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COVID czar Anthony Fauci cannot be prosecuted for asserting his Fifth Amendment rights in a recent hearing, Sen. Gary Peters (D-Mich.) wrote in a letter to colleagues, arguing the former government scientist’s pardon does not undermine his constitutional protections.
The letter comes ahead of a Thursday vote in the Senate Homeland Security and Governmental Affairs Committee, when Chair Rand Paul (R-Ky.) will push to hold Fauci in contempt of Congress for failing to answer questions after he was subpoenaed to appear for a hearing last week.
Fauci pleaded the Fifth 111 times during the hearing, refusing to answer a single question, noting in his opening statement that Paul has repeatedly called for his arrest.
Republicans, including Paul, have argued that a pardon Fauci received from former President Biden for his conduct before Jan. 19, 2025, means he faced no real risk from answering any questions.
But Peters, the ranking member on the panel, argued Fauci does not give up the constitutional protection afforded to all citizens simply because he also has a pardon.
“Those rights are not negated by the existence of a pardon,” he wrote in a letter to colleagues obtained by The Hill.
“A federal pardon does not eliminate an individual’s Fifth Amendment protection if they still face a ‘real and appreciable’ risk of federal or state prosecution.”
While Fauci’s pardon does bar prosecution related to his time in government, it’s backward-looking only.
Fauci himself outlined concerns that he could face potential perjury charges over any questions he answered and noted that Paul has repeatedly called for his arrest.
“The only conclusion I can reach is that the sole reason he is calling me before this committee is to get me to say something, anything that could vindicate his repeated public pledges that I end up, in his words, ‘behind bars,’” Fauci said before the committee.
Peters noted that Fauci’s pardon also only protects him from federal prosecution — leaving the door open for states to bring charges related to his conduct or testimony.
Some have already announced plans to do just that, with Florida Attorney General James Uthmeier (R) swiftly launching a state-level investigation.
“Fauci’s lack of candor to Congress is unbelievable,” Uthmeier wrote on the social platform X following the hearing.
“My office is launching an investigation into Dr. Fauci. It’s past time we get the truth of what happened during COVID.”
Paul has acknowledged there are some open legal questions surrounding his push to hold Fauci in contempt.
“We believe that with his … immunity from criminal liability, that he didn’t need to hide behind the Fifth Amendment and that maybe the Fifth Amendment doesn’t attach when you have a pardon in place,” Paul told reporters after the hearing.
“That’ll be a legal question.”
Some have also argued that by giving an opening statement explaining his decision to plead the Fifth, Fauci waived that right simply by speaking.
But Peters noted that the Justice Department declined to prosecute a similar case in 2013 when high-ranking IRS leader Lois Lerner also pleaded the Fifth after giving an opening statement when appearing before the House Oversight and Government Reform Committee.
“Where witnesses do not offer substantive testimony, however, and instead merely make general denials or summary assertions, federal courts have been unwilling to infer a waiver of the Fifth Amendment privilege,” the Justice Department wrote at the time.
Peters said if Paul wants to hear from Fauci, he could attempt to grant him immunity, giving him the ability to freely answer questions without any fear of prosecution.
“Chairman Paul does have an avenue available if his goal is truly to get additional answers from Dr. Fauci. As detailed above, an individual can be compelled to provide testimony if they no longer face the possibility of prosecution in any U.S. jurisdiction. While a presidential pardon does not remove the potential for state-level prosecution, under [federal statute], a congressional committee can seek a judicial order granting the witness immunity that would apply in both federal and state proceedings,” he wrote.
“To my knowledge, Chairman Paul has not sought such an order.”
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