By Andrew Goudsward
WASHINGTON, July 30 (Reuters) - Anthony Fauci could face criminal prosecution after refusing to answer more than 100 Senate questions about his handling of the COVID-19 pandemic, setting up a confrontation with Republican lawmakers that could test the limits of congressional power to compel testimony.
Fauci, the former top U.S. infectious disease expert, testified this week before the Homeland Security and Governmental Affairs Committee whose Republican chair, Rand Paul of Kentucky,
a longtime Fauci antagonist, has said he will call a vote to refer Fauci for contempt of Congress.
Fauci, who led the National Institute of Allergy and Infectious Diseases and became the face of the U.S. pandemic response, has condemned Paul for what he has described as a campaign to have him imprisoned.
Here's a look at where the dispute stands and what could come next:
WHAT IS CONTEMPT OF CONGRESS?
U.S. law makes it a crime for anyone summoned to appear before Congress to refuse to hand over documents or answer questions.
Congress does not have the authority to initiate criminal prosecutions on its own so it instead refers potential cases to the Justice Department. A contempt referral must first be approved by a congressional committee and then by the full Senate or House of Representatives.
A referral for Fauci in this instance would likely need a 60-vote majority, which would require Democratic support in a closely divided 100-member Senate.
The U.S. Attorney's Office in Washington then reviews the referral and decides whether to seek a criminal indictment before a grand jury. The office is run by Jeanine Pirro, a close ally of President Donald Trump.
WHAT WILL PROSECUTORS HAVE TO PROVE?
Prosecutors would have to prove that Fauci willfully declined to answer questions relevant to a Senate inquiry.
Fauci will likely not be able to argue that his refusal was based on legal advice. Judges barred Trump advisers Steve Bannon and Peter Navarro from raising that defense when they faced criminal contempt charges for refusing to cooperate with the House committee that investigated the January 6, 2021, attack on the U.S. Capitol.
Both Bannon and Navarro were convicted and imprisoned.
WHAT DEFENSES COULD FAUCI RAISE?
A criminal case against Fauci faces several obstacles, legal experts say.
If the Senate votes to support the referral and the Justice Department decides to seek charges, an indictment would still need to be approved by a grand jury. Grand jury panels in Washington have refused to sign off on charges in multiple politically charged cases during the Trump administration.
If Fauci is indicted, his lawyers will likely argue that he cannot face contempt charges for exercising his right under the U.S. Constitution's Fifth Amendment to refuse to answer questions that could expose him to criminal liability.
Then-President Joe Biden pardoned Fauci for any offenses he may have committed from 2014 until January 2025.
The pardon does not cover any conduct that has happened since Biden left office, but it could complicate Fauci's ability to rely on the Fifth Amendment defense.
Courts have not decided whether a witness who has received a presidential pardon can refuse to answer questions before Congress about the conduct covered by that pardon, legal experts say. That question would likely need to be resolved before Fauci could face trial.
(Reporting by Andrew Goudsward. Additional reporting by Richard Cowan; Editing by Michael Learmonth and Howard Goller)
