Today the Senate Homeland Security and Governmental Affairs Committee (HSGAC) voted, 8-5 along party lines, to hold Dr. Anthony Fauci in contempt of Congress for refusing to answer questions before the committee. The HSGAC resolution provides:
Resolved, That pursuant to sections 102 and 104 of the Revised Statutes (2 U.S.C. 192, 194), the President of the Senate shall certify the report of the Committee on Homeland Security and Governmental Affairs of the Senate, detailing the refusal of Dr. Anthony S. Fauci to answer questions pertinent to the subject under inquiry, to the United States Attorney for the District of Columbia, to the end that Dr. Fauci be proceeded against in the manner and form provided by law.
Section 192 of Title 2 provides, in relevant part, “[e]very person who having been summoned as a witness by the authority of . . . any committee of either House of Congress . . . who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor . . . .”
Notwithstanding this language, it is well established that witnesses before Congress may not be punished for valid assertions of their constitutional rights, including the privilege against self-incrimination. Here Fauci refused to answer based on that privilege. Ordinarily that would end the matter unless the committee chose to grant him testimonial use immunity (see 18 U.S.C. §§ 6002, 6005). In this case, however, the committee majority contends that Fauci could not validly invoke the privilege because he received a full pardon from President Joe Biden for the events that were under inquiry by HSGAC.
The main substantive legal issue presented by the contempt is whether that pardon means that Fauci has no reasonable fear of self-incrimination and therefore may not validly invoke the privilege. Fauci argues that it does not, pointing to the fact that Republicans, including President Trump himself, have questioned the validity of Biden’s “autopen pardons.” Even if the pardon ordinarily would provide adequate assurance against prosecution, Fauci’s lawyers will argue, it does not do so under these circumstances, particularly given the current administration’s demonstrated willingness to prosecute political enemies without justification.
Not being a criminal lawyer or having researched the question, I will not weigh in on whether Fauci has a winning argument on this point. (There is some good discussion in this AP article). It is worth noting, though, as Daniel Schuman discusses here, that a decision against Fauci could enhance a future Congress’s ability to get information from Trump administration officials if/when Trump pardons them.
However, before we get to that point there is a major procedural obstacle to prosecuting Fauci. Section 194 of Title 2 provides:
Whenever a witness summoned as mentioned in section 192 of this title fails to appear to testify or fails to produce any books, papers, records, or documents, as required, or whenever any witness so summoned refuses to answer any question pertinent to the subject under inquiry before . . . any committee or subcommittee of either House of Congress, and the fact of such failure or failures is reported to either House while Congress is in session or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or the Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.
Some important aspects of this section may not be immediately apparent from reading its rather dense language. It might appear that once “a statement of fact constituting such failure” is reported to the Senate or, if the Senate is not in session, to the president of the Senate that it is the automatic duty of said officer to certify the statement of fact to the “appropriate United States attorney” for presentation to a grand jury. However, the invariable congressional practice under the statute is that when the contempt is reported to the House or Senate, as the case may be, the legislative body itself must vote to certify the contempt before the presiding officer will do so.
There is an exception to that requirement when Congress is not in session. In that case the speaker or president of the Senate may certify the contempt without a vote of the body. The last (and possibly the only) time this was done was in December 1964, when Congress was not in session and a House committee transmitted to the speaker a report regarding witnesses who had refused to testify before one of its subcommittees. The speaker, based on advice from the parliamentarian, understood that he had a mandatory duty to transmit the report to the U.S. attorney. However, the D.C. Circuit rejected that reading of the statute and reversed the convictions that followed. See Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966).
The court began its analysis by finding that when Congress is in session, a vote by the legislative body is required by the statute. Relying on consistent congressional practice and legislative history, it concluded that “it is clear that where the alleged contempts are committed while Congress was in session, the Speaker may not certify to the United States Attorney the statements of fact prepared by the Committee until the report of alleged contempt has been acted upon by the House as a whole.” Review by the legislative body was intended to serve as “a ‘check’ on hasty action by the committee” and reflected the view “that it is inherently unfair to permit the allegedly insulted committee to provide the sole legislative determination whether to initiate proceedings to prosecute for contempt.”
