A Senate committee voted along party lines to hold Dr. Anthony Fauci in contempt of Congress on Thursday, a week after the former top health official and scientist refused to answer questions in a hearing about the COVID-19 pandemic.
WATCH: The campaign against Fauci and what brought him back before Congress
"Holding a witness in contempt is a serious thing, and it should be rare," said Sen. Rand Paul, R-Ky, who chairs the committee. He added that he would refer the contempt decision to the Justice Department for potential prosecution.
Fauci invoked the Fifth Amendment more than 100 times during a July 29 hearing before the Senate Committee on Homeland Security and Governmental Affairs, citing Paul's previous comments about wanting to incarcerate him.
The hearing was aimed at again questioning Fauci, who helped lead the nation's pandemic response in 2020, on the origins of the novel coronavirus. Paul subpoenaed Fauci and released more than a thousand pages of his pandemic-era diary days before the committee hearing.
Republicans argued during the hearing that Fauci did not have the right to invoke the Fifth Amendment, citing a preemptive pardon former President Joe Biden issued Fauci.
Democrats, who called the hearing politically motivated, defended Fauci's decision. Sen. Gary Peters, D-Mich., the committee's ranking member, denounced Paul's decision to hold Fauci in contempt.
"If this committee now seeks to punish a witness for asserting their constitutional protected Fifth Amendment rights," Peters said, "future witnesses will argue that appearing before Congress exposes them to punishment regardless of whether they comply with the subpoena and invoke a constitutional protection."
Peters also called out Paul's decision to "bypass" Senate rules and directly refer the decision to the Justice Department.
Here's what to know about Fauci's pardon, the vote to hold him in contempt and what comes next.
Why did Fauci invoke the Fifth Amendment?
Under the U.S. Constitution, people have the right to invoke the Fifth Amendment if they feel their honest answer to a question may incriminate them. Invoking the Fifth Amendment isn't an admission of guilt.
But there are limitations, said Frank Bowman, professor emeritus of law at the University of Missouri.
Invocation is only valid when people reasonably believe their answers could be used to criminally prosecute them. And people have to invoke the amendment on a question-by-question basis rather than give a blanket preemptive invocation before questioning begins.
In his opening statement before the committee, Fauci said Paul had an "obsession" with calling for his prosecution.
Watch the clip in the player above.
"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. "Any reasonable person who has followed his unhinged obsession with me would readily come to the same conclusion."
He then went on to invoke the Fifth Amendment to every question he was asked, including questions about what day of the week it was and what color tie he was wearing.
Bowman said Fauci's lawyers likely advised him to assert his Fifth Amendment right to all questions to avoid claims that he waived his right by answering any of them and to prevent having to justify his willingness to answer some but not all.
Did Fauci have the right to invoke the Fifth Amendment despite having a pardon?
Even though people have the constitutional right to invoke the Fifth Amendment, and people have historically invoked it in congressional hearings, Fauci's case is "unusual" because he has a pardon, said Mark Osler, a law professor at University of St. Thomas and expert on pardon powers.
Whether Fauci's pardon requires him to answer questions during a congressional hearing and bars him from invoking the Fifth Amendment "may be resolved in court," Osler said.
Biden's broad preemptive pardon of Fauci covers all actions he took from Jan. 1, 2014, to Jan. 19, 2025, when it was issued. That includes Fauci's time as a member of the White House Coronavirus Task Force during the first Trump administration and the White House COVID-19 Response Team during the Biden administration.
According to Republicans on the Senate committee, Fauci was required to answer their questions because they related to his actions during the period covered by the pardon. Therefore, he was already immune from prosecution, they argued.
Watch the clip in the player above.
Sen. Josh Hawley, R-Mo., cited Brown v. Walker, an 1896 Supreme Court case that ruled "if the witness has already received a pardon, he cannot longer set up his privilege" under the Fifth Amendment, "since he stands, with respect to such offense, as if it had never been committed."
But legal experts who spoke with PBS News said it's not that simple.
Fauci's pardon doesn't cover actions taken after January 2025, including his testimony before the committee. If he made false statements or committed perjury, he could still be prosecuted.
The pardon also doesn't shield him from state or local prosecution. Attorneys general for Florida, West Virginia and Louisiana have said they're issuing Fauci subpoenas.
President Donald Trump and members of his administration have questioned the validity of pardons issued by Biden, including Fauci's.
Fauci could argue that he invoked his Fifth Amendment right for any of those reasons, experts said.
"Fauci is under no obligation to answer questions even though he has a pardon," said Michael Gerhardt, a University of North Carolina law professor. "He knew the point of the hearing was to find a basis to prosecute him. He found the safest way to minimize that from happening."
Osler said the committee could have offered Fauci immunity from prosecution to allow him to freely answer their questions.
"This Senate committee has not offered immunity, which is not surprising given Sen. Paul's desire to imprison Fauci," he said.
What are the next steps?
Under Senate procedure, after a committee votes to hold someone in contempt of Congress, the resolution is advanced for a full Senate vote. To pass the resolution, the Senate needs at least 60 votes. If certified, the case is sent to the Justice Department.
"Republicans don't have 60 votes, and so the full Senate is not going to hold him in contempt," said Ross Garber, a lawyer who represents clients under investigation by the government.
The other option under the statute, Garber said, is for the committee to file a statement of facts with the president of the Senate, Vice President JD Vance. Vance would review the statement and refer it to the Justice Department. This can only happen when Congress is not in session.
But Paul isn't expected to take either of these paths. He said in order to not "waste time," he would refer the committee's vote directly to the Justice Department.
It's up to the Justice Department whether to bring a case against Fauci before a grand jury. A grand jury would then decide whether to indict, and then a court would have to determine whether to move forward with prosecution.
Garber said it is likely a court would reject a prosecution where neither the full Senate nor Vance signed off on the contempt finding. Should the case get to trial, Garber said, it would be up to a judge to decide whether Fauci's invocation of the Fifth Amendment was proper.
If convicted, Fauci could face fines or a prison sentence of up to one year.