Senate Republicans are set to vote Thursday on whether to hold Anthony Fauci in contempt of Congress after he repeatedly invoked his Fifth Amendment right during a hearing last week. The move could turn a committee clash into a formal referral, with a path either to the Justice Department or to a full Senate vote.
Fauci’s refusal to answer lawmakers in the hearing is what put him on the edge of that vote now. In his opening remarks, he said he believed Republicans would have tried to use his testimony to prosecute him, a warning that has only sharpened the fight over how far the committee can go.
That matters because the committee is not debating a new complaint in the abstract. Republicans on the Senate Homeland Security and Governmental Affairs Committee are escalating their push against Fauci, and Thursday’s vote is the latest salvo in a campaign that has followed him for years. Fauci, who once led the National Institute of Allergy and Infectious Diseases, has long been a target of Republicans over his role during the Covid pandemic.
Rand Paul has led much of the pressure. In a Tuesday statement, he said, “I ordered him to answer and warned him about contempt, yet he still refused,” then added, “That is obstruction of a congressional investigation. The Committee will act accordingly.” On Tuesday, Paul also accused Fauci of committing felonies, saying Fauci lied to Congress and destroyed records.
The legal fight around the contempt resolution is narrower than the rhetoric around it. Republicans argue Fauci could not hide behind the Fifth Amendment because Joe Biden gave him a pre-emptive pardon, and they say he also waived that right by giving opening testimony on the same subject matter. But Abbe Smith, a Georgetown Law professor, said that claim did not seem correct. She said there would have to be “some sort of legal understanding about the nature of the pardon and whether it is limitless,” and added that those pardons are unique. “I’m not sure anybody knows how much protection they provide,” she said.
Smith was just as skeptical of the waiver argument. She called it “a little more interesting, but ultimately specious in my view,” and said, “I don’t think that sort of an opening statement is a waiver.” She added, “It’s not like he was answering specific allegations and then shutting down questioning.”
If the contempt resolution passes, the committee can refer it directly to the Justice Department or ask Senate Majority Leader John Thune to hold a full Senate vote. If the case is sent on for prosecution, the Justice Department would have to secure an indictment from a grand jury in the District of Columbia. That is the real next step now: whether the committee votes to escalate, and if it does, whether the matter goes straight to prosecutors or into the Senate floor fight Republicans are already preparing for.
