✏️ Legal Pad
A Pardon and a Privilege Cannot Both Be True
On Wednesday, Dr. Anthony Fauci sat down in front of the Senate Homeland Security and Governmental Affairs Committee, was asked by Sen. Rand Paul about the origins of COVID-19 and about his own handwritten notes (diary) from 2019 to 2022, and said this:
“Although it pains me to do so, because of the respect I have for the legislative branch of government … under the advice of my attorneys, I will invoke my right under the Fifth Amendment.”
He said it repeatedly.
Set aside, for a moment, everything you think about Fauci. I have no interest in relitigating the pandemic in a Friday newsletter, nor do I care where you fall on the political spectrum. What interests me is the constitutional problem sitting in the middle of that hearing room, because it’s one of the more genuinely difficult ones I have seen in a while.
Here’s the issue: on January 20, 2025, on his way out the door, President Biden granted Fauci a full and unconditional preemptive pardon covering any federal offense he may have committed from January 1, 2014 through the date of the pardon.
So Fauci is holding two things at once. A pardon that says he can’t be federally prosecuted for that decade. And a Fifth Amendment privilege that exists only to protect him from being federally prosecuted.
Those two things do not comfortably coexist.
What the Fifth Amendment Actually Says
The text is short: “No person … shall be compelled in any criminal case to be a witness against himself.”
Everybody knows that sentence. Almost nobody reads the whole thing. The privilege is not a right to silence. It’s not a right to decline questions you find rude, unfair, politically motivated, or beneath you. It is a right against compelled self-incrimination, and it exists only where there is something to be incriminated by.
The Supreme Court set the standard in Hoffman v. United States. A witness may refuse to answer where he has “reasonable cause to apprehend danger from a direct answer.” The danger has to be real and appreciable. Not imaginary. Not remote. Not merely embarrassing. Reputational damage is not danger. Public humiliation is not danger. Being made to look bad on C-SPAN is not danger. Criminal exposure is danger.
And in Ohio v. Reiner, the Court made clear that the privilege belongs to the innocent as much as the guilty. You do not have to confess in order to invoke. But Reiner still requires that the answer could furnish a link in the chain of evidence leading to a prosecution. No possible prosecution, no link. No link, no privilege. This is dry, but important.
Which Brings Us to the Pardon
This is not a novel question. The Supreme Court answered it 130 years ago.
In Brown v. Walker (1896), the Court held that once the risk of prosecution is removed, the privilege goes with it. Justice Brown wrote that if a witness “has already received a pardon, he cannot longer set up his privilege.” The logic is airtight and, honestly, kind of elegant. The privilege is a shield against a specific danger. Remove the danger and there is nothing left for the shield to do.
The same principle drives the modern immunity cases (read: rats). In Kastigar v. United States, the Court held that when the government grants immunity coextensive with the privilege, the witness must testify or go to jail for contempt. You don’t get to keep the shield and the sword.
So on the straightforward reading, Fauci was pardoned for 2014 through January 2025. The diary entries Sen. Paul was waving around cover 2019 to 2022. That period sits squarely inside the pardon. As to those questions, under Brown v. Walker, there is no privilege left to invoke. He was not in jeopardy. He was in an air conditioned room getting yelled at by some folks trying to make headlines.
Now the Part Where It Gets Harder
I said this was difficult, and here is why. The argument is not as clean as either side wants it to be. There are at least three doors the pardon does not close.
Door one is state prosecution. A presidential pardon reaches federal offenses only. Article II, Section 2 gives the President power to grant pardons “for Offences against the United States,” and that is the whole of it. It does nothing about a state charge. The Fifth Amendment, meanwhile, protects against state and federal exposure alike. Murphy v. Waterfront Commission, settled that a witness may invoke based on the risk from either sovereign. If a truthful answer would expose Fauci to a state charge somewhere in the country, the pardon is irrelevant to that risk.
Door two is conduct outside the window. The pardon ends the day it was signed. Anything after January 20, 2025 is uncovered. Paul’s questioning reportedly ranged well past the COVID years, including into research at Fort Detrick (google this if you don’t know what it is- it could be a standalone blog). If any question touched conduct after the pardon date, the privilege is alive as to that question.
