TODD BLANCHE TAKES OVER AS AG - FIRST MOVE HAS DEMS PANICKING
Todd Blanche Takes Over DOJ - But the Fauci Referral Opens a Bigger Constitutional Fight
The Senate confirmed Trump's former defense lawyer by a single vote. Now the Justice Department is reviewing a contempt referral whose legal force is itself disputed.
A dramatic overnight Senate vote has put one of the most powerful positions in the federal government into new hands.
Todd Blanche was confirmed as attorney general early Saturday by a 50-49 vote, giving President Donald Trump's former personal defense lawyer permanent control of a Justice Department he had already been leading on an acting basis.
But the most immediate political test facing the department may have less to do with Blanche's confirmation than with a referral already sitting at DOJ.
Republicans on the Senate Homeland Security and Governmental Affairs Committee have asked the Justice Department to pursue criminal contempt against Dr. Anthony Fauci after he repeatedly invoked the Fifth Amendment during a July 29 hearing on the federal response to COVID-19.
The Justice Department has confirmed that it received the referral and is reviewing it.
That sounds straightforward.
It is not.
The dispute now involves not only Fauci's testimony and the scope of former President Joe Biden's pardon, but also a basic procedural question: whether a committee-level contempt vote sent directly to DOJ has the same legal force as a contempt referral approved by the full Senate.
That distinction could matter as much as the political rhetoric surrounding the case.
Fauci appeared before the Senate Homeland Security and Governmental Affairs Committee under subpoena on July 29.
During the hearing, he invoked his Fifth Amendment right against self-incrimination more than 100 times. Multiple reports, including accounts of the hearing, put the number at 111 invocations.
His response was essentially the same each time: on the advice of counsel, he declined to answer based on his constitutional rights.
The Fifth Amendment protects a witness from being compelled to provide testimony that could be used to incriminate him.
Invoking that protection is not evidence of guilt, and the act of asserting the Fifth Amendment does not itself prove that Fauci committed a crime.
That is where the political argument begins.
Committee Chairman Rand Paul, R-Ky., argues that Fauci's situation is different because Biden issued him a broad federal pardon before leaving office.
The pardon, dated January 19, 2025, was described as "full and unconditional" and covered federal offenses Fauci may have committed from January 1, 2014, through the date of the pardon arising from or related to his service as NIAID director, a member of the White House coronavirus response, or chief medical adviser to the president.
Paul's position is that such a pardon removes much of the federal criminal exposure tied to Fauci's pandemic-era service and therefore weakens the basis for refusing to answer questions about that period.
Fauci's lawyers and Democratic senators dispute that conclusion.
Their argument is that the pardon does not necessarily eliminate every conceivable risk of prosecution. It does not cover conduct after the pardon date, and legal experts have also pointed to possible state-level exposure that a presidential pardon cannot erase.
That means the pardon and the Fifth Amendment are connected, but the legal question is not as simple as saying one automatically cancels the other.
The committee moved ahead anyway.
On August 6, Republicans on the Homeland Security and Governmental Affairs Committee voted to approve a contempt resolution against Fauci. The committee's official release recorded the vote as 8-5 among members voting in person, with the action passing along party lines.
Paul then moved to send the matter directly to the Justice Department rather than first seeking a contempt vote by the full Senate.
A congressional aide later said the referral had been delivered to DOJ, and the department confirmed receipt.
That is another reason the case is more complicated than a normal criminal referral.
Historically, criminal contempt of Congress typically involves action by the full chamber before a referral is transmitted for prosecution.
Democrats on the committee argue that bypassing the full Senate leaves Paul's referral without the normal legal foundation required for criminal contempt.
Ranking Member Gary Peters, D-Mich., warned before the committee vote that the resolution lacked a sufficient legal basis and could weaken both congressional oversight and constitutional protections for future witnesses.
Some legal experts have raised the same procedural concern.
So DOJ is reviewing a referral, but the referral itself does not establish that Fauci committed a crime, does not require prosecutors to bring charges, and may face a threshold dispute over whether the Senate followed the process needed to support a criminal contempt prosecution.
That is the issue Todd Blanche inherits.
Blanche had already been serving as acting attorney general since April 2, when Trump removed Pam Bondi and elevated Blanche from the deputy attorney general position.
Before entering the administration, Blanche was one of Trump's personal criminal defense lawyers.
His confirmation therefore drew unusually intense scrutiny over whether he could maintain the Justice Department's independence while leading an administration that has repeatedly demanded investigations of political adversaries.
The final vote showed how narrow his path had become.
Every Senate Democrat voted against Blanche.
Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska also voted no.
Sen. Mitch McConnell, R-Ky., who has been absent from the chamber since suffering a fall in June, did not vote.
That left Republicans with almost no room for another defection.
The decisive support came from Sen. Bill Cassidy, R-La., who had remained one of the most closely watched Republican holdouts.
"Mr. Blanche is not perfect, and he will tell you this," Cassidy said on the Senate floor.
"But the choice is not between perfection and Mr. Blanche. It is between Mr. Blanche and another acting attorney general who may not run the department effectively under President Trump, and who indeed may not be as good as Mr. Blanche."
Cassidy also tried to separate the confirmation vote from a broader judgment of Trump.
"This is not a referendum on President Trump," he said. "It is a decision regarding Mr. Blanche in very specific circumstances."
He ultimately concluded: "All considered, I will vote for Mr. Blanche. I'll be criticized for this vote. What's new?"
Democrats viewed the choice very differently.
Sen. Dick Durbin of Illinois, the top Democrat on the Judiciary Committee, called Senate approval of Blanche a "grave mistake" and argued that the country needed an attorney general clearly insulated from political pressure.
That debate over DOJ independence now collides directly with the Fauci matter.
Republican lawmakers have spent years investigating pandemic-era decisions, federal research funding and the origins of COVID-19.
Paul has been one of Fauci's most persistent critics and previously referred him to the Justice Department over allegations that his testimony to Congress about federally funded research was false.
Fauci has denied wrongdoing and has long disputed Republican allegations about his role in research connected to the Wuhan Institute of Virology.
The latest confrontation is different because it centers on what Fauci did during a new Senate hearing in 2026 rather than solely on conduct covered by the 2025 pardon.
That does not mean a prosecution is likely.
It means prosecutors would first have to decide whether there is a legally valid contempt referral, whether Fauci's Fifth Amendment invocation was protected under the circumstances, and whether the evidence supports any federal criminal charge.
Congress can recommend prosecution.
It cannot order DOJ to prosecute.
The Justice Department retains its own charging authority, and a criminal case would require prosecutors to conclude that admissible evidence satisfies the elements of an offense and that prosecution is legally supportable.
The same caution applies to the pardon.
Biden's clemency order clearly protects Fauci from federal prosecution for covered conduct through January 19, 2025.
It does not automatically answer whether a witness may invoke the Fifth Amendment during testimony given more than a year later, particularly when that testimony itself could potentially create new legal exposure.
That is why the fight is likely to remain as much about constitutional procedure as it is about Fauci.
Blanche's confirmation settled one immediate question.
The Justice Department now has a Senate-confirmed attorney general after months of acting leadership.
What it did not settle is what Blanche will do with one of the most politically charged referrals already before the department.
For Republicans, the case is a test of whether years of pandemic investigations will finally produce legal accountability.
For Democrats and Fauci's defenders, it is a test of whether Congress and the Justice Department will respect a witness's constitutional rights even when the witness is politically unpopular.
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And for DOJ, the first question may be narrower than either side wants.
Before deciding whether Fauci should be prosecuted, the department may first have to decide whether the referral asking it to prosecute him can legally support a case at all.
