Dr. Anthony Fauci, now 85 who led the National Institutes of Health’s National Institute of Allergy and Infectious Diseases from 1984 to 2022, on July 29 refused to answer questions from senators following the release of a diary he compiled while working in government. He took the 5th Amendment to every question. He indeed could to invoke the Fifth Amendment despite receiving a presidential pardon because that covered past events, not perjury in the present.
A presidential pardon generally removes the threat of federal criminal prosecution for past acts. However, it does not automatically eliminate a person’s Fifth Amendment right against self-incrimination. The constitutional protection applies if there remains a “realistic prospect of prosecution” from any government—federal or state.
In Dr. Fauci’s case, his legal team identified two specific risks that, in their view, kept the threat of prosecution ver much alive since many would love to see him behind bars.
The pardon was for past actions, but it did not provide immunity for future testimony. If Dr. Fauci gave testimony that contradicted his previous statements, he could face new charges for perjury or making false statements to Congress. A pardon that protects a person from criminal prosecution doesn’t rewrite history. It certainly does not prevent Congress from establishing what actually happened.
The real interesting facet is that his presidential pardon whether by autopen or not, only applies to federal crimes, NOT state crimes. This means there was still a theoretical possibility of prosecution at the state level for related matters. A State governor seeking a presidential run could indict Fauci ro the cheers of many.
Fauci appeared under a subpoena from Chairman Rand Paul. In his opening statement, he cited Senator Paul’s “obvious obsession with calling for my prosecution” as the reason he would not testify, stating that he was following his lawyers’ advice to invoke his Fifth Amendment right. Throughout the hearing, he repeatedly responded to questions by stating: “On the advice of counsel, I respectfully decline to answer based upon my rights under the Fifth Amendment to the Constitution.”
Senator Paul argued that the pardon should have compelled Fauci to testify and that he could still be held accountable for lying under oath because the pardon did not cover perjury committed during the hearing. Senator Paul also stated his intention to pursue charges of obstruction of Congress against Fauci for refusing to answer questions.
Hellbound and Down 