Bannon’s former lawyer says Paul’s contempt referral ‘null and void’
Three weeks after Paul’s Senate committee voted along party lines on Aug. 6 to hold the 85-year-old former public health official in contempt, some administration officials are skeptical that the current approach is procedurally sound enough to support an indictment, according to people familiar with the matter. Paul, a Kentucky Republican and longtime Fauci critic, pushed the contempt vote against Fauci after he declined to answer questions before Paul’s committee about his handling of the COVID-19 pandemic.
Paul sought to sidestep the Senate’s customary full-floor vote by having Vance, in his capacity as Senate president, certify the resolution and refer it directly to the Justice Department for possible prosecution. The mechanism was designed to bypass the 60-vote threshold the resolution would face on the Senate floor, where Democrats hold enough seats to block it. Paul has said Fauci should go to prison.
As of early Tuesday, Vance’s office had not received the document to certify, people familiar with the matter said. Paul’s office sent the report to the vice president late Tuesday, according to those familiar with the process, following repeated inquiries from The Wall Street Journal about its status. The Justice Department, which received a letter from Paul the day of the vote laying out the committee’s case against Fauci, had not received a formal referral as of Tuesday, a person familiar with the matter said.
President Donald Trump has not determined whether he wants the Justice Department to act on the referral, according to people familiar with the discussions, who said the issue has not been a high priority for him. While Trump initially signaled he was open to charges against Fauci, he said earlier this month that he had not directly raised the matter with Attorney General Todd Blanche or U.S. Attorney Jeanine Pirro. The lack of a presidential directive marks a departure from his approach to other adversaries, whose prosecutions he has openly pushed the department to pursue.
Through a spokeswoman, Vance expressed support for holding Fauci accountable but stopped short of saying whether he would certify the referral. “Dr. Fauci caused incalculable harm to the American people,” Taylor Van Kirk, a Vance spokeswoman, said in a statement. “The Vice President applauds Senator Paul’s efforts to hold Fauci accountable and supports any valid paths to achieving justice.”
A spokesman for Paul said the referral was with the vice president’s office but declined to comment further. The White House declined to comment beyond Vance’s statement. A representative for Fauci also declined to comment.
Legal experts have questioned whether Paul’s approach would survive judicial review. Stanley Brand, who represented Bannon and Navarro in their contempt proceedings and served as the House’s chief legal counsel under Speaker Tip O’Neill, said Paul’s contempt referral would be vulnerable to dismissal even if the Justice Department decided to charge Fauci.
“There’s just a bevy of cases that say you can’t just go around the Senate rules or the House rules when you put somebody in contempt,” Brand said. “That referral is null and void.”
Brand added that the Justice Department would also have to determine whether Fauci’s refusal to answer questions after invoking the Fifth Amendment gives prosecutors enough grounds to bring a contempt charge — an issue that could further weaken the case.
Earlier this month, Trump compared Fauci’s case with those of Bannon and Navarro, who were indicted and convicted on contempt charges during the Biden administration for defying subpoenas from the committee investigating the Jan. 6, 2021, Capitol riot. But in those cases, the full House voted to hold them in contempt before referring the matters to the Justice Department — a step Paul’s approach was designed to avoid.
A conviction for contempt of Congress can carry a fine of up to $100,000 and a prison sentence of up to one year.
Fauci, whose attorneys deny any wrongdoing, was pre-emptively pardoned by Biden amid concerns that Republicans would pressure the Trump administration to prosecute him. The pardon covers federal offenses related to his government role committed between January 2014 and Jan. 19, 2025. During his testimony last month, Fauci suggested Paul’s hearing was designed to be a perjury trap and pleaded the Fifth Amendment more than 100 times.
Trump last month acknowledged the pardon as “a very powerful thing” and said he respects it. He shared a positive rapport with Fauci during the early days of the pandemic in his first term, but the relationship soured as Trump’s public statements conflicted with guidance from Fauci and other government scientists. Trump nonetheless gave Fauci a presidential commendation before leaving office in 2021 — a move he has since distanced himself from. Trump has said Fauci “made a lot of mistakes” during COVID-19 but has stopped short of explicitly saying he should be prosecuted.
Paul and Sen. Ron Johnson, R-Wis., whose committee is also investigating Fauci, have been working in tandem on reviewing communications from Fauci’s old government iPhone. Paul also released a tranche of Fauci’s COVID-19-era diaries showing him fixated on media appearances and his public image during the pandemic. Records of the doctor’s phone and journals were transferred to the senators by the Department of Health and Human Services.
Paul and Johnson have alleged that Fauci misled the public about the origins of COVID-19 and accused him of profiting off pandemic-era policies. A handful of Republican-led states have announced their own investigations into Fauci, arguing that his pardon only offers protection at the federal level. Democrats have criticized the efforts as politically motivated.
The committee’s Aug. 6 contempt vote followed Fauci’s repeated invocations of the Fifth Amendment at the hearing the previous month, as detailed in MSI’s earlier coverage of the contempt vote and the preceding hearing report.