A Senate committee voted to hold Fauci in contempt. Now what?

On Thursday, the Senate Homeland Security and Governmental Affairs Committee voted eight to seven along party lines to hold former Director of the National Institute of Allergy and Infectious Diseases Anthony Fauci in contempt of Congress. The committee approved a resolution that directs the president of the Senate to certify Fauci’s contempt to the Department of Justice for prosecution. Sen. Rand Paul (R-Ky.), the chairman of the committee, decided to pursue the contempt charge after Fauci invoked his Fifth Amendment right against self-incrimination over 100 times in a hearing before the committee on July 29.

There is no shortage of storylines arising out of the Fauci testimony. Paul has waged a years-long “public crusade” against Fauci and previously even expressed his personal desire to see Fauci behind bars. Public health has become an increasingly salient and contentious political issue, particularly given Secretary of Health and Human Services Robert F. Kennedy, Jr.’s controversial rejection of established scientific and medical wisdom. As Kennedy’s recent exchange with CNN’s Dana Bash made clear, covid-era lockdowns and public health measures continue to drive politics and policy. And Fauci is, undeniably, the avatar for the conflict.

Paul’s zealous pursuit of Fauci and decision to proceed, rather quickly, to contempt raises numerous legal and practical questions, including what happens next. As discussed in greater detail below, there are few definite answers to be had. With the midterm elections looming, and the subpoena power in both the House and Senate dependent on the outcome, the precedents set in the pursuit of Fauci could come back to haunt Republicans or possibly tee up even more politically motivated retribution campaigns in the next Congress.

What Happens Next?

The answer to this depends, largely, on two people: U.S. Attorney for the District of Columbia Jeanine Pirro and Attorney General Todd Blanche. Obviously, President Trump could weigh in and ultimately sway what happens. But, as a legal matter, the next steps for Fauci run through the Senate and/or the U.S. Attorney’s office for the District of Columbia. And, as a practical matter, his route through the Senate is likely foreclosed by the filibuster.

Public reporting on this issue, in part because of Paul’s statements, has not been particularly nuanced or precise. As he promised, Paul has decided to “bypass” the Senate vote and the need for 60 votes and has instead “hand delivered” the committee’s resolution to the attorney general and to Pirro. Paul is of course free to hand Blanche or Pirro anything he likes. But the procedures for contempt of Congress are set by statute. Paul cannot simply bypass the full Senate.

The criminal contempt statute derives, largely unchanged, from an 1857 act entitled “An act more effectually to enforce the attendance of witnesses on the summons of either house of congress, and to compel them to discovery testimony.” That act included three sections, which are now codified as in Title 2 of the U.S. Code as Sections 192, 193, and 194, though section 193 is rarely relevant. As the Office of Legal Counsel (OLC) described it in a 1986 opinion, the contempt statute “contains two principal sections,” with Section 192 “set[ting] forth the criminal offense of contempt of Congress,” and Section 194 “impos[ing] certain responsibilities on the Speaker of the House or the President of the Senate … to take actions leading to the prosecution of persons certified by a house of Congress” to be in contempt.

In other words, Section 192 criminalizes an individual’s refusal to provide information to Congress when demanded, and Section 194 establishes the procedures that must be followed to certify and punish someone who engages in that contempt. Importantly, one of the procedures set out in Section 194 requires that any finding of contempt by a committee while Congress is in session be reported to the full House or full Senate. A 1966 opinion by the D.C. Circuit in Wilson v. United States makes it clear that contempt cannot simply be sent directly from a committee to the Justice Department, overturning convictions for contempt. And a 1982 OLC opinion, relying on Wilson and the text of the statute, reaffirms that requirement. As the opinion recognizes, a committee’s report finding contempt “must be submitted to the full House” and “[i]f the full House votes down the resolution, the committee citation is of no further force or effect.” Congressional sources agree. The comprehensive Congressional Research Service report on contempt, for example, lists four procedural steps that precede any contempt prosecution, including full House approval of the contempt resolution if the respective House is in session. And the legislative debates of the original 1857 legislation make clear that Section 194 sets out “the mode by which the trial of the offender may be had.”

The next step then, under the statutory requirements, would be for Thune to put the committee’s contempt resolution to the full Senate for a vote. Indeed, the text of the resolution itself suggests this path, adopting the traditional, statutory language that the Senate, as a body, is directing the President of the Senate to certify the contempt to the U.S. Attorney. A vote on the resolution would require 60 votes to overcome the filibuster, however, and Paul seems unlikely to gain sufficient Democratic votes to advance it.

