STOP RESISTING!!!!

You know what I think is odd?  Police who yell/shout/scream at people they're arresting to stop resisting who are also trying NOT to be arrested - and then charge people with resisting arrest because, why?!

I mean, who in their right mind WANTS to be restrained and/or put in handcuffs (well, unless, uh,...they're into that sort of thing in the bedroom, or something).

It's only natural to resist being restrained and then you go and penalize someone for resisting?  It's like saying you can't breathe and then get arrested for breathing. 

Anyway, I was out and about the other day and I witnessed two police officers arresting this guy who really didn't want to be arrested.  He was flip flopping more than a politician in an election year and all the while the police were yelling, "STOP RESISTING!!!" and he wasn't having it.

Two tasers later, guy was subdued, in the back of the patrol car, and off to the pokey.

So, for reference sake, “resisting arrest” is a criminal charge that generally applies when a person intentionally tries to prevent a law enforcement officer from lawfully carrying out an arrest, detention, or search. 

Not only is resisting arrest a criminal charge, but it is a separate charge not connected to the underlying charge.  In almost every U.S. jurisdiction, resisting arrest is its own, independent criminal offense.  

This means prosecutors can (and often do) charge resisting arrest in addition to the crime that led to the arrest (e.g., DUI + resisting).

So, even if the underlying charge is later dismissed, dropped, or results in acquittal, the resisting arrest charge does not automatically go away. Prosecutors can still pursue resisting arrest, because the elements are different.  What matters is whether the officer was acting under color of law and the defendant engaged in “resisting” behavior. 

What are some examples of resisting behavior?

• Running away after being told you’re under arrest.
• Physically struggling or refusing to put your hands behind your back.
• Blocking or interfering with another person’s arrest.
• Giving false identification during an arrest (in some jurisdictions). 

Other related charges associated with resisting arrest include:

• Obstruction of justice.
• Assault on a peace officer.
• Escape (if someone flees after being arrested or in custody). 

Courts often draw an important distinction when looking at a charge of resisting arrest. 

If the underlying charge fails on technical grounds (e.g., lack of evidence, procedural defect), resisting arrest usually still stands.  On the other hand, if the arrest itself was unlawful (e.g., no probable cause, unconstitutional stop), then the resisting arrest charge is often thrown out.

While it's called different things in different jurisdictions, every state in the union has a statute dealing with resisting arrest, like so:

Alabama: Code of Alabama §13A-10-41 – Resisting Arrest (Class B misdemeanor).

Alaska: Alaska Stat. §11.56.700 – Resisting or Interfering with Arrest.

Arizona: A.R.S. §13-2508 – Resisting Arrest (Class 6 felony if using force).

Arkansas: Ark. Code §5-54-103 – Resisting Arrest.

California: Cal. Penal Code §148(a)(1) – Resisting, Delaying, or Obstructing an Officer.

Colorado: Colo. Rev. Stat. §18-8-103 – Resisting Arrest.

Connecticut: Conn. Gen. Stat. §53a-167a – Interfering with an Officer.

Delaware: Del. Code tit. 11, §1257 – Resisting Arrest with Force or Violence.

Florida: Fla. Stat. §843.01–843.02 – Resisting Officer with Violence (felony) and Without Violence (misdemeanor).

Georgia: O.C.G.A. §16-10-24 – Obstructing or Hindering Law Enforcement.

Hawaii: HRS §710-1026 – Resisting Arrest.

Idaho: Idaho Code §18-705 – Resisting and Obstructing Officers.

Illinois: 720 ILCS 5/31-1 – Resisting or Obstructing a Peace Officer.

Indiana: Ind. Code §35-44.1-3-1 – Resisting Law Enforcement.

Iowa: Iowa Code §719.1 – Interference with Official Acts.

Kansas: Kan. Stat. §21-5904 – Interference with Law Enforcement.

Kentucky: KRS §520.090 – Resisting Arrest.

Louisiana: La. R.S. §14:108 – Resisting an Officer.

Maine: 17-A M.R.S. §751 – Refusing to Submit to Arrest or Detention.

Maryland: Md. Code, Crim. Law §9-408 – Resisting Arrest.

Massachusetts: Mass. Gen. Laws ch. 268, §32B – Resisting Arrest.

Michigan: MCL §750.81d – Resisting and Obstructing a Police Officer.

