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.

In a major decision today, the Supreme Court in NRSC v. FEC struck down longstanding limits on “coordinated party expenditures” that restricted the amounts political parties could spend in coordination with federal candidates. With this decision, national party committees and the federal accounts of state parties can now spend unlimited…