What It Means to Plead the Fifth Amendment
Time · LC · trust 57/100
Dr. Anthony Fauci’s decision to invoke his Fifth Amendment right to avoid answering lawmakers’ questions about the government’s handling of the COVID pandemic during a Senate hearing on Wednesday sparked outrage from Republicans.
Kentucky Sen. Rand Paul, the Republican chairman of the Senate Homeland Security and Governmental Affairs Committee, said following the hearing that the panel would vote next week on whether it would recommend to hold Fauci, an infectious disease expert who helped lead the country’s pandemic response, in contempt of Congress after he pleaded the Fifth more than 100 times.
Here’s what to know about the Fifth Amendment, why Fauci invoked it, and if he can be held in contempt of Congress for doing so.
The Fifth Amendment was ratified in 1791 as part of the Bill of Rights. It stipulates multiple key legal protections for Americans, including that no person “shall be compelled in any criminal case to be a witness against himself.” In other words, the amendment establishes the constitutional right to avoid self-incrimination.
The American criminal justice system relies on the presumption that people are innocent until proven guilty; it’s the responsibility of prosecutors to prove that someone is guilty, rather than on the individual to prove their innocence. The Fifth Amendment is critical in preserving that presumption of innocence. And invoking the Fifth Amendment doesn’t necessarily mean that that person is guilty of a crime.
“Pleading the Fifth is not an admission of guilt—it is a constitutional protection designed to prevent coercion, mistakes, and unfair burden-shifting,” Whalen Law Office, a criminal defense law firm based in Texas, writes on its website .
In his opening statement to the Senate committee on Wednesday, Fauci accused Paul of having an “obvious obsession with calling for my prosecution.”
“The only conclusion I can reach is that the sole reason he is calling me before this committee is to get me to say something, anything, that could vindicate his repeated public pledges that I end up, in his words, ‘behind bars,’” Fauci said.
“Although it pains me to do so because of the respect that I have for the legislative branch of government and my decades-long record of cooperating with Congress,” he said, “under the advice of my attorneys, I will invoke my right under the Fifth Amendment of the Constitution to refrain from answering your questions.”
Shortly before former President Joe Biden left office, in January 2025, he preemptively pardoned Fauci. Biden said he was issuing the pardon to shield Fauci from “politically motivated prosecutions.”
Fauci, the former director of the National Institute of Allergy and Infectious Diseases, has for years been a target of Republicans’ persistent criticisms and probes into the U.S. response to the COVID pandemic. GOP lawmakers have accused him of covering up information about the coronavirus’s origins and the vaccines developed to combat the disease—claims that Fauci has denied.
The pardon only protects Fauci from being charged for events or actions that happened before it was issued. He is not protected under the pardon for anything that happens after January 2025. He could therefore be at risk of legal consequences if he were accused of a crime that occurred after that date—for instance, if he were accused of lying under oath.
Several Republicans, including Health and Human Services Secretary Robert F. Kennedy Jr., have said that Fauci could still face perjury charges if he made false statements while under oath during the Senate hearing.
Senate Democrats criticized their Republican colleagues’ actions during the hearing on Wednesday. Instead of questioning Fauci, they thanked him for his years of work in public health.
“It must be enormously frustrating to know that this hearing is designed to entrap you,” Sen. Maggie Hassan, a Democrat from New Hampshire, said to Fauci during the hearing.
Paul said that the Senate Homeland Security and Governmental Affairs Committee will vote next week on whether to recommend holding Fauci in contempt of Congress. If the panel votes in favor of doing so, then the issue would go to the entire Senate to vote on.
Paul has argued that Fauci is not entitled to invoke his Fifth Amendment right because the pardon Fauci received from Biden protects him from any federal criminal prosecutions for his past actions during the COVID-19 pandemic, which was the subject of the Senate hearing on Wednesday. It’s unclear whether this argument would hold up in court; Paul said that it’s a “legal question that the courts may have to decide.”
Paul told CBS News after the Senate hearing one Wednesday that he believes “there is a very real chance that [Fauci] could be prosecuted” for refusing to answer the panel’s questions.
But Fauci’s lawyer, David Schertler, maintained that Fauci was within his constitutional right during the hearing.
“We are completely confident that Dr. Fauci has a valid Fifth Amendment privilege here and is on solid legal ground in asserting it,” Schertler said in an email to CBS News. “Rand Paul may be a doctor, but he is not a lawyer.”
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