Fauci’s Contempt Vote Has Big Implications for a Strong Congress

It sets a precedent for how Congress holds the Trump administration to account

Today the Senate Homeland Security and Governmental Affairs Committee voted 8-5 to favorably report a resolution holding Dr. Fauci in contempt of Congress.

While the stakes for Dr. Fauci are enormous, there are huge implications for the ability of Congress to obtain the information it needs from witnesses. Moreover, the success of this process has significant implications for Trump Administration officials should they be hauled before a future Congress after receiving pardons from the President. There are also implications for Pres. Trump himself, who now enjoys the Supreme Court’s recently invented (and quite dubious) immunity from prosecution for official acts.

Fauci’s Legal Issues

HSGAC’s resolution holding Fauci in contempt, in relevant part, states:

Resolved, That pursuant to sections 102 and 104 of the Revised Statutes (2 U.S.C. 192, 194), the President of the Senate shall certify the report of the Committee on Homeland Security and Governmental Affairs of the Senate, detailing the refusal of Dr. Anthony S. Fauci to answer questions pertinent to the subject under inquiry, to the United States Attorney for the District of Columbia, to the end that Dr. Fauci be proceeded against in the manner and form provided by law.

The cited statute, 2 U.S.C. §192, makes any person who refuses to answer any question pertinent to the subject under inquiry “deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.” According to CRS, the fine can be up to $100,000.

2. U.S.C. §194 authorizes the President of the Senate to certify the Committee’s statement of facts to the appropriate United States Attorney, whose duty it shall be to bring the matter before the grand jury for its action. Per CRS, congressional practice is that approval by the full Senate is necessary.

Should the Senate pass the resolution, federal prosecutors would have discretion on whether to convene a grand jury and seek an indictment. (This is a contested issue to which we will return.) If the grand jury returns an indictment, the next step would be a criminal trial.

At issue, in legal theory, is whether Dr. Fauci could rely on the Fifth Amendment to decline to answer questions from HSGAC because he had previously received a pardon from Pres. Biden. The Fifth Amendment is not a shield against testifying before a committee or providing the records it requested. Rather, in normal circumstances, as congressional expert Mort Rosenberg wrote in his seminal work When Congress Comes Calling, a committee can override a witness’s claim of the privilege against self-incrimination if the committee grants the witness immunity. There is a process that must be followed:

The scope of the immunity that is granted and the procedure to be employed are outlined in 18 U.S.C. §§ 6002, 6005. If a witness before the House, Senate, or a committee or subcommittee of either body asserts this privilege, or if a witness who has not yet been called is expected to assert this privilege, an authorized representative of the relevant house or committee may apply to a federal district court for an order directing the individual to testify or provide other information sought by Congress. If the testimony is to be before the full House or Senate, the request for the court order must be approved by a majority of the members present. If the testimony is to be given before a committee or subcommittee, the request for the order must be approved by an affirmative vote of two-thirds of the members of the full committee.

At least ten days prior to applying to the court, Congress must notify the Attorney General of its intent to seek the order, and issuance of the order will be delayed by the court for as much as 20 additional days at the request of the Attorney General. Notice to the Attorney General is required so that he or she can identify any information in Justice Department files that would provide an independent basis for prosecuting the witness and place that information under seal. The Attorney General does not have a right to veto a committee’s application for immunity.

HSGAC did not follow this process to grant Dr. Fauci immunity. Had it done so, and the Trump administration or a state prosecutor later decided to prosecute Dr. Fauci, “the burden is on the prosecutor to establish that the case was not based on the witness’s previous testimony or evidence derived therefrom.” Thus the legal question arises of whether the presidential pardon is functionally equivalent to this process.

While it is possible the committee’s and Senate’s votes will turn on the legal issue of whether Fifth Amendment immunity is synonymous with a presidential pardon, most likely they will not. Furthermore, while in theory a prosecutor would choose to forgo a prosecution that is on a constitutionally suspect basis, the acting Attorney General, who was also Pres. Trump’s criminal defense attorney, intimated his views that the President can direct prosecutions.

