Republicans argue Fauci’s acceptance of the pardon meant that he had a responsibility to answer the committee’s questions during the high-profile hearing last week. 

Fauci, 85, only participated in the hearing following a subpoena for his testimony. In the weeks preceding the hearing, Paul released thousands of pages of documents in an attempt to link Fauci to risky life science research.

Included in the document dump were nearly 1,600 pages of diary entries from Fauci recorded on government servers during the height of the COVID-19 pandemic. The diary entries show that, despite saying otherwise during the early days of the pandemic, Fauci had private concerns that SARS-CoV-2, the virus that causes COVID-19, could have come from risky research at the Wuhan Institute of Virology in China.

Fauci pleaded his Fifth Amendment right to silence more than 100 times during the hearing and only spoke to deliver his opening statement, during which he accused Paul of having an “obvious obsession with calling for my prosecution.” 

Paul, who has referred Fauci to the DOJ on three other occasions, said in his opening statement Thursday that the committee is only voting on criminal contempt charges, not Fauci’s actions during the pandemic.

“That is what we are voting on today, not his opinions, not his policies, not anything he said from a podium six years ago,” Paul said. “We are voting on whether a witness who has received the benefit of a sweeping federal pardon can be ordered by this committee to answer questions and then defy that order without consequence.”

Paul told the Washington Examiner earlier this week that he plans to send the contempt charge recommendation directly to the DOJ, effectively sidestepping a vote before the entire Senate on whether Fauci inappropriately invoked his Fifth Amendment rights.

A full Senate vote would likely be blocked by Democrats via a filibuster. 

Paul told the Washington Examiner following the contempt hearing that his team will “hand deliver today” the contempt referral to acting Attorney General Todd Blanche and the U.S. Attorney for the District of Columbia, Jeanine Pirro.

“This way, we don’t sit a month waiting to determine whether or not we bring it to the Senate floor,” Paul said.

Sen. Gary Peters (D-MI), the leading Democrat on the committee, called Paul’s intention to refer directly to the DOJ a “dangerous and wildly unprecedented move.”

“No individual senator, senator, and no committee speaks for the entire Senate as a whole,” said Peters. “The Senate’s institutional powers belong to the full body. Allowing one chairman to unilaterally assert those powers would invite future chairs in both parties to bypass the Senate whenever they cannot secure the support of their colleagues.”

But Paul told reporters he is not opposed to a full Senate vote on the contempt resolution.

“No one said that we won’t go before the Senate,” Paul said. “That’s something that happens over time, but this is outside of the ordinary bill-making process. It doesn’t have to go to the House, doesn’t have to be signed by the president, and really doesn’t have to go before the Senate. There is some precedent that it can be done that way.”

Fauci pardon sparks legal debate

Democrats made five motions that would have postponed the vote but were rebuffed by Republicans after debate over the legitimacy of Fauci’s decision to plead the Fifth despite the pardon.

Sen. Maggie Hassan (D-NH) accused Paul and Republicans on the committee of setting up a legal trap for Fauci that would not be protected by Biden’s pardon.

“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, leaving Dr. Fauci little choice but to invoke his constitutional right to not walk directly into a trap,” Hassan said.

Sen. Josh Hawley (R-MO), citing Supreme Court precedent, said Fauci’s refusal to answer basic questions of a non-incriminating nature, such as what day of the week it was and what color his tie was, “betrays the fact that his invocation of the Fifth Amendment wasn’t tailored” to any alleged crimes.

“It was a predetermined, premeditated design to evade this committee’s questions on any subject, including emphatically those for which he has a pardon,” Hawley said.

Sen. Richard Blumenthal (D-NY) cited the same Supreme Court precedent and said the legal standard of invoking the Fifth Amendment is a “reasonable fear” of prosecution, including at the state level.

Three states — Louisiana, Alabama, and Florida — are investigating Fauci for criminal charges for his conduct during the pandemic. The preemptive pardon only protects Fauci from federal prosecution.

“This right is so fundamental that we ought to seriously consider before we take this immensely historic step and hear from his counsel as to what he feared,” Blumenthal said.

Sen. John Fetterman (D-PA), who voted in line with Democrats against contempt, compared the committee proceedings to “a food fight” following the contentious vote.

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“I don’t think either side really addressed the core essence of COVID. Lives, livelihood; What’s the right balance?” Fetterman, who was Pennsylvania’s lieutenant governor during the pandemic, told the Washington Examiner. “I’ve never met the person that got it exactly right.” 

Fetterman added that he believes President Donald Trump “respects” the pardon Fauci received from his predecessor but that “it should never be problematic just to invoke your constitutional rights.”

Fauci’s cellphone records obtained by the committee

Sen. Ron Johnson (R-WI) announced the evening before the hearing that the committee had obtained a copy of Fauci’s iPhone records to add to the investigation. 

Johnson, chairman of the Permanent Subcommittee on Investigations, said Wednesday evening that “a copy of Dr. Fauci’s phone” was provided by the Department of Health and Human Services, just as the diaries had been before the hearing. 

Paul told the Washington Examiner, following the contempt charges vote, that plans for the cellphone records “haven’t been decided yet.” 

“I mean, any information that’s given to us will be thoroughly reviewed,” Paul said. “I think that you know you’re not supposed to be using a private phone within the executive branch, so there will be an important question whether you’re conducting government business on a private phone.” 

Senate reporter Ramsey Touchberry contributed to this report.