by Just the News
Issue is further complicated by the role of the Senate president, who is now Vice President JD Vance. Whether Vance Vance would certify the contempt referral without a vote by the full Senate is unclear.
The answer to whether a Senate committee leader indeed has the legal authority to send a so-called "criminal contempt referral" to the Justice Department for Dr. Anthony Fauci declining to answer questions at a recent committee hearing on the COVID pandemic appears centered on the intersection of federal law and congressional practices.
The leader, GOP Sen. Rand Paul, chairman of the Senate Homeland Security and Governmental Affairs Committee, is attempting to send the referral to the department without a full Senate vote.
Such a move sidesteps a longstanding congressional practice that generally calls for the full vote before a contempt citation is formally referred for prosecution.
Following a party line vote Thursday by the committee in favor of Paul's plan, the Kentucky senator said he intends to transmit the committee’s referral directly to the Justice Department and the U.S. Attorney for the District of Columbia rather than first seeking approval from the full Senate.
Democrats on the committee have condemned the move as a violation of Senate procedure and an unprecedented attempt to bypass the chamber.
At the July 29 hearing on the federal response to COVID-19 and the virus' origins, Fauci, as the former director of the National Institute of Allergy and Infectious Diseases, invoked his Fifth Amendment right against self-incrimination more than 100 times.
One possible outcome regarding the referral is that federal prosecutors might not even decide to consider it, much less whether to bring charges, until the Senate settles the procedure dispute.
Another less likely scenario is that Paul puts the referral to a full chamber vote, considering if all 53 Senate Republicans voted in favor, they would still help from the Senate Democratic Conference to overcome the 60-vote filibuster, unless the parties reach an agreement to consider the matter under different procedures.
“This way we don’t sit a month waiting to determine whether or not to bring [the referral] the Senate floor,” Paul told reporters after Thursday’s committee vote. “It will immediately be referred over, and I think it’s important for [the DOJ] to look at.”
Paul has argued that the committee’s action is sufficient to initiate the referral because criminal contempt proceedings are not ordinary legislation and the governing statute does not expressly state that the full Senate must vote.
Statutory Framework
Criminal contempt of Congress is governed principally by 2 U.S.C. § 192, which makes it a misdemeanor for a witness to willfully fail to comply with a subpoena issued by either chamber or one of its committees. The statute provides for a fine and imprisonment of not less than one month nor more than 12 months.
The referral mechanism is set out in 2 U.S.C. § 194. Under that provision, when a committee reports a witness’s failure to comply with a subpoena, the facts are to be presented to the President of the Senate or the SPeaker of the House. The presiding officer then has a duty to certify the matter to the appropriate U.S. attorney, who presents it to a grand jury.
The statute does not expressly say that the full Senate must approve a contempt citation before the referral can be made. But for decades, congressional practice has generally treated a vote of the full chamber as an important step in the criminal contempt process, particularly in the Senate.
That history creates the central legal question facing Paul’s effort: whether the committee can exercise a power that the Senate has traditionally reserved for the chamber as a whole.
A Test of Senate Procedure
The issue is further complicated by the role of the President of the Senate. The resolution adopted by Paul’s committee contemplates certification by Vice President JD Vance, who serves as president of the Senate. It remains unclear whether Vance would certify the contempt referral without a vote by the full Senate.
The statute contains provisions addressing congressional action when Congress is not in session, but those provisions do not clearly establish that a committee may independently trigger the criminal referral process without involvement from the full chamber. Legal experts have therefore characterized Paul’s approach as occupying a significant procedural gray area.
Fauci Invokes the Fifth Amendment
A future prosecution would also raise questions beyond the referral procedure itself. The Justice Department retains prosecutorial discretion even after receiving a congressional contempt referral and is not automatically required to bring charges. Prosecutors would have to evaluate both the legal sufficiency of the referral and whether the evidence supports a criminal prosecution.
Fauci’s actions at the July 29 hearing would likely be central to that analysis. Beyond repeatedly invoked the Fifth Amendment and saying he was concerned that the hearing could be used to create a “perjury trap,” he also pointed to a preemptive pardon issued by President Joe Biden that covered certain official conduct during the Biden administration through early 2025.
Paul rejected Fauci’s reliance on the Fifth Amendment and argued that the pardon eliminated any potential criminal exposure for the conduct under examination. He also ordered Fauci to answer the committee’s questions and warned that continued refusal could result in contempt proceedings.
The effect of the pardon on Fauci’s Fifth Amendment privilege could itself become a major issue if prosecutors pursue the matter.
The privilege against self-incrimination generally protects a witness from being compelled to provide testimony that could be used against him in a criminal case. Whether a pardon eliminates the basis for asserting the privilege depends on the scope of the pardon and the nature of the potential criminal exposure.
The committee’s contempt resolution accuses Fauci of willfully refusing to comply with the subpoena and seeks to invoke Congress’s criminal contempt authority.
Next Steps
Some Senate Republicans have expressed support for using the contempt power but have indicated that the traditional process may still warrant a vote by the full chamber. Senate Majority Leader John Thune has said the contempt tool “ought to be available,” while stopping short of committing to bring Paul’s resolution to the Senate floor or change existing Senate procedures.
Paul, meanwhile, has left open the possibility of a later Senate vote but has emphasized the need for immediate action rather than waiting for the matter to work its way through the chamber.
The controversy therefore presents a test not only of Congress’s power to enforce its subpoenas but also of the relationship between statutory text and longstanding legislative practice. Section 194 provides a relatively straightforward mechanism for transmitting a contempt matter to federal prosecutors, but decades of congressional precedent may complicate an attempt to use that mechanism without approval from the full Senate.
The Justice Department’s response could ultimately determine whether the procedural dispute becomes more than an academic one. If prosecutors decline to act, the immediate consequences may be limited to a congressional dispute over procedure. But if prosecutors pursue charges, Fauci could challenge the referral in court, potentially putting the Senate’s historical contempt procedures, the committee’s authority, the scope of its investigation and the effect of the Biden pardon squarely before a federal judge.
For now, Paul’s effort places those unresolved questions at the center of an unusually high-profile confrontation between Congress and one of the most prominent figures associated with the federal government’s response to the COVID-19 pandemic.
Just the News
Source: https://justthenews.com/government/congress/issue-whether-paul-can-get-fauci-contempt-referral-doj-centers-nexus-hill-rules
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