Justice Department to Review Fauci Referral After Senate Committee Votes to Hold Him in Contempt of Congress

Senate Republicans voted to hold Anthony Fauci in contempt of Congress in the latest escalation of their effort to prosecute the former federal health official over his refusal to answer questions about the government’s handling of the COVID-19 pandemic.

The Contempt Vote

As reported on Friday’s AM Update, Republicans on the Senate Homeland Security and Governmental Affairs Committee approved the contempt resolution yesterday in an 8-7 vote along party lines. The vote followed Fauci’s appearance before the committee last week where he invoked his Fifth Amendment right against self-incrimination 111 times.

Fauci refused to answer questions ranging from his views on the origins of COVID to the color of his tie and the day of the week. The former director of the National Institute of Allergy and Infectious Diseases argued in his opening statement that committee Chairman Rand Paul (R-KY) had already made clear he wanted him prosecuted, which left him concerned that virtually anything he said could be used against him.

Sen. Paul rejected that argument, contending that Fauci faced no legitimate threat of federal prosecution for conduct covered by the sweeping pardon issued by former President Joe Biden in his final days in office.

“Eight days ago, Dr. Anthony Fauci sat before this committee in the witness chair under subpoena for conduct covered by President Biden’s full and unconditional pardon, reaching back to 2014. Dr. Fauci faced no risk of federal prosecution. All he had to do was tell the truth,” Paul said in his opening remarks Thursday. “More than 100 times, though, he refused. The chair ruled that Dr. Fauci’s assertion of the Fifth Amendment privilege was unsupported in light of the pardon and the testimony he offered in his opening statement. The chair directed Anthony Fauci to answer. He refused again.”

“That is what we are voting on today – not his opinions, not his policies, not anything he said from a podium six years ago. We are voting on whether a witness who has received the benefit of a sweeping federal pardon can be ordered by this committee to answer questions and then defy that order without consequence,” the senator added.

Democrats repeatedly tried to stop the resolution and forced five separate votes aimed at tabling the measure. Republicans defeated all five attempts along party lines before advancing the contempt resolution.

In a statement, Fauci’s attorney, David Schertler, called the resolution “a continuation of Sen. Paul’s personal vendetta against Dr. Fauci, who spent 50 years in public health and has saved countless lives.” He went on to say it is “shameful and wrong that Sen. Paul is abusing his power by trying to weaponize the Justice Department against an honorable public servant.”

DOJ Referral

Paul told reporters after the vote that the referral would be hand-delivered to the Justice Department. He also left open the possibility of seeking a full Senate vote at a later date, though the resolution would likely fall short of the 60 votes needed to overcome a filibuster.

The DOJ does not have to wait for that vote. Instead, federal prosecutors can review the committee’s referral and decide on their own whether to pursue charges. They would still have to present the case to a federal grand jury and convince it there is enough evidence to indict Fauci.

Legal Theories

Any potential prosecution would likely hinge on whether Fauci had a valid legal basis to invoke the Fifth Amendment. On CNN, senior legal analyst Elie Honig concluded he did. “Any person can take the Fifth when they’re questioned by Congress. You have that right. The complication here, of course… is that Dr. Fauci received a pardon from Joe Biden. If a person has been pardoned, he cannot be criminally charged for anything within the scope of that pardon and, therefore, you cannot take the Fifth for anything within the scope of the pardon,” he explained.

“But the third thing, and the wrinkle here, is Dr. Fauci’s position through his lawyer is he might still have criminal exposure outside the scope of that pardon. That pardon only covers federal crimes.” Honig continued. “He could still be prosecuted for state crimes. We know there have been various state attorney general investigations of Dr. Fauci. He also could theoretically be charged for anything after the date of the pardon, after January 19, 2025. And on that basis, I believe Dr. Fauci does have a valid legal right to take the Fifth.”

AM Update poke with attorney and Article III Project founder Mike Davis, who reached a very different conclusion. “Tony Fauci got a Biden pardon, and then Tony Fauci gave an opening statement, which waives his Fifth Amendment right against self-incrimination, and then he sat there after giving this opening statement and refused to answer the Senate’s questions. The Senate should absolutely refer Tony Fauci to the Justice Department, and the Justice Department should absolutely prosecute him for contempt of Congress and an obstruction of a congressional investigation,” he said.

Davis also framed the case as part of a broader push for accountability for Americans who believe Fauci has never faced justice for his role in the pandemic. “Tony Fauci has a presidential pardon from Joe Biden, so it’s going to be very hard to put him in prison for his federal crimes up to the point of his testimony. But now that he has obstructed this congressional investigation and shown contempt of Congress, he can go to jail for those crimes,” he explained.

“It would be prosecuted in Washington, D.C., and who knows? Maybe a D.C. jury, a grand jury, a petit jury would nullify this by not bringing charges or not finding him guilty. But the Trump Justice Department should absolutely put him through this process,” Davis noted. “He deserves to go to prison. Tony Fauci is a monster. He created COVID in a Wuhan lab. He lied about it. He covered it up. Millions died, trillions in lost treasure. This guy absolutely should go to prison, and I encourage every state and local prosecutor around America to explore charges against Tony Fauci. This guy is a mass murderer, and he’s a monster.”

You can get all the day’s headlines by tuning into the AM Update with Megyn Kelly on YouTube, Apple Podcasts, or wherever you like to listen. And don’t forget that you can catch AM Update on SiriusXM’s The Megyn Kelly Channel (channel 111).