Word of the Month for June 2028: Panhandling

It usually starts with a simple question: “Can you spare a few dollars?” 

Harmless enough, or so it seems. 

But behind that little question is a surprisingly complicated constitutional tug-of-war involving free speech, public spaces, traffic, harassment, and the government's sometimes understandable desire to make uncomfortable things disappear. 

Panhandling has been regulated for centuries. The twist is that modern courts increasingly ask a different question: Is the government regulating the begging or the behavior that comes with it? That distinction turns out to be everything.

So, what is panhandling?  PANHANDLING is the act of asking another person for money, property, or something of value, ordinarily in a public place. 

The word is not itself a legal term with one nationwide definition. Different jurisdictions define it somewhat differently, but a common formulation is an in-person request for an immediate donation of money or something of value. 

A person holding a sign saying “Please help” may therefore be panhandling even without speaking; whether a particular ordinance covers that conduct depends on how the ordinance is written.

There is an important legal distinction, however, between the request itself and what the person does while making the request. Asking, “Could you spare five dollars?” is speech. Blocking someone's path, threatening them, touching them, stepping into traffic, or refusing to leave after being told to do so is conduct. 

Modern First Amendment law generally gives the government considerably more room to regulate the latter than the former.

A short history of panhandling

Begging is obviously much older than the United States. English poor laws, vagrancy laws, and local ordinances historically treated public begging as a social-order problem. Early American communities inherited much of that approach. Governments commonly regulated vagrancy, loitering, begging, and public solicitation together, often giving police substantial discretion to move people along.

The word “panhandler” itself is comparatively young.  The word “panhandler,” meaning someone who begs, dates to at least 1893, although the related term “panhandle” was being used in the sense of begging decades earlier.  The likely image is the extended arm or hand of someone asking for money. 

For most of American history, therefore, the legal question was not particularly complicated: Could the government prohibit begging in public? The answer was generally treated as yes.

The constitutional landscape began changing in the latter part of the twentieth century. Courts increasingly recognized that asking for money can carry a message: I am poor; I need help; this is what I need; please help me. Once begging was understood as communicative activity rather than merely undesirable conduct, the First Amendment entered the picture.

And that produced the modern rule:

The government generally cannot outlaw the message merely because the message is a request for money. It can, however, regulate the manner, place, and circumstances in which the request is made provided the regulation is actually constitutional.

That distinction explains most of the seemingly contradictory panhandling laws around the country. 

The legal progression

1. 1972-78:  Vague Alaska vagrancy & loitering laws.

In 1972 in Marks v. City of Anchorage, 500 P.2d 644 (Alaska 1972), the Alaska Supreme Court struck down an Anchorage disorderly-conduct ordinance as unconstitutionally vague, warning about laws that left too much discretion in the hands of police.  Six years later in Brown v. Municipality of Anchorage, 584 P.2d 35 (Alaska 1978), the court struck down another Anchorage loitering ordinance for essentially the same reason.  The cases weren't panhandling cases, but they reflected a growing judicial suspicion of laws that allowed police to decide, on the street and in real time, who was behaving suspiciously or unlawfully.

Why it matters: Marks and Brown weren't panhandling cases, but they helped establish an important principle: police may regulate harmful conduct, but they cannot be given unlimited discretion to decide which public behavior, or speech, is acceptable.

 

2. 1980: Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620.

Although this wasn't a panhandler case, it is an important starting point. Schaumburg, Illinois, required charitable organizations soliciting contributions on streets or door-to-door to obtain permits and meet a requirement that at least 75% of the money collected be used directly for charitable purposes. Solicitation without a permit could result in a fine of up to $500 per offense.

The Supreme Court struck the ordinance down. The Court reasoned that charitable solicitation is not merely a financial transaction; it communicates information, ideas, and advocacy. The government may regulate solicitation, but it cannot impose restrictions that substantially interfere with protected expression without sufficient justification.

Why it matters: The Court established an important foundation: asking for money can itself be protected speech. 

3. 1993: Loper v. New York City Police Department, 999 F.2d 699 (2d Cir.).

Now we get to actual begging.

New York's Penal Law § 240.35(1) made it a crime to “loiter, remain or wander about in a public place for the purpose of begging.” The Second Circuit struck that provision down under the First Amendment.

