Senate panel votes to hold Fauci in contempt of Congress over Covid hearing

Fauci, the former director of National Institute of Allergy and Infectious Diseases (Niaid), who led the agency for 38 years before retiring in 2022, gave the same response to multiple questions while refusing to give clarifying answers during a tense hearing last week, citing his constitutional protections.

The Senate homeland security and government affairs committee voted in favor of referring a potential criminal case against Fauci to the US Department of Justice.

The committee is chaired by Republican Kentucky senator Rand Paul, whom Fauci last week accused of having an “unhinged obsession” with him as he refused to answer questions at the hearing.

Paul insisted on Thursday that he wasn’t trying to entrap Fauci. “He had no liability if he told the truth,” Paul said during the hearing.

But top Democrats criticized the Republicans-led process. Michigan senator Gary Peters, the ranking Democrat on the Senate panel, said the process to subpoena Fauci and now to hold him in contempt accomplish nothing to advance public health.

Paul’s work amounts to “a one-sided investigation and a rushed process … that could harm our ability to conduct future investigations”, said Peters.

The fifth amendment is enshrined in the US constitution as a protective measure intended to save individuals from being forced to incriminate themselves when under investigation or asked to provide testimony.

The evening before the vote, it emerged that the US Department of Health and Human Services had provided a copy of Fauci’s phone to a Senate subcommittee. “Hopefully, this device will address many of the questions he refused to answer at last week’s hearing,” Republican Ron Johnson of Wisconsin, the subcommittee’s chair, wrote on social media.

Fauci, 85, who was pardoned by Joe Biden at the end of his presidency, declined to answer questions after accusing Paul of harboring a goal of “embarrassing and intimidating me” and of putting him “behind bars” because of his leading role in urging widespread restrictions, including masking and social distancing, to combat the pandemic.

The senator has long accused Fauci of deliberately downplaying the possibility that the virus of originated from a research laboratory in the Chinese city of Wuhan, rather than jumping from an animal to humans in a wet market, as most scientists believe.

“Although it pains me to do so, because of the respect I have for the legislative branch of government and my decades-long record of cooperating with Congress, under the advice of my attorneys I will invoke my right under the fifth amendment of the constitution to refrain from answering your questions,” Fauci said during the hearing.

Thereafter, he warded off all subsequent questions with identical answers that invoked the fifth amendment, enraging his Republican critics.

“On the advice of counsel, I respectfully decline to answer based upon my rights under the fifth amendment of the constitution,” he said dozens of times, in an undeviating answer to different questions.

Paul – who had subpoenaed Fauci to appear – warned him during the hearing that his stance would have “repercussions”.

Later, he told him: “Because you refuse to answer, citing a privilege that is unsupported because of your pardon, and after being denied to do so, this committee has scheduled a vote next week on a resolution certifying your contempt.”

It is unclear whether a vote in favor of contempt will have legal force.

According to the constitution, the fifth amendment guarantees that no individual “shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law”.

The US supreme court has confirmed in several decisions since 1955 that witnesses can invoke it in congressional investigations, according to the Library of Congress.

“Although the [Fifth] amendment’s protection expressly refers to criminal cases[s], the Court has nevertheless found the privilege against self-incrimination to be available to a witness appearing before a congressional committee,” the library’s annotated interpretation of the constitution states.

Paul has insisted Fauci is precluded from pleading the fifth, however, on the grounds that the preemptive pardon Biden granted him means he cannot be prosecuted for any of the matters senators were asking him about.

Paul argued that Fauci’s refusal to answer could lead to criminal prosecution for contempt of Congress or obstructing a congressional proceeding.

Federal law makes it a crime for witnesses to “willfully” refuse to answer questions when called to give congressional testimony. A separate law makes it illegal to obstruct an investigation by a congressional committee.

Fauci’s lawyers have argued that he is on unassailable legal grounds by pleading the amendment.

Robert Mackey contributed reporting