‘We might see this topic become the subject of litigation’

Bob Unruh
WND News Center

What if for the large part of the COVID-19 pandemic, Anthony Fauci, medical adviser to Joe Biden and Donald Trump, was making policy decisions, handing out $25 billion in grants, and more? With no more authority “to do so than your average server at your local Chick-fil-A?”

The situation was documented earlier by the Daily Signal which pointed out that Fauci, and others, “might have to pay his salary for his final year at the National Institutes of Health, based on a congressional committee’s finding that he wasn’t legally appointed by the Biden administration.”

Constitutional expert Jonathan Turley already has commented on the stunning development:

The problem is that Republicans on the House Energy and Commerce Committee announced they sent a letter to Health and Human Services Secretary Xavier Becerra pointing out that Fauci and 13 other NIH officials weren’t formally reappointed to their positions in December 2021.

The letter notes the law “requires the Secretary of HHS to reappoint NIH IC [institute and center] directors, including those who were serving at the time of the law’s enactment when their five-year terms expired on December 12, 2021.”

That apparently didn’t happen, and a new report at Twitchy offers the suggestion of coming headaches.

“If there is any party that can truthfully claim it was harmed by any of these decisions – such as Fauci giving a grant to Corporation A when Corporation B wanted it, or Fauci issuing a policy that harms any person to any degree – we might see this topic become the subject of litigation and more than a year’s worth of agency decisions might be destroyed at the stroke of a judicial pen.”

Twitchy explained, “The short version is that Fauci claimed to be the director of the National Institute of Allergy and Infectious Diseases. And at one point, he definitely held that job. But at another point, it may be that his term expired and … he kept doing the job anyway…”

Turley detailed it: “The problem is the 21st Century Cures Act, passed in 2016. Section 2033 of that act is titled ‘Increasing Accountability at the National Institutes of Health,’ and it seeks to achieve greater accountability by requiring the HHS secretary to personally appoint those directors. For reasons the Biden administration has yet to explain, it appears to have ignored the law, according to the House committee. Under the five-year terms granted in 2016, these directors had to be reappointed by [Health and Human Services (HHS) Secretary Xavier] Becerra by December 2021. It is not clear if this task was delegated to the NIH director, but the law appears to be clear: There is no delegation; it must be Becerra who renewed such appointments.”

The report said starting on December 12, 2021, “Fauci and 13 other National Institutes of Health institute and center directors seemed to unlawfully hold their offices… As Turley notes these people not only made significant policy decisions, but also gave out $25 billion in grants – all without have more authority to dos than your average server at your local Chick-fil-A.”

It speculated about going forward.

“We have examined the criminal statute prohibiting impersonating a public official, 18 U.S.C. paragraph 912, and it looks like there is a real chance these 14 officials violated that statute> Will Fauci go begging for a pardon .. if only for ‘cya’ purposes?”

The members of Congress charged, “The failure to reappoint the above NIH IC directors jeopardizes the legal validity of more than $25 billion in federal biomedical research grants made in 2022 alone.” The letter was signed by House Energy and Commerce Chair Cathy McMorris Rodgers, R-Wash.

“For Dr. Fauci and 13 other NIH officials whose terms had expired and failed to be reappointed, they would be guilty of a violation of the act if they knowingly—knowingly—accepted federal salaries, or worse, made grants to institutions or organizations that they were not legally authorized to make,” Robert Moffit, a former senior federal official in both the Department of Health and Human Services and the Office of Personnel Management, which oversees the federal workforce, told The Daily Signal.

Moffit currently is a senior fellow in The Heritage Foundation’s Center for Health and Welfare Policy. The Daily Signal is Heritage’s multimedia news organization.

“If guilty of such a violation, they would be required to reimburse the federal government for their salaries, and the grants would at least be subject to litigation from competitors in the research community who lost grant opportunities in a lawful process,” Moffit said.