Dr. Anthony Fauci refused to answer more than 100 questions before a Senate committee Wednesday, but Republican senators say the pardon Joe Biden signed on his way out of office actually strips Fauci of the very privilege he claimed.
Fauci, 85, appeared under subpoena before the Senate Homeland Security and Governmental Affairs Committee and repeated the same line approximately 115 times: "On the advice of counsel, I respectfully decline to answer, based upon my rights under the Fifth Amendment of the constitution." The former head of the National Institute of Allergy and Infectious Diseases, the government doctor who became the face of America's COVID-19 response, sat before the panel chaired by Sen. Rand Paul (R-Ky.) and declined to engage on questions about gain-of-function research, pandemic decision-making, and the origins of a virus that killed more than 7 million people worldwide and forced millions of American children out of classrooms for a full academic year.
Paul, who subpoenaed Fauci and has pursued oversight of his pandemic-era conduct for years, warned that the strategy would carry consequences. He told Fauci directly that obstructing a congressional investigation is a crime and announced the committee has tentatively scheduled an Aug. 5 vote on a resolution to hold Fauci in contempt of Congress.
The central legal question hanging over the hearing was whether Fauci even has a Fifth Amendment privilege to invoke. Former President Biden granted Fauci a pardon, autopen-signed, in the final hours of his presidency. That clemency covered any actions Fauci took as NIAID director, as a member of the White House Coronavirus Task Force, or as chief medical adviser to the president, spanning conduct from Jan. 1, 2014, through Jan. 19, 2025.
Republicans argue that pardon eliminates the legal foundation for pleading the Fifth. The Fifth Amendment protects a witness from being compelled to give testimony that could be used against him in a criminal prosecution. A pardon removes the threat of prosecution, which, in the Republican reading, removes the shield.
Sen. Josh Hawley (R-Mo.) made the point bluntly during his turn to question Fauci, citing a Supreme Court ruling from 1896. Hawley told Fauci:
"Let's just get one thing straight. 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 vs. Walker, 1896, 'When he has been pardoned, he may not stand upon his privilege.'"
Hawley continued, directing his remarks at Fauci and his legal team:
"You know that. Your lawyers sitting behind you now, shifting nervously in their chairs, they know it. This isn't about the Constitution. This isn't about the law. This is about contempt, contempt for this body and contempt for the American people."
Paul reinforced that argument in his own remarks, stating that a pardon may shield someone from criminal prosecution but does not rewrite the historical record.
"A pardon may protect a person from criminal prosecution, [but it] doesn't rewrite history. It does not erase documents. It does not convert a misleading statement into a truthful one."
The hearing grew more contentious when Fauci's attorney, David Schertler, attempted to interject. Paul warned Schertler not to speak. When the lawyer continued, Paul ordered security to remove Schertler from the hearing room. Paul told the chamber that the testimony belonged to Fauci, not his lawyers.
Schertler responded with a statement after his removal, calling the ejection proof of what he characterized as a personal vendetta:
"It was outrageous for Sen. Paul to exclude his counsel for counsel making a legitimate legal point. It proves the baseless and vindictive nature of this proceeding and Rand Paul's personal vendetta against Dr. Fauci."
Fauci, for his part, framed his refusal to answer as self-preservation. He accused Paul of orchestrating the hearing to manufacture a pretext for criminal prosecution. In an opening statement reported by the Washington Examiner, Fauci said the only conclusion he could reach was that Paul called him before the committee "to get me to say something, anything, that could vindicate his repeated public pledges that I end up, in his words, quote, behind bars, unquote."
That argument has a problem. A 1986 federal court ruling in United States v. Whittington held that a witness may not invoke the Fifth Amendment out of fear that he will be prosecuted for perjury "for what he is about to say." The court stated that the proper shield against self-incrimination in that situation "is to testify truthfully, not to refuse to testify on the basis that the witness may be prosecuted for a lie not yet told." The ruling did allow that a witness may invoke the privilege if his testimony might suggest he has already committed a crime, such as perjury in a prior proceeding.