Now that Paul has delivered the contempt report to Blanche and Pirro, will they, or can they, do anything with it? It’s impossible to discount the possibility, given the indictments and attempted indictments of political rivals such as James Comey, Letitia James, and several Democratic members of Congress and prosecutions pursued for transparent political purposes, such as that of the reflecting pool “vandals.” The criminal contempt statute is unusual in that it is broken up into a stand-alone criminal prohibition, Section 192, but then sets out required procedures in a separate section. And even though decades of precedent and practice, and the text of Section 194 itself, appear to require consideration by the full Senate when the contempt vote happens during a session, a Justice Department concerned more about pursuing Paul’s vendetta than traditional legal and normative considerations might be willing to pursue Fauci.

Sen. Paul’s attempt to get the Justice Department to move forward with a prosecution for criminal contempt of Congress under Section 192, despite the absence of the procedural steps required by Section 194, echoes a similar, failed 2016 effort to circumvent the strictures of the statute for largely retributive purposes. As part of his politically charged investigation into Hilary Clinton’s email practices, then-House Oversight and Government Reform Chairman Jason Chaffetz subpoenaed former State Department employee Bryan Pagliano, who had helped set up Clinton’s private email server. Pagliano, citing his Fifth Amendment rights, refused to appear in response to Chaffetz’s subpoenas, despite the fact that Chaffetz ruled he had no Fifth Amendment rights because of an immunity agreement with the Justice Department. The Committee held Pagliano in contempt, and Chaffetz submitted the contempt report and resolution to the full House in September 2016, as required by Section 194.

The full House never acted on the Pagliano contempt report. Chaffetz, undeterred, continued to pursue Pagliano. After Trump took office in January 2017 and Jeff Sessions became the Attorney General, Chaffetz sent a letter to the Justice Department demanding that Pagliano be prosecuted for violation of Section 192. His letter stated that “[t]here is no legal basis for Pagliano’s refusal to appear before the Committee” and that “[i]f left unaddressed, Pagliano’s conduct in ignoring a lawful congressional subpoena could gravely impair Congress’s ability to exercise its core constitutional authorities of oversight and legislation.” The letter cited the text of Section 192 in full. But it never mentioned Section 194. The Justice Department considered this letter and engaged in some internal discussions about the contempt statute. But, publicly, the Department ultimately just sent back a relatively milquetoast letter that did not take a firm stand on the necessity of the Section 194 procedures to a contempt prosecution. And the Department ultimately did not prosecute Pagliano.

In short, Pirro and Blanche can almost certainly attempt to indict or prosecute Fauci for contempt of Congress. Doing so would depart from past practice and run contrary to precedent, but those considerations may be overcome by political impetus. Fauci could raise the failure to follow Section 194’s dictates in his defense, as the defendants did successfully in the Wilson case. But he would have to go through the pain of a criminal indictment and prosecution to do so.

If Blanche and/or Pirro were not willing to distort the contempt statute but were eager to satisfy Paul, they could also try to indict Fauci for obstruction of Congress under 18 U.S.C. § 1505. Past committee chairs have threatened to refer recalcitrant witnesses to the Justice Department for violation of this statute, and there have been some past criminal referrals for obstruction, typically based on allegations that a witness lied to the committee. Courts have held specifically that no congressional referral is needed for such a contempt prosecution.

Indeed, if Blanche and Pirro were so inclined, they could attempt to indict Fauci for both obstruction and contempt and see if they could make either stick. As Attorney General Jackson famously explained in 1940, federal prosecutors have “more control over life, liberty, and reputation than any other person in America” and their “discretion is tremendous.” If they choose to take up Paul’s charge to put Fauci behind bars, there is little Fauci or anyone else can do to stop them from presenting the case to a District of Columbia grand jury. Jackson called this ability to target a particular person, or political opponent, the “most dangerous power of the prosecutor.”

Theoretically, there may still be a way for Sen. Paul to try to comply with the statute without submitting the contempt citation to the full Senate. Section 194’s requirement that the full Senate approve the contempt citation applies only when Congress is in session. When Congress is not in session, the contempt need only be reported to the President of the Senate, who may certify it unilaterally. Sen. Paul could, therefore, try to re-report the citation to Sen. Chuck Grassley (R-Iowa), the President pro tempore of the Senate.

Could Sen. Paul get away with such gamesmanship? Wilson interprets the statute to require approval by the full House if the contempt itself occurs during a congressional session:

“It is clear that where the alleged contempts are committed while Congress was in session, the Speaker may not certify to the United States Attorney the statements of fact prepared by the Committee until the report of alleged contempt has been acted upon by the House as a whole.”

