One of the most glaring and unanswered questions from a Senate hearing Wednesday, in which Dr. Anthony Fauci invoked his Fifth Amendment rights 111 times to avoid answering questions including the day of the week and the color of his tie, was whether former President Biden’s pardon will protect him from prosecution for refusing to testify. 

“Nothing says honesty like taking the Fifth, huh, doc?" said Sen. Josh Hawley, R-Mo., at the Senate Homeland Security and Governmental Affairs Committee before which Fauci testified.

“You don’t have any rights under the Fifth Amendment because you’ve been pardoned, as you very well know, as the Supreme Court has been clear for a century and more."

Biden granted Fauci a full pardon on his last day in office, Jan. 20, 2025.

Hawley cited the 1896 Supreme Court case Brown v. Walker, which holds that Congress can compel a witness to testify and waive their Fifth Amendment right against self-incrimination, so long as the government grants complete immunity from future prosecution for the discussed crimes.

“When he has been pardoned, he may not stand upon his privilege,” said Hawley, a Yale Law School graduate. “Silence is admission.”

Constitutional attorney and legal analyst Ross Garber said in an X post that the Fifth Amendment, which protects people from self-incrimination, is applicable only when there is a reasonable fear of prosecution, which Biden ruled out with the pardon.

Fauci "would not have a reasonable fear of federal prosecution over matters covered by the pardon,” Garber said, explaining that the upper chamber could file civil litigation and ask a court to compel Fauci to answer questions, or file a criminal contempt referral to the Department of Justice. The DOJ could then seek indictment.

Committee Chairman Rand Paul has previously said Fauci, who until 2022 was the director of the National Institute of Allergy and Infectious Diseases and was instrumental in the country's response to the COVID-19 pandemic, should “go to prison” over his “dishonesty” in handling the pandemic and lying to Congress. 

Fauci testified under subpoena in an attempt by Paul to get him to clarify what Paul considered contradictory statements about such matters. 

CNN senior legal analyst Elie Honig said that if not for Biden's pardon, Fauci would be within his right to invoke the Fifth Amendment. The complicating factors are that, like any presidential pardon, it covers only federal crimes for conduct up to the date it was issued. In this case, that date is Jan. 20, 2025.

Additionally, Fauci could still be prosecuted under state law rather than federal law, according to Honig.

"It's hard to imagine what state prosecution there could be of Dr. Fauci, but the Fifth Amendment allows that sort of speculative invocation," the analyst said.

Fauci and his legal team could also argue that since the pardon only covers him up to Jan. 20, it wouldn't necessarily apply if he was charged for a crime today, in July 2026.

Paul, a doctor and Kentucky Republican who earlier this week published over 1,100 pages of Fauci's notes from the pandemic, thinks that is an invalid invocation of the Fifth Amendment and that he can seek a motion from a federal court compelling Fauci to testify.

The "proof in the pudding," to Honig, will be whether Paul and the committee seek that kind of order from federal court. Ultimately, though, because courts tend to provide a "broad deference" when people call on the Fifth Amendment, he believes Fauci is within his right.

"What the political fallout will be and the shame that goes with this invocation of the Fifth — that's separate from the legal question," Honig also said.

“You know that your lawyers sitting behind you now, shifting nervously in their chairs, they know it," Hawley told Fauci. "This isn't about the Constitution. This isn't about the law. This is about contempt, contempt for this body and contempt for the American people."

Katherine Pugh is a reporter for Just the News. Follow her on X for more coverage.