President Donald Trump says he has not spoken with newly confirmed Attorney General Todd Blanche or Washington, D.C., U.S. Attorney Jeanine Pirro about prosecuting Dr. Anthony Fauci, leaving the Justice Department to decide whether a Senate committee’s disputed contempt referral has enough legal muscle to proceed.
The DOJ has confirmed that it received the referral from Senate Homeland Security and Governmental Affairs Committee Chairman Rand Paul and is reviewing it. Neither Blanche nor Pirro has publicly announced a decision.
Asked in the Oval Office Monday whether he had discussed the case with either prosecutor, Trump gave a direct answer.
“Mr. President, have you spoken with the new attorney general or Jeanine Pirro about prosecuting Dr. Fauci?” a reporter asked.
“I have not spoken to them about that, no,” Trump replied.
The answer came hours after Blanche was formally sworn in as attorney general following his narrow 50–49 Senate confirmation. One of the first politically explosive matters awaiting him is whether Fauci’s refusal to answer congressional questions constitutes a crime—or a protected exercise of the Fifth Amendment.
Paul’s committee voted along party lines last Thursday to hold Fauci in contempt after the former National Institute of Allergy and Infectious Diseases director invoked the Fifth Amendment 111 times during a July 29 hearing.
A Justice Department spokesperson said prosecutors had received the referral and were “reviewing it” and would “work with the Senate accordingly.”
The referral alleges that Fauci unlawfully refused to comply with a congressional subpoena concerning COVID-19 origins, federal research funding, pandemic policies and the government’s public messaging.
Paul maintains that Fauci’s sweeping pardon from former President Joe Biden eliminated any legitimate fear of federal prosecution for conduct occurring during his government service.
“The chairman has denied your assertion of privilege and directed you to answer, but you nonetheless refuse and stand on privilege despite the existence of the pardon,” Paul told Fauci during the hearing.
“It’s against the law to obstruct an investigation of Congress,” the Kentucky Republican added. “There will be repercussions to your refusal to testify today.”
But the DOJ faces a threshold problem before it ever reaches the Fifth Amendment dispute: Paul transmitted the referral without obtaining a contempt vote from the full Senate.
Legal experts cited by Reuters and the Associated Press said a committee referral ordinarily lacks the same legal standing as one approved by the entire chamber. The Justice Department is under no obligation to prosecute and could conclude that the Senate’s procedural shortcut makes a criminal case untenable.
In short, the referral is real. An indictment is far from guaranteed.
Although Trump says he has not privately lobbied Blanche or Pirro, he has publicly expressed support for holding Fauci accountable.
Last week, the president contrasted Fauci’s treatment with the prosecutions of his former advisers Peter Navarro and Steve Bannon, both of whom served four-month prison sentences after being convicted of contempt of Congress.
“They prosecuted Peter Navarro, and they prosecuted Steve Bannon, two very decent people, over something that essentially was never prosecuted before,” Trump said.
“But Merrick Garland prosecuted two very decent people and sent them to jail,” he continued. “I wasn’t president. I would have given them a pardon in two seconds, but this was after I left.”
Asked whether Fauci should face similar consequences, Trump responded:
“When you see that happen, you sort of say maybe he should. What he did is far more serious than a lot of crimes, frankly.”
That history guarantees accusations of political retaliation if Blanche authorizes a prosecution. Democrats are already describing the committee vote as an attempt to punish Fauci for becoming a symbol of the federal pandemic response.
Yet declining to act would raise the opposite question: Why were Bannon and Navarro imprisoned for defying congressional subpoenas while Fauci can refuse 111 questions without consequence?
Fauci defended his silence by accusing Paul of organizing the hearing to trap him in a new criminal case not covered by Biden’s pardon.
“Given Senator Paul’s obvious obsession with calling for my prosecution, his repeated slanderous comments about me, and recently his publicly releasing my unredacted personal diary aimed at embarrassing and intimidating me, the only conclusion I can reach is that the sole reason he is calling me before this committee is to get me to say something—anything—that could vindicate his repeated public pledges that I end up, in his words, ‘behind bars,’” Fauci said.
“Although it pains me to do so, under the advice of my attorneys, I will invoke my right under the Fifth Amendment of the Constitution to refrain from answering your questions.”
His attorney called the contempt effort politically motivated and legally meritless.
Democrats on the committee argued that the pardon does not necessarily eliminate every conceivable danger. Fauci could face exposure for statements made after Biden left office, for matters outside the pardon’s scope or potentially from state authorities not bound by a presidential pardon.
The Fifth Amendment permits a witness to remain silent when an answer could supply a link in a possible chain of prosecution. It does not require that the witness already be formally accused of a crime.
Republicans respond that Fauci made a lengthy opening statement before refusing every substantive question, selectively telling his side while preventing senators from testing it.
Biden’s pardon covers possible federal offenses from Jan. 1, 2014, through Jan. 20, 2025, connected to Fauci’s service at NIAID, the White House Coronavirus Task Force and the Biden administration.
That breadth creates competing Republican arguments.
Paul says the pardon is so extensive that Fauci no longer has a reasonable fear of prosecution for the underlying conduct and therefore cannot invoke the Fifth Amendment.
Other Republicans, including House Oversight Chairman James Comer, have questioned whether the pardon is legally valid because it was executed using Biden’s autopen. But if the pardon were invalid, Fauci’s potential criminal exposure would increase—making his Fifth Amendment claim considerably stronger.
Republicans cannot easily argue both that the pardon is worthless for prosecuting Fauci and that it is broad enough to force him to testify.
Congress could grant Fauci immunity sufficient to compel answers, but doing so could make a later prosecution based on those answers nearly impossible. Lawmakers must decide what they want more: Fauci’s testimony or the possibility of putting him on trial.
The contempt fight comes as Paul and Sen. Ron Johnson examine records recovered from Fauci’s government-issued telephone.
Messages reported this week show Fauci privately discussing a theoretical risk of fever or inflammatory response following COVID vaccination during pregnancy while government officials were publicly reassuring pregnant women about vaccine safety.
The messages do not establish that the vaccines caused miscarriages. They do, however, provide Republicans with another reason to demand testimony about whether public-health officials disclosed uncertainties as candidly in public as they discussed them in private.
Johnson has said investigators are working through millions of pages of pandemic-era records and may seek additional testimony or subpoenas.
Fauci has consistently denied misleading Congress about federally funded research in Wuhan and rejected allegations that he participated in concealing the origins of COVID-19.
Blanche’s Justice Department has several options.
It could decline the referral because the full Senate never approved it. It could open a preliminary investigation, seek additional information from the committee or ask senators to cure the procedural problem with a chamber-wide vote.
Prosecutors would then have to determine whether Fauci’s Fifth Amendment assertion was legally valid, whether his refusal was willful and whether bringing the case would be consistent with past contempt prosecutions.
If charged and convicted of criminal contempt of Congress, Fauci could face up to one year in prison and a fine of up to $100,000.
The DOJ’s decision will now provide an early test of Blanche’s promise that he can act as the nation’s attorney general rather than Trump’s personal lawyer. Trump’s statement that he has not discussed the case gives Blanche room to make that decision—while ensuring the entire country will be watching it.