Door three is the real one, and it is the hearing itself. A pardon cannot cover a crime that has not been committed yet. If Fauci answers, and answers falsely, that is a brand-new federal offense: perjury under 18 U.S.C. § 1621, or false statements under 18 U.S.C. § 1001, committed on July 29, 2026, in a Senate hearing room, long after the ink dried. No pardon on earth reaches forward to cover it (though Biden tried). And Sen. Paul has spent years publicly accusing Fauci of misleading Congress. It doesn’t take a paranoid lawyer to see the shape of that. Ask a man about a decade of events he can’t be charged for, and the only crime still available to him is the one he commits by lying.
So Was It Proper?
Here’s where I land, both as a lawyer and an American.
As a blanket invocation, refusing question after question across the board, after soaking up the limelight as a media darling, doesn’t pass the smell test. Lay people don’t get this, but the privilege can’t be asserted wholesale. It has to be asserted question by question. That’s black-letter law. A witness has to take the questions one at a time and invoke where the specific answer would actually incriminate him, and the committee, and ultimately a court, is entitled to test that showing. A witness doesn’t get to sit down, announce that he is taking the Fifth, and go home. That’s not privilege, that’s a filibuster with constitutional letterhead.
But as to particular questions, the ones reaching past January 2025, or the ones where a false answer would be its own fresh crime, the invocation is legit. It may well be the only competent advice his lawyers could have given him. Now, if he were to use that right, I think that raises a host of other questions. Not the least of which is why the Covid Czar, whose private memoranda contradict his public dictates, is afraid to tell the truth. But that’s a story no side of the aisle wants to tell.
But, that also means Sen. Paul’s contempt push under 2 U.S.C. § 192 is not the slam dunk it is being sold as. To make contempt stick, the committee has to establish that the invocation was improper as to the specific questions asked. That’s a question-by-question fight, and it ends in a federal courtroom, not on Instagram.
Why Any of This Matters to You
Because the Fifth Amendment is the most misunderstood sentence in the Constitution, and the misunderstanding runs in both directions.
The public thinks invoking it means you are guilty. It doesn’t. Reiner says so in as many words, and every lawyer who’s ever advised a completely innocent client to keep his mouth shut knows exactly why that rule exists.
But by the same token, a lot people invoking it think it means they can decline to participate. It doesn’t mean that either. It’s narrow, specific, and tethered to actual criminal jeopardy. It’s scalpel, not a tarp.
A right used correctly protects you. A right used as a prop cheapens it for everyone who genuinely needs it. And most of the people who genuinely need it are not former agency directors with a pardon in their pocket, a book deal, and a legal team on retainer. They’re ordinary people sitting in a small room across from someone who has the power to charge them, with no idea what happens next.
💡 Sidebar
Tony Romo and the Lawyer You Don’t Get to Call
Last week, in downtown Milwaukee, a Milwaukee County sheriff’s deputy pulled over Tony Romo for “unsafe passing on the right.” This week the body camera footage came out, and the internet did what the internet does.
By the time the stop was over, Romo had four citations: operating while intoxicated, which is Wisconsin’s version of DUI, possession of open intoxicants in a motor vehicle, unsafe passing on the right, and refusing a test for intoxication after arrest. He told the deputy he had “zero” drinks. The footage shows him performing poorly on the field sobriety tests (“FSTs”) and then asking, with what I can only describe as tragic optimism, “Did I pass?” He refused the preliminary breath test. Deputies got a warrant and drew his blood. He is due in Milwaukee County court in September.
But the part that caught my attention, and caught most of the internet’s attention in the form of people demanding the deputy be fired, is this: Romo asked several times to speak with his lawyer. He was told no.
A lot of people watched that and saw a rights violation. Spoiler: it’s not. It was the law working exactly as written, and it is worth understanding why, because this is the single most common misconception I run into in my practice.
“I Want My Lawyer” Is Not a Get-Out-of-Jail-Free-Card
There is no free-floating right to counsel that switches on the moment an officer walks toward your window. There are two separate rights to counsel in the Constitution. They come from two different amendments. They attach at two different moments. And neither one had attached on that interchange with Romo.
