Senate panel obtains Fauci’s Covid-era phone as contempt vote looms

Sen. Ron Johnson said on Aug. 5 that a Senate panel had obtained a copy of Anthony Fauci’s Covid-era government phone from the Trump administration, adding another cache of records to an inquiry already headed toward contempt. The move came after Fauci appeared before the Senate Homeland Security and Governmental Affairs Committee in late July and repeatedly invoked the Fifth Amendment, more than 100 times.

The legal path from a congressional clash to a criminal case is narrow. The Senate can vote to hold a witness in contempt of Congress and refer the matter to the Justice Department, but that referral does not automatically become a prosecution. Prosecutors would still have to decide whether to bring charges, and the department has discretion to decline even after Congress acts.

In Fauci’s case, the contempt resolution accused him of failing to comply with a congressional subpoena. The charge carries a maximum sentence of one year in prison. But a conviction would still require more than political outrage over pandemic policy. Prosecutors would need to show that Fauci’s refusal to answer was unlawful under the specific subpoena and that the legal elements of contempt were satisfied beyond a reasonable doubt.

The Fifth Amendment question adds another layer of difficulty. Fauci’s lawyers argued that he had a valid constitutional privilege even after receiving a preemptive pardon from President Joe Biden. Some Republican critics countered that the pardon eliminated any realistic fear of prosecution for earlier statements, and therefore removed the basis for pleading the Fifth. The privilege turns on whether an answer could be genuinely self-incriminating, not on whether lawmakers want one.

Fauci had already testified publicly about Covid many times, which raises questions about waiver, the scope of any privilege, and whether particular answers at the July hearing could still have exposed him to perjury or other criminal risk.

Fauci, who led the National Institute of Allergy and Infectious Diseases from 1984 until 2022 and became the public face of the federal response to HIV/AIDS, SARS, Ebola and Covid-19, has long been a target of Sen. Rand Paul’s oversight campaigns.