The Senate Homeland Security and Governmental Affairs Committee voted 8 to 5 this morning, on party lines, with two additional no votes by proxy, to hold Anthony Fauci in contempt of Congress. Democrats moved to table. They moved to postpone. Both were blocked by the majority.
None of that is surprising and none of it is the story.
The story is what Rand Paul intends to do next, which is nothing that has been done before.
The step he is skipping
Criminal contempt of Congress is not an improvised process. It is a statute, and it has been one since 1857. Under Title 2, Section 194 of the United States Code, when a witness fails to answer, the fact of that failure is reported to the House or the Senate, and the presiding officer of that chamber then certifies the statement to the United States Attorney, whose duty it is to bring the matter before a grand jury.
The chamber acts. Then the presiding officer certifies. That is the sequence Congress wrote for itself.
Paul is not going to the chamber.
He told CBS News he intends to send the resolution directly to the Justice Department as a referral. He told CNN the same thing. He told the Washington Examiner he would include a legal brief with it, and that he would send it directly from the committee, and that at some point he would talk to leadership and see whether they wanted to hold a vote.
See whether they wanted to. The vote the statute contemplates is now an optional courtesy to be considered later, if anyone feels like it.
The reason is arithmetic and everyone involved has said so out loud. A contempt resolution on the Senate floor needs sixty votes. Republicans have fifty-three. Democrats have consolidated behind Fauci. Paul would lose, publicly, in a recorded vote, and the referral would die on the floor of the body that supposedly authorized it.
So the body is being routed around.
What he said about it
Asked about the absence of precedent, Paul told CNN on Tuesday that there is not a lot of precedent for a lot of this, but that it isn’t law, so there isn’t any exact procedure it has to follow.
It is law. That is what Section 194 is. It is the codified procedure for exactly this circumstance, passed by Congress, and the entire theory under which Fauci could be prosecuted for a federal crime depends on it. Paul is simultaneously invoking the criminal contempt statute as the source of Fauci’s jeopardy and dismissing the criminal contempt statute as not-law when it describes a step he cannot complete.
He has also conceded, correctly, that skipping the chamber could pose a problem for any resulting prosecution. He scheduled it anyway.
And he has been careful, when it suits him, to describe the thing in the most modest possible terms. It’s a referral, he told CNN. It’s a recommendation.
Both of those cannot be true at once. Either this is the statutory certification that triggers a United States Attorney’s legal duty to present the matter to a grand jury, in which case the Senate has to vote, or it is a letter from a senator asking the Justice Department to prosecute a man he does not like, in which case it carries exactly as much legal weight as a letter and Paul has already sent several of those over the years.
A recommendation does not require a committee vote. Any senator can write to the Justice Department on any afternoon. What the vote purchases is the appearance of institutional authority, and the appearance is the entire product.
Who receives it
The resolution directs the President of the Senate to certify the report to the United States Attorney for the District of Columbia.
The President of the Senate is JD Vance, who in February 2016 wrote privately that the man he now serves was either a Nixonian cynic or America’s Hitler, and who will now be asked to sign his name to a departure from established Senate procedure that his own chamber has not approved.
The United States Attorney for the District of Columbia is Jeanine Pirro, whose office spent this week explaining why it moved to dismiss the Reflecting Pool prosecution after learning that the damage predated the defendant, and whose sole grand jury witness on damages had testified that the same repairs would have been required regardless of what the defendant did.
That is the office being handed a novel contempt referral against an eighty-five-year-old man.
The stack
Take the whole sequence in order, because the individual steps have been reported separately and the shape only appears when they are laid end to end.
Paul convened a hearing into a subject already examined at length, including two days and roughly fourteen hours of transcribed interviews Fauci gave a House subcommittee.
He released more than a thousand pages of Fauci’s private diary entries beforehand.
He ruled, from the chair, on the contested constitutional question of whether a pardon extinguishes the Fifth Amendment privilege, deciding it against the witness in a proceeding he convened, having spent five years publicly promising to put that witness in prison.
When the witness declined anyway, he scheduled a contempt vote.
When the contempt vote could not survive the Senate, he removed the Senate.
Each step is individually arguable. Paul has an argument for every one of them and some of the arguments are not bad. The pardon question is genuinely unsettled. The oversight interest in pandemic origins is legitimate. What does not survive the stack is the claim that any of this is ordinary process, because at every point where an outside check appeared, it was resolved by the same person, in his own favor, in a matter in which he has declared his desired outcome in advance and repeatedly.
Where the actual danger is
One more thing, and it is the part most of the coverage is missing.
Biden’s pardon covers federal offenses. It does not cover state charges. Attorneys general in several Republican-led states have said they intend to investigate Fauci following the hearing.
A federal contempt referral that goes nowhere at the Justice Department still produces a public record: a formal finding by a Senate committee, a legal brief, a certified statement, and a thousand pages of a man’s private journals already in circulation. That material does not evaporate when a US Attorney declines. It becomes the raw feedstock for whichever state decides to go next, in whichever jurisdiction is willing.
The referral may not be the point. The referral may be the file.
One senator
James Lankford, during the hearing last week, appeared to support Fauci’s right to invoke the Fifth Amendment.
He voted for the contempt resolution this morning.
What was actually decided
Nothing about the origins of COVID-19 was established today. Nothing about gain-of-function funding was established today. Not one factual question that Paul says animates this investigation is closer to an answer than it was last Wednesday.
What happened today is that a committee chairman determined he could not win a vote in the United States Senate, and concluded that the vote was therefore not required.
That is the precedent. It has nothing to do with Fauci, and it will outlast everyone currently arguing about him.
Related:
At 8:30 ET This Morning, a Senate Committee Votes on Whether a Pardon Cancels the Fifth Amendment
At 8:30 this morning the Senate Homeland Security and Governmental Affairs Committee votes on a resolution certifying that Anthony Fauci is in contempt of Congress.
So this small, Republican weasel from Kentucky wants to be like Donny when he grows up and is starting out in the revenge business. He is so mad over something that happened SIX years ago and has no definitive resolution other than saving lots of lives. Nothing in Fauci's personal journal. And then Fauci wouldn't play fair by answering the Republican weasel's questions in front of his weasel buddies. Now he's madder. He is making up his own rules. He's going to make Fauci suffer, even if it's illegal. Congratulations. You'll make Donny proud.
I cannot wait until that idiot is out of our government.