Calls to prosecute Dr. Anthony Fauci have intensified following his dramatic appearance before a Senate committee, where he repeatedly invoked the Fifth Amendment rather than answer lawmakers’ questions. While many conservatives are demanding criminal charges, legal experts say sending the former White House chief medical adviser to jail may be far more difficult than his critics believe.

In the hours after Wednesday’s hearing, prominent MAGA figures and Republican allies argued that Fauci should face immediate legal consequences for refusing to testify.

“Why, when Fauci walks off of there today, is he not cuffed?” Steve Bannon, a former adviser to President Donald Trump, asked on his War Room podcast on Wednesday. “People are furious today to cut on this and see Fauci hiding behind the Fifth Amendment … He should die in prison.”

Conservative commentator Matt Walsh echoed that frustration in a post on X.

“Why isn’t he under arrest?” far-right podcaster Matt Walsh wrote on X. “Why isn’t he facing any real consequences? Why aren’t you actually doing anything?”

Appearing before the Senate committee investigating the government’s response to the COVID-19 pandemic, Fauci invoked his constitutional right against self-incrimination more than 100 times. In prepared remarks, he argued that the hearing was designed to trap him rather than uncover the truth.

“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.

Sen. Rand Paul, who chaired the hearing, has long maintained that Fauci played a role in concealing information about the possible origins of COVID-19.

As demands for Fauci’s prosecution grew louder, WIRED asked constitutional scholars and former federal prosecutors whether Congress could realistically put the longtime public health official behind bars.

One major complication is the preemptive pardon issued by President Joe Biden before leaving office. The pardon covers potential federal offenses committed by Fauci between 2014 and 2025, shielding him from prosecution for conduct during that period. It does not, however, apply to anything Fauci may have said or done after receiving the pardon.

Paul has argued that accepting a presidential pardon eliminates a witness’s ability to invoke the Fifth Amendment for matters covered by that pardon, citing an 1896 Supreme Court ruling.

“I think there is a very real chance that he could be prosecuted for that,” Paul told CBS News after the hearing. “A court ultimately would have to determine: Does the Fifth Amendment apply to someone who already has a pardon?”

Paul also announced that his committee intends to vote next week on whether to hold Fauci in contempt of Congress. A contempt conviction carries a possible penalty of up to one year in prison and a $100,000 fine. Even if the committee approves the measure, it would still require 60 votes on the Senate floor—a threshold viewed as highly unlikely without significant Democratic support.

Legal scholars note that similar constitutional questions have arisen before. Before leaving office in 2020, President Donald Trump granted pardons to several allies, including former National Security Adviser Michael Flynn and former campaign chairman Paul Manafort. At the time, constitutional experts suggested those pardons could affect whether recipients could later refuse congressional testimony.

Steve Bannon himself offers another example. Although Trump pardoned him in 2021 on federal fraud charges connected to the “We Build the Wall” fundraising effort, that pardon did not shield him from contempt of Congress charges after he refused to comply with subpoenas issued by the House committee investigating Jan. 6. Bannon was later convicted and served a four-month prison sentence.

Legal experts interviewed by WIRED, however, believe Fauci’s circumstances differ significantly because he carefully limited his Fifth Amendment claims to statements he might make during Wednesday’s hearing—not to actions covered by Biden’s pardon.

“Pardons cannot apply to future conduct,” constitutional scholar Aziz Huq told WIRED. “Ergo, to the extent the concern was a prosecution for perjury or material omissions in statements to Congress, then those offenses would be a basis for Fifth Amendment invocation, and so not amenable to contempt.”

Former U.S. Attorney Barbara McQuade agreed that Fauci appears to be on firm constitutional footing.

“The answer is no. Each of us has a constitutionally guaranteed right against self-incrimination as long as we have a reasonable fear of criminal prosecution,” McQuade tells WIRED. “Just because Fauci got a pardon for crimes he ‘may’ have committed in the past does not give him a get-out-of-jail free card for any crimes he might commit after the date of the pardon.”

McQuade argued that because Fauci could reasonably fear being accused of perjury during the hearing, invoking the Fifth Amendment was legally justified. She noted that Supreme Court precedent protects even “innocent men” who fear being “ensnared by ambiguous circumstances.”

Huq cautioned that he could not offer a definitive opinion because he does not know the precise legal basis behind each instance in which Fauci invoked the Fifth Amendment.

McQuade also pointed out that Congress has another option if it wants Fauci’s testimony. Lawmakers could grant him immunity, preventing his testimony from being used against him in future criminal proceedings.

“That immunity would be binding on the Justice Department as well,” McQuade added.

Although Biden’s pardon protects Fauci from federal prosecution for covered conduct, it does not shield him from potential state investigations. Just hours after the Senate hearing concluded, Florida Attorney General James Uthmeier announced that his office would begin investigating Fauci.

“office is launching an investigation into Dr. Fauci. It’s past time we get the truth of what happened during Covid.”

Uthmeier’s office did not provide additional details about the scope of the investigation.

Fauci’s attorney, David Schertler—who was escorted out of the hearing by security at Paul’s direction—declined to comment to WIRED but defended his client’s decision in remarks to CBS.

“We are completely confident that Dr. Fauci has a valid Fifth Amendment privilege here and is on solid legal ground in asserting it.”

{Matzav.com}