But, as noted, this area has few precedents, and this language from Wilson is almost certainly dicta. If Paul cannot get Pirro or Blanche to take up his campaign against Fauci absent a full Senate vote, he could potentially turn to Grassley next.

What Can Fauci Do?

Fauci is in a waiting game at present. But that does not mean he is helpless. He cannot turn to the judiciary for help at present. The Speech and Debate Clause bars any affirmative suit by Fauci against Paul or members of the committee to try and quash the subpoena or vitiate the contempt. The last person held in contempt by the Senate, Ralph de la Torre, tried to file such a suit, but the D.C. Circuit, just recently, rejected that attempt as “wholly meritless under longstanding precedent.”

Fauci does have two distinct opportunities to defend himself. First, he can make his case to Pirro and the U.S. Attorney’s Office that he should not be indicted. In May 2014, the House approved a resolution holding former IRS official Lois Lerner in contempt of Congress for actions very similar to Fauci’s. As described in the committee’s contempt report, Lerner had appeared before the House Oversight and Government Reform Committee and given a general opening statement attesting to her innocence but indicating she would assert her Fifth Amendment right not to testify. The Committee later recalled her, ruled she had waived her Fifth Amendment privilege, and directed her to answer questions. When she continued to invoke her Fifth Amendment right and refuse to answer questions, the Committee ultimately voted to hold her in contempt. After the full House voted to certify that contempt, the Speaker referred the matter to the D.C. U.S. Attorney as prescribed by Section 194.

But the U.S. Attorney, Ronald Machen Jr., declined to prosecute Lerner. First, at Machen’s request, OLC issued an opinion in June 2014 advising Machen that he retained the typical prosecutorial discretion to refuse to pursue a Lerner indictment or prosecution, even if her defense was not based on executive privilege. OLC had previously concluded that the D.C. U.S. Attorney could decline to prosecute an executive branch official who had been referred for contempt based on an assertion of executive privilege. This opinion expanded that to include other situations where the U.S. Attorney concluded that, despite the congressional finding, there had been no actual violation of law. (That discretion has since been expanded further in the context of the January 6 investigation.) Second, Machen determined that Lerner had not been guilty of contempt because she had validly invoked her Fifth Amendment rights. As he laid out in a lengthy letter to Speaker John Boehner, the prosecutors in the U.S. Attorney’s Office concluded that Lerner had not waived her Fifth Amendment rights.

Machen did not send that letter explaining his decision until March 2015, almost a year after the Speaker had certified Lerner’s contempt. During that period, as Machen explained, a “team of experienced career prosecutors” in the U.S. Attorney’s Office conducted an “extensive analysis of the facts of this matter and the applicable law.” In other words, the U.S. Attorney’s Office, likely with input from other parts of the Justice Department, was evaluating the strength of arguments made by Lerner and her counsel. Lerner’s lawyer was undoubtedly attempting to convince the Justice Department not to prosecute.

Fauci has the opportunity to do the same. Again, the question will be how receptive Pirro, Blanche, and the Justice Department will be to arguments grounded in law and past practice. Fauci can argue the merits of his invoking of his Fifth Amendment rights, just as Lerner did. Of course, Lerner, a former civil servant accused of malfeasance during a Democratic administration, was making her arguments to that very Democratic administration after a contempt finding by a Republican-led committee. Fauci is facing a Republican-led Justice Department aligned with the committee. I am not a criminal law expert, but Michael Dorf’s careful analysis suggests Fauci’s claim likely has merit because of threatened investigations by state attorneys general, investigations that are not affected by Biden’s pardon for all federal offenses. And other experts in this area appear to agree. Moreover, as Dorf notes, Sen. Paul himself has questioned the legitimacy of Biden’s pardon of Fauci because it was allegedly signed via autopen. (The Chairman of the House Oversight Committee has done the same.) Fauci may be able to rely on any uncertainty created by those public sentiments to claim the need to protect himself. Finally, Fauci could also cite the administration’s penchant for seeking to indict its political enemies on baseless grounds as further support for his decision to invoke the privilege.

Fauci may also raise with the Justice Department the Senate’s failure to follow the required procedures of Section 194 as reason not to pursue prosecution. Indeed, it may be in the Justice Department’s short- and long-term interests to maintain the requirements of Section 194. As explored a bit more below, if Democrats take over the House and/or Senate and gain subpoena power, the Trump administration may not want to be on record taking the position that a single committee chairman can refer a contempt violation to the U.S. Attorney.

