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Hellbent on putting Fauci in jail, Rand Paul wants to skip a Senate vote

The Kentucky senator and nemesis of America’s Covid czar says he’s taking his case straight to the attorney general.

By Simon J. Levien and Robert King

Rand Paul wants to fast-track prosecution of former Covid czar Anthony Fauci.

The legal process will be fraught.

After the Kentucky Republican pushed a contempt of Congress resolution through his Senate committee on party lines Thursday morning — saying Fauci had impeded his investigation of the pandemic by refusing to answer questions last week — Democrats demanded he take it to the full Senate for a vote they could filibuster. Paul said he’s going to instead take it straight to the attorney general.

For Fauci, the difference is massive. A failed Senate vote to hold him in contempt would show he’s still got defenders after Republicans released a diary showing his enthusiasm for fame and then grilled him while he took the Fifth. A referral to the attorney general puts a decision on prosecution in the hands of a Trump Justice Department that has shown it’s willing to play politics.

“Maybe he should” be prosecuted, President Donald Trump told reporters about Fauci on Thursday, referencing the contempt prosecutions of two of his allies, Steve Bannon and Peter Navarro, that began when Democrats controlled Congress. “What he did is far more serious than a lot of crimes.”

After his committee voted, Paul said he’s sick of waiting to hold his pandemic nemesis accountable. “This way we don’t sit a month waiting to determine whether or not to bring it to the Senate floor,” he told reporters. “It will immediately be referred over, and I think it’s important for them to look at.”

But the committee vote is no criminal charge, and Paul’s shortcut opens several legal pitfalls. It’s far from certain, legal experts say, that a committee can trigger the contempt process without a full Senate vote. It is also unclear whether the pardon President Joe Biden issued Fauci, barring federal prosecution for any of his official actions from 2014 till Biden’s last day in office, meant Fauci couldn’t take the Fifth. Paul contends it does. Fauci invoked his Fifth Amendment right against self-incrimination during a hearing before Paul’s Homeland Security and Governmental Affairs Committee last week more than 100 times.

Paul is in a “legal netherland,” according to Stan Brand, the former counsel to House Speaker Tip O’Neill who also represented Navarro and another Trump aide, Dan Scavino, during contempt proceedings over their refusal to testify before the House committee investigating the Jan. 6, 2021, Capitol riot.

The House held both Navarro and Scavino in contempt in a floor vote. Navarro was later convicted on contempt charges while the Justice Department declined to prosecute Scavino. Unlike the Senate, the House can pass contempt resolutions on simple majority votes. The Senate standard is 60, usually requiring bipartisan support.

Brand doubts Paul’s gambit. “This is just another example of boys gone wild, tearing loose from the mores of procedure, regular order, constitutional doctrine to vindicate some political vendetta,” Brand said. “And it’s going to fail like all the others have failed.”

He added that a grand jury cannot pursue a contempt indictment without the approval of the Senate or its leader. “Without that, it’s flawed ab initio.”

The procedural question could turn on the wording of federal statute. In an interpretation favorable to Paul, U.S. Code may permit a contempt resolution to go through the Senate president when Congress is not in session. In this case, the fate of Paul’s resolution would be in Vice President JD Vance’s hands. Vance, who also serves as Senate president, would have to choose to certify it and then refer it to the U.S. attorney for D.C., Jeanine Pirro.

But the law does not clearly resolve whether a committee vote alone is sufficient — or what kind of recess makes Congress “not in session.” The Senate is expected to be out for more than a month.

That makes the committee-only approach “a little bit of a gray area, so I think you could try that,” said Jonathan David Shaub, a professor of law and public policy at the University of Kentucky’s Rosenberg College of Law. “It would really be up to the Justice Department to decide if that was valid or not.”

Even if Vance certifies a referral, the U.S. attorney’s office in Washington could be another stopping point. A congressional referral does not itself compel the Justice Department to charge anyone. It would be up to Pirro’s office whether to open a probe and seek an indictment. Shaub said prosecutors could decline if they conclude the referral has procedural issues or that Fauci validly invoked the Fifth Amendment. And if prosecutors do bring a case, Fauci’s attorneys could argue these procedural concerns before a judge.

Regardless, Paul has not indicated tapping Vance is a route he would pursue. He has also not been successful in previous demands that the Biden and Trump administrations investigate Fauci.

While Senate Majority Leader John Thune has said a contempt vote “ought to be available to us,” he has given no sign he would exercise the so-called “nuclear option,” a drastic rule change to eliminate the 60-vote requirement. Thune has resisted calls from his colleagues and Trump to make that change to pass other legislation.

The merits of a federal case against Fauci would present a separate debate about whether taking the Fifth Amendment shielded him from his responsibility to answer questions before Paul’s committee. The criminal contempt of Congress rules can and have punished witnesses who refuse testimony during hearings. Republicans argue Biden’s pardon removed Fauci’s risk of federal prosecution for the conduct senators wanted to examine and so he had to testify.

But the pardon covered only federal offenses committed before it was issued in January 2025 — not state charges or new, post-pardon offenses including perjury committed at the hearing. Fauci suggested Paul was setting a perjury trap and gave that as his reason for taking the Fifth. (In recent weeks, several red-state attorneys general have begun their own investigations into Fauci’s conduct.)

Josh Chafetz, a Georgetown law professor who has researched contempt of Congress, said on social media that despite Paul’s “obsession” with Fauci, he had an obligation to testify truthfully. Jonathan Turley, a George Washington University law professor who testified in the Clinton and Trump impeachment hearings, said on his website that the pardon’s impact is legally “murky.”

“The odds favor Fauci in a court finding that he can still invoke the privilege,” Turley wrote of Fauci’s decision to take the Fifth Amendment. “In any challenge, a court would likely find that there remains a risk of self-incrimination.”

Paul and his colleagues have said repeatedly Fauci should be behind bars, accusing him of covering up the origins of the coronavirus. Those threats, Brand argued, could be cited as an inadmissible reason to subpoena Fauci in the first place. Fauci’s legal team has taken note.

“The Senate should reject Senator Paul’s meritless and politically-motivated contempt resolution,” David Schertler, Fauci’s lawyer, said in a statement. “It is shameful and wrong that Senator Paul is abusing his power by trying to weaponize the Justice Department against an honorable public servant.”

A criminal contempt of Congress conviction is punishable with a fine up to $100,000 and imprisonment between one month and a year, according to statute.