As widely reported, the Senate Homeland Security and Governmental Affairs Committee voted to hold Dr. Anthony Fauci in contempt of Congress following his appearance before the Committee in July, where he refused to answer the Committee’s questions by asserting his rights under the Fifth Amendment. At the same time, the procedure used by Chairman Rand Paul to refer the matter to the Justice Department, which he did without a vote of the full Senate, has raised the consequential procedural question of whether Chairman Paul can skip the Senate floor and advance the congressional contempt matter to DOJ—and potentially a prosecution—without a vote of the full chamber. That pathway would mark a departure from prior congressional contempt precedents and could lead to a novel fight over an old statute, a fight that the Department of Justice may or may not wish to wage. Indeed, according to an article in the Wall Street Journal last week, some in the Trump administration are reportedly questioning whether Chairman Paul’s contempt effort is “procedurally sound.” To understand why this may be the case, one can look to the contempt of Congress statute, its interpretation in relevant cases, and the sequence of events following the Committee’s contempt vote.
Contempt Procedure under the Congressional Contempt Statute, 2 U.S.C. §§ 192, 194
The congressional contempt statute provides that a witness who, after being summoned to give testimony or produce documents “willfully makes default or . . . refuses to answer any question,” is guilty of a misdemeanor. The statute also prescribes the process by which Congress must “certify” an alleged contempt violation to the Department of Justice for prosecution. Specifically, it provides that when the alleged contempt is “reported to” either chamber, while Congress is in session, it is the “duty” of the presiding officer to certify the matter to the appropriate U.S. Attorney, who would then bring the matter before a grand jury. When Congress is not in session, the statute provides a separate process for a statement of facts to be reported and filed with the President of the Senate or Speaker of the House, but the resulting “duty” to certify is the same.
The language of the statute suggests that the presiding officer’s “duty” arises when the measure is “reported to” the chamber, which in congressional parlance means that the measure has been sent to the full body. The statute does not specifically address any required action by the full chamber. Nonetheless, judicial, congressional, and executive branch precedent, which are discussed further below, have interpreted the contempt statute to require, if Congress is in session, the full chamber to approve of a resolution authorizing the presiding officer to certify the report to the U.S. Attorney for prosecution. Precedent also indicates that, if Congress is not in session, the presiding officer must make an independent determination prior to certifying the contempt.
Thus, the statute and its historical interpretation appear to provide two routes for certification of Dr. Fauci’s contempt referral in the Senate, neither of which occurred in this case.
Potential Obstacles to a Novel Contempt Pathway
Recent reporting by the Wall Street Journal suggests that Chairman Paul’s attempt to skip a full Senate vote has encountered an obstacle at the certification stage required by the statute. According to the Journal, Chairman Paul “sought to bypass the Senate’s customary full-floor vote” by delivering a letter directly to the Department of Justice on the day of the Committee’s vote laying out the Committee’s case for contempt. Chairman Paul also reportedly sought to have Vice President Vance, as President of the Senate, separately certify the resolution, although that appears not to have happened. Reportedly, it was only “after repeated [press] inquiries” that Chairman Paul delivered any document to Vice President Vance. A spokesperson for the Vice President stated that he supports “any valid paths to achieving justice.” Notably, the spokesperson did not clarify whether the current path is “valid.”
The timing of Chairman Paul’s delivery of the referral to Vice President Vance could also be relevant. As reported by the Journal, although Dr. Fauci invoked the Fifth Amendment during a hearing in July, Chairman Paul did not actually deliver anything to Vice President Vance until August 25. It is possible that Chairman Paul’s actions here constitute an attempt to invoke the statute’s alternative procedure for periods when Congress is “not in session,” due to Congress being in recess in August.
This alternate pathway could face challenges beyond its novelty. First, as a threshold matter, it appears unlikely that the phrase “not in session” would be interpreted, for purposes of the congressional contempt statute, to apply when Congress is merely in recess, particularly given the Senate’s modern practice of holding pro forma sessions during recess periods. We are aware of no judicial decision directly addressing this novel issue. If the Senate were considered “in session” on August 25 for purposes of the congressional contempt statute, then proper certification under existing precedents would require a full vote of the Senate, which has not occurred in the case of Dr. Fauci.
Second, judicial precedent casts further doubt on the availability of certifying contempt without a full Senate vote when, as in the case of Dr. Fauci, the alleged contempt occurred when the Senate was in session. In the 1966 decision Wilson v. United States, the D.C. Circuit specifically explained that “where the alleged contempts are committed while Congress was in session, the Speaker may not certify to the United States Attorney the statements of fact prepared by the Committee until the report of alleged contempt has been acted upon by the House as a whole” (emphasis added). A contrary interpretation of the contempt statute, the court cautioned, “would enable committees . . . by postponing reports on allegedly contemptuous conduct until after adjournment . . . effectively to insulate their actions on contempt matters from further consideration within the legislative branch.” Although this passage in the D.C. Circuit’s opinion is arguably dicta, the opinion does provide Dr. Fauci a serious argument that any effort to certify in-session contempt is invalid in the absence of a full Senate vote.
Finally, the Executive Branch has interpreted the statute in a similar manner. In a 1986 Office of Legal Counsel (OLC) opinion, the office concluded that “[if] the [contempt] report is prepared while Congress is in session, it must be submitted to the full House in the form of a resolution directing the Speaker to certify the facts to the United States Attorney,” as law professor Jonathan Shaub has discussed elsewhere (emphasis added). Although neither OLC’s position nor the congressional authorities are binding on the courts, these sources suggest that the political branches have been in agreement on the correct construction of the contempt of Congress statute.
Conclusion
It is difficult to conclude that the contempt alleged against Dr. Fauci will proceed on the current course under existing precedents. The congressional contempt statute, read in light of historical practice and judicial precedent, suggests that a floor vote by the Senate likely is required under these circumstances, potentially providing Dr. Fauci with a substantial basis for a procedural challenge if DOJ ultimately pursues a contempt charge without such a vote. Whether or not this matter advances to the courts, the Fauci referral presents a consequential dispute over the process envisioned by the congressional contempt statute.