Can Fauci plead the Fifth after Biden pardon? Why it’s a legal gray area

On July 29, 2026, Dr. Anthony Fauci, the former director of the National Institute of Allergy and Infectious Diseases, testified in front of a Senate committee hearing led by Sen. Rand Paul, a Republican from Kentucky. 

Paul and his colleagues hoped testimony from Fauci, the primary public face of the federal government’s public health response during the COVID-19 pandemic, would reveal contradictions in his behavior. The Republican Party has attacked Fauci’s actions throughout the pandemic since, well, the pandemic, suggesting Fauci should be put in jail for allegedly lying to the public about the origins of the pandemic. (Paul claims, despite mountains of scientific evidence, that it originated in a Wuhan laboratory.)

Instead of answering questions from the senators, Fauci invoked his right to avoid self-incrimination as granted by the U.S. Constitution’s Fifth Amendment, noting in his open statement that it “pains me to do so because of the respect I have for the legislative branch of government and my decades-long record of cooperating with Congress.”

Following the hearings, Republicans claimed Fauci could not actually plead the Fifth because then-President Joe Biden issued him a preemptive pardon before leaving office in January 2025 for his actions during the pandemic, for which Republicans frequently suggested that they would punish Fauci in some way. Paul announced he would hold a vote in committee the week of Aug. 3 to decide whether Fauci was in contempt of Congress, which could lead to prosecution from the Justice Department. 

Snopes readers wrote in asking whether Fauci was allowed to invoke the Fifth Amendment in spite of his presidential pardon.

The question is a matter of constitutional law, not fact-checking. Though we can offer an analysis of the situation, including arguments that he both can and cannot plead the Fifth, we cannot meaningfully rate the claim true or false. Holding Fauci in contempt would likely require Congress to refer the case to either the Department of Justice or the judicial branch. (A third option, called inherent contempt, would allow Congress itself to charge and try Fauci, but has not been used since the 1930s.)

The rest of this article consists of three sections: The first provides background information on the matter, the second summarizes the argument that Fauci cannot plead the Fifth and the third explains why some have argued that Fauci can plead the Fifth despite the pardon. 

The background

The full text of the Fifth Amendment to the Constitution reads as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The relevant line here is “nor shall be compelled in any criminal case to be a witness against himself.” The Supreme Court interprets this as having the right to refuse to answer a question that the person reasonably believes would either be directly incriminating or could lead to the discovery of self-incriminating evidence, according to the legal information site Justia.

It is important to remember that invoking the Fifth Amendment is not an admission of guilt — under U.S. law, people are presumed innocent until proven guilty. 

There are also laws that punish anyone knowingly obstructing the body from performing its normal duties, a charge called contempt of Congress. That includes the following:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.

This seems to create a lose-lose situation for people called to testify — they could provide self-incriminating testimony, but they have the right to not say anything. But if they choose to exercise that right, they are then at risk of contempt charges.

The concept of immunity, guaranteed protection against legal action, liability or punishment that might otherwise apply to a situation, resolves this paradox.

There are two different levels of immunity: transactional (total) immunity, and use and derivative use immunity.

Use and derivative use immunity directly parallels the Fifth Amendment. In exchange for testifying, the prosecution agrees not to use that testimony, or evidence gathered as a result of that testimony, in court. The prosecution may still file charges against someone with this type of immunity, but it must gather the evidence from third-party sources. “This produces the same result as if the witness invoked their Fifth Amendment privilege and did not testify at all,” according to Justia.

The higher level of immunity, transactional or total immunity, goes above and beyond Fifth Amendment rights. The prosecution agrees to never bring charges on anything related to the testimony. 

A presidential pardon is similar to immunity, though it has some differences because it only applies to federal charges. Therefore, a pardoned person can face state-level charges, according to SCOTUSBlog, but the pardon does guarantee immunity from future federal prosecution on the matter.

Fauci’s pardon, issued Jan. 19, 2025, reads as follows:

A FULL AND UNCONDITIONAL PARDON
FOR ANY OFFENSES against the United States which he may have committed or taken part in during the period from January 1, 2014, through the date of this pardon arising from or in any manner related to his service 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.

So, with this background, can Fauci plead the Fifth?

Why some say Fauci can’t plead the Fifth

The law has been clear for over a century that people who have immunity lose their Fifth Amendment rights because they are no longer at risk of self-incrimination. 

In an 1896 case called Brown v. Walker, a man was called to testify before an Interstate Commerce Commission grand jury, refused to answer a few questions by pleading the Fifth and was ultimately held in contempt of court for doing so. In a 5-4 decision, the Supreme Court said the man was required to testify because the laws regulating testimony before the commission guaranteed his immunity from prosecution.

Sen. Josh Hawley, R-Mo., specifically cited Brown v. Walker when claiming Fauci is compelled to testify. Because a presidential pardon grants immunity from future federal prosecution, under his logic, Fauci is not at risk of being charged with a crime for his testimony, and therefore he is not at risk of self-incrimination and must answer the questions.

Why others argue Fauci can plead the Fifth

Biden’s pardon of Fauci applies only to his actions as head of NIAID from Jan. 14, 2015, to Jan. 19, 2025. Therefore, any of Fauci’s actions after that date could be used to charge him. The principal concern here, according to legal experts who spoke with The New York Times, is that if Fauci were to lie under oath during his testimony, he could still end up facing perjury charges. 

Though perjury requires lying with intent, not lying unintentionally, we must resist the urge to jump to the conclusion that Fauci would have needed to lie during his testimony for some reason. Again, this country operates on a policy of innocent until proven guilty. 

The potential concern over perjury charges is not a hypothetical. In December 2025, Jack Smith, the special prosecutor in charge of investigating the Jan. 6, 2021, insurrection, testified before Congress. On July 22, 2026, one week before Fauci took the Fifth, the chairman of Smith’s hearing, Republican Rep. Jim Jordan of Ohio, claimed Smith had made “willfully and intentionally false statements” during his testimony and referred the case to the Justice Department. (It is unclear whether the Justice Department will press charges.)

Given Smith’s situation and Republicans’ remarks about trying to put Fauci in jail, he therefore had a reasonable belief that testifying before the committee might have resulted in him being accused of perjury and charged. Because perjury charges from his testimony would be unrelated to the immunity from federal prosecution granted by his presidential pardon, he could plead the Fifth Amendment to avoid incriminating himself.

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