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Anthony Fauci repeatedly invoked his Fifth Amendment right against self-incrimination during Senate testimony Wednesday, prompting Senator Josh Hawley, a Missouri Republican, to suggest the move showed guilt.
“Invoking the Fifth is often misunderstood as an admission of guilt. Legally, it is not," Kimberley Wehle, a law professor at the University of Baltimore, told Newsweek in an email. The criticism also drew attention to Trump’s own past use of the same protection, including during a 2022 deposition in New York Attorney General Letitia James' civil fraud investigation.
Hawley told Fox News after the hearing that Fauci “came today and invoked the Fifth because he is guilty as all get out and he knows it.”
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He added, “Innocent people don't invoke the Fifth. Fauci invoked it 111 times. You draw your own conclusion.” Newsweek has reached out to Hawley's office for comment via email on Thursday.
Invoking the Fifth Amendment is a constitutional right and does not, by itself, imply guilt. Fauci, who helped lead the country’s COVID-19 pandemic response, said he was acting on the advice of counsel in the hearing.
While some Republicans criticized Fauci for invoking the Fifth Amendment, Trump has also relied on the constitutional protection. During a 2022 deposition in New York Attorney General Letitia James' civil fraud investigation, Trump invoked the Fifth Amendment hundreds of times.
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What Is the Fifth Amendment?
The Fifth Amendment protects individuals from being compelled to incriminate themselves. In practice, it allows a person to refuse to answer questions as answers could potentially be used against them in a criminal case.
“If a person fears their answers could lead investigators to evidence of a crime, even if the answer itself doesn't admit guilt, lawyers might direct their client to invoke the 5th," Wehle said. Courts have long recognized that people may invoke the protection for many reasons.
Invoking the Fifth Amendment is “not limited to criminal defendants—it can be invoked by witnesses, public officials, or private citizens whenever truthful answers might tend to incriminate them,” Wehle explained.
The protection exists to prevent the government from forcing confessions or compelling people to provide evidence that could lead to their own prosecution. It is considered a fundamental constitutional safeguard and applies in a range of legal settings, including criminal investigations, civil proceedings, depositions and congressional testimony.
Georgetown Law and Economics professor David Super told Newsweek in an email, “Dr. Fauci's invocation of the Fifth Amendment at a congressional hearing was not meaningfully different than President Trump's invocation of the same right when he was questioned.”
When Has Trump Invoked the Fifth Amendment?
Trump has invoked the Fifth Amendment hundreds of times in legal proceedings, including more than 440 times during a 2022 deposition in James' investigation into the Trump Organization, according to NBC News.
He reportedly only answered one question during the deposition: his name, his then-lawyer Ronald Fischetti told NBC News.
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Trump said in a video of the deposition later released by the New York attorney general's office, "I once asked, 'If you're innocent, why are you taking the Fifth Amendment?'... Now I know the answer to that question." He continued, "When your family, your company and all the people in your orbit have become the targets of an unfounded, politically motivated witch hunt supported by lawyers, prosecutors and the fake news media, you really have no choice."
That video, which was published by news outlets including The Associated Press and The Guardian newspaper, has now resurfaced on social media. Several prominent accounts have shared edited versions of the full-length video, including Call to Activism, a progressive platform with more than 1.2 million followers.
James filed a civil fraud lawsuit against Trump, the Trump Organization and several executives, alleging they fraudulently inflated asset values.
At trial, New York Judge Arthur Engoron ruled against Trump and the Trump Organization in February 2024. The judge found that Trump and his two sons were found liable for fraud by overvaluing certain properties, including inflating the value of Seven Springs and Trump's private Florida resort Mar-a-Lago.
Engoron ordered an original penalty of $354 million, which ballooned to more than $460 million due to interest, as well as imposed restrictions on conducting business in New York, and ordered additional compliance oversight of the Trump Organization.
Trump appealed the judgment. In 2025, a New York appeals court upheld findings that Trump and his company committed fraud but threw out the hundreds of millions of dollars in financial penalties imposed by the trial court.
Decades prior to that deposition, Trump had previously pled the Fifth multiple times during his divorce proceedings to Ivana Trump. In 1990, Ivana Trump’s lawyers repeatedly asked him about infidelity, with Trump invoking his right nearly 100 times in response.
Trump Weighs in on Fauci’s Fifth Amendment Plea
Trump said he watched Fauci’s entire appearance before the Senate Homeland Security Committee and sharply criticized his decision to invoke the Fifth Amendment. “It’s terrible,” Trump said when asked about Fauci’s refusal to answer questions.