Minnesota: Minn. Stat. §609.50 – Obstructing Legal Process, Arrest, or Firefighting.

Mississippi: Miss. Code §97-9-73 – Resisting Arrest.

Missouri: Mo. Rev. Stat. §575.150 – Resisting or Interfering with Arrest, Detention, or Stop.

Montana: Mont. Code §45-7-301 – Resisting Arrest.

Nebraska: Neb. Rev. Stat. §28-904 – Resisting Arrest.

Nevada: NRS §199.280 – Resisting Public Officer.

New Hampshire: RSA §642:2 – Resisting Arrest or Detention.

New Jersey: N.J.S.A. §2C:29-2 – Resisting Arrest; Eluding Officer.

New Mexico: NMSA §30-22-1 – Resisting, Evading, or Obstructing an Officer.

New York: N.Y. Penal Law §205.30 – Resisting Arrest.

North Carolina: N.C. Gen. Stat. §14-223 – Resist, Delay, or Obstruct an Officer.

North Dakota: N.D. Cent. Code §12.1-08-02 – Preventing Arrest or Discharge of Other Duties.

Ohio: Ohio Rev. Code §2921.33 – Resisting Arrest.

Oklahoma: 21 Okl. St. §268 – Resisting Executive Officer.

Oregon: ORS §162.315 – Resisting Arrest.

Pennsylvania: 18 Pa. Cons. Stat. §5104 – Resisting Arrest or Other Law Enforcement.

Rhode Island: R.I. Gen. Laws §12-7-10 – Resisting Lawful Arrest.

South Carolina: S.C. Code §16-9-320 – Resisting Arrest; Assaulting an Officer While Resisting Arrest.

South Dakota: S.D. Codified Laws §22-11-4 – Resisting Arrest.

Tennessee: Tenn. Code §39-16-602 – Resisting Stop, Frisk, Halt, Arrest, or Search.

Texas: Tex. Penal Code §38.03 – Resisting Arrest, Search, or Transportation.

Utah: Utah Code §76-8-305 – Interference with Arresting Officer.

Vermont: 13 V.S.A. §3017 – Resisting Arrest.

Virginia: Va. Code §18.2-460(E) – Obstructing Justice (Resisting Arrest provision).

Washington: RCW §9A.76.040 – Resisting Arrest.

West Virginia: W. Va. Code §61-5-17 – Obstructing an Officer.

Wisconsin: Wis. Stat. §946.41 – Resisting or Obstructing Officer.

Wyoming: Wyo. Stat. §6-5-204 – Resisting Arrest.

So, how does this all play out in real life?  I mean, do resisting arrest charges stick or do they get tossed out like charges for interfering with police?  Turns out, there are no hard and fast rules and resisting arrest is not always a guaranteed win.

United States Supreme Court

• Bad Elk v. United States, 177 U.S. 529 (1900)

  • Holding: A defendant could resist an unlawful arrest (at the time) and use reasonable force. The Court overturned the conviction, reasoning that if the officer had no right to arrest, resistance wasn’t a crime.

  • Note: Most modern jurisdictions no longer follow this strict rule — now you generally cannot resist even an unlawful arrest.

Alaska

• Howard v. State, 109 P.3d 1033 (Alaska Ct. App. 2005).

• The Alaska Court of Appeals reversed a resisting-arrest conviction because the defendant ran from a trooper and hid in the woods, but there was insufficient evidence that he used the “force” required by Alaska's resisting-arrest statute, AS 11.56.700. Alaska's statute doesn't make mere noncompliance or flight automatically resisting arrest. Section 11.56.700 requires that the person resist by force, criminal mischief, or means creating a substantial risk of physical injury. A violation is a Class A misdemeanor.

California

• People v. Curtis, 70 Cal.2d 347 (1969)

  • Conviction for resisting arrest reversed because jury instructions failed to clarify that the defendant had a limited right to resist excessive force.

• People v. Quiroga, 16 Cal.App.4th 961 (1993)

  • Resisting arrest conviction overturned; simply refusing to sit down or give one’s name was not enough to constitute “resisting, delaying, or obstructing.”

New York

• People v. Cherry, 307 N.Y. 308 (1954)

  • Overturned resisting arrest conviction because the arrest was unlawful (no probable cause).

