Fauci, the former director of the National Institute of Allergy and Infectious Diseases (NIAID), repeatedly invoked his Fifth Amendment right against self-incrimination during a hearing last week, where Republican senators probed him over the U.S. government’s response to the COVID pandemic and the disputed origins of the virus. Fauci has long been a target of GOP attacks and investigations over his role in leading the pandemic response.
During his opening statement, Fauci accused Republican Sen. Rand Paul of Kentucky, the chair of the panel and one of his most persistent critics, of having an “obvious obsession with calling for my prosecution.”
His decision to plead the Fifth drew ire from GOP lawmakers. Paul pressed for Fauci to be held in contempt over his refusal to answer questions, arguing that he was not entitled to invoke his right against self-incrimination because he is protected from criminal prosecution over his past actions during the pandemic by a pardon granted by former President Joe Biden.
On Thursday, the Republican-led committee voted 8-7 along party lines to advance the contempt resolution.
Contempt of Congress is a federal misdemeanor in which an individual willfully disobeys or impedes a congressional investigation.
Congress does not hold the power to prosecute or convict someone of the crime; instead, the House or Senate can vote to approve a resolution finding a person in contempt and refer the matter to the executive branch for prosecution.
What comes next after the Senate committee vote?
As Democratic support would be needed to reach the 60-vote threshold required to end a filibuster in the current narrowly divided Senate, the resolution to hold Fauci in contempt has little chance of passing the upper chamber.
Following the panel vote on Thursday, Paul said he would bypass the Senate vote and hand-deliver the resolution to the DOJ.
Paul is within his right to submit a referral to the DOJ to investigate Fauci. But Donald K Sherman, a former Biden-era official who previously served as senior counsel for the ranking member on the Senate Homeland Security and Government Affairs Committee, says that within the procedural context of the contempt resolution, the Kentucky senator’s promises to go straight to the department are “silly theater.”
Jonathan David Shaub, a former Biden-era White House attorney and Obama-era DOJ adviser and current professor of law at the University of Kentucky, notes that precedent is already in place that protects the procedure of certifying a contempt resolution by the Senate to the DOJ.
If Fauci is found guilty of contempt of Congress in court, he could face a fine of up to $100,000 and a prison sentence of up to one year.
Paul has argued that Fauci did not have the right to plead the Fifth during the hearing due toBiden’s pardon, which shields Fauci for prosecution over any federal offenses he might have committed from January 1, 2014, through Jan. 19, 2025.
McQuade believes Fauci would have a “bulletproof motion to dismiss on Fifth Amendment grounds” if charges were brought against him.
Fauci’s case is unique, though, with little legal precedent for a prosecution or defense to draw from.
What can Fauci do?
There is little Fauci can do to stop Congress from seeking to hold him in contempt at this stage.
The legal road ahead may be a long one. “This could play out over a very long time period,” Shaub says.
“Should it go on for a while, and a Democratic president wins the next election, and his appeal is still pending, then they could drop the case,” Shaub says. “Which would likely be his best strategy should he get prosecuted.”
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