Again, though, Fauci’s arguments to the Justice Department and U.S. Attorney will be based on existing practice, prior Justice Department positions, and longer-term institutional interests. This Justice Department has proved willing to ignore those considerations and take whatever measures necessary, including firing long-time employees, to prosecute the President’s enemies. OLC specifically, has also repeatedly proved its willingness to ignore those traditional considerations when doing so would be politically convenient or desirable, for example, declaring the Presidential Records Act unconstitutional in its entirety or reversing decades of understanding of civil rights and disability legislation. Accordingly, Fauci can make all of the same arguments that Lerner did and hope that, as in that case, “career prosecutors” will evaluate the merits of his arguments. But he probably shouldn’t count on that happening.

Assuming Fauci’s arguments do not persuade the Justice Department to decline to prosecute, Fauci can of course raise his defenses in court. As a criminal defendant, he would be able to raise any argument to defend himself against the contempt or obstruction charges, and he would have the opportunity to appeal adverse rulings against him. In a case such as this, which raises novel issues, both related to the Fifth Amendment and congressional contempt procedures, Fauci may even be able to prolong the prosecution and appeal for a couple of years, a delay that might allow enough time for a Democratic administration to take over after the 2028 election and drop the charges against him. Steve Bannon, for example, was indicted for contempt of Congress on Nov. 12, 2021, found guilty by a jury on July 22, 2022, but did not report to jail for his sentence until July 1, 2024, after losing an emergency motion to remain free until the Supreme Court addressed his petition. Indeed, although Bannon did serve four months for his contempt conviction, the Trump administration later successfully asked the Supreme Courtto vacate the appellate decision affirming Bannon’s conviction and asked the district court to dismiss Bannon’s indictment.

If Fauci and his counsel believe Pirro and Blanche will take no action because of Paul and the Senate’s failure to follow the Section 194 procedures, then they do not have to do anything. And the entire affair may just deflate. If they believe Pirro will try to move forward with an indictment or prosecution, they can present their arguments to her and to the Justice Department, urging that there is no valid charge based on the procedural failures and Fauci’s constitutional rights. And if they are unsuccessful in preventing indictment or prosecution, then Fauci will mount a robust defense in court. He will undoubtedly want to prolong it and the subsequent appeals as long as possible in hopes of a more friendly Democratic administration, and Justice Department, in January 2029.

Will the Fauci Precedent Matter?

This trial of Dr. Fauci by Sen. Paul may not matter at all, in the end. Paul has “hand delivered” his contempt report to Blanche and Pirro, but, if they do nothing, the whole matter may slowly fade from the 24-hour news cycle. The Fauci incident may ultimately amount to a footnote in terms of congressional oversight.

Even if nothing else happens, however, one thing about Fauci’s appearance is somewhat striking. As I noted at the time of the hearing, Fauci chose to rely solely on his personal Fifth Amendment privilege to refrain from testifying. Although other witnesses including some former officials like Lerner and Pagliano have done so, former officials most commonly give reasons related to executive privilege when declining to answer questions. In the view of the executive branch, internal deliberations among executive branch officials are protected by executive privilege, and no individual can disclose the substance of those materials absent permission from the White House (sometimes permission from both a former and present White House). That’s because OLC’s position, which I have written about at length, is that the president, and only the president, has authority to assert or waive privilege. Any material that is potentially protected by privilege, including communications with the president and internal deliberations within an agency, is thus confidential unless the president, sometimes through an agency head, decides against asserting privilege and permits its disclosure. Executive branch officials thus routinely refuse to answer questions because the information is protected by executive privilege, at least in the executive branch view, and they do not have permission to disclose it.

Before and at the Fauci hearing, this typical approach was entirely abandoned. First, prior to the hearing, Paul released internal notes that Fauci had kept during his time in office (some reports have called them a “diary,” but the notes appeared to be kept on his work computer). These notes were apparently given to Paul by Robert F. Kennedy, Jr. Typically, the executive branch has an institutional interest in protecting materials of this nature, and the normal process would be to review them and withhold deliberative and other confidential information. It appears that this process did not occur here. Instead, Kennedy freely provided fodder to Paul with which to badger the former official. Second, Fauci chose not to rely on any institutional or governmental privileges, instead relying solely on his personal Fifth Amendment privilege. He likely chose that route because (1) he recognized President Trump would likely waive any potential privilege and (2) if he declined to answer based on those governmental privileges, without the backing of the current administration, he would likely not be able to rely on those privileges as a defense in a later contempt prosecution.

