Pardons aren’t without consequences

The President’s pardon power is unconditional and unquestionable. He has the power to pardon anyone for crimes against the United States. And in some last-hour maneuvers, President Biden issued a blanket pardon for Dr Fauci going all the way back to January 1, 2014.

Reason Free Media explains why that’s significant:

But a pardon isn’t all that people make it out to be.

Sure the blanket pardon means that Fauci cannot be prosecuted by the Department of Justice for any potential Federal crimes between January 1, 2014, and January 19, 2025. But there’s more.

First, it doesn’t eliminate the possibility he could be prosecuted for any violations of State laws. It doesn’t eliminate the risk he could be held personally liable for any torts that could be alleged, whether he is sued by any State, the Federal government, or any private party.

But what it does eliminate is the risk of jeopardy.

The Fifth Amendment to the Constitution says:

No person… shall be compelled in any criminal case to be a witness against himself…

This means that Anthony Fauci, in not timely and publicly rejecting the full and unconditional pardon, can be compelled to testify to anything and everything regarding COVID-19 and the likelihood it was a “lab leak”, along with any gain-of-function research that may have been going on behind the scenes. And the Fifth Amendment is no shield since Fauci no longer has the risk of prosecution.

So in short, if Senator Rand Paul so desires – and he’s probably already being or has been advised of what the pardon actually allows him – he could make Fauci’s life a living hell. And at the first hearing with Fauci as a witness, if I was Senator Paul, after Fauci was sworn in, the first thing I’d be saying to Fauci is, simply:

Dr Fauci, on January 19, 2025, you were pardoned by then-President Biden for all offenses against the United States extending back to January 1, 2014. While that means can you not be prosecuted for any actions, alleged or actual, from then to the date of the pardon, it also means you no longer have the protection of the Fifth Amendment against self-incrimination and can be compelled, under pain of contempt of Congress, to testify to anything and everything related to, quoting the pardon itself, your service “as Director of the National Institute of Allergy and Infectious Diseases, as a member of the White House Coronavirus Task Force or the White House COVID-19 Response Team, or as Chief Medical Advisor to the President.”

Fauci could not then use that as an opportunity to reject the pardon long after the fact merely because it would be convenient. And if he were to try, the Court would likely say that the time to reject the pardon was when it was delivered to him, not when the full consequences of the pardon became apparent.

But where does it come from the idea the Fifth Amendment protection against self-incrimination are eliminated when a person accepts a pardon? The same Supreme Court decision that also says a person can reject a pardon: Burdick v. United States, 236 US 79 (1915).

In that case, George Burdick, an editor for the New York Tribune, was subpoenaed to appear before a grand jury to testify to the source of information he had regarding smuggling jewels into the United States. Burdick invoked the Fifth Amendment. And then-President Woodrow Wilson recognized that a pardon would eliminate the risk of prosecution, thereby also eliminating the protection of the Fifth Amendment, and so issued a pre-emptive pardon.

Burdick, however, rejected the pardon and refused to testify, citing the Fifth. He was held in contempt. And the Supreme Court ruled on points that are applicable here:

  • Acceptance, as well as delivery, of a pardon is essential to its validity;
  • a person can reject a pardon, and the Court cannot then force it on the person;
  • the President of the United States may exercise the pardoning power before conviction; and
  • a witness retains their Fifth Amendment protection against self-incrimination in rejecting the pardon.

The Supreme Court had previously ruled in United States v. Wilson, 7 Peters, 150 (1833), that a person may reject a conditional pardon. And Burdick merely extended that to unconditional pardons. Burdick also pointed out that accepting a pardon implies a confession of guilt.

But in stating that Burdick retained his Fifth Amendment protections in rejecting the pardon, it implies that accepting the pardon vacates the Fifth Amendment protections against self-incrimination within the scope of the pardon.

A pardon is merely a ticket to getting out of jail or avoiding prosecution entirely. But it has been long recognized that a pardon, in eliminating the risk of prosecution, also eliminates the protection of the Fifth Amendment against self-incrimination within the scope of that pardon.