Dr. Anthony Fauci has been cited for contempt of Congress. He refused to answer questions at a hearing chaired by Senator Rand Paul, who is of the school of protesting too much (No, no, no. I am not obsessed with Fauci; in spite of my many statements that I want him behind bars, I am not seeking to put Fauci in jail, etc., etc., etc.). In the hearing, demon/saint Fauci said over a hundred times that, relying on the Fifth Amendment to the United States Constitution, he would not respond to questions from the Senators. Paul responded that the Fifth Amendment did not relieve Fauci from answering because Fauci had received a pardon from President Joe Biden covering the topics addressed in the hearing. The contempt citation followed.

The Fifth Amendment states that “no person . . . shall be compelled in any criminal case to be a witness against himself.” This provision is often referred to as the protection against self-incrimination. It has been interpreted to mean that the government cannot compel testimony that could be used in a criminal prosecution against the testifier. (The pleading of the Fifth is not an admission of guilt. A person can be charged and prosecuted without being guilty.) However, if there is no chance that the testimony can be used criminally against a person, the Fifth Amendment does not prevent compelled answers. There is the rub. Paul maintains that because of Fauci’s pardon, the devil/angel doctor’s answers cannot be used in a criminal proceeding against him because he cannot be prosecuted for the conduct prompting the committee’s questions.

Rand’s position contradicts the position of Trump, who has claimed that Biden’s pardon was not legal because it was signed by an autopen. However, given that the pardon is valid, its reach is limited. It cannot bar all possible prosecutions of Fauci. Often a person can be prosecuted for the same conduct in more than one jurisdiction. The crime can be simultaneously a federal crime and a state crime. It can simultaneously be a crime in more than one state. However, in our federal system, each jurisdiction has control over its own criminal proceedings. States cannot prevent federal prosecutions for the same conduct. One state cannot bar another state from prosecuting for the same conduct. And the federal government cannot prohibit state prosecutions. Biden’s pardon only prevents federal prosecutions. It does not bar any state from prosecuting. Fauci’s taking his Fifth Amendment right against self-incrimination came from a valid concern about state prosecutions.

The possibility of state prosecutions of Fauci are quite real. Shortly after the hearing presided over by Senator Paul, Attorneys General James Uthmeier (Florida), John McCuskey (West Virginia) Liz Murrill (Louisiana), issued a subpoena to Dr. Fauci. They claim to be investigating whether he “profited” from the recommendations he gave during the Covid pandemic. If in their, I am sure, entirely neutral eyes he has done such a thing, state prosecutions can, and probably will, follow.

The Supreme Court has not discussed the interplay between presidential pardons and the right against self-incrimination, but it has addressed a related situation. Prosecutors and other government officials often desire the testimony of people who may both incriminate themselves and others. The government may be willing to give up the prosecution of one person in order to get a conviction of another. Think underlings in a criminal conspiracy or the getaway driver in a murderous robbery. In these situations, immunity can be given to the sought-after testifier.

That person may be given transactional immunity, which prevents the prosecution for any “transaction” testified about. If the testimony is about a murder, the testifier given immunity cannot be prosecuted for that murder. Because the person can’t be prosecuted, he can’t incriminate himself, and the jurisdiction can compel his testimony. Except, however, the multi-jurisdiction problem arises. A jurisdiction granting transactional immunity can bind itself not to prosecute, but it can’t bind other jurisdictions. If New York grants someone transactional immunity, the federal government or other states can still prosecute if the conduct violated their criminal laws.

The United States Supreme Court has addressed this multi-jurisdiction problem. It determined that a grant of immunity by one jurisdiction gives “use and derivative use” immunity in the other jurisdictions. Those other places can still prosecute, but they may not use the immunized testimony or anything derived from it in their prosecutions. Thus, the Court concluded, the right against self-incrimination is preserved because the compelled testimony or evidence garnered from it cannot be used in a criminal proceeding against the testifier.

The Court ruling on the multi-jurisdictional effect of immunity applies not just to prosecutors but to any government entity seeking to compel testimony. If a state commission or a legislative committee grants immunity to compel testimony, that grant acts as use and derivative use immunity in other jurisdictions.

A pardon is not the same as a grant of immunity. The purpose of an immunity grant is to compel testimony. The purpose of a pardon is not to obtain testimony but to relieve a person of consequences of a criminal conviction. It is not clear what the interplay is between pardons and the right against self-incrimination, and the Supreme Court has not addressed that situation. We don’t know if somehow a pardon in one jurisdiction results in use and derivate use immunity everywhere else. Thus, Fauci could not know whether his testimony could be used against him in a criminal proceeding.

Of course, if this drama really was about getting Fauci’s testimony to learn more about the origins of Covid-19 and not simply an effort to jail him, Rand Paul would have had a simple solution. The committee could have given Fauci immunity, which does not protect against perjury in the compelled answers. Why didn’t Paul do that?

There is another potential fallout from the Paul/Fauci stageplay. (Who is the devil and who is the saint in this drama?) If it is decided that because of the pardon, Fauci did not have a Fifth Amendment protection at the hearing, then the people Trump has pardoned also would not have a right against self-incrimination at a congressional hearing. If the Democrats control a House of Congress after the coming election, will they subpoena pardoned January 6 rioters to ask about the origins of the insurrection? If the goal is not really to learn more about those origins but to put the insurrectionists back in jail, they will not have to give immunity to those whom Trump has pardoned.