  • New York law requires a lawful arrest as a prerequisite for resisting arrest.

Florida

• Slydell v. State, 792 So.2d 667 (Fla. Dist. Ct. App. 2001)

  • Conviction overturned because defendant’s actions (walking away, refusing to answer) didn’t amount to “resisting.”

• Francis v. State, 736 So.2d 97 (Fla. Dist. Ct. App. 1999)

  • Simply pulling arm away without violence was not resisting with violence; conviction overturned.

Texas

• Sheehan v. State, 201 S.W.3d 820 (Tex. App. 2006)

  • Conviction reversed; refusal to obey officer’s command without physical force did not meet statutory definition of resisting.

North Carolina

• State v. Lynch, 94 N.C. App. 330 (1989)

  • Court overturned resisting arrest conviction because the officer’s stop was unlawful (no reasonable suspicion), so resistance was not criminal.

Ohio

• State v. Stayton, 126 Ohio App.3d 158 (1998)

  • Resisting arrest conviction reversed because the officer was not acting within lawful scope when making the arrest.

Massachusetts

• Commonwealth v. Moreira, 388 Mass. 596 (1983)

  • Conviction overturned; court recognized a limited right to resist excessive force by police.

A few key things to note in cases where a resisting arrest charge was overturned:

1. Unlawful Arrest → If the arrest itself was unlawful (no probable cause, bad stop, invalid warrant), convictions for resisting have been reversed.
2. Insufficient Evidence of Resistance → Passive non-compliance (silence, walking away, pulling arm back slightly) is often not enough to sustain a conviction.
3. Excessive Force by Police → Some courts allow resistance if officers use unreasonable or excessive force.
4. Statutory Interpretation → Courts overturn convictions where prosecution stretched the meaning of “resist” or “obstruct” too far.

That all said, it's important to note that for as many cases where the charge of resisting arrest was overturned, there are as many cases where the charge was upheld in court, like:

United States Supreme Court

• United States v. Cunningham, 509 U.S. 25 (1993) (per curiam)

  • Upheld resisting-related conviction under federal law; the Court emphasized that active physical resistance against officers during lawful duties can be punished separately from the underlying offense.

California

• In re Bacon, 240 Cal.App.2d 34 (1966)

  • Conviction upheld where defendant physically struggled against police during a lawful arrest. The court held that “resisting” includes physical opposition.

• People v. Allen, 109 Cal.App.3d 981 (1980)

  • Defendant’s attempt to pull away and strike officers during arrest was sufficient for resisting; conviction affirmed.

Florida

• C.E.L. v. State, 24 So.3d 1181 (Fla. 2009)

  • Florida Supreme Court upheld resisting without violence conviction where juvenile fled from officers during a lawful investigatory stop. Flight alone constituted resistance.

• Santiago v. State, 889 So.2d 1244 (Fla. Dist. Ct. App. 2005)

  • Conviction affirmed where defendant tensed his arms and refused to be handcuffed, even without throwing punches.

Texas

• Ford v. State, 538 S.W.2d 633 (Tex. Crim. App. 1976)

  • Conviction upheld; defendant’s refusal to be handcuffed and physical struggle with officers satisfied statutory definition of resisting arrest.

• Latham v. State, 128 S.W.3d 325 (Tex. App. 2004)

  • Affirmed conviction; resisting arrest statute applies even if minimal force is used to prevent lawful arrest.

North Carolina

• State v. Burton, 108 N.C. App. 219 (1992)

  • Conviction affirmed; defendant pulled away and kicked officers during a lawful DWI arrest.

Massachusetts

• Commonwealth v. Grandison, 433 Mass. 135 (2000)

  • Conviction upheld where defendant repeatedly refused commands, fled, and physically fought officers; statute covers both passive and active resistance.

Some key themes to note in a valid charge of resisting arrest during a lawful arrest:

1. Lawful Arrest → Courts uphold resisting convictions when probable cause for the arrest exists.

2. Active Resistance → Physical struggles, fleeing, or tensing arms against handcuffs almost always lead to upheld convictions.

3. Passive Resistance Split → Some states (e.g., Florida, Massachusetts) hold that refusal or flight alone can count as resisting; others (like California) require more active conduct.

4. Separate Offense → Courts repeatedly affirm that resisting arrest is distinct from the underlying crime, so even if the other charge is weak, resisting may still stand.