We have thousands of ongoing investigations and prosecutions going on in this country right now. It is true that some of them involve men, women and entities that the president in the ​past has had issues with and believes should be investigated. That is his right and indeed it is his duty to do that, meaning to lead this country.

Fauci’s Political Troubles

What’s really at issue is politics. HSGAC Chair Paul wishes to criminally punish Dr. Fauci. Now that he serves as chair of HSGAC, he was able to set up a circumstance where he could do so. There are many examples of Chair Paul’s animus for Dr. Fauci. In 2021, Sen. Paul said Dr. Fauci lied to Congress and called for the Attorney General to investigate whether Fauci’s testimony before the HELP Committee violated the federal false-statements statute. In December 2021, Paul said “Fauci should go to prison for five years for lying to Congress.”

It was on the basis of that animus that Dr. Fauci invoked his Fifth Amendment right. “Given Senator Paul’s obvious obsession with calling for my prosecution, his repeated slanderous comments about me, and recently his publicly releasing my unredacted personal diary aimed at embarrassing and intimidating me, 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.’”

Many on the political right have sought to shift blame to Dr. Fauci for the creation of the virus. Pres. Biden’s pardon of Fauci severely limited the Trump administration’s ability to prosecute him. The Executive Grant of Clemency provided “a full and unconditional pardon for any offenses against the United States which he may have committed or taken part in during the period from January 1, 2024 through the date of this pardon arising from or in any manner related to his service as Director of the National Institute of Allergy and Infectious Diseases, as a member of the White House Coronavirus Task Force or the White House COVID-19 Response Team, or as Chief Medical Advisor to the President.”

Notably, it does not cover acts after January 19, 2025, and would not cover contempt of Congress after that day.

Sen. Paul creatively devised a way to get at Dr. Fauci. If Dr. Fauci refused to testify, Sen. Paul could push a resolution to hold him in contempt of Congress. If Dr. Fauci testified, Sen. Paul could advance a resolution saying he had lied to Congress, and that could open the door for prosecution on other bases.

What’s Wrong with the Contempt Process?

For many people, Sen. Paul’s apparent vendetta against Dr. Fauci is most unsavory. However, Congress has broad investigatory power and it must be able to get information from current and former government officials, including White House officials. Watergate, Iran-Contra, and the terrorist attack in Benghazi are just a few examples of which Congress needed to exercise its might.

As Rosenberg describes, there are three mechanisms by which the House or Senate can hold an individual in contempt: inherent contempt, statutory civil contempt, and statutory criminal contempt. None of them work well.

Inherent contempt is a power possessed by parliaments to investigate and legislate effectively and was recognized by the Supreme Court in 1821 as a power held by the U.S. Congress. Per Rosenberg, under inherent contempt, “the individual is brought before the House or Senate by the Sergeant-at-Arms, tried in the House or Senate chamber, and then can be imprisoned upon conviction. The purpose of the imprisonment or other sanction may be either punitive or coercive.”

Inherent contempt could result in imprisonment or the imposition of a fine. Its greatest virtue is that it does not require the executive or judicial branches to enforce, which means they cannot thwart the enforcement of this power. Its greatest weaknesses are that it has not been used since 1935, it is cumbersome to implement, and the executive branch has claimed that it can be trumped by the fairly recent innovation of executive privilege.

Good government groups have proposed reviving inherent contempt, with the capability of imposing fines, as a way of vindicating Congress’s oversight powers and getting around the problems with statutory contempt.

I’m going to focus on criminal statutory contempt and discuss it along with civil contempt. There are significant differences, but we will elide that for our purposes. As Rosenberg explains, statutory criminal contempt was rarely used until the twentieth century, but, starting in 1935, it has become “essentially the exclusive vehicle for punishment of contemptuous conduct.” The greatest problem with statutory contempt as currently constructed lies in the prosecution of contempt.

