‘The situation is unusual’: Explaining the contempt case against Fauci
The contempt action raises a set of thorny constitutional questions: chiefly, whether Fauci can respond to congressional questioning by invoking the Fifth Amendment after receiving a pardon, legal experts say.
After invoking the Fifth Amendment more than a hundred times during a Senate hearing last week, Dr. Anthony Fauci is now facing the possibility of being prosecuted for contempt of Congress.
The Senate Homeland Security Committee voted 8-7 along party lines to hold Fauci in contempt for refusing to answer questions about his role in the federal government’s response to the COVID-19 pandemic.
Since Fauci was given a retroactive pardon by President Joe Biden as he was leaving office on Jan. 19, 2025, the one-time presidential chief medical advisor invoked the Fifth Amendment to avoid the perjury trap of making false statements for which he could still be prosecuted, Northeastern University experts said.
The committee’s chairman, Republican Sen. Rand Paul, of Kentucky, brought the resolution, insisting that Fauci’s use of the Fifth Amendment was improper because he “faced no risk of federal prosecution.”
Former President Joe Biden issued a blanket pardon to Fauci, covering any federal offenses Fauci may have committed between Jan. 1, 2014, and the date of the pardon in connection with his role as “Director of the National Institute of Allergy and Infectious Diseases, as a member of the White House Coronavirus Task Force or the White House COVID-19 Response Team, or as Chief Medical Advisor to the President,” according to the pardon.
Presidential pardons apply retrospectively and do not immunize someone from future criminal conduct, meaning Fauci could still face prosecution for any alleged perjury committed during his testimony, said Libby Adler, a Northeastern University professor of law.
The contempt action raises a set of thorny constitutional questions, including whether someone who has received a broad presidential pardon can refuse questioning by invoking the Fifth Amendment, whether the possibility of state criminal prosecution preserves that right, and exactly what happens next, legal experts say.
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What does it mean to invoke the Fifth Amendment during a congressional hearing?
The Fifth Amendment protects individuals from being compelled to give testimony that could incriminate them, among other legal safeguards. In criminal cases, defendants sometimes invoke the Fifth Amendment to decline to answer questions if their responses could expose them to prosecution.
Congress’ oversight function gives it the power to investigate matters of potential criminal wrongdoing across the government, meaning it can subpoena witnesses and compel testimony, said Northeastern constitutional law expert Jeremy Paul. As such, witnesses retain constitutional protections, including the Fifth Amendment right against self-incrimination.
What is contempt of Congress?
Contempt of Congress occurs when an investigating body — here a Senate committee — agrees that a witness has defied a subpoena, refused to testify, declined to produce requested documents or otherwise obstructed a lawful congressional investigation. A contempt charge is considered a misdemeanor offense under law.
Unlike contempt of court, which judges can punish directly, a Senate contempt resolution must first be approved by the full Senate — a filibuster-proof 60 votes — before it can be referred to the Justice Department for possible prosecution, Paul said. Then it will be up to the department to pursue charges.
What are the legal issues at play?
“The law is not settled on the impact of a pardon on someone’s ability to then go ahead and plead the Fifth,” said Dan Urman, director of the law and public policy minor at Northeastern University, who teaches courses on the Supreme Court. He added that it is “pretty ironic” that Fauci is facing possible prosecution for “invoking a right that is supposed to keep him from incriminating himself and being prosecuted.”
Because Fauci’s pardon covered a period of time ending in 2025, any testimony during last week’s hearings left him vulnerable, Paul and Urman said, and the prospect of state prosecutions remained. Paul added that it’s unclear what federal crimes are being alleged, but noted that Fauci has been advised by his lawyers to avoid a so-called perjury trap, which occurs when investigators question a witness in hopes of eliciting false statements that can later be prosecuted as perjury.
Urman noted that because Fauci’s pardon is limited to a window of time now passed, prior precedents may not apply in his case. He said that the federal courts will more than likely side with Fauci on the issue of his silence, but added the pardon does not cover any state prosecutions.
But three state attorneys general — Florida, West Virginia and Louisiana — on Wednesday initiated a joint investigation into Fauci, a fact that bolsters his case in pleading the Fifth, Paul said. Federal and state laws often overlap, he said, meaning someone pardoned for potential federal offenses may still face prosecution under state law for the same conduct.
“The situation is quite unusual,” Paul added.
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