Anthony Fauci

The Hill -  The push to charge former COVID czar Anthony Fauci with contempt of Congress is full of pitfalls for prosecutors, should the Justice Department choose to take up the case.

The Senate Homeland Security and Governmental Affairs Committee approved the criminal referral Thursday, arguing that Fauci's assertion of his Fifth Amendment rights 111 times during a hearing the week before amounts to contempt. 

Spearheaded by Chair Rand Paul (R-Ky.), the resolution has not been vetted by the full Senate, something former prosecutors say is key in building a contempt case.

But even if the measure is taken up and approved after the August recess, experts see other issues with a potential case, questioning grand jurors' interest in bringing charges after an individual asserted a valid constitutional right, as well as Trump administration appetite for a case that could diminish the power of a presidential pardon.

"Fauci would have a bulletproof motion to dismiss on Fifth Amendment grounds. He may invoke the right if he has reasonable fear that his testimony could be used against him in a criminal proceeding. Based on Rand Paul's statements that he would like to see Fauci 'behind bars,' Fauci has that reasonable fear," said Barb McQuade, a former U.S. attorney in Michigan.

Paul and the committee's Republicans argue the pardon received by Fauci from former President Biden negates his right to a Fifth Amendment claim, as he has no reasonable fear of prosecution.

But that pardon only covers the period from January 1, 2014, through January 19, 2025, meaning Fauci could still face charges for things such as perjury before the committee or any state-level crimes.  Indeed, three state attorneys general have all issued subpoenas to Fauci after launching investigations into him.