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.
Continue Reading The Procedural Puzzle Complicating the Fauci Contempt Referral
Jack Hipkins
Jack C. Hipkins is an associate in the firm’s Washington, DC office and a member of the Congressional Investigations, White Collar Defense and Investigations, and Commercial Litigation Practice Groups. He advises clients cooperating with and responding to high-profile investigations before Congress, the Department of Justice, and other executive-branch authorities that entail significant legal and reputational risks.
In addition to his investigations practice, Jack assists clients with crafting offensive and defensive case theories as part of his litigation practice and is familiar with coordinating large-scale fact-finding to support and pressure-test these theories.