Fauci, the Fifth, and the Pardon: Can He Have His Cake and Eat It Too?

As many of you in Blog-land may recall, at the end of President Biden’s term, Dr. Anthony Fauci received a pardon for any federal crimes he may have committed during the covered period (2020-2025). 

After a diary attributed to Fauci reportedly came to light, questions arose about whether it showed evidence of wrongdoing or whether he may have provided inaccurate testimony to Congress. 

When Fauci later appeared before Congress and invoked the Fifth Amendment, several legal questions emerged: What protections does the Fifth Amendment provide, does a pardon eliminate the right to remain silent, and can someone still be accused of lying to Congress if they have already received a pardon?

This is actually an interesting constitutional problem (if you're into these sorts of things) because it sits at the intersection of executive pardons, the Fifth Amendment privilege against self-incrimination, congressional oversight, and perjury statutes. 

There are also some factual premises in our hypothetical that need to be separated from the legal analysis: whether a particular diary exists, what it says, whether it proves a crime, and whether a pardon covered particular conduct are factual questions. The legal principles, however, are fairly well established.

Let's walk through it. 

1. What is the Fifth Amendment, and what was it designed to protect?

As it relates to the issue at hand, the relevant language of the 5th Amendment is:

“No person … shall be compelled in any criminal case to be a witness against himself…”

This is the "self-Incrimination clause" of the Fifth Amendment.  The historical purpose was to prevent the government from using coercive interrogation practices to force people to convict themselves. 

The Framers were reacting in part to practices in England where religious and political suspects could be compelled to answer accusatory questions under oath, even when those answers would lead to punishment.

The basic idea here is that the government has the burden of proving guilt. It cannot force the accused to help build the case against himself.  The Supreme Court has repeatedly emphasized that the privilege protects human dignity, autonomy, and the accusatorial nature of our criminal justice system.

I'd like to point your attention to a few major cases as they relate to this issue:

Miranda v. Arizona, 384, U.S. 436 (1966)

This is the famous "you have the right to remain silent" case.  The SCOTUS held that custodial interrogation requires warnings because people must be aware of their Fifth Amendment rights.

The important point here is that Miranda is only one application of the Fifth Amendment. The underlying privilege is much broader. 

Griffin v. California, 380 U.S. 609 (1965)

The SCOTUS held that prosecutors cannot tell a jury: "The defendant didn't testify, so that proves guilt."

Consequently, the government cannot penalize someone for exercising the privilege. 

Kastigar v. United States, 406 U.S. 441 (1972)

This is probably the most relevant case to our 2nd question.

In Kastigar, the SCOTUS held that a person may be forced to testify if they receive immunity that is at least as broad as the Fifth Amendment protection.

In other words:

• The Fifth Amendment protects against being forced to incriminate yourself.
• If the government removes the possibility of prosecution, the reason for the privilege disappears.
• Therefore, immunity can replace the privilege.

That becomes important with pardons. 

The case law about immunity is important because a pardon functions in a similar way to immunity when analyzing the Fifth Amendment.

Let's unpack that.

The Fifth Amendment says:  A person cannot be forced to testify if the testimony could be used to incriminate them.

The key word here is "could."  The person does not have to prove they will be prosecuted. They only have to show a reasonable possibility that their answers could expose them to criminal liability.

For example, if Congress asks "Did you knowingly falsify documents?"

...and the witness responds, "If I answer yes, the government could prosecute me for that."

...then the Fifth Amendment applies.

But now let's change the facts.  The president grants that person a valid pardon covering that exact conduct.  Now the witness says, "If I answer yes, the government could prosecute me."

The government responds, "No, it cannot. You have already been pardoned."

That is where Kastigar v. United States becomes important.

The principle from Kastigar is that the Fifth Amendment exists because testimony can lead to criminal punishment.  If the government removes the possibility of criminal punishment through immunity, the person can be compelled to testify.  As such, a pardon can serve a similar function because it removes criminal exposure for the pardoned conduct.

