Senate Republicans may find Dr. Anthony Fauci contemptible, but holding the COVID chief in contempt of Congress will be a stretch.
Dr. Fauci invoked his Fifth Amendment privilege against self-incrimination 111 times last week as he refused to answer questions from the Homeland Security and Governmental Affairs Committee about his activities and advice during the pandemic.
Committee Chair Rand Paul, the Kentucky Republican who subpoenaed Dr. Fauci to appear, said he waived his right to remain silent by delivering a statement attacking the committee. Mr. Paul also said a pardon by President Biden had erased any danger of criminal liability, so Dr. Fauci has no reason to remain silent in the first place.
The chairman has scheduled a vote Wednesday on a resolution that would declare Dr. Fauci in contempt of Congress.
But there are several major hurdles.
While the contempt resolution can clear committee on a majority vote, it would have to survive a filibuster to get through the full Senate. That would require significant Democratic support — an unlikelihood in the current environment.
And Republicans’ own comments saying they wanted to see Dr. Fauci in prison undercut their legal case for contempt, said Stanley M. Brand, a former general counsel for the U.S. House and a veteran of high-profile contempt of Congress battles.
He said for a subpoena to be valid, a congressional investigation must be for a legitimate legislative purpose. The prison comments sour that.
“Given the statement by members of the committee, [including] the chair, that they want to put this guy in jail, that’s not a legitimate legislative purpose,” Mr. Brand told The Washington Times. “To the extent that you subpoena someone for the purposes of trying to put them in jail, you haven’t stated a proper legislative purpose.”
Dr. Fauci’s performance in last week’s hearing has become a Rorschach test of sorts.
Those who lionized him as a critical anti-Trump voice during the pandemic have cheered his confrontation with Mr. Paul and other Republicans on the committee. President Trump’s supporters, though, say the shutdowns and vaccines pushed by Dr. Fauci were devastating.
The committee had wanted to hear about Dr. Fauci’s decision-making in those areas.
They also wanted to probe the role of the National Institute of Allergy and Infectious Diseases, which he ran for decades, in funding potentially risky experiments at the Wuhan Institute of Virology. That Chinese lab remains at the center of speculation about the origin of SARS-CoV-19.
Dr. Fauci rebuffed all questions, saying he feared Mr. Paul — himself a trained physician with a lengthy history of clashes with Dr. Fauci — was trying to trap him into criminal behavior.
“The only conclusion I can reach is that the sole reason he is calling me before this committee is to get me to say something — anything — that could vindicate his repeated public pledges that I end up, in his words, ’behind bars,’” said Dr. Fauci, who is now retired from government service.
Mr. Paul’s office didn’t respond to an inquiry for this report.
Michael Stern, a former senior counsel to the House and an expert on congressional investigations, said taken on its own, the argument that the Biden pardon relieves Dr. Fauci of fear of prosecution would be strong.
But Mr. Stern said that is undercut by Republicans’ repeated challenges that Mr. Biden’s pardons were invalid.
“In general, the courts have been pretty lenient with regard to assertions of the Fifth in congressional cases,” he said in an email. “So, depending on how Fauci asserted the privilege, I would probably put my money on his ultimately prevailing on the issue, either on grounds that there is still potential federal liability or that there is potential state liability which would be unaffected by the pardon.”
Congress’ ability to hold an uncooperative subject in contempt has a pedigree dating back two centuries, though making cases stick is not easy.
Two Trump world figures, Peter Navarro and Steve Bannon, each served months in jail for refusing to testify in House Democrats’ probe of Mr. Trump and the 2020 election, including the mob intrusion at the Capitol on Jan. 6, 2021.
They had each said they were protected from testifying based on executive privilege. The courts rejected that defense.
But an attempt to hold then-senior IRS official Lois Lerner in contempt for her refusal to answer House questions about intrusive scrutiny of conservative “tea party” groups’ applications for tax-exempt status failed.
While the House voted to hold her in contempt, the Obama-appointed U.S. attorney in Washington refused to bring the case to the grand jury.
Ronald Machen, just before he departed office, decided that Ms. Lerner didn’t waive her Fifth Amendment right to remain silent by delivering a general opening statement to the committee professing her innocence, then refusing to answer specific questions.
Mr. Brand said he couldn’t imagine current U.S. Attorney Jeanine Pirro, a Trump pick, refusing to bring the Fauci case to a grand jury should it reach her desk.
There’s also no timeline on a decision.
The Senate in 2024 voted to hold Ralph de la Torre, a healthcare executive, in contempt of Congress for refusing to answer questions about financial mismanagement at Steward Health Care.
Mr. de la Torre had sued a Senate committee, saying it was trampling on his right to remain silent. A district court rejected his claim last year, and a federal appeals court upheld that ruling late last week.
The Justice Department has not announced a decision on whether to pursue the charges.
The de la Torre case was the first time the Senate had voted to hold someone in contempt in more than 50 years.
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