Fauci contempt vote presents DOJ with ‘incredibly messy’ choices

Administration Fauci contempt vote presents DOJ with ‘incredibly messy’ choices Comments: by Rebecca Beitsch - 08/09/26 6:00 AM ET Comments: Link copied by Rebecca Beitsch - 08/09/26 6:00 AM ET Comments: Link copied

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The push to charge former COVID czar Anthony Fauci with contempt of Congress is full of pitfalls for prosecutors, should the Justice Department choose to take up the case.

The Senate Homeland Security and Governmental Affairs Committee approved the criminal referral Thursday, arguing that Fauci’s assertion of his Fifth Amendment rights 111 times during a hearing the week before amounts to contempt.

Spearheaded by Chair Rand Paul (R-Ky.), the resolution has not been vetted by the full Senate, something former prosecutors say is key in building a contempt case.

But even if the measure is taken up and approved after the August recess, experts see other issues with a potential case, questioning grand jurors’ interest in bringing charges after an individual asserted a valid constitutional right, as well as Trump administration appetite for a case that could diminish the power of a presidential pardon.

“Fauci would have a bulletproof motion to dismiss on Fifth Amendment grounds. He may invoke the right if he has reasonable fear that his testimony could be used against him in a criminal proceeding. Based on Rand Paul’s statements that he would like to see Fauci ‘behind bars,’ Fauci has that reasonable fear,” said Barb McQuade, a former U.S. attorney in Michigan.

Paul and the committee’s Republicans argue the pardon received by Fauci from former President Biden negates his right to a Fifth Amendment claim, as he has no reasonable fear of prosecution.

But that pardon only covers the period from January 1, 2014, through January 19, 2025, meaning Fauci could still face charges for things such as perjury before the committee or any state-level crimes.

Indeed, three state attorneys general have all issued subpoenas to Fauci after launching investigations into him.

Mark Osler, a former federal prosecutor, said those details strengthen Fauci’s claims.

“There’s some holes in the pardon. There’s some things it doesn’t apply to,” he said, which, combined with Paul’s calls for prosecuting him, leave the government scientist on “firmer ground.”

Amanda Vaughn, a former Department of Justice (DOJ) attorney who worked on the contempt of congress case of former White House aide Steve Bannon after he refused to appear before the House Jan. 6 committee, suspected a judge would be hesitant to question a citizen’s right to invoke the Fifth Amendment.

“I think judges are pretty cautious about saying someone didn’t have a right to plead the Fifth,” Vaughn said, noting that there has been GOP focus on the scope of Fauci’s protections and “whether there’s something at the margins that’s not pardoned.”

Paul’s own statements would also likely factor heavily in the case, as he has for years said Fauci should be prosecuted and put in jail.

Fauci’s attorneys assembled a list of more than 30 such examples in a June letter to the Kentucky Republican.

“Today’s partisan committee vote is a crude political stunt intended to punish Dr. Fauci for exercising his constitutional rights … For years, Senator Paul has proclaimed to anyone who would listen that Dr. Fauci should be prosecuted and put in prison. Dr. Fauci has committed no crime — and Senator Paul knows it,” attorney David Schertler said in a statement after the contempt vote, pegging the action as “meritless and politically-motivated.”

“Today’s resolution is a continuation of Senator Paul’s personal vendetta against Dr. Fauci, who spent 50 years in public health and has saved countless lives.”

Molly Gaston, a former federal prosecutor who also worked on the Bannon case, said those statements would present a challenge to prosecutors.

“Given the background of Sen. Paul’s attention to Dr. Fauci, that would be a very difficult case for the government,” she said.

Another complicating factor is whether Paul complied with the law in sidestepping his Senate colleagues and sending the referral to the Justice Department after the matter was reviewed only by his panel.

Traditionally contempt measures must pass the full chamber after they are approved by a committee. Even then, DOJ chooses whether to act on the criminal referral.

While there is a criminal statute for contempt of Congress, another statute lays out the process for the Justice Department to take up such cases, including that it must be weighed by the full chamber if they are in session and that prosecutors must also then take the misdemeanor charge before a grand jury.

It’s not entirely clear whether the Justice Department could bring the case without it being formally referred by the whole of the Senate, in part because instances of a committee acting alone are so rare. But some case law indicates Congress must follow the full process — including a chamber-wide vote — in order for DOJ to take up the referral.

Paul told reporters there is “precedent” for bringing a contempt referral without the full Senate vote, but his team did not respond to request for further details about the legality of doing so.

Gaston said the failure to follow the statute to a T does not play in DOJ’s favor.

“That is incredibly messy. It makes it look incredibly political because presumably [Paul is] doing that because he doesn’t think that he can get a contempt resolution from the full Senate,” she said.

“Setting aside the legal question of whether Sen. Paul’s actions meet the requirements of the statute, forgoing the traditional contempt resolution process sets prosecutors up for very credible allegations that any prosecution is vindictive and selective.”

There are also questions about whether DOJ, should it bring the matter before a grand jury, would be able to secure the jurors’ backing in a left-leaning city where Fauci remains popular.

“If you’re going to get 23 people from Washington D.C. to decide up or down on this, that’s a risky move in some ways,” Osler, who now teaches law at the University of St. Thomas, said, referencing the number of grand jurors.

But Osler said there are other reasons the Trump administration may decide not to pursue the case — primarily that it could undermine the president’s own plans to issue pardons to members of his team in the hopes of warding off investigative efforts from a future Democratic majority.

“Trump has said he’s going to do broad pardons, preemptive pardons to people in his administration, and which is what Fauci got. And if he does that, then if they establish a precedent now that having a pardon means you can’t assert the Fifth, that’s going to mean that when those people are inevitably called in front of some Democratic-led committee, that they wouldn’t be able to assert the Fifth, which he might not like,” he said.

“I mean, it’s not exactly five-dimensional chess. It’s just regular chess.”