The court recognized that begging frequently communicates more than the bare request for money. A person's words, gestures, appearance, and circumstances can communicate a message of poverty and need. The government could regulate abusive or disruptive behavior accompanying begging, but it could not simply criminalize being in a public place for the purpose of begging.

Interestingly, the New York legislature later repealed the specific begging provision. As of 2026, § 240.35 no longer contains the old “purpose of begging” subsection.

Why it matters: Loper is one of the cases that moved American law from “begging is conduct” toward “begging is speech.” 

4. 2014–2015: Thayer v. City of Worcester, 755 F.3d 60 (1st Cir. 2014), followed by the Supreme Court's Reed remand.

Massachusetts illustrates the next step: the government does not have to tolerate aggressive panhandling merely because ordinary panhandling is protected.

Worcester adopted an ordinance prohibiting aggressive begging and panhandling. It targeted conduct such as threatening someone, blocking passage, touching someone without consent, continuing after a negative response, and various forms of roadside solicitation.

The First Circuit initially upheld most of the ordinance at the preliminary-injunction stage. It did, however, single out the blanket prohibition on nighttime solicitation for separate treatment. The ordinance carried a fine of up to $50 per day or community service, and police could order a person to stop and could arrest the person for failing to comply.

Then came Reed v. Town of Gilbert, 576 U.S. 155 (2015), which made the constitutional analysis of content-based speech restrictions substantially more demanding. The Supreme Court vacated the First Circuit's judgment in Thayer and sent it back for reconsideration. The subsequent district-court proceedings ultimately found Worcester's nighttime ban unconstitutional.

Why it matters: There is a huge difference between:  “You may not ask people for money,” and  “You may not threaten, touch, block, intimidate, or interfere with people while asking them for money.”

The second category is much easier for a government to defend. 

2015: Reed v. Town of Gilbert, 576 U.S. 155 (2015).

Reed was not a panhandling case. It involved a church's signs. But it changed panhandling litigation because the Supreme Court emphasized that a law regulating speech because of what the speech says is content-based and presumptively subject to strict scrutiny.

That became enormously important because many anti-panhandling ordinances did something like this:

“You may talk to people, hold signs, and ask them questions but you may not ask them for money.”

That sounds content-neutral until you look at the words the ordinance actually regulates. The law is permitting ordinary conversation while singling out requests for money.

The Supreme Court said that a law does not escape strict scrutiny merely because the government has a perfectly reasonable motive. 

5. 2015: Norton v. City of Springfield, 806 F.3d 411 (7th Cir. 2015).

Illinois provided a textbook example of Reed's effect.

Springfield prohibited oral requests for immediate donations in its downtown historic district. But a person could hold up a sign asking for money, and a person could orally ask someone to send money later.

The Seventh Circuit initially upheld the ordinance. After Reed, however, the court reconsidered the case and reversed itself.

The problem was obvious: the ordinance distinguished speech based on what the speaker was asking for and when the requested money would be transferred. That made the law content-based. The court ordered an injunction against enforcement.

Springfield subsequently repealed the challenged panhandling ordinance in 2017.

Why it matters: This is where the modern doctrine becomes much clearer:  You cannot make “asking for money” the forbidden subject matter while allowing other speech. 

6. California: Penal Code § 647(c).

California demonstrates the other side of the equation. California Penal Code § 647(c) makes it a misdemeanor to accost another person in a public place for the purpose of begging or soliciting alms. The provision remains on the books.

But that does not mean California has carte blanche to arrest somebody merely because the person politely asks for money. The word accost and the statute's application have constitutional significance, particularly after the modern First Amendment cases.

California also separately criminalizes willfully and maliciously obstructing the free movement of another person on a street, sidewalk, or other public place. That offense is a misdemeanor.

That distinction is instructive:  “Give me money” raises a First Amendment problem.  “Move, or I'm going to block the sidewalk until you give me money” presents a very different constitutional case. 

7. Texas: Transportation Code § 552.007.

Texas takes a more location-and-safety-oriented approach. Section 552.007 prohibits a person from standing in a roadway to solicit a ride, contribution, employment, or business from someone in a vehicle, subject to an exception for authorized charitable solicitation.