That distinction matters. If Fauci fears that truthful testimony would expose prior false statements, before Congress or elsewhere, the Fifth Amendment claim might have legal footing. But if his concern is simply that Paul might twist future answers into a perjury referral, the precedent cuts against him.
Paul closed the hearing by framing the stakes in the broadest possible terms. He said the committee was trying to determine whether Fauci's actions caused "the largest man-made plague in history." He warned Fauci directly: "It's against the law to obstruct an investigation of Congress. There will be repercussions to your refusal to testify."
The path from a contempt vote to prosecution is not straightforward. Paul's committee can approve a contempt resolution, but the full Senate must vote to refer Fauci to the Justice Department. Senate Democrats would have the opportunity to filibuster any such referral, meaning 60 votes would be needed to advance it past that procedural hurdle, the threshold required to end debate and force a final vote. If a referral did reach the DOJ, the department would decide whether to seek an indictment.
The question of whether the Justice Department would act is not academic. Recent history cuts in both directions.
In 2014, House Republicans voted to hold former IRS official Lois Lerner in contempt of Congress after she repeatedly refused to answer questions about her alleged involvement in targeting conservative groups seeking tax-exempt status. Then-Attorney General Eric Holder's DOJ declined to seek an indictment.
But the DOJ moved more aggressively against allies of President Trump. Peter Navarro, now a White House trade and manufacturing adviser, was convicted by a federal jury in September 2023 on two counts of contempt of Congress after defying a subpoena from the House select committee investigating the Jan. 6, 2021, Capitol riot. He served four months in prison. Former Trump White House chief strategist Steve Bannon was found guilty on the same charge for ignoring a subpoena from the same panel and also served a four-month sentence, though the U.S. Supreme Court vacated his conviction in April 2026.
The contrast is hard to miss. When a Democratic administration held the DOJ, contempt charges against a government official who stonewalled Congress went nowhere. When the target was a Trump ally, the same department secured convictions and prison time. Now, with a Republican administration in the White House, the question is whether the current DOJ would pursue a contempt case against a figure who served under Democratic presidents.
Paul and Hawley both stressed a point that could prove decisive: Biden's pardon covers conduct that occurred between 2014 and January 19, 2025. Fauci's refusal to testify happened on Wednesday, well outside the pardon's window. If the Senate refers Fauci for contempt or obstruction of Congress based on his behavior at this hearing, the pardon offers no protection.
That gap may explain why Paul chose to pursue this path rather than simply relitigating Fauci's pandemic-era decisions. The hearing itself became the event. By subpoenaing Fauci and putting questions to him on the record, Paul created a situation where Fauci's response, or refusal to respond, could generate fresh legal exposure that Biden's last-minute clemency cannot reach.
President Trump weighed in from Truth Social, writing: "I Inherited Fauci, who was there since the 1980's, but with each passing day, relied less and less on him. He made too many bad calls." Trump also accused Fauci of "trying to protect China."
The matter is likely to end up in the courts. If the Senate approves a contempt referral and the DOJ acts, Fauci's legal team will almost certainly challenge the proceedings. If a court rules that the pardon does not support a Fifth Amendment claim, Fauci could be ordered to appear again and answer questions, or face prosecution for refusing. The questioning centered on gain-of-function research, the kind of pathogen study that helps scientists understand how viruses behave but carries serious risks, and that Fauci spent years insisting his agency did not fund at the Wuhan Institute of Virology.
Fauci spent decades as one of the most powerful unelected officials in Washington. He made decisions that shaped the lives of hundreds of millions of Americans, who could work, who could go to school, what treatments were promoted and which were sidelined. Now, when a duly constituted committee of the United States Senate asks him to account for those decisions under oath, he sits behind the Fifth Amendment and a pardon signed by a machine.
Accountability does not expire with a change of administration. And a pardon that covers the past cannot shield a man from what he chooses to do today.
