A contempt finding could open the door to an investigation into whether Fauci had a valid constitutional right against self-incrimination when he refused to answer dozens of questions from lawmakers at a committee hearing last week focused on his handling of the COVID-19 pandemic.
Republican senators including Rand Paul of Kentucky, who subpoenaed Fauci and has called a contempt vote for Thursday, insist that a pardon the doctor received early last year from Democratic President Joe Biden left him ineligible for Fifth Amendment protections. A Senate resolution released Tuesday asserts that Paul found Fauci's privilege claims “unsupported.”
But some legal experts say Fauci had reasons to invoke the Fifth Amendment, given the threat of potential state prosecutions and questions from President Donald Trump's administration about the validity of Biden's pardons.
No matter what happens, the episode raises fresh and complicated questions about Congress' ability to compel testimony from previously pardoned witnesses — and the outcome could resonate beyond Fauci.
Paul's committee is moving to transmit the contempt referral from his Republican-led committee directly to the Justice Department. Whether the Justice Department would act on the referral is unclear.
Paul said in an interview with Fox News Channel last week that he did not think “there's any rule" requiring that a contempt referral from a committee go through the entire Senate. His committee is instead working to send the referral straight to the Justice Department.
The contempt resolution states that the president of the Senate, Vice President JD Vance, “shall certify” the committee’s referral and the accompanying report to the U.S. attorney for the District of Columbia.
That fast-tracking of the process avoids the need for a vote in the full 100-member Senate, where Republicans likely lack the 60 votes required to move a contempt referral to passage.
