Rand Paul

Dr. Anthony Fauci is a name most Americans probably didn’t think they would have to hear about again, but Senate Republicans have different plans in mind. This week, the Senate Homeland Security Committee voted to hold Fauci in contempt of court for not answering questions during a hearing meant to force his sworn testimony on the United States’ response to the COVID-19 pandemic. The 85-year-old scientist invoked his right to plead the Fifth Amendment more than 100 times and Republicans eviscerated him for this, arguing that because former President Joe Biden preemptively pardoned Fauci, he no longer could claim Fifth Amendment protection. This is simply false, and in fact, Republicans themselves are continuing to give Fauci legal cover to stay silent as they pursue a farcical investigation against yet another perceived political enemy.

Kentucky Sen. Rand Paul, chair of the Homeland Security Committee, has long despised Fauci, going so far as to suggest the scientist should be thrown in prison. Paul alleges Fauci lied to Congress about the origins of the deadly virus and that he unnecessarily pressured states to close schools down during the pandemic, mask up, and mandate vaccination. Fauci has denied all of this, but with an emboldened GOP consuming Washington, Paul has found his time to strike. Days before Fauci was scheduled to testify, Paul released more than 1,000 pages of Fauci’s personal diary, in which the scientist chronicled behind-the-scenes meetings and discussions with Trump White House officials, fellow scientists, and doctors alongside his own assumptions and theories about how COVID-19 came to be. And this week, Republican Sen. Ron Johnson, who also sits on the Homeland Security Committee, announced he had gained possession of Fauci’s government-issued cellphone, courtesy of the Department of Health and Human Services.

The Biden administration foresaw this political attack and preemptively pardoned Fauci, along with lawmakers who served on the House Select Committee on Jan. 6 and members of the Biden family. For Fauci, this pardon protects all of his actions taken between 2014 through January 19, 2025, from federal prosecution only. On its face, this would make it seem as though Fauci is perfectly safe from Paul and other potentially vindictive Republicans still salty about mask and vaccine mandates from five years ago. That is not so.

“When [Fauci] went into that hearing, he had at least two reasons to be concerned that he could have criminal liability resulting from what he says,” Frank Bowman, professor emeritus of law at the University of Missouri and a former federal and state prosecutor, told me. “First, the possibility that he might say something false and be prosecutable for perjury under federal law. Second, possibility that something he said might conceivably be used by some state government to prosecute him criminally.”

Bowman explained that the nature of Fauci’s job during the pandemic, which was over the course of about three years, required him to make many public statements on a variety of different platforms, from congressional hearings to TV hits, scientific conferences, consumer-facing events, and classrooms. This makes it pretty easy for a maliciously disposed senator or prosecutor to find some inconsistency between what Fauci may have said the other day versus something he said five years ago. “The other thing is that Fauci’s views over time, like those of any good scientist, changed in varying degrees on varying topics,” Bowman said.

This is particularly true when it comes to Fauci’s diary, where Paul and other Republicans can easily cherry-pick certain entries and find a way to demonstrate inconsistencies from a “harried government official trying to respond to a global calamity,” Bowman said. “What he says throughout that record, taken sequentially, is not always going to be entirely consistent. And sometimes there are going to be changes of view.”

Another critical point that likely also supported Fauci’s decision to plead the Fifth is the fact that it is simply naive at this point to assume the Justice Department is operating with even an ounce of integrity. “In olden times—that is, before two years ago—I think one in Dr. Fauci’s position could have confidently relied on the Justice Department not to take a referral from an obviously vindictive senator and try to prosecute him,” Bowman said. Today, as Todd Blanche prepares to take the top job at the DOJ, the acting attorney general has already proven absolute fealty to President Donald Trump. He’s spent the past 20 months bringing numerous vindictive prosecutions that Trump has demanded, all while committing disturbing abuses of federal law and destroying any semblance of a presumption of regularity. This alone plausibly gives Fauci a reason to abstain from saying a word to Republicans, let alone under oath.

There’s also the fact that at least four states, Florida, Louisiana, Alabama, and West Virginia, have vowed to initiate state investigations against Fauci, where he does not enjoy pardon protection. Florida Attorney General James Uthmeier already issued an investigative subpoena to Fauci this week.

When you consider all of this together, it’s not surprising that Fauci invoked his Fifth Amendment right. Nevertheless, Paul and his fellow Republicans on the Homeland Security Committee voted to hold Fauci in contempt, and now the DOJ gets to decide what to do with him. Bowman doesn’t believe it’s a given that Fauci will be prosecuted, considering Trump has not really said much about him. Plus, Paul is not one of the president’s favorite lackeys, given he’s repeatedly voted to pull U.S. troops out of the Iran war, and said that “by any objective measure we’re worse off than we were before the war.”

However, Fauci’s contempt of Congress is not too dissimilar to when former Attorney General Merrick Garland indicted Steve Bannon and Peter Navarro for failing to show up on Capitol Hill for sworn testimony related to the Jan. 6 insurrection. Both men ended up serving prison time. Plus, in a few short months there’s a strong possibility that the levers of power in Congress will be handed to Democrats, many of whom are frothing at the mouth to investigate Trump and basically every member of his administration; is Fauci the hill Blanche’s DOJ really wants to die on right now?

Say the DOJ does decide to prosecute Fauci for contempt of Congress; Bowman believes that it likely won’t hold up in court anyway. First, Paul bypassed the full Senate and simply held a committee vote, which is technically a violation of internal Senate rules and federal statute. Second, the merits of this case do not bode well for the DOJ, as a judge would likely find Fauci had a constitutional right to plead the Fifth, given Paul’s past comments about him and the ongoing state investigations.

What it seems to be coming down to is Republicans attempting to replicate Trump’s playbook: targeting a longtime foe simply out of spite, knowing deep down it will amount to next to nothing but will possibly succeed in embarrassing Fauci and costing him a pretty penny in legal fees.

Ultimately, like the false commentary about Fauci itself, any attempt to force a prosecution may be much ado about nothing.