So the logical chain is:

1. Fifth Amendment protects against self-incrimination;
2. Self-incrimination requires possible criminal consequences;
3. Pardon removes criminal consequences;
4. Fifth Amendment privilege may disappear.

2. If someone receives a pardon, can they still invoke the Fifth Amendment?

This is where it gets interesting and the short answer is usually, no.  A valid pardon generally removes the Fifth Amendment privilege for the crimes covered by the pardon.

Why?

Because the Fifth Amendment protects against being forced to provide evidence that could later be used to prosecute you.

But if you cannot legally be prosecuted for that conduct, there is no criminal exposure.

The Supreme Court addressed this in Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52 (1964).

The SCOTUS explained the rationale behind the privilege: it exists because compelled testimony could expose a person to criminal liability.  Remove the possibility of prosecution and the privilege generally disappears.

A pardon operates similarly to immunity. 

A classic example of this can be found in Burdick v. United States, 236 U.S. 79 (1915).

This case involved a newspaper editor who refused to accept a pardon.  The SCOTUS recognized something important: A pardon is not simply a gift; it carries an implication that "you are forgiven because there was something to forgive."

That is why a pardon can have consequences beyond just wiping away punishment. 

But here is the catch:  A pardon only protects against the crimes covered by the pardon.  It does not create a magical shield against every possible question.  

For example, President Biden pardons Fauci for "Any federal offenses committed from 2020 through 2024 relating to COVID-19 policy."

That might eliminate prosecution for those crimes.  But if Congress asks "did you lie under oath during this hearing last month?"

That is a different question.  A pardon cannot cover a future crime that has not happened. 

The problem that exists is that if you look at the wording of many of Biden's pardons, they almost all refer to all or any related crimes suggesting that people are pardoned for things that did happen or may yet happen. So, how does this jive with our statement that: A pardon cannot cover a future crime that has not happened.

The short answer is that a president can issue a pardon that covers past conduct that has not yet been discovered, charged, or prosecuted, but a president cannot pardon a person for conduct that has not yet occurred.

The key difference is unknown past crimes versus future crimes.

When a pardon says something like "all offenses against the United States which the person may have committed or taken part in during a certain period," it does not mean anything this person might do in the future.  It means if this person committed a federal crime during the specified past period, whether we know about it today or not, that crime is forgiven.

The classic example is Richard Nixon. When Gerald Ford pardoned Nixon, the pardon covered:

"all offenses against the United States which he, Richard Nixon, has committed or may have committed..."

The purpose was to prevent a situation where prosecutors later discovered additional Watergate-related crimes and argued that those were not covered because they were not known at the time.

The Supreme Court has recognized that a pardon can cover offenses that are unknown at the time of issuance. In Ex parte Garland, 71 U.S. 333 (1866), the SCOTUS described the pardon power as extending to offenses already committed, whether known or unknown.

But there is a constitutional limit.  A president cannot say "I pardon John Smith for any crimes he commits in the next ten years."

Why? 

Because there is no "offense" yet.  A pardon forgives an act; it does not create advance immunity for future criminal behavior.

Think of it like this:

Valid:  "I pardon you for any federal crimes you committed between January 1, 2020 and January 1, 2025, whether known or unknown."

Not valid:  "I pardon you for any federal crimes you commit from January 1, 2026 onward."

The reason many modern pardons sound extremely broad is because lawyers drafting them are trying to capture the first category: unknown acts that already happened.

Where it gets complicated, and where our question about Fauci fits, is that a broad pardon can create a practical problem. 

Suppose a pardon covers "any federal offenses relating to COVID-19 policies, research, or responses between 2020 and 2025."

That might protect someone from prosecution for undiscovered crimes in that category. 

But then the next question becomes does that same pardon protect against a separate crime, such as lying under oath to Congress, if that lie occurred during the same period?   