 

Bottom line to all this, if you did the crime, suck it up and do the time.  

If you didn't do the crime, then by all means fight tooth and nail  - in court.  Fight tooth and nail in court because if you fight with police, on the spot, they'll nail you for something else like assaulting a police officer - or worse.

And no one wants that.

 

 

Word of the Month for September 2026: Identification

I've recently noticed something about myself.

I've noticed that when I walk up to people and start talking to them, the first question that comes out of my mouth is not always, "What is your name?"

Even if I don't know them, their name is not the most important part of the conversation.  Which is odd because every time (I mean, EVERY time) in every video I've ever seen of a police/private person interaction, the name is the one thing that police need to hear.

That's "need" as in NEEEEEEEED IT, they do.

In fact, police need to hear a person's name right up front so bad that they'll perseverate on that one thing for hours until they get it.  Can't relax until they hear it. 

For our purposes here, IDENTIFICATION (or "ID") is defined as: the act of recognizing, establishing, or proving who a person is or what a thing is.  In the context of a police/civilian interaction, it is the act of providing information that reasonably allows law enforcement to ascertain who a person is, typically including name, and sometimes additional details such as address, date of birth, or government-issued ID number.

The key points to keep in mind when examining IDENTIFICATION ("ID") is/are:

1. Purpose: To verify a person’s identity for investigative, safety, or legal reasons.

2. Forms of acceptable ID:

   • Verbal: stating your full name (and sometimes other personal details).

   • Documentary: showing an official ID (driver’s license, state ID, passport).

3. Legal Implication: Giving identification does not inherently imply wrongdoing; it simply establishes who you are.

4. Limitation: Except where authorized by law (state “stop and identify” statutes, traffic laws, or during arrest), you cannot be compelled to provide identification absent a lawful stop or reasonable suspicion.

So, why, exactly, do police ask for a person's ID?  When officers are interacting with the public, they often want to quickly determine:

1. Who you are: this helps check records (warrants, criminal history, protective orders, etc.).

2. Whether you are wanted: outstanding warrants or alerts.

3. Whether there are safety concerns: warnings tied to your identity.

4. Whether the encounter escalates to an enforcement action: arrests, citations, or release.

Officers often ask for ID not because you’ve committed a crime, but because identity is foundational to investigative and safety decisions (at least, and here's where the paranoia kicks in, that's what they tell everyone).

Now, this is all well and good but, this being a legal-esque blog, what I'm wanting to know is where to police get off demanding a person's ID.  I mean, do they have any legal authority to demand a person's ID or are they just winging it hoping no one will catch on and realize that they don't know what they think they know?!

Turns out, there are several legal doctrines in U.S. law that allow police to ask for a person's Identification. The principal reasons include are:

A. “Stop and Identify” Statutes

A minority of states have laws often called “stop and identify” statutes that require a person to identify themselves to police in specific circumstances; usually during a valid Terry stop.  

Under Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court held that police can perform a brief investigative stop if they have reasonable suspicion that criminal activity may be occurring. They are also allowed to ask questions “reasonably related in scope” to the stop.

Then in 2004, the SCOTUS ruled in Hiibel v. Sixth Judicial Dist., 542 U.S. 177 (2004) that:

• Where a state has a “stop and identify” statute, police can require a suspect to give name during a Terry stop.

• The Court did not require documentary ID; just a reasonable explanation for refusal.

• The authority comes from the state statute and the Court’s interpretation that it doesn’t violate the Fourth or Fifth Amendments in that context.

So, essentially, the rule from we get from Hiibel is that if a person is being detained during a lawful Terry stop, and if state law requires it, said person may be legally obligated to provide your name.

This, of course, raises another round of questions not the least of which is: can police demand ID without reasonable suspicion or probable cause?

Short answer - No. Police cannot legally force you to identify yourself absent a lawful stop or applicable law. Two key cases illustrate that:

In Brown v. Texas, 443 U.S. 47 (1979), the SCOTUS struck down a conviction based solely on refusal to identify, because the encounter (meaning that without reasonable suspicion or an applicable statute, police don't have authority to demand ID).

Further, in Delaware v. Prouse, 440 U.S. 648 (1979), the SCOUTS again held that police cannot stop a vehicle and demand ID (driver’s license) without any objective basis for the stop.

