Aaron Rodgers used his time on the Pat McAfee Show to take a swing at Anthony Fauci. His words, verbatim: "I'm gonna plead the Fifth. Like that absolute coward Tony Fauci." [1] He returned to it with a question aimed straight at Fauci: "You got a pardon and you pleaded over 100 times? What are you scared of Tony?" [1] This is a quarterback's opinion, delivered on a sports show, and we are labeling it as exactly that. We are not rating it true or false, because an opinion is not the kind of thing that resolves to a public record. What we can do is set the record beside it.
Start with what Rodgers gets that is fair, because there is something. A person who has already received a pardon, and who then declines to answer questions more than 100 times, is a genuinely arresting picture. The instinct behind the taunt, that a pardon removes the usual reason to stay silent, is not stupid, and a critic is allowed to find the sequence striking and to say so bluntly. Contempt for a public figure is a legitimate thing to voice.
The constitutional point is where the taunt and the record part ways. Fauci invoked his Fifth Amendment right numerous times during his Senate testimony [1]. The Fifth Amendment protects a witness against being compelled to give evidence against himself, and its central feature, affirmed by courts many times over, is that using it is not proof of guilt and not proof of fear. The right shields the innocent and the guilty alike, which is the entire reason it is worth having; a protection that only the guilty ever used would protect no one.
That is why "what are you scared of" is a rhetorical move rather than a factual finding. A witness can plead the Fifth on the advice of counsel, to avoid a perjury trap, to keep from being cornered into a misstatement, or for reasons that have nothing to do with any crime. Reading each invocation as an admission is a choice the taunt makes, and it is not a choice the Constitution endorses.
The pardon adds a real wrinkle, and it is worth being straight about it. There is a serious legal argument, one a Senate committee is actively pressing, that a pardon can narrow the Fifth Amendment privilege because it removes the criminal exposure the privilege guards against. That question is contested and largely untested, and our companion piece on the pending contempt resolution, filed under fauci-contempt-resolution, lays it out. Whatever a court eventually makes of it, that is a legal argument about the scope of the privilege, not a demonstration that the man using it is a coward.
Hold the two things in view at once. A famous critic finds Fauci's silence contemptible and says so in plain language, and that is his to say. The record next to him is that pleading the Fifth is a right, that using it decides nothing about guilt, and that the sharper legal question about the pardon is unsettled. Readers can weigh the opinion for themselves with the record in hand.