That depends on the language of the pardon and how courts interpret whether the false statement itself is one of the "offenses" covered. 

3. Does a pardon eliminate the Fifth Amendment privilege entirely?

Short answer: No, and this is the subtle part.

A pardon removes Fifth Amendment protection only where the pardon eliminates criminal exposure.

Suppose Fauci was pardoned for:

• fraud related to COVID research
• false statements from 2020–2024
• conspiracy related to pandemic response

But Congress asks:  "Did you commit tax fraud in 2025?"

The pardon does nothing.  He could still invoke the Fifth.

The analysis is always could this answer expose me to criminal prosecution?

If yes → Fifth Amendment may apply.

If no → Fifth Amendment generally unavailable. 

4. Can Fauci still be accused of lying to Congress after  receiving a pardon?

Another short answer: Yes.

A pardon does not erase history and this is a common misunderstanding.

A pardon does not mean "The person did nothing wrong."  Rather, it means the government will not prosecute this person for covered offenses.

The SCOTUS made that clear in United States v. Wilson, 32 U.S. 150 (1833) when Chief Justice Marshall described a pardon as an act of forgiveness, not a declaration of innocence. 

So if Congress determines "You lied under oath," the pardon does not stop Congress from saying that.  Rather, the pardon mainly prevents criminal punishment for the pardoned offense. 

5. But can Fauci be prosecuted for lying to Congress if the underlying conduct was pardoned?

This is where the distinction gets important.

There are two separate crimes here.

Crime #1:  The underlying conduct.  Example:  "You hid information about a government program."

Crime #2:  The false testimony.  Example:  "You lied under oath when Congress asked about it."

Those are separate offenses.  A pardon for Crime #1 does not automatically pardon Crime #2 unless the pardon language covers it.

The SCOTUS has long recognized that a pardon must be interpreted according to its language.

A person cannot generally say "I was pardoned for stealing money, therefore I cannot be prosecuted for lying about stealing the money"...unless the pardon covers both. 

6. So does Fauci get to "have his cake and eat it too"?

The answer depends entirely on what the pardon actually covered.

The scenario describe above raises a legitimate constitutional tension:

• A pardon removes criminal exposure.
• Removing criminal exposure usually removes Fifth Amendment protection.
• Therefore, a person who has been fully pardoned generally cannot refuse to answer questions about the pardoned conduct.

Congress could potentially argue that a person cannot invoke the Fifth because they have already been protected from prosecution.  If Fauci refused anyway, Congress could consider contempt proceedings.

However, there is another wrinkle.  

A witness does not get to simply say I was pardoned, therefore I must answer.  The witness can still invoke the Fifth if answering could expose him to another crime not covered by the pardon.

Courts often resolve this through a process called a "Kastigar hearing," where the government must show that the testimony cannot be used against the witness.

In a Kastigar hearing:

• Government Proof: Prosecutors present evidence, case files, dates, and witness testimony showing how they found their proof before the defendant spoke, or through separate investigative work.
• Tracing Evidence: The government traces the timeline of its investigation to demonstrate zero contamination or "taint" from the immunized statements.
• Defense Challenge: The defense attorney cross-examines government agents and argues that certain evidence wouldn't exist without the protected statements.
• Judge's Decision: The judge decides if the prosecution met its high burden. If the state fails, the tainted evidence is thrown out, or the whole case may be dismissed.

So, the "upshot" of a Kastigar hearing is essentially: The government does not get to give you immunity with one hand and then use your compelled words against you with the other. If it wants your testimony, it must give you protection equivalent to the Fifth Amendment.

I guess the moral to this story is that the Fifth Amendment protects people from being forced to incriminate themselves, but a pardon may remove that danger by eliminating the possibility of prosecution for the pardoned conduct. 

The REAL question is whether Fauci's pardon was broad enough to cover everything Congress is asking about; if it was, refusing to answer in a Congressional hearing becomes much, much harder to justify.