I have never addressed the same topic two weeks in a row but given the gravity of this matter I felt it was warranted with respect to the 11th hour Fauci pardon by Pres. Biden in light of Fauci’s recent Senate appearance.
There are two threshold issues to consider.
First, the legality of the Fauci pardon which covers 11 years for crimes of which Fauci has not yet been accused. Reportedly, the pardon was signed by an autopen. The issue is whether Pres. Biden had any personal knowledge of the pardon, or whether the ‘autopen’ signed it under the direction of a staffer beyond the scope of presidential prerogative and without addled Biden’s awareness.
Second is the issue of waiver.
Professor Jonathan Turley has publicly stated that Fauci’s opening statement in his Senate testimony prior to invoking the Fifth Amendment raises legal issues regarding whether Fauci waived his immunity from prosecution.
Regardless, the Biden pardon only shields Fauci from federal offenses, not state or local ones because each state possesses state “police powers” that include protecting the safety, morals, general welfare, and public health of state residents.
It is generally held under U.S. Supreme Court precedent that a federal official acting in his official capacity is shielded from state criminal prosecution for actions taken while reasonably fulfilling his lawful duties. I’m certain Fauci’s criminal defense team will argue that all of his pandemic actions and policies fall entirely within his official federal capacity.
However, I think immunity from state prosecution fails if that same federal official acted outside of what federal law authorizes, or takes action or makes decisions that are not truly necessary and proper for their job. Some of those actions and decisions include i). Fauci’s pandemic “guidance” and public statements which we now know, based upon his own diary, he did not even believe; and ii). his demonstrably false statements regarding the U.S. funding of the Wuhan Institute of Virology.
The New York Post reports that Fauci ‘has been subpoenaed by three state attorneys general who are investigating whether he promulgated health guidance for “personal profit.”’ Florida AG, James Uthmeier, West Virginia Attorney General John McCuskey, and Louisiana Attorney General Liz Murrill have requested Fauci hand over records generated between January 2020 and August of this year.”
“Government officials have a certain level of immunity in their official capacities, but if Fauci personally profited off of the ‘guidance’ he issued, that very well could have broken Florida law,” Uthmeier said.
The Post further reports that these state investigations will include a focus on self-dealing, and whether Dr. Fauci personally profited from pandemic guidance. Allegations focus on whether he used official resources to pursue lucrative high-dollar awards, boosted his media fame and post-retirement speaking fees, or held financial conflicts tied to pharmaceutical or research entities.
So, again, the legal issue in state courts would be whether Fauci was acting in his official capacity. If so, Fauci would be shielded from state criminal prosecution. However, if the Court finds that Fauci was not acting in his official capacity—as would be the case if Fauci personally profited off of the ‘guidance’ he issued’—he would not be shielded from state or local offences.
Legally, I don’t think this is a stretch. I think the strongest argument is that Fauci’s actions—which include acts which lie beyond the scope of his official capacity—directly affected the public health of virtually every U.S. state. Many people died in every state as a result of the botched and misleading handling of Covid. Johns Hopkins University data reflects that Covid deaths in Louisiana were at least 18,766.
So, to summarize, for a state prosecution of Dr. Fauci to succeed a state attorney general would need to establish a direct violation of a specific state criminal statute and that the offense or harm occurred within their state’s geographical boundaries, and beyond the scope of Fauci’s official capacity.
I would not typically call for the prosecution of a virologist because I can imagine that honestly predicting the origins, path of, or harm, a virus may cause is like taming the wind. But that’s the point. Fauci’s cynical and self-aggrandizing diary entries make clear that what he was telling the public about Covid is not what he privately knew or believed about the virus. For that reason alone, the states should pursue this prosecution if these bad acts can be persuasively connected to state civil or criminal statutes.
Shreveport attorney, Royal Alexander, worked in D.C. in the U.S. House of Representatives for nearly 8 years for two different Members of Congress from Louisiana.