Americans who watched Anthony Fauci invoke the Fifth Amendment more than 100 times before the Senate are understandably frustrated. They may soon face a letdown as the man they sought to hold accountable remains largely untouched by consequences.
The legal uncertainty surrounding Fauci’s autopen-issued pardon presents a critical hurdle for potential contempt charges from Senator Rand Paul’s committee. The pardon, executed using an autopen, has raised questions about whether President Biden personally authorized it. A presidential pardon is an authority only the president may exercise.
According to an email from Biden’s chief of staff, Jeff Zients, on the final evening of the administration: “I approve the use of the autopen for the execution of all of the following pardons.” Yet President Biden later told The New York Times he had approved broad categories of pardons rather than specific names. This admission came from the same newspaper that initially dismissed an Oversight Project report on the autopen controversy.
The facts are clear: Fauci’s pardon was executed by autopen, and serious questions remain about Biden’s awareness and authorization. President Trump has labeled the autopen controversy the “scandal of the century” and declared such actions “VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT.” Yet the Department of Justice has treated these declarations as having no legal consequence.
This gap between political assertion and prosecutorial action is decisive. Questioning a pardon’s validity in public is one thing; charging someone whose defense rests on that pardon is another. The Justice Department has shown little appetite for testing the issue in court.
Fauci’s Senate testimony revealed his position: He repeatedly invoked the Fifth Amendment, arguing Senator Paul was trying to lure him into statements that could support a perjury referral. In his opening statement, Fauci said: “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.’”
A witness may invoke the Fifth Amendment when they genuinely believe their answers could expose them to criminal liability. The privilege is not a general escape hatch from politically uncomfortable questioning. Fauci’s claim of criminal exposure rests, at least in part, on the uncertainty surrounding his pardon. But relying on that uncertainty means conceding the pardon may be challenged.
If Fauci insists the pardon is unquestionably valid and no prosecution is possible, he weakens his Fifth Amendment defense. If he claims a real risk of prosecution, he implicitly acknowledges the pardon may not protect him. The same cloud threatening the pardon also strengthens his constitutional claim.
There are no signs the Justice Department plans to prosecute Fauci or anyone else in a case designed to test autopen actions. The department has not challenged a single autopen-issued pardon or commutation. Worse, the Trump administration continues releasing offenders whose sentences Biden shortened via autopen—a practice contradicting President Trump’s description of such acts as null and void.
For the Oversight Project, this contradiction is frustrating. Putting violent felons back on the street clashes with claims that autopenned actions are void. Congress has little chance to impose consequences. The only meaningful path would require the Justice Department to abandon its passivity and charge Fauci, force litigation over the pardon, and test whether Biden lawfully authorized it.
Public frustration will rise when people realize Fauci may leave Congress untouched after pleading the Fifth Amendment more than 100 times. Mike Howell, president of the Oversight Project, has stated sustained pressure on the Justice Department to treat autopenned actions as null and void remains the necessary response.
