Republican senators are divided over Sen. Rand Paul's strategy to send a criminal contempt referral against former White House COVID advisor Dr. Anthony Fauci directly to the Department of Justice, with some expressing concerns about the legal and procedural path forward.
Paul, R-Ky., stated that he is confident in securing enough votes for the contempt measure and plans to send the referral directly to the DOJ. His office is reportedly drafting a memo to Acting Attorney General Todd Blanche, urging the department to pursue a criminal contempt case against Fauci. This approach aims to prosecute Fauci for invoking his Fifth Amendment right against self-incrimination, arguing that he is not entitled to immunity, especially after receiving a presidential pardon.
Typically, a contempt referral first goes through a full Senate vote after committee approval. However, Paul's plan bypasses this step. If the Vice President, acting as President of the Senate, certifies the resolution, it could be referred directly to the U.S. Attorney for the District of Columbia. This could potentially make prosecution easier by avoiding the need for a 60-vote majority in the Senate.
Some Republicans, like Sen. James Lankford, R-Okla., noted the potential procedural hurdles and risks associated with this unconventional route. Lankford cautioned that altering Senate procedures could make the chamber vulnerable to similar tactics by Democrats in the future.
Despite these concerns, Sen. Ashley Moody, R-Fla., voiced support for Paul's decision, believing the matter necessitates resolution in court. She echoed Paul's sentiment that Fauci's invocation of the Fifth Amendment in this context requires judicial clarification.
However, other senators, including Sen. Mike Rounds, R-S.D., question the legal basis for holding Fauci in contempt. Rounds pointed out that Fauci's invocation of the Fifth Amendment complicates any argument for contempt. He also urged colleagues to remember the fear and uncertainty surrounding the COVID-19 pandemic at the time Fauci provided advice, suggesting that the context of the era should be considered.
Fauci is currently protected by a presidential pardon for actions taken between January 1, 2014, and January 19, 2025. This pardon has raised questions about the extent to which he can legitimately invoke the Fifth Amendment.