The Fifth Amendment to the US Constitution protects the innocent and the guilty alike. Dr Anthony Fauci not only had the right to plead the Fifth before the Senate Homeland Security committee on Wednesday, but he was also probably right to do so. The panel that was interrogating Fauci, the man who became the face of the government's Covid pandemic response, has an agenda. This is not an indictment of committee chairman Rand Paul or any other member. It's just the truth, plain for an honest American to see. Committees of this sort are not seeking the facts. They seek partisan advantage. Members of Congress frequently use these hearings to bully witnesses. They often cut them off in the middle of their answers, undermining their ability to comply with their oaths to 'tell the truth, the whole truth and nothing but the truth.' Lawmakers and their staff often distort testimony, editing long answers into short soundbites that lack context but serve as effective fundraising messages when posted on social media.

Whether you like Fauci or not, whether you believe he served honorably as the leading member of President Donald Trump's Coronavirus Task Force or not, you should care about one's right to refuse to incriminate themselves in such a setting. Now many, including members of the Senate committee, are arguing that Fauci gave up his Fifth Amendment right after he accepted a pre-emptive pardon from President Joe Biden on January 20, 2025, for all official conduct from 2014 to 2025. 'You don't have any rights under the Fifth Amendment, because you've been pardoned, as you very well know,' said Senator Josh Hawley on Wednesday, citing an 1896 Supreme Court decision, Brown vs Walker.

Senator Hawley is wrong – as he very well may know. Fauci surely had the right to invoke the Fifth Amendment as to any potentially incriminating information that could be used for a prosecution for post-pardoned crimes. Additionally, to refuse to answer is not to acknowledge guilt; it's to acknowledge that prosecutors can indict innocent defendants using evidence obtained in congressional hearings. Senator Paul tried to skirt this constitutional barrier by specifically asking Fauci questions that are clearly covered by the Biden pardon.

This may make it appear that Fauci had nothing to fear from answering questions limited to that period, but that ignores a line of Supreme Court cases that hold that if a defendant answers some questions about a particular subject, he may not refuse to answer other questions about that subject. In other words, a witness claiming the Fifth Amendment may not turn the spigot on and off. Once he opens the tap by answering questions about a subject, he may not close it in response to other questions.

Any good lawyer will always advise a client who seeks to invoke the Fifth Amendment to invoke it across the board and not try to pick and choose safe areas. That's what Fauci's lawyer did here and that's what I would've advised had I been Fauci's lawyer. There is, of course, a price to pay in the court of public opinion for refusing to answer hundreds of questions. Opportunistic politicians are eager to cite the number of times a witness has invoked the privilege, without explaining that there is no real difference between invoking it once and continuing to invoke it one hundred times thereafter.

This smearing tactic was used commonly during the Joseph McCarthy era, when witnesses refused to give their names or dates of birth. Similarly, Fauci refused to answer questions about the color of his tie for fear that he might be waiving his Fifth Amendment right as to other questions. Finally, the fact that Fauci was within his constitutional rights does not mean that he is out of trouble. The Senate committee may well recommend in a vote scheduled for next week that he be held in contempt and the Republican-led Congress may vote to hold him in contempt.

The Trump Justice department could then indict Fauci forcing him to litigate these constitutional issues. There is no guarantee that he will win, but the law seems clearly to be on his side. If the Homeland Security Committee were seriously interested in learning the facts rather than going after Fauci, it could recommend that Congress bestow total immunity on him, up to and including the present. This would not give Fauci immunity from a perjury prosecution if he were to testify falsely, but it would immunize him from prosecution for any other alleged crimes and deny him the right to invoke the Fifth Amendment.

We will likely never know the whole truth about the sources and causes of that terrible virus that killed so many people. But we can truly learn from our collective mistakes in responding to the pandemic. Fauci almost certainly has useful information that would help in this process. The best thing for our nation and for the world, would be to give Fauci total immunity and question him about everything he knows without giving him the right to refuse to answer questions on the ground that his answers might tend to incriminate him. I predict Congress won't do that. They seem more interested in Fauci's blood than in his truthful testimony.