Dr. Fauci had a poor performance before the Senate Homeland Security Committee. He gave a short opening statement and then used the Fifth Amendment 111 times. This amendment allows a witness to refuse to answer questions that might incriminate them. But was his use of the Fifth Amendment proper? The Senate can take action if it was not.

Two factors suggest Dr. Fauci's use of the Fifth Amendment was improper. These are important points to consider.

The first factor is Dr. Fauci's pardon. Before leaving office, President Biden gave Dr. Fauci a pardon for any federal crimes he might have committed from 2014 to 2025. This pardon was related to his work as NIAID director and other roles.

Can Dr. Fauci hide behind the Fifth Amendment? Experts say the pardon might not provide complete protection.

The second factor is time. Dr. Fauci retired in 2022, so it's unlikely that any state crime he might have committed would still be within the time limit for prosecution. The Supreme Court has said that the Fifth Amendment protects against real dangers, not just possibilities.

Two things are clear. First, a witness can refuse to answer questions that might implicate them in a crime, not to avoid embarrassment. The Fifth Amendment is only for avoiding criminal exposure, not public ridicule. Before the hearing, Senator Paul released Dr. Fauci's diary, which showed he had directed staff to nominate him for awards and had made public statements he didn't believe. Second, a witness cannot invoke the Fifth Amendment because they think they will be charged with perjury if they tell the truth.

On the other hand, there are factors in Dr. Fauci's favor. President Trump and some Republican Congressmen argue that President Biden's pardons, including Dr. Fauci's, are not valid because they were signed without Biden's knowledge or approval. If Dr. Fauci's pardon is invalidated, he could be prosecuted for federal crimes. Some state attorneys general are investigating whether Dr. Fauci committed any state crimes related to his government service.

Now that Dr. Fauci has used the Fifth Amendment and refused to answer questions, what can Congress do? Congress has several options to consider.

Dr. Fauci's 111 Fifth Amendment pleas could end up in court.

One option Congress is considering is voting to hold Dr. Fauci in contempt of Congress. This would require a majority vote by the Committee and the full Senate. If that happens, the matter would be referred to the U.S. Attorney to decide whether to charge Dr. Fauci. A judge would then decide whether Dr. Fauci properly used the Fifth Amendment.

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Another option would be to grant Dr. Fauci immunity, which would require him to testify. But if he was later charged, the prosecutor would have to prove that the evidence against him didn't come from his testimony.

Congress could also give Dr. Fauci transactional immunity, meaning he couldn't be prosecuted for the conduct he testifies about. However, if he lies after receiving immunity, he could still be prosecuted for perjury.

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This story is not over yet.

John G. Malcolm is a former federal prosecutor and works at the Meese Institute for the Rule of Law. He has written about Dr. Fauci and the Fifth Amendment.