The Sixth Amendment right is the one people are picturing but have no clue how it works: “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” The operative word is prosecutions. That right does not attach until adversarial judicial proceedings have actually begun, meaning formal charge, preliminary hearing, indictment, information, or arraignment. A traffic stop is not a prosecution. There is no “accused” yet. There is a driver and an investigation. Period.
Now let’s get to the fun one that IG lawyers know better than me: The Fifth Amendment right to counsel is the Miranda one, from Miranda v. Arizona, and it is a creature of custodial interrogation. Both of those words do work. It is a brief, public, temporary detention on the Terry model (Terry v. Ohio),. The officer can order you out of the car without any additional justification whatsoever. Pennsylvania v. Mimms.
So during that roadside investigation, Romo had no Sixth Amendment right, because no prosecution had begun, and no Fifth Amendment Miranda right, because he was not in custody. He had the right to remain silent. You always have that. But, as Ron White famously said: “I had the right to remain silent…but I didn’t have the ability.”
⚖️ Closing Arguments
What They Build Courthouses For
My dad went to law school a long time ago. Like most of us, he retained roughly eleven percent of it. Ask him about the rule against perpetuities and he will change the subject to Blackstone grilling techniques.
But there is one thing he remembers. One line, from his ConLaw professor, who probably couldn’t find the courthouse with a map, but smarmy enough to make a lasting impression:
“Never argue your constitutional rights with a police officer in the middle of the night. That’s what they build courthouses for.”
I have thought about that line all week.
Because this edition turned out, entirely by accident, to be about two men who forgot it. One of them on a highway in Milwaukee. One of them at the Capitol. Both of them reaching for a constitutional right in the exact moment, and the exact venue, where that right does the least possible good.
Romo asked for his lawyer on the shoulder of the road, which is the one place on earth a lawyer cannot help him. Not because the request was unreasonable. It’s the most reasonable instinct in the world, and I suspect most of us would have made it. But the right he was reaching for hadn’t attached yet, and the refusal that followed became its own separate charge. He argued his rights at the roadside and it cost him a count on the ticket. Had he said nothing, done what he was asked, and called his lawyer from the station, every single argument he has would still be sitting there waiting for him in September, in a Milwaukee County courtroom, in front of a judge, on a transcript, with counsel beside him and the burden of proof resting exactly where it belongs, on the State.
Fauci made the mirror image of the same mistake. He invoked a right wholesale, in a room built for politics rather than adjudication, where the invocation could never actually be tested. The Capitol is not a courtroom. There is no judge to rule on the privilege question by question. There are no rules of evidence. There is no way to win. Whatever the right answer is to the pardon problem, and I laid out above why I think it’s genuinely close on some questions and not close at all on others, it was never going to be decided on Wednesday. It gets decided by a federal judge, if it gets decided at all.
That’s for the courthouse. That’s what it’s for.
My dad’s professor was not teaching cynicism. He wasn’t saying your rights don’t matter, or that you should roll over, or that the badge is always right. He was saying something far more practical, and it took me a few years of actual practice to appreciate how much is packed into it:
Rights are not self-executing.
They don’t work by being announced. They work by being asserted in the right forum, at the right time, by the right person, on the right record. The Constitution isn’t a spell you cast. It’s a set of arguments, and arguments need a place to be made and somebody with the authority to rule on them.
The roadside at midnight is not that place. Neither is a Senate hearing room. Neither, for that matter, is a comment section, a press conference, or a Facebook post at 11:40 p.m.
The courthouse is that place. It’s the entire reason we built the building. A room where the argument gets made slowly, on a record, in front of someone whose only job is to decide it, with a lawyer whose only job is to make it for you.
So be polite at the window. Be quiet in the car. Take the ticket. Say “I would like to speak with my attorney” once, clearly, and then stop talking. Comply with the lawful order even when you’re certain the order is wrong. Especially then.
And then call me. We will go argue about it in the building they put up for exactly that purpose.
If you’re lucky, my dad might even attend and tell me how to do my job.
Court is in recess- see you next Friday.
