At 8:30 ET This Morning, a Senate Committee Votes on Whether a Pardon Cancels the Fifth Amendment

Rand Paul says Fauci lost the privilege when Biden pardoned him. That question is unsettled, and Paul answered it himself, from the chair, against a man he has promised for years to imprison.

At 8:30 this morning the Senate Homeland Security and Governmental Affairs Committee votes on a resolution certifying that Anthony Fauci is in contempt of Congress.

If it passes, it goes to the Senate floor. If the Senate agrees, the citation goes to the United States Attorney for the District of Columbia, and that office decides whether to prosecute an eighty-five-year-old man for declining to answer questions.

The resolution specifies who carries it there. The report is to be transmitted by the President of the Senate. That office is held by the Vice President of the United States. That office is held by JD Vance.

Most of the coverage this morning will be about COVID. Almost none of it will be about the thing the committee is actually voting on, which is a contested question of constitutional law that Rand Paul resolved by himself, out loud, from the chair, in the middle of the hearing, against a witness he has spent five years promising to put behind bars.

What happened on July 29

Fauci appeared under subpoena. He made an opening statement and then invoked the Fifth Amendment one hundred and eleven times, declining to answer any question put to him. He said in the opening statement that he believed the chairman was using the proceeding to get him, in his words, behind bars, and he described the chairman’s interest in him as an unhinged obsession.

Paul ruled from the chair that the privilege did not apply, because President Biden’s pardon had removed the possibility of prosecution, and that Fauci had in any case waived it by giving an opening statement. He ordered Fauci to answer. He warned him about contempt. Fauci refused.

At one point Capitol Police removed Fauci’s attorney from the room.

Paul said afterward that he had genuinely wanted to hear from Fauci, that he had hoped for an apology or some acknowledgment that errors in judgment were made, and that the committee had heard none of it.

The question nobody is voting on but everybody is voting on

Here is the legal argument, stated as fairly as I can state it, because it is not frivolous and pretending otherwise would be dishonest.

The Fifth Amendment protects a witness against being compelled to incriminate himself. If there is no possibility of criminal jeopardy, the traditional rule is that the privilege has nothing to protect and does not attach. That principle goes back to the nineteenth century. Paul’s position is that Biden’s pardon eliminated the jeopardy, and therefore eliminated the privilege, and therefore Fauci’s refusal is not the exercise of a right but the obstruction of a congressional investigation.

That is a real argument. It is also, on these facts, an unresolved one, and there are at least three reasons a court might not accept it.

A pardon covers conduct through a fixed date. It does not cover anything a witness says afterward. If Fauci had testified for six hours and a single answer was later alleged to be false, that would be a new federal crime committed in that room, on that day, entirely outside the pardon. The privilege protects against new jeopardy, and testimony creates new jeopardy every time a witness opens his mouth. This is precisely what Senate Democrats meant when they called the hearing an attempt to produce a perjury charge, and it is not a rhetorical characterization. It is a description of how the exposure works.

A federal pardon also does not bind a state.

And the waiver theory has to survive contact with what Fauci actually did, which was to state at the outset that he would answer nothing. Waiver ordinarily turns on a witness disclosing incriminating substance and then stopping. Announcing in advance that you will not testify is close to the opposite.

I do not know how a court would come out on this. Neither does Rand Paul. The difference is that I am not claiming to.

Who decided it

The thing to hold onto is not the answer to the legal question. It is the identity of the person who supplied one.

Paul did not refer the question to counsel and pause the hearing. He did not seek a judicial determination, which is the ordinary route when a witness and a committee disagree about privilege. He announced the ruling himself, in the chair, in real time, in a proceeding he convened, against a witness he had subpoenaed, on a question whose resolution determined whether that witness could be prosecuted.

And he is not a neutral party to it. He has said for years, publicly and repeatedly, that he wants Anthony Fauci in prison. That is not an inference drawn from his conduct. It is his stated position, and he has not walked it back, and Fauci cited it from the witness table as his reason for refusing to speak.

A man who has promised to imprison you rules that you have no right to remain silent, and the ruling is the mechanism by which the imprisonment becomes possible.

The precedent

Set aside Fauci entirely for a moment, because the rule being made this morning does not stop with him.

If a congressional committee can determine, on its own authority, that a pardon extinguishes the Fifth Amendment, then every pardoned person in the United States becomes a compellable witness. Not before a court, with a judge ruling on privilege question by question. Before a committee, in public, on television, under threat of criminal referral, with the chairman deciding what is privileged.

That category currently includes a great many people. It includes the roughly fifteen hundred individuals pardoned or commuted in connection with January 6. It includes everyone in the various preemptive pardons issued in January 2025. It will include whoever is pardoned next, by whoever is president next.

A pardon has always been understood as protection. The rule Paul is proposing converts it into an instrument of exposure: accept the pardon, lose the shield, answer everything, forever, to anyone with a gavel.

Paul has acknowledged that the question is unresolved. He scheduled the vote anyway.

What this is for

There are legitimate questions about the origins of COVID-19 and about American funding of coronavirus research in Wuhan. The lab-leak hypothesis has never been excluded. Whether federal officials were fully candid with the public in early 2020 is a proper subject for congressional oversight, and Paul did not invent the topic.

Richard Blumenthal drew the distinction correctly at the hearing. If there are valid scientific questions about the origins of the pandemic, they should be addressed. Not in a show trial, and not as part of a continuing vendetta against a single individual.

You do not need a subpoena, a dump of a man’s private diaries, a contempt resolution, and a criminal referral to establish a scientific fact. Those are not fact-finding instruments. They are pressure, and the pressure is being applied to one person.

Fauci has answered these questions before, repeatedly, in multiple forums, including two days and fourteen hours of transcribed interview before a House subcommittee. What is new is not the inquiry. What is new is the referral.

One hour from now

The committee will vote and it will almost certainly pass, because the votes are there and everyone knows the votes are there.

Then it goes to the floor, and if it passes there it goes to a United States Attorney, transmitted by the sitting Vice President, who in February 2016 wrote privately that the man he now serves was either a Nixonian cynic or America’s Hitler, and who will sign the transmittal without comment.

An eighty-five-year-old man declined to answer questions from a senator who has promised to imprison him. That is the entire conduct at issue. Everything else this morning is procedure built around it.

Watch what they do with the pardon. That is the part that outlives all of them.

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Follow up, 8/6/2026 at 10:40am: