Fauci in the congressional wringer: a test for Trump's newly-minted Attorney General

Contempt of Congress.

It sounds bad. And it usually is.

But what does it mean?

Holding someone in contempt of Congress usually stems from them refusing to testify before a House or Senate committee or declining to provide documents and information requested by lawmakers. Especially if someone rejects an inquest by subpoena. 

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You refuse to cough up the goods, and Congress may try to hold you in contempt.

And if you’re held in contempt, lawmakers may send a referral to the Justice Department. That’s kind of a parliamentary suggestion box, informing the feds that House Members or senators believe you’ve earned prosecution. 

The Senate Homeland Security and Governmental Affairs Committee voted recently to hold Dr. Anthony Fauci in contempt of Congress for refusing to answer questions at a hearing. The panel issued a subpoena to compel Fauci’s compliance. Republican senators say that’s all the more reason why Fauci should testify. They point to his pardon by then-President Joe Biden. That’s why they believe Fauci was obligated to answer their inquiries. Instead, he invoked the Fifth Amendment.

"On the advice of counsel, I respectfully decline to answer based upon my rights under the Fifth Amendment of the Constitution," said Fauci.

Twenty-one words. Uttered an astounding 111 times. That’s a grand total of 2,331 words. Fauci never deviated from the script.

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Democrats say it was a Republican ruse.

"The goal was to wait for Dr. Fauci to make any kind of misstatement and then have a weaponized Department of Justice file criminal charges for that new statement that would not have been covered by the pardon," said Sen. Maggie Hassan, D-N.H.

So the panel took action. It voted 8-5 to hold Fauci in contempt. A party line vote.

"I've never voted to hold somebody in contempt. But if there's one person that should be held in contempt, it is Anthony Fauci," said Sen. Rick Scott, R-Fla.

Sen. Gary Peters, D-Mich., is the ranking Democrat on the Senate Homeland Security Committee.

He warned that the GOP gambit is dangerous.

"Criminal contempt is punitive. It does not compel a witness to answer questions or produce the documents we'd all like to see. What we'll do is create a damaging precedent that future witnesses will use to resist legitimate Congressional oversight and weaken this committee's ability to compel testimony."

Senate Homeland Security Committee Chairman Rand Paul, R-Ky., was unbowed.

"We will hand carry this over to the Attorney General. We will hand carry this to the district court here in (the District of) Columbia," said Paul.

Even though at the time, the DOJ only had an acting Attorney General.

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However, Paul was freelancing. He ignored the custom of the entire Senate voting to refer someone to the Justice Department for prosecution.

The Kentucky Republican himself previously sent other, unilateral referrals to the DoJ asking for Fauci’s prosecution. But those efforts never even went through committee. Fox can’t locate any precedent for such an independent maneuver. Especially circumventing the Senate floor.

Republicans control the Senate. It’s unclear whether there would be 51 votes to hold Fauci in contempt. But there is almost no scenario where the Senate could find 60 votes to break a filibuster on a contempt of Congress resolution of this nature. 

This is why Democrats argued that Paul is out of line.

"No individual center senator and no committee speaks for the entire Senate as a whole," fumed Peters. "The chairman has also suggested he may attempt to refer this matter to the Department of Justice without approval of the full Senate. That would be even more dangerous and widely unprecedented."

The DOJ says it "seriously reviews all Congressional referrals." But Democrats believe the GOP’s disregard for Fauci invoking the Fifth could undermine any prosecution.

"It is almost certainly never going to be approved by a court because it violates basic constitutional rights," said Sen. Richard Blumenthal, D-Conn.

In a statement, Fauci’s attorney, David Schertler, accused Paul of trying to "weaponize the Justice Department" against his client. Democrats asserted that before Fauci’s hearing, Republicans cut them out of their inquiry.

"We have been excluded from witness interviews," said Peters.

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But Republicans say Democrats showed no interest in their findings and revelations.

"They have all been uploaded on a website that you were invited to join," said Paul. "You never even asked for the password."

However, the Republican inquiry is just starting. Another Senate panel has now obtained a copy of the Health and Human Services phone Fauci used during the pandemic.

"It's frustrating we haven't gotten these devices until now. But now we have them," said Sen. Ron Johnson, R-Wis., on Fox.

Johnson says decrypting that phone could answer questions which Fauci refused to address during the hearing.

Two interesting developments emerged since Fauci testified in late July. First, the U.S. Attorney for the District of Columbia Jeannine Pirro dropped her prosecution of former Olympian David Hearn for allegedly vandalizing the Reflecting Pool on the National Mall. President Donald Trump then upbraided Pirro.

Does this mean that Pirro is doing things by the book? Would that diminish chances for prosecution of Fauci? Or, since Pirro enraged the president, could she redeem herself by prosecuting Fauci? After all, Trump said he wanted Fauci prosecuted.

However, the ultimate decision to prosecute is up to the new Attorney General, Todd Blanche. Sens. Lisa Murkowski, R-Alaska, and Susan Collins, R-Maine, vowed to oppose Fauci. With former Senate Majority Leader Mitch McConnell, R-Ky., out, the GOP couldn’t lose any more votes without tanking the nomination. It boiled down to Sen. Bill Cassidy, R-La. – who was undecided. Cassidy announced Friday morning he would vote yea on Blanche.

"I am particularly concerned about episodes of apparent lawfare. DoJ bringing suits against political enemies. Presidents of both parties have been guilty of this. It must stop. It should stop now. A never-ending cycle of prosecuting political enemies undermines the rule of law," said Cassidy. "I'm not entirely satisfied where where this is."

But Cassidy said he was comfortable enough to confirm Blanche.

Democrats will say any prosecution of Fauci is emblematic of the very weaponization which Cassidy fretted about. And this could be a special test case for the new Attorney General.