Senate Homeland Security Chairman Rand Paul, R-Ky., said Tuesday that he will send his contempt of Congress recommendation to prosecute Anthony Fauci directly to the Justice Department if the resolution advances out of committee later this week.

The vote, which will take place Thursday, comes after Fauci invoked the Fifth Amendment more than 100 times during his Senate testimony on his handling of the COVID-19 pandemic last week, which he invoked despite already having a presidential pardon.

The senator clarified that although Fauci has received a presidential pardon, his refusal to help the Senate is a crime of its own that is not covered under the pardon, which excused any crime committed between 2014 and January 2025.

"We have a law in Congress that if you will not testify and help an investigation, it's called contempt of Congress. It's a felony," Paul said on the "Just The News, No Noise" TV show. "Now, the prosecution has to be through the Department of Justice. People get confused sometimes, and online people will criticize me sometimes and say, 'why won't you prosecute him?' And it's like, 'Well, I don't have prosecutorial power.'"

Paul said he believes he can bypass the full chamber and send the referral to the DOJ directly because the recommendation is not a law and that the referral poses several important questions for a court to decide.

"The legal question is: Can someone plead the fifth? Can they plead their constitutional right not to incriminate themselves when they've already been given immunity through a pardon?" he asked. "There are arguments for this, and there are some precedents." 

The question dates back to a late-1800s Supreme Court decision, which held that once a witness has “received a pardon, he can no longer set up his privilege, since he stands, with respect to such offense, as if it had never been committed.”

The Fifth Amendment protects individuals from being compelled to provide testimony that could reasonably be used against them in a criminal prosecution, but the privilege exists only when there is a genuine risk that truthful answers could expose the witness to criminal liability. A full presidential pardon generally removes that risk for the federal offenses it covers. 

The Supreme Court later added an important qualification in 1915, which held that a pardon is not effective unless it is accepted by its recipient. An individual may reject the pardon in order to preserve the Fifth Amendment privilege, but Fauci accepted it.

Fauci's attorneys dispute the narrative that it is illegal for their client to plead the Fifth because Fauci still faces potential criminal exposure arising from future testimony – particularly if prosecutors were to allege that statements made under oath during the hearing constituted perjury or false statements. 

They also argue he could be subject to state criminal investigations, which would be beyond the reach of a presidential pardon.

Paul also noted that he'd like to stop people from getting as powerful as Fauci was, highlighting his long tenure as the head of the National Institute of Allergy and Infectious Diseases, which made him intimidating to people who needed his approval for projects. 

"He had too much power and for too long," Paul said on the show. "I think term limits for his position is a good idea too. His reign was so long that he accumulated so much power that people feared him, and they knew that their grants were dependent upon him and upon pleasing him."

The senator added that he has tried to pass an amendment in committee that would divide Fauci's previous position into three different ones that need Senate approval, emphasizing that Fauci was never confirmed by the upper chamber.

The NIAID director is a career civil service position within the National Institutes of Health, who is selected by NIH leadership and not the president.

Misty Severi is a news reporter for Just The News. You can follow her on X for more coverage.