The important point is that Texas is not saying:  “You cannot ask for money.”  It is saying, essentially:  “You cannot stand in a roadway and solicit motorists.”

That is a place and safety regulation, rather than a general prohibition on the message. A violation falling under the chapter's general penalty provision is punishable by a fine of $1 to $200 when no other penalty applies.

This is precisely the kind of distinction courts tend to examine closely: Is the government regulating the message, or is it regulating dangerous activity associated with the message? 

8. Virginia: Clatterbuck v. City of Charlottesville, 708 F.3d 549 (4th Cir. 2013).

Charlottesville, Virginia, adopted restrictions on solicitation in particular locations and prohibited solicitation in an “aggressive manner.” The ordinance defined aggressive conduct to include things such as unwanted physical contact, threatening or intimidating approaches, continuing after a negative response under specified circumstances, and intentionally blocking someone's passage.

The challenged ordinance classified violations as a Class 3 misdemeanor.

The Fourth Circuit's analysis is useful because it illustrates the constitutional middle ground: the fact that panhandling is protected does not prevent a city from addressing genuinely coercive conduct accompanying it. 

9. 2024: City of Grants Pass v. Johnson, 603 U.S. 506 (2024).

This case gets dragged into panhandling discussions constantly, even though it wasn't a panhandling case.

Grants Pass involved public camping and homelessness. The Supreme Court held that the Eighth Amendment does not categorically prohibit governments from enforcing generally applicable public-camping laws against homeless people. In doing so, the Court effectively rejected the Ninth Circuit's Martin v. City of Boise rule that had restricted enforcement when shelter beds were unavailable.

That matters here because people sometimes make this leap:  “The Supreme Court said cities can criminalize homelessness, so cities can criminalize panhandling.”

Uhhh, no.  And for the record, Grants Pass was principally an Eighth Amendment punishment case involving camping, not a decision eliminating First Amendment protection for begging or panhandling. 

10. 2025: Alabama: Section 13A-11-9 and the continuing fight over begging laws.

Alabama provides a particularly good modern example of the tension between old statutes and modern First Amendment doctrine. Alabama Code § 13A-11-9 historically made it a violation to loiter, remain, or wander about in a public place for the purpose of begging.

In 2025, under Singleton v. Secretary of the Alabama Law Enforcement Agency, No. 23-11163 (11th Cir. Apr. 8, 2025), the Eleventh Circuit affirmed an injunction against enforcement of Alabama's begging and pedestrian-solicitation statutes because, under controlling Eleventh Circuit precedent, begging is protected speech and Alabama's statutes broadly criminalized begging itself rather than merely dangerous conduct accompanying begging.

The interesting part is the history: Alabama's current begging provision dates to 1977, long before the modern line of First Amendment panhandling cases.

The case illustrates something that happens repeatedly in this area of law: a statute can sit on the books for decades and become constitutionally unenforceable after the constitutional law surrounding it changes. 

11. 2026: Scott v. City of Daytona Beach, Nos. 24-12662 & 24-12964 (11th Cir. June 25, 2026).

And this brings us essentially to the present.

In June 2026, the Eleventh Circuit decided Scott v. City of Daytona Beach. Daytona Beach's ordinance was extremely broad. It prohibited “aggressive panhandling” throughout the city and also prohibited ordinary panhandling in numerous locations—including near businesses, transit facilities, ATMs, parking facilities, restrooms, schools, intersections, and the boardwalk. The ordinance carried a maximum penalty of 60 days in jail, a $500 fine, or both.

The Eleventh Circuit held that panhandling is protected First Amendment speech and concluded that many of the ordinance's restrictions were content-based and failed strict scrutiny. The court enjoined enforcement of the challenged provisions and affirmed the basic proposition that panhandling falls within the First Amendment's protection.

That is a particularly important modern case because it demonstrates that Reed was not some theoretical 2015 decision that mattered only to church signs. Courts are still using its content-based-speech analysis to invalidate modern panhandling ordinances in 2026. 

So where does that leave the law?

The easiest way to understand modern panhandling law is to divide it into three boxes.

Box 1: The request itself

“Can you spare five dollars?”

“Please help me.”

