WATCH: GOP split over Rand Paul’s DOJ strategy in Fauci contempt push
Republican senators debated Sen. Rand Paul's, R-Ky., plan to send a criminal contempt referral against former White House COVID advisor Anthony Fauci directly to the Department of Justice, raising questions about the legal viability of the effort and the procedural path forward.
Paul, the leader of the push, told Fox News Digital on Tuesday that he was confident the votes would be there to move forward with holding Fauci in contempt of Congress, and that his next plan is to move forward with sending the referral directly over to the Justice Department.
Sen. Josh Hawley, R-Miss., said his office has already begun drafting a memo to Acting Attorney General Todd Blanche to urge the Justice Department to pursue a criminal contempt case against Fauci.
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"My team is working right now on a memo to Blanche explaining why we think that he can be prosecuted for contempt of Congress," Hawley told Fox News Digital. "He's not entitled to immunity, taken the Fifth, when he already has a pardon. It’s one or the other. "
After the Homeland Security and Governmental Affairs Committee voted Thursday to hold Fauci in contempt, the next step is typically for a full Senate vote to be held.
"It's got to actually go through the full Senate," Lankford said. "That's the challenge."
But Paul’s more unusual plan to skip the vote in the Senate and send the criminal referral straight to the Justice Department could be a viable route. Vice President J.D. Vance, the President of the Senate, would have to certify the resolution and refer it to the U.S. Attorney for the District of Columbia. This would likely be make it easier to prosecute Fauci as it wouldn’t require 60 votes in the Senate.
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Lankford brought up the risk in utilizing this procedure as it could prompt a potential for Democrats to use it to their advantage in the future.
"The vice president would have to make a decision if he wants to try to change the structure of what has been done in the Senate, because then that would make them vulnerable three years from now to a future, maybe, Democrat Senate," Lankford said.
Sen. Ashley Moody, R-Fla., backed Paul’s decision to send the contempt referral to the Justice Department, as she believes it is "necessary" to be resolved in a court regardless.
"I think Rand Paul feels very strongly that you can't have him coming in and pleading the Fifth in this situation," Moody said. "I think he also believes ultimately this will wind up in a court and that will be clarified by a court, and I think that's probably necessary as we move forward."
Fauci is under a presidential pardon for all actions taken between Jan. 1, 2014, and Jan. 19, 2025, from former President Joe Biden, which has prompted widespread doubt on whether he is able to invoke his Fifth Amendment right to not self-incriminate.
Sen. Mike Rounds, R-S.D., told Fox News Digital he questions whether there is a sufficient legal basis for holding Fauci in contempt, arguing that his invocation of the Fifth Amendment complicates the case.
"The first thing you have to do is identify what it is that you would be holding him in contempt for," Rounds said. "I think he took the Fifth. And doing so, I think it makes it more difficult for anybody to actually suggest that."
He also urged his colleagues to remember the fear they all shared during that time period, over the rapidly increasing death rate and the looming uncertainty.
"Whether the advice was really good advice or if it was the best advice they had, it was a different time period," Rounds said. "So I just hope we all remember that."