Trump noted that Fauci had served in government since the 1980s, saying he “inherited Fauci” and frequently disagreed with him during the pandemic. “I would’ve had to close down the whole country if I listened to him,” Trump said, adding that Fauci “wasn’t a big factor” in his own administration’s COVID‑19 response.
Trump also slammed Fauci in a post on Truth Social shortly before the hearing began.
In the post, Trump contrasted Fauci’s influence under Biden with his role during the Trump administration, claiming that “far fewer people died in the Trump administration than in the Biden administration.”
He also pointed to the presidential commendation he awarded Fauci in January 2021 for work on Operation Warp Speed, the federal program to accelerate development of COVID‑19 vaccines.
It "was a SPECTACULAR SUCCESS, in fact, many say, one of the most successful things ever done by an American President. I overrode Fauci on this. His ideas were CRAZY!" Trump wrote. "Also, I said from the beginning that the Virus came from the Wuhan Laboratory in China. Fauci strongly disagreed, always trying to protect China. I Inherited Fauci, who was there since the 1980s, but with each passing day, relied less and less on him."
The president said that Fauci “made too many bad calls, like on MASKS.”
He added: “In any event I didn’t let him shut the Country down, although he wanted to. I went the Federalist way, and let the governors decide. The Republican governors did a much better job than the Dumocrats. Fauci was largely taken out of play, and then along came Sleepy Joe Biden, who made Fauci a ‘King!'”
In 1998, Trump said former President Bill Clinton should have pled the Fifth during his impeachment investigation, saying, “It’s a terrible thing for a president to take the Fifth Amendment, but he probably should have done it. I don’t think he could have done any worse than what’s happened,” according to The New York Times.
What's Next After the Fauci Hearing?
Republican Senator Rand Paul of Kentucky subpoenaed Fauci to testify before the Senate Homeland Security and Governmental Affairs Committee, which Paul chairs, on Wednesday.
The hearing followed the release of more than 1,000 pages of Fauci's pandemic-era diaries, which Republicans say raise questions about public messaging and decision-making during the outbreak. Fauci's refusal to answer questions drew sharp criticism from GOP lawmakers and prompted Florida Attorney General James Uthmeier to announce a Florida-based investigation into the former health official's conduct.
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Republican Representative Jim Jordan, Chairman of the House Committee on the Judiciary, said after the hearing, "Fauci lied to the country for years. He knows it, America knows it, and now he's taking the Fifth."
Paul closed the hearing by saying lawmakers will vote next week on whether to hold Fauci in contempt for refusing to testify. Biden issued Fauci a federal pardon dated January 19, 2025, covering potential federal offenses tied to his government service from January 1, 2014, through the date of the pardon.
Senator Richard Blumenthal, a Connecticut Democrat, told NPR on Thursday about Fauci's decision to plead the Fifth: "Not only was it appropriate, but probably necessary because plainly, this hearing was designed to trap him." He continued, " So the effort here was, in effect, to trap Fauci in some kind of statement, no matter how small, that could have been prosecuted."
Fauci's attorney, David Schertler, pushed back on Paul's push to hold Fauci in contempt.
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Fauci Could Face Contempt Over Pleading the Fifth During Testimony
"We are completely confident that Dr. Fauci has a valid Fifth Amendment privilege here and is on solid legal ground in asserting it," he said in an email to CBS News. "Rand Paul may be a doctor, but he is not a lawyer."
Barbara McQuade, a former U.S. attorney, previously told Newsweek via email on Wednesday in part that: "Yes, Fauci could still face prosecution for any conduct that occurs after the granting of the pardon. For example, if he were to say something in his testimony today that was different from prior testimony, he could be prosecuted for perjury.”
When asked if Fauci’s refusal to answer any questions could expose him to civil litigation or a criminal‑contempt referral, McQuade said: "No, he has a constitutional right to assert his Fifth Amendment privilege against self-incrimination as long as he has a reasonable fear of prosecution. In light of the conduct of Rand Paul and Trump's DOJ, his fear seems reasonable."
Neama Rahmani, a former federal prosecutor and the president of West Coast Trial Lawyers, told Newsweek that invoking his Fifth Amendment right was the "right legal move" for Fauci.
Fauci can’t be prosecuted on the federal level "for anything that happened before Biden's presidential pardon, and him pleading the Fifth to every question today prevents him from being prosecuted for perjury related to his Senate testimony," Rahmani said.t
Republicans have said they plan to continue their investigations into the government's response to the COVID-19 pandemic, while also pressing efforts to hold Fauci accountable for what they describe as unanswered questions about the origins of the virus and federal pandemic policies.
Contact Newsweek editors on this story: Samantha Beech and Gray R. Thomas
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