“I'm homeless and need money for food.”

“Please donate.”

These are generally protected speech. The fact that the speaker is asking for money does not automatically remove First Amendment protection. Loper, Norton, and the modern Eleventh Circuit cases make that point particularly clear.

Box 2: Reasonable place, time, and manner restrictions

A government has substantially more room to regulate things such as:

• standing in a roadway;
• physically blocking a sidewalk;
• obstructing traffic;
• soliciting someone inside a particular restricted facility;
• entering private property after being told to leave;
• interfering with pedestrians;
• creating an objectively dangerous traffic situation.

But the restriction still has to satisfy the First Amendment. Calling something a “time, place, and manner” regulation does not magically make it constitutional.

Box 3: Aggressive or coercive conduct

This is where governments have their strongest case.

A law aimed at:

• threatening someone;
• touching someone without consent;
• blocking someone's movement;
• following someone in a threatening manner;
• demanding money after an unequivocal refusal;
• stepping into traffic;
• creating an actual safety hazard;

is regulating conduct associated with panhandling, rather than simply prohibiting the communicative request for money.

The upshot to all this is that the First Amendment may protect the request, but it doesn't come with a constitutional coupon book for sidewalks, traffic lanes, private property, or personal space. 

Governments can regulate genuinely dangerous, threatening, or obstructive conduct. What they generally cannot do is slap a “NO BEGGING” sign on speech simply because they don't like the message.

In other words, the Constitution may protect your right to ask for a dollar, but it doesn't promise you'll get one.

 

Who Watches the Watchers? Congress, Jack Smith, and the Constitutional Cloak

There is something particularly uncomfortable about a prosecutor being questioned about whether the government crossed a constitutional line.

The government investigates. Congress investigates the government. And eventually, the investigator himself becomes the subject of the investigation.

That is roughly where former Special Counsel Jack Smith finds himself.

The controversy concerns an FBI investigation known as Arctic Frost, which began in April 2022 and was later folded into the investigation overseen by Smith after he was appointed special counsel in November 2022. Among other things, investigators obtained telephone records belonging to members of Congress, including numerous Republican lawmakers, during an investigation into efforts to interfere with the 2020 presidential election.

The records were generally described as toll records: information showing numbers called, numbers received, dates, times, and duration—not the substantive content of the calls. That distinction matters. 

So does something else.

The Constitution has a provision specifically designed to prevent the executive branch from using its investigative power to interfere with Congress's legislative work.

It is called the Speech or Debate Clause and it is hiding in plain sight.

So, uh, the Speech or Debate Clause. What's That?

The Speech or Debate Clause is found in Article I, § 6, cl. 1 of the United States Constitution.  It provides:

“for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.”

The provision is not merely a constitutional version of parliamentary courtesy.  It is a separation-of-powers provision.

The Framers understood the danger of allowing the executive or judiciary to intimidate legislators for doing the job the Constitution assigned to them. The Supreme Court has therefore interpreted the clause broadly enough to protect more than words spoken on the House or Senate floor.

In Gravel v. United States, 408 U.S. 606 (1972), the Supreme Court explained that the protection extends to acts that are an integral part of the deliberative and communicative processes by which members participate in congressional proceedings.

In Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975), the Court likewise recognized congressional investigation—including the issuance of subpoenas—as falling within the legitimate legislative sphere when Congress is exercising its investigative authority.

The principle is therefore broader than:

“Congressmen can't be sued for something they say during a speech.”

Rather, it is closer to:

“The other branches generally cannot interfere with legitimate legislative acts simply because they dislike, disagree with, or want to investigate those acts.”

That distinction becomes important when the government's investigative machinery begins examining a congressman's communications.

So, Does the Clause Protect a Congressman's Phone Records?

This is where the story gets considerably more complicated.  The answer is not automatically.

The Speech or Debate Clause does not place every piece of information belonging to a member of Congress inside a constitutional vault.

The Supreme Court's test is functional and examines whether the particular activity was a legislative act?

That question was squarely presented when the government seized Representative Scott Perry's cellphone during the January 6 investigation.