The court also rejected the argument that the statute failed to provide such “legislative surveillance” when the Congress was not in session. Instead, it held that the statute should be read to require the president officer of the chamber in question to provide the same sort of consideration that the legislative body itself would have provided had Congress been in session. The contrary interpretation “would enable committees, by scheduling hearings when Congress is not in session, or recalling witnesses at that time, or perhaps merely be postponing reports on allegedly contemptuous conduct until after adjournment, effectively to insulate their actions on contempt matters from any further consideration within the legislative branch.”
Both Congress and the executive branch have understood, both before and after the Wilson case, that certification under 2 U.S.C. § 194 is required to prosecute a witness for contempt of Congress. No one has ever been convicted for contempt without a certification under that section, although there have been instances in which defendants have agreed to plead guilty to a contempt of Congress charge without such a certification.
This presents a problem for HSGAC and its chairman, Senator Rand Paul. Because Fauci’s alleged contempt occurred while Congress was in session, a vote of the Senate is required before Fauci may be prosecuted, at least under black letter congressional law as explicated by the Wilson court, understood by congressional and executive branch lawyers, and consistently followed in government practice. Moreover, a Senate resolution to hold Fauci in contempt would presumably be subject to filibuster and therefore could be blocked by the Democratic minority.
Paul might try to get around this by waiting until Congress is out of session and then submitting the HSGAC contempt report to the president of the Senate. But this poses two problems. First, as the dicta from Wilson quoted above suggests, it is unclear whether it is enough for the contempt report to be submitted while Congress is out of session or whether the contempt must be committed after adjournment. Second, it is also unclear when, if ever, Congress will be out of session for purposes of 2 U.S.C. § 194 since it is Congress’s current practice to hold pro forma sessions every three days in order to prevent the president from making recess appointments.
It appears that Paul intends to simply ignore these problems and submit the contempt report directly to Vice President Vance even though Congress is in session. Presumably he believes that Vance can be persuaded to defy prior practice and precedent and certify the contempt to United States Attorney for the District of Columbia Jeanine Pirro, who will likewise be willing to present the matter to the grand jury.
Perhaps he is right. Certainly this administration has not been shy about bringing dubious cases that have been rejected by courts and grand juries alike. Vance might be willing to certify and Pirro to prosecute regardless of the legal arguments to the contrary. On the other hand, does Vance want to get personally involved in a prosecution which will almost certainly be rejected by the courts, if it even survives the grand jury? Particularly considering that he cannot claim to be performing a merely ministerial function, but would be conducting the “legislative surveillance” normally performed by the Senate?Similarly, does Pirro need another high profile loss, fresh off her reflecting pool debacle?
It should also be mentioned that there is already a Senate contempt resolution which is on Pirro’s desk, but on which she has taken no action. On September 19, 2024, the Senate Health, Education, Labor and Pensions committee (HELP) voted to hold Ralph de la Torre, a healthcare CEO, in contempt for failing to appear before the committee as required by a subpoena. The HELP committee transmitted the report regarding de la Torre (ironically, also a doctor who asserted the privilege against self-incrimination in response to the subpoena) to the full Senate, which by unanimous consent agreed to the contempt resolution on September 25, 2024. Since then the U.S. attorney’s office (during both the Biden and Trump administrations) have failed to present the matter to a grand jury, despite the apparently mandatory statutory language requiring such presentation. If the U.S. attorney now prosecutes Fauci without even a Senate resolution, the double standard is going to be very obvious (assuming anyone still cares about such things).
Interestingly, there was only one member of the HELP committee who did not vote in favor of holding Dr. de la Torre in contempt. That was none other than Senator Paul. Although it is unclear why Paul did not vote on the contempt resolution, he was one of four senators who voted against subpoenaing de la Torre in the first place, suggesting that he may have been unenthusiastic about proceeding with contempt. This would also be consistent with Paul’s normal insistence on protecting constitutional rights and circumscribing government coercion.
Instead of trying a half-assed criminal contempt that will almost certainly fail, there is another avenue Paul could try. He could introduce a resolution to authorize Senate Legal Counsel to file a civil action against Dr. Fauci. Such an action would allow for a judicial resolution of the legal question without threatening to put Fauci in prison for asserting his constitutional rights. Of course, such a resolution would still require bipartisan support. But it is at least possible Democrats could be convinced to vote in favor. After all, as already noted, they have an interest in getting an answer to this question.