The Fauci Contempt and the Architecture of Accountability

The Fox News lead presents the matter plainly: Congress has voted contempt against Anthony Fauci, and whether that contempt is prosecuted now rests with the new Attorney General, Todd Blanche. Democrats, the report notes, warn of weaponized prosecution. That warning is not frivolous — but it should not be permitted to obscure the prior structural question, which is the more important one.

First, the mechanism. The constitutional design, as I understood it when helping to frame it, assigns the investigative and oversight power squarely to the legislature. Article I is the first article for a reason: Congress is the branch closest to the people, and its authority to call witnesses, demand records, and expose the conduct of public officers is among the most vital instruments of republican government. A subpoena issued by a lawful committee of Congress is not a courtesy invitation. When that subpoena is refused and the House votes contempt, the question of enforcement moves, by statute, to the Justice Department — which is to say, to the executive branch. And there the structural tension becomes acute.

The problem the framers saw clearly. In Federalist No. 51, I argued that each branch must be given the means and the motive to resist encroachments by the others. The contempt referral mechanism as it now operates (this is inference on my part, built from the logic of the arrangement, not recollection of modern statutes I could not have known) places the legislature's most coercive tool in the hands of the very branch it most often investigates. That is a design flaw that no single administration created and no single administration can be blamed for — but every administration exploits it when convenient. A Justice Department that declines to prosecute contempt of Congress on political grounds has not merely done a favor for one witness; it has quietly diminished Congress's power to compel anyone.

The warning about weaponization deserves a structural answer, not a political one. The Democrats' concern, as Fox News frames it, is that the prosecution is selectively motivated — that the same executive branch that now pursues Fauci declined to pursue others on different political grounds. If that is true, it is a genuine grievance, and it points to the same structural defect from the other direction: an Attorney General who prosecutes contempt selectively is not enforcing congressional authority; he is deploying it as a factional instrument. Both failures — refusing enforcement and selective enforcement — corrode the separation of powers. The remedy is not to pick the lesser abuse but to build an enforcement mechanism that does not depend on the goodwill of the branch being investigated.

What should be asked of the Attorney General. Todd Blanche, whoever he may be by disposition or prior association (inference: I know nothing of him from my own era), holds an office that the Constitution's framers imagined as servant to the law, not to any administration's political calendar. The question to put to him is simple and structural: Will you apply the contempt statute as written, without regard to whether the held witness was favored or disfavored by the previous administration? If the answer is yes, the mechanism works, imperfectly but honestly. If the answer is conditioned on the identity of the witness, then the legislature has been told, in effect, that its subpoenas are only as good as the current president's approval — which is to say, not good at all.

The durable principle. Faction is inevitable. I said so in Federalist No. 10 and I would say it again. The cure is not to hope that the faction in power behaves nobly; the cure is structural — rules, procedures, and, ultimately, amendment of those procedures that have shown themselves defective. Congress has other tools: inherent contempt, civil enforcement through the courts, the power of the purse as leverage. A legislature that relies entirely on the executive to enforce its own authority has already surrendered too much ground. The present controversy, whatever its merits as applied to Dr. Fauci specifically, is a prompt to repair the mechanism. That is the column I would rather read — and the debate I would rather see.