal issues surrounding Fauci’s testimony are more complicated than either side suggests.
“The only risk that he faced would come from any false statements that he made in the hearing in dealing with these questions,” Turley told Fox News Digital. “That would likely be viewed as sufficient, particularly since some questions could extend to statements and conduct from after the pardon grant.”
Turley also pointed to Fauci’s decision to deliver an opening statement before invoking the Fifth Amendment, suggesting it could raise additional legal questions.
“There are also questions about the questions limited to the period of his pardon as well as his decision to give an opening statement before invocation. Those are possible grounds for contempt. It would raise novel issues, though there is precedent from the Lois Lerner matter,” Turley said.
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Turley was referring to former IRS official Lois Lerner, who declared her innocence in a voluntary opening statement before invoking the Fifth Amendment during a 2013 congressional hearing. House Republicans argued Lerner waived her right to invoke the Fifth Amendment when she made statements about the very subject under investigation. Although the House held Lerner in contempt, the Justice Department later declined to pursue criminal contempt charges.
But Hans von Spakovsky, a senior legal fellow at Advancing American Freedom, argued Paul’s position is stronger than Fauci’s.
“He can’t be prosecuted by the federal government for any actions he took during the period the pardon covers,” von Spakovsky said. “However, if he lies while under oath at his hearing today about any of those prior actions, he could be prosecuted for perjury.”
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While von Spakovsky acknowledged that Biden’s pardon of Fauci covers only federal charges, it does not shield Fauci from facing state charges. But he noted no state has accused Fauci of violating state law, at least not yet. Florida Attorney General James Uthmeier on Wednesday announced a state investigation into Fauci, following his testimony on Capitol Hill.
“The possibility of a state prosecution is almost nonexistent because states generally cannot prosecute federal officials acting within the scope of their duties and Fauci would argue that everything he did over COVID was carried out in his official slot as head of NIAID,” von Spakovsky told Fox News Digital.
“The only reason for him to take the Fifth is because he doesn’t want to admit, based on his personal diaries, that he lied repeatedly to the public and Congress when he was head of the NIAID,” von Spakovsky said.
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If Paul’s contempt resolution clears the committee, it would move to the full Senate, but it will need to beat the 60-vote filibuster in order to pass.
Fox News Digital reached out to Fauci’s attorney, David Schertler, for comment.
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