07/30/2026
The Dr. Fauci testimony today, which was just a repeat of invoking the 5th Amendment over and over, has led me to want to explain what the 5th Amendment is. Apparently neither Dr. Fauci, nor his legal team, know what it is.
The 5th Amendment to the U.S. Constitution protects us from being forced to testify against ourselves. It is not a protection from having to testify at all.
At one point, Senator Hawley asked him questions such as "What day of the week is it" and "What color tie are you wearing" and the good doctor invoked the 5th Amendment. Since there is nothing incriminating in answering those questions, you cannot invoke the 5th Amendment to avoid answering those questions.
I advise clients regularly about invoking the 5th Amendment, most commonly in cases where there are multiple defendants and often cross warrants. For instance a fight where multiple people are charged and by everyone pleading the 5th all the charges will end up getting dismissed since there were no other witnesses. However, most Judges these days will not simply let someone say "I plead the 5th."
No, the Judges are tired of those games and some will ask the client to explain what it means. A generic answer like "I don't have to testify" or "I don't want to answer questions" is not enough and the Judge can say that the protection has not been properly invoked. The correct answer is something to the effect of "I have the right to not testify against myself or to answer questions that may be used against me."
But there is still more to it. For instance, let's say it is a domestic violence case and the wife now does not want to testify against the husband for various reasons, perhaps she actually started the fight or she made a false report. The prosecutor (we call that "The Commonwealth" in Virginia) can still ask questions that must be answered. It usually goes something like this, if properly done:
Commonwealth: "Good morning ma'am, please state your name"
Witness: "Mary Smith"
Commonwealth: "And do you know the Defendant John Smith?"
Witness: "Yes"
Commonwealth: "How do you know him?"
Witness: "He is my husband."
Commonwealth: "Where do you reside?"
Witness: "123 Main Street."
*Notice how up to this point nothing said is incriminating. It is not incriminating to say that you are married to a certain person or what your address is. Therefore the 5th Amendment cannot be invoked to avoid any of those questions.
Commonwealth: "Do you recall the events of July 29, 2026?"
Witness: "I plead the fifth."
*Even this would be debateable, simply remembering the events is not incriminating but most Judges at this point would probably allow it.
Commonwealth: "What happened on July 29, 2026, that led you to call the police?"
Witness: "I plead the fifth."
Assuming that the Judge is satisfied with the witness' explanation of what that means the Commonwealth will usually stop the questioning and make a motion to nolle prosequi the charge or submit it to the Court who will then dismiss it.
The Witness has several possible criminal implications that they are seeking to avoid. If they filed a false police report and admit that under oath then they can face a charge for that, if they lie under oath then they can face perjury, if they admit they swung first then they can be charged with Assault or Battery (yeah, they are different things), and given particular facts and circumstances then they have other possible consequences.
In divorce cases there may be a claim of adultery, which is still considered a Class 4 misdemeanor in Virginia. Arguably it cannot be prosecuted Constitutionally, but it is still a crime. The UCMJ also criminalizes it. So often times a person, especially someone on active duty military service, will have to invoke the 5th Amendment in a divorce trial. Even though that is a civil proceeding, the testimony can possibly be used against them and so they can invoke the 5th if done properly.
But I have never advised a client who has received a Presidential Pardon, which is a pretty strong argument against being able to invoke the 5th Amendment at all since you are protected from the charge. If you have immunity from a charge and your testimony cannot be used against you, then you cannot plead the 5th because it is only a protection from testifying in a way that can be used against you. And you absolutely cannot refuse to answer what day of the week it is, what color is your tie, etc. (Though there may be other objections in a criminal proceeding to those questions.)
Dr. Fauci was clearly trying to be obstructionist in his testimony and did not properly assert his protections under the 5th Amendment. It also implies that he committed crimes that were not covered by his pardon, what do we not yet know that he does not want to admit? And it also leads to a larger Constitutional question of whether or not a preemptive and blanket pardon done in all likelihood by autopen is actually a proper pardon or not, and I would like to see him charged with a crime just so that the Court (and yes I have no doubt that it would get to the Supreme Court) can answer that question. I am certain that the Founders when drafting the Constitution and the amendments believed that the power of the President was to be the conscience of the nation and see an injustice done and pardon an individual of a charge that seemed unjust. While certainly it has turned into cronyism unfortunately, that is still a far cry of what Biden did simply pardoning his friends and family for a wide range of anything they may have done wrong in a time period. I think that the Court would limit that Presidential power if given the chance, and they should.
This was a long post, if you made it this far congratulations, you just did a crash course in U.S. Constitional Law and Criminal Procedure.