Once the House or Senate has passed a resolution holding an individual in contempt, the statute directs a U.S. Attorney to bring charges. However, the Department of Justice has claimed that it has discretion as to whether to do so. In circumstances where executive branch officials are the subject of the contempt finding, the DOJ has at times refused to bring charges before a grand jury. Moreover, the Justice Department has asserted that executive privilege overrides Congress’s right to know.

This is an obviously untenable situation because it undermines Congress’s ability to perform its constitutional duties. Moreover, as the current administration views the Justice Department as an arm of presidential authority, at Trump’s beck and call, it is highly unlikely the Justice Department would effectuate a prosecution at Congress’s direction – unless, of course, a contempt finding is aimed at one of the president’s enemies. Dr. Fauci, unfortunately for him, falls in this little-foreseen category.

It may be possible to rewrite statutory contempt powers to protect Congress’s interests. The Justice Department could be directed to bring suit, but in light of recent Supreme Court rulings, that appears to be an unavailing approach. Another entity, such as an independent prosecutor, could be established to prosecute in circumstances where the House or Senate votes to hold an individual in contempt. This approach is reasonable, but in light of the Supreme Court’s collapsing of independent agencies inside the executive branch, it is unclear how such an office could be constructed. The appointment would have to come from outside the executive branch, such as by a federal judge or by Congress. Passing a statute to do this would likely face a presidential veto and would have to be packaged in must-pass legislation by a determined Congress.

The strongest card that Congress has is inherent contempt. It is worth advancing proposals to revitalize the power.

What About Dr. Fauci

Let’s assume, counter-factually, that the Senate passed an inherent contempt resolution instead of a statutory contempt resolution. Should the Senate use inherent contempt, Dr. Fauci would be at risk of incarceration (or payment of a fine) after the completion of Senate proceedings, which would entail a trial in the Senate. If convicted, he would have some recourse in the courts through a habeas corpus petition, but it would be expensive, stressful, and he might not prevail.

The limiting factor on the Senate would be that they’re playing with live ammo. Would a majority of senators really vote to hold him in contempt if their fingers are on the trigger? They might. We’ve seen other infringements by Congress before, such as with the House Committee on Un-American Activities. Sen. McCarthy himself was chair of the Senate Government Operations Committee and its Permanent Subcommittee on Investigations, a predecessor of the current Homeland Security and Governmental Affairs Committee, which Sen. Paul Chairs.

Engaging in such shenanigans right before an election may fire up the base, but it may not sit well with retiring Republican senators and may give some senators up for reelection pause.

On the other hand, it seems likely that many Trump administration officials have committed high and petty crimes. It also is highly likely that Pres. Trump will pardon everyone around him prior to leaving office. He also may rely on the Supreme Court’s grant of immunity for his actions as president, and may further pardon himself. Should a future Congress be able to force members of the Trump administration to truthfully answer questions about their criminal activities and hold them in contempt for lying or refusing to provide information?

Republicans in the House have recently advanced inherent contempt resolutions. In 2024, Rep. Luna’s H. Res. 1344 sought to fine Merrick Garland for defying a subpoena. It failed by a vote of 204-210, with 204 Republicans in support and four opposed.

Should the House flip in November, that question moves from theoretical to practical.

In 2020, Reps. Lieu, Cicilline, Demings, Raskin, and Neguse called on the House to pass the Congressional Inherent Contempt Resolution, which “would enable the House to independently enforce subpoenas and other Congressional actions by directly levying penalties against those refusing to comply.” Similar legislation was reintroduced by Cicilline, Raskin, Dean, Demings, and Neguse in 2022. It came up during 2020 Member Day testimony before the House Rules Committee, when Rep. Lieu testified and Reps. McGovern and Woodall agreed with the general idea of inherent contempt so long as the system is workable and fair.

Should Democrats retake the House, Rep. McGovern most likely will return as Chair of the House Rules Committee, and Rep. Raskin would return as chair of the House Judiciary Committee.