There are a lot of sordid government figures in need of real accountability for abusing their power against the American people. But perhaps none other is more deserving than Dr. Anthony Fauci.
As White House Covid czar during the Trump and Biden presidencies, Fauci was tasked with overseeing the governmental response to the viral outbreak. While marketed as the leading authority on all things Covid-19, Americans would learn in the years that followed that the self-absorbed health official and his allies’ conduct throughout the pandemic amounted to everything but “following the science.”
In the past few weeks alone, newly unearthed government records have affirmed Fauci’s obsession with his own self-promotion, collusion with corporate media, and numerous falsehoods he told the public about the virus and its origins. These new releases also included bombshell text messages from the former NIAID director about the Covid vaccines’ risks to pregnant women — risks that he and others did not disclose to the public.
In light of such revelations, Americans far and wide have renewed their calls for charges to be brought against Fauci for his lies and wrongdoing.
A sweeping last-minute pardon from President Joe Biden made that objective more difficult by effectively closing the door on any potential federal prosecution of Fauci for his actions throughout the pandemic. And with uncertainty about the success of possible contempt charges for Fauci’s refusal to testify before Congress, all eyes have now turned to the states.
Speaking with The Federalist, several legal specialists noted the difficulty state prosecutors will likely face as they seek to hold Fauci accountable for his Covid conduct. In spite of these prospective hurdles, however, they offered several potential avenues they say are worth pursuing to ensure the American people get the justice they deserve.
“I am very much in the camp that Fauci lied to the American people, and he deserves to be held accountable for those lies, both at the state and federal level,” America First Policy Institute Senior Fellow Chad Mizelle told The Federalist. “I certainly think that state governments have options in pursuing claims against Fauci, and I very much hope that they will.”
Potential Legal Avenues
As previously stated, Fauci’s sweeping pardon has complicated federal efforts to prosecute him for potentially criminal conduct throughout the pandemic. But according to Mizelle and Hans Mahncke, a Federalist contributor and the founder of the Counterlawfare Institute, that doesn’t mean there are no avenues state prosecutors can look to when investigating the former health official for purported violations of the law.
While noting the damaging consequences from the policies advised by Fauci and Co. (children’s learning loss, business losses from lockdown policies, and so forth), Mizelle, a former senior Justice Department official, said state attorneys general might want to examine action under consumer protection and deceptive practices statutes. He noted that while such laws have been used to go after major corporations and organizations for “intentionally deceiving consumers,” they could also potentially provide a route to pursue Fauci.
“Here, it could be buying masks; it could be getting vaccines that they otherwise wouldn’t have done; it could have been foregoing opening a business when they otherwise would have done that,” Mizelle said. “I think that’s one potential interesting avenue that, if I were a state, I’d want to explore.”
The former DOJ official noted that another possible path could be “some sort of mass tort action” from the states. Comparing it to an oil company’s “negligent” conduct that leads to a massive spill affecting states and their residents, he said “a similar analogy” could be drawn to Fauci and Co.’s Covid misconduct and its aftereffects.
While not as familiar with the consumer protection angle, Mahncke agreed with Mizelle’s tort suggestion and additionally recommended states “throw everything at it and try and find a court that will take it.” The key, he said, is for states to “try and find some gap somewhere” and “then just tak[e] it one step at a time from there.”
Hurdles to Accountability
Bringing such charges against Fauci may be easier said than done. Mizelle and Mahncke observed that there are major hurdles state AGs will face in their pursuit of justice — namely, federal immunity and the Westfall Act.
As described by Mahncke, the 1988 Westfall Act effectively “immunizes all federal employees from” state charges for conduct performed as part of their official government duties. It essentially “replaces the worker with the federal government” in litigation, so that “rather than suing the worker,” he said, “you can only sue the federal government, and then of course you’re not going to hold the worker accountable because they’re immunized.”
“There’s an important distinction that makes it more difficult under the Westfall Act as compared to normal employment law. If an employee does just totally crazy things that have nothing to do with their employment, well, then they can be sued themselves, and then the employer is not liable for them. So, it’s sort of much more flexible,” Mahncke said. “Unfortunately, when you look at the Westfall Act, the way it’s been interpreted, it even includes things where the employee [like] Fauci does really, really bad things — maybe even criminal things — and the Westfall Act would still apply.”
The Counterlawfare Institute founder said the “trick” for state prosecutors will be to find an avenue where the Westfall Act does not apply. He noted that one potential way around it may be found in Fauci’s efforts to suppress the lab-leak theory and obscure his role in funding gain-of-function research in Wuhan.
Among the revelations in his recently released “diaries” is a January 2020 entry in which Fauci acknowledged that Covid-19 likely did not originate from a Wuhan wet market — seemingly the complete opposite of the position he took when discussing the issue in public. The former NIAID director notably played a role in approving funds to the nongovernmental group EcoHealth Alliance, which, from 2014-2020, shipped “more than half a million dollars’ worth of U.S. government grants … to the Wuhan Institute of Virology (WIV) to conduct gain-of-function research on bat coronaviruses,” as Federalist Senior Contributor Helen Raleigh previously reported.
“If Fauci knew there were potential risks from the vaccines but nevertheless urged pregnant women to take them because he believed mass vaccination was necessary, he was still doing the job the government employed him to do. That may not be satisfying, but that is how Westfall works,” Mahncke said. “Covering up Covid’s origin to conceal Fauci’s own role is fundamentally different. The government did not employ Fauci to protect Fauci. It did not authorize him to suppress the truth, conceal his own conduct, or prevent the public from discovering wrongdoing in which he was implicated.”
“Westfall protects officials who commit wrongs while doing the government’s work. It does not protect officials who use government power to hide their own wrongdoing,” he added.
Both Mizelle and Mahncke also opined that it would be a “steeper climb” for individual citizens to bring successful medical malpractice and similar lawsuits against Fauci. On the Covid jabs and miscarriages issue, for instance, they said such potential suits would run into “causation” problems and face a “much higher bar” in court.
Need for a Strategy
While recognizing the reality of such difficulties, Mizelle and Mahncke affirmed that states should not be deterred from trying to hold Fauci accountable for his Covid-related misconduct.
Mahncke advised like-minded state attorneys general to hold a strategy meeting to “figure out how you’re going to go about it,” and to assemble “experts on Westfall who know the case law inside out.” He also encouraged state AG offices with adequate resources to lead the charge in pursuing such litigation.
The attorneys general of Florida, Louisiana, and West Virginia subpoenaed Fauci days after his refusal to testify before Congress. The move comes as part of “an official investigation into awards, professional opportunities, financial incentives, grants, and COVID-19 guidance that impacted” these states’ consumers and businesses, according to a Florida AG press release.