In other words, the administration abandoned many of the traditional practices of the executive branch in the context of congressional oversight and instead took actions designed to advance a short-term political interest—harassing Fauci. Those traditional practices, such as protecting internal deliberations and upholding the confidentiality of former officials’ work, protect longer-term institutional interests. Once these norms are broken, it seems less and less likely that subsequent administrations and individuals will follow them. The loss of these norms may necessitate reliance on personal privileges, such as the Fifth Amendment privilege or attorney-client privilege, or objections to the legitimacy of the congressional interest, relying on the Supreme Court’s decision in Mazars. Many of these issues, such as the availability of the attorney-client privilege or other common law privileges in the context of congressional oversight, are hotly disputed and rarely litigated. But future hearings such as Fauci’s and subsequent prosecutions may lead to a spate of judicial opinions on the scope of congressional power.

If Fauci is prosecuted, then the Justice Department will have abandoned its longstanding position that Section 194 sets out the required procedures for a contempt prosecution. That precedent, if accepted by the court or even if left unanswered by the court, could accelerate the number of criminal referrals by committee chairs or could allow the Justice Department to start prosecuting without any referral whatsoever—which also would be hard to square with the text and history of Section 194. Oversight power in the House has, over the past decade and a half, increasingly centered on committee chairs and circumvented the need to take matters to the full House. Individual chairs have been given unilateral subpoena power, given the power to direct depositions by staff, granted authority to file a lawsuit, and even, more controversially, assumed power to start an impeachment inquiry, all without approval by the full House. One of the checks against a committee chair singlehandedly pursuing contempt against an individual has been Section 194 and the Department’s position. Eliminating that intermediate step would give committee chairs even more power to harass and threaten an individual with prosecution.

Indeed, the Fauci affair demonstrates how much power a single committee chair has to threaten, harass, and pursue a private individual if so inclined. Paul appears to have singlehandedly engineered this particular attack on Fauci. If the Justice Department decides to join the campaign, despite the legal and practical precedent that would appear to prohibit it, it will only empower future chairs, of whatever party is in control, to launch similar campaigns when they are ideologically aligned with the administration.

Paul’s actions to date already demonstrate a slippage in norms in favor of political expediency. The public release of the internal agency notes is only the start. Contrast Paul’s actions to the Lerner precedent, which was similarly politically charged. In that instance, Republicans on the committee were extremely angry by the allegations that the IRS had targeted certain faith-based organizations, and they wanted the former Democratic official to answer to these allegations. But, in contrast to Paul’s actions, the chair, Darrell Issa, and the committee went out of its way to show it respected the process. Instead of ruling on whether Lerner had waived her Fifth Amendment rights himself, Issa allowed Lerner’s lawyer to submit his views in writing on the issue and put the issue to a full Committee vote. The Office of General Counsel in the House prepared a memorandum addressing Lerner’s objections and those of a congressional scholar about the adequacy of notice provided to Lerner, and the contempt vote occurred only after all these arguments and materials had been considered by the committee.

Paul, on the other hand, immediately and unilaterally ruled on Fauci’s claim, and he even threw Fauci’s counsel out of the hearing when he attempted to argue for Fauci’s Fifth Amendment rights. Paul, who does not appear to have any legal training, did not seek the views of the Senate counsel or allow written submissions; nor did he allow the entire committee time to consider and vote on Fauci’s assertion. Instead, he overruled Fauci’s claim on the spot and directed him to answer on pain of criminal contempt. In the context of a congressional hearing, when there is no neutral court and no means of challenging the committee in court due to the Speech and Debate Clause, this abandonment of process and threat of coercive punishment is both dangerous and likely highly effective. Fauci has long experience with congressional testimony and inquiry, but the average citizen and former official does not. A committee chair willing to take this kind of approach to congressional oversight warrants concern, particularly in the Senate which has traditionally not engaged in the kind of aggressively partisan oversight that has taken place in the House during the last few administrations.

It remains to be seen whether Fauci’s (non)testimony and Paul’s crusade set any real precedent for the future. The incident may not be much of a precedent at all but simply a representation of a new, already-in-progress era of congressional oversight that utilizes more aggressive tactics against private parties and relies more heavily on threats of coercion and punishment than cooperation. If that is the case, however, it should be a wake-up call to Democrats and Republicans alike that congressional oversight, especially when paired with a willing Justice Department, can be an exceptionally dangerous tool. And that tool can be used for partisan purposes by whichever party is in power—or better, by any committee chair in power.

If nothing else, the Fauci affair well illustrates that Attorney General Jackson’s admonition to prosecutors in 1940 is becoming more and more applicable to individual committee chairs in Congress today: “The citizen’s safety lies in the [chair] who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”