As a side note, and because so many of these YouTube videos talk about probable cause when it comes to whether police can stop a person and ask for their ID with/without it:

• Probable cause is a higher standard.  It is a reasonable belief, based on specific facts, that a person has committed a crime (needed for arrest or search warrants).

• Reasonable suspicion is a lower standard and means having enough objective facts and evidence—not just a hunch—to lead a reasonable person to believe a crime has been committed (justifies brief stops).

• Hiibel applies at the reasonable suspicion level.

So, Police can ask for ID during a lawful Terry stop (reasonable suspicion) where state law requires it but Officers cannot lawfully compel ID when there is no reasonable suspicion at all of a crime being committed.

Now, you may be asking, what states have stop and identify statutes?

Well, that's a really good question because not all states in the Union have such statutes.  The ones that do include:

• Alabama – Ala. Code § 15‑5‑30

• Arizona – Ariz. Rev. Stat. § 13‑2412

• Arkansas – Ark. Code § 5‑71‑213 (loitering context)

• Colorado – Colo. Rev. Stat. § 16‑3‑103(1)

• Delaware – Del. Code Ann. Tit. 11 §§ 1902, 1321(6)

• Florida – Fla. Stat. § 901.151 & loitering statute § 856.021

• Georgia – Ga. Code Ann. § 16‑11‑36(b) (loitering)

• Illinois – 725 Ill. Comp. Stat. 5/107‑14

• Indiana – Ind. Code § 34‑28‑5‑3.5

• Kansas – Kan. Stat. Ann. § 22‑2402(1)

• Louisiana – La. Code Crim. Proc. Ann. Art. 215.1(A)

• Missouri – Mo. Rev. Stat. § 84.710(2) (Kansas City only)

• Montana – Mont. Code Ann. § 46‑5‑401

• Nebraska – Neb. Rev. Stat. § 29‑829

• Nevada – Nev. Rev. Stat. § 171.123

• New Hampshire – N.H. Rev. Stat. Ann. § 594:2

• New Mexico – N.M. Stat. Ann. § 30‑22‑3

• New York – N.Y. Crim. Proc. Law § 140.50(1)

• North Dakota – N.D. Cent. Code § 29‑29‑21

• Ohio – Ohio Rev. Code § 2921.29

• Rhode Island – R.I. Gen. Laws § 12‑7‑1

• Utah – Utah Code § 77‑7‑15

• Vermont – Vt. Stat. Ann. Tit. 24, App. § 113(c)

• Wisconsin – Wis. Stat. § 968.24

So, in these 24 states, the statute might say officers may require information; in others it says officers may demand it (at their discretion).  Some states make refusal to provide ID a misdemeanor if the officer properly informs you of the law.

B. States that DON'T have stop-and-identify statutes. 

The other 26 states which don't have stop‑and‑identify laws include:

• California

• Alaska

• Connecticut

• Hawaii

• Idaho

• Iowa

• Kentucky

• Maine

• Maryland

• Massachusetts

• Michigan

• Minnesota

• Mississippi

• New Jersey

• North Carolina

• Oklahoma

• Oregon

• Pennsylvania

• South Carolina

• South Dakota

• Tennessee

• Texas

• Virginia

• Washington

• West Virginia

• Wyoming

In these states, there is no statute that justifies police to compel identification during a Terry stop (meaning an officer usually cannot charge you with a crime simply for refusing to identify yourself unless you are driving or have been otherwise arrested).

Put plainly, in these 26 states, absent another legal basis for a stop (reasonable suspicion) or a specific context (traffic stop, arrest), you typically do not have a statutory obligation to provide your name or ID.

I guess a practical takeaway from all this is:

• Police ask for your ID for investigative and safety purposes.

• The authority to compel your identity hinges on:

  • a lawful stop (reasonable suspicion),

  • and applicable statute in your respective jurisdiction.

I guess, then, what you (the non-police person) needs to do is get smart on the laws in your state.  If you live in a state that as a stop and identify statute (see above), then failing to so identify will probably result in your being charged with a misdemeanor.

If, however, if you live in a state that does NOT have stop and identify statute, keep your nose clean, don't piss anyone off, make sure there are no witnesses, and you should be in the clear.

Should be - but no guarantees.  

 

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.