In In re Sealed Case, 80 F.4th 355 (D.C. Cir. 2023), the D.C. Circuit held that the Speech or Debate Clause required a fact-specific examination of Perry's communications. Some communications concerning legislative activity—including communications with other members about the 2020 election-certification vote—could be protected. Other communications were not automatically protected merely because Perry was a member of Congress.

That case is important because it prevents an overly simplistic argument.  So, the constitutional question isn't:

“Was the person a member of Congress?”

But is:

“What was the member doing, and was that activity legislative?”

The D.C. Circuit put it plainly: the inquiry must be conducted communication by communication under the test established in Gravel.

And that brings us back to Arctic Frost.

The Arctic Frost Phone Records

During the investigation, federal investigators obtained telephone records relating to members of Congress.  Some requests covered a relatively narrow period surrounding January 6, 2021. Others reportedly covered considerably longer periods.

The government's stated investigative interest was not simply whether members of Congress were talking to someone. Investigators were attempting to determine who was communicating with whom concerning efforts to influence the electoral-certification process.

That provides the government's side of the constitutional argument.

If investigators were attempting to determine whether a crime had been committed, and the telephone records merely established communications between individuals, the government could argue that it was obtaining ordinary investigative evidence rather than interrogating a member about a legislative act.

But there is an obvious constitutional problem on the other side:  Who a legislator communicates with (and when) can reveal what is happening inside the legislative process.

A phone record showing that a senator spoke with a particular person immediately before a congressional vote does not tell the government what was said.  But it may tell the government something about the legislator's legislative activity.  That is precisely why the Speech or Debate Clause exists.

And it is why the issue is not nearly as simple as saying either “phone records aren't protected” or “Congressmen's phone records are absolutely protected.”

The existing case law requires a much more precise inquiry.

Then Jack Smith Had to Explain It to Congress

Jack Smith was subpoenaed by the House Judiciary Committee and ultimately gave a closed-door deposition on December 17, 2025.  During that deposition, Smith defended the acquisition of toll records and maintained that his office took the Speech or Debate Clause seriously.

He also maintained that the toll records themselves did not contain the content of calls or messages.  That distinction would become extremely important.  Because the controversy eventually moved beyond what the government obtained to what Smith told Congress about what the government obtained.

In July 2026, Chairman Jim Jordan referred Smith to the Department of Justice for possible prosecution. The referral alleges that Smith's sworn testimony created the impression that neither he nor his team had obtained or reviewed the contents of lawmakers' text messages.

Subsequently released records, according to the committee, indicated that Smith's investigative team had in fact accessed the content of messages involving more than 40 members of Congress and White House personnel, including material that had been subject to a DOJ “filter team” intended to screen potentially privileged material.

Smith's attorneys dispute that characterization, arguing that the questioning concerned particular subpoenas and toll records rather than every source of information that investigators might have possessed.

And that distinction is legally significant. Because being incomplete, evasive, confusing, or even misleading is not automatically the same thing as committing perjury or making a prosecutable false statement.

The government would have to prove the elements of an actual offense.

What Law Makes Lying to Congress a Crime?

There are several possibilities.  The most obvious is perjury.

Under 18 U.S.C. § 1621, a person who, after taking an oath to testify truthfully, willfully makes a material statement that the person does not believe to be true can be convicted of perjury and face up to five years' imprisonment.

There is also 18 U.S.C. § 1001, the federal false-statements statute.

This statute is particularly interesting because Congress specifically amended it in 1996 to cover false statements made in matters within the jurisdiction of Congress and the legislative branch.

The basic requirements are not simply:

“Someone said something wrong.”

The government generally must establish a knowingly and willfully false statement concerning a material matter within the statute's jurisdiction.  That is a substantially higher bar than proving that congressional testimony was inaccurate.

And that is where the word “knowingly” becomes the star of the show.

If Smith misunderstood a question, forgot something, answered a narrower question than the questioner intended, or accurately described one category of records while failing to volunteer information about another, that is one thing.

If, on the other hand, the evidence established that he knew a material statement was false and deliberately made it anyway, the legal landscape would be very different.

What About Contempt of Congress?

There is another misconception worth clearing up.  Congressional contempt is not simply the statutory penalty for lying.

Under 2 U.S.C. § 192, a witness who is summoned before Congress and willfully refuses to testify or refuses to answer a pertinent question can commit a misdemeanor.  In other words, contempt traditionally concerns things such as:  I refuse to answer.  

It is not simply:  I answered, but Congress believes I lied.

False testimony presents a different legal problem.  Congress can refer alleged criminal conduct to the Department of Justice. It can also use its institutional powers to investigate and, under certain circumstances, employ its contempt authority.  

But a congressional committee does not simply declare:  You lied. You're guilty because criminal guilt remains a matter for the criminal-justice system.

So Should Jack Smith Have Been Sanctioned?

This is where the answer needs a lawyer's annoying but necessary qualifier:

If the evidence establishes that Smith knowingly made materially false statements under oath, then there were (and are) legal mechanisms for holding him accountable.

The existence of those mechanisms is not hypothetical. The House Judiciary Committee has already used one of them: a criminal referral to the Department of Justice.

But whether Smith actually committed perjury or violated § 1001 depends upon facts that must be established, not merely upon the existence of conflicting descriptions of his testimony and the underlying records.

That distinction matters because the law does not criminalize every misleading statement.

For perjury, the government would need to prove the necessary elements, including the oath, falsity, materiality, and the requisite knowing and willful state of mind.  For § 1001, the government would likewise have to establish a materially false statement made knowingly and willfully.

The question therefore isn't simply:  Did Jack Smith mislead Congress?  Rather, the legally useful question is: Did Jack Smith knowingly and willfully make a materially false statement to Congress?

Those are two very different questions.

And Then There Is the Bigger Constitutional Question

The most fascinating part of this story may actually be separate from whether Smith's congressional testimony was truthful.  It is whether the government's acquisition of congressional communications properly accounted for the Speech or Debate Clause in the first place.

The D.C. Circuit's decision in In re Sealed Case demonstrates why.

The constitutional protection is functional. Some congressional communications are protected because they are legislative acts. Others are not.  And when government investigators seize or obtain communications that may contain protected legislative material, the Constitution requires more than simply saying:  Trust us. We'll sort it out later.

In United States v. Rayburn House Office Building, Room 2113, 497 F.3d 654 (D.C. Cir. 2007), the D.C. Circuit held that the Executive Branch had to provide a member an opportunity to assert Speech or Debate protection before reviewing materials likely to contain privileged legislative material.

That principle became part of the procedural backdrop to the Perry litigation and is one reason the constitutional issue deserves more attention than the shorthand phrase “phone records.”

Because the real question is not merely whether the government knew who called whom.  It is whether the government's investigative process intruded upon the constitutional sphere Congress is entitled to occupy without executive interference.

The Irony of the Constitution

There is a delicious constitutional irony here.

The Speech or Debate Clause was designed to protect Congress from the other branches.

Congress investigates the Executive Branch.  The Executive Branch investigates people connected to Congress.  Congress then investigates the Executive Branch's investigation. And eventually the investigator is subpoenaed by Congress to explain what happened.

That circularity is not necessarily a constitutional defect.  It is, in part, the constitutional system doing what it was designed to do:  checking power with power.

But the same system also demands something less exciting and considerably more important:  evidence.

The constitutional question surrounding the congressional phone records deserves serious examination and so does the question of whether congressional testimony crossed the line from an incomplete explanation into a knowingly false statement.

Those questions should not be answered by political allegiance. They should be answered by the Constitution, the statutes Congress enacted, and the evidence.

And those three things don't always produce the answer social media wants.

An Uncomfortable Reality Check

The Speech or Debate Clause isn't a congressional invisibility cloak. It doesn't mean a member of Congress can commit a crime and announce, “I'm legislating.” But neither is a congressional badge a constitutional bullseye.

The Framers deliberately built a wall around legitimate legislative activity because they understood that a legislature cannot remain independent if the executive branch can investigate the legislators every time it dislikes what they are doing.

And there is an equally important rule on the other side of that wall:

If you voluntarily walk into Congress, raise your hand, swear to tell the truth, and start answering questions, the Constitution does not hand you a magic eraser for inconvenient facts.

For Jack Smith, that may ultimately be the more uncomfortable constitutional question.  The man who once stood on the government's side of the subpoena is now on the receiving end of one.

And this time, Congress is holding the subpoena.

 

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.