Becerra’s Blunder: Did the Administration Allow Fauci and Other Officials to Operate Illegally?

Below is my column in the Messenger on a possible blunder on a massive scale by the Biden Administration. A House Committee is alleging that the Administration failed to properly reappoint directors at the National Institutes of Health. While the Administration insists that it complied with a law that required Health and Human Services Secretary Xavier Becerra to make the reappointments personally, it later issued a retroactive reappointment for most of the directors after months of congressional inquiry. Two, including Anthony Fauci, had already retired and were not retroactively reappointed. The result is an intriguing question of whether officials like Fauci were operating without authority while spending billions and implementing national health policies.

Here is the column:

Dr. Anthony Fauci has faced intense scrutiny in the past over his testimony denying any funding of “gain-of-function” research at the Wuhan lab in China. However, the most serious question now may be whether Fauci was who he said he was in those hearings: the then-director of the National Institute of Allergy and Infectious Diseases (NIAID).

On Friday, the House Committee on Energy and Commerce issued a letter to Health and Human Services (HHS) Secretary Xavier Becerra that raises the disturbing question of whether Fauci and 13 other National Institutes of Health (NIH) institute and center directors were unlawfully holding their offices for some period. Not only did these directors make sweeping policy changes for the nation but, in 2022 alone, they awarded more than $25 billion in federal biomedical grants.

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 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 renews such appointments.

CNN’s senior medical correspondent, Elizabeth Cohen, once gushed that when “Dr. Fauci talks, he’s just like a regular guy.” It turns out she might have been more accurate than she thought — because Fauci legally may have been just a “regular guy” giving out billions without authority.

What is equally baffling is that the House informed the administration that it was presumptively in violation of federal law. What followed were convoluted and confusing statements from the administration on a very simple question: Did Becerra appoint these directors?

It got even stranger on June 19 when HHS sent Congress documents titled “Ratification of Prior Selection and Prospective Appointment: Appointment Affidavit.” While signed by Becerra, the documents were dated on June 8 and June 15. They were specifically “prospective appointments” but seemed to suggest some form of retroactive ratification. That, too, is not allowed under federal law. In the case of Fauci and another director, according to the House committee, there is not even a retroactive affidavit to that effect.

Given the seemingly evasive response from HHS, it does appear that more than a dozen officials, including Fauci, may have been operating under a type of assumed official identity. If that turns out to be the case, Fauci may have had no legal authority after Dec. 12, 2021, to do even the most mundane tasks as a director.

It would be easy to dismiss this violation as a matter of no harm, no foul. After all, this appears simple (albeit shocking) negligence by the Biden administration as opposed to some nefarious effort. Yet, if true, billions of dollars in grants and thousands of personnel and policy changes could be questioned.

Last September, for example, the U.S. Court of Appeals for the Ninth Circuit rejected claims that appointment violations were mere technical concerns. It stressed in Cody v. Kijikazi that such a “violation is thus no mere technicality or quaint formality — it weakens our constitutional design. An appointment too far removed from the President or the head of an executive agency may, for example, erode political accountability.”

In addition, there is the question of the legal status of myriad decisions made by these directors, including exercising their authority over the approval of grants. If the administration failed to satisfy federal law, directors like Fauci would have had no more authority than his chief antagonist, Sen. Rand Paul (R-Ky.), to issue NIAID grants. Billions were awarded, policies changed, and personnel managed by individuals who potentially had lost their legal authority to direct these offices.

In one case involving challenged administrative law judges in 2018, the Supreme Court ruled in Lucia v. Securities & Exchange Commission that past litigants were entitled to decisions from properly appointed judges.

Biden officials may have dismissed such obligations, but Congress clearly supported this requirement as an effort to gain greater accountability for these appointments. Executive officials do not have the authority to dismiss federal law any more than they have the authority to act without meeting the conditions to hold their positions under federal law.

This could not come at a worse time for the administration. This month, the Supreme Court ruled that President Biden had unconstitutionally ordered up to a half-trillion dollars in college loan forgiveness; previously, it found that the administration violated the Constitution with its national eviction moratorium and some vaccine mandates. Now some of the same officials involved in those mandates potentially acted without legal authority after 2021, if their appointments were not properly carried out.

It is not clear where we go from here, if the allegation proves to be true. It could mean that Fauci and others were a type of “undead” directors who were statutorily expired but still walking the halls of HHS. If so, the Biden Administration could be looking at a legal zombie apocalypse, as those directors’ decisions are challenged in courts as having been invalid.

While claiming that it has complied with the law, the Biden administration reportedly hopes that retroactive appointments can blunt any possible challenges to past decisions.

The size of the error on appointments would appear to be unprecedented. What is clear is that such a violation would constitute a shocking level of administrative incompetence. It also is clear that the House committee can now demand — and, if necessary, compel — answers from Becerra on whether federal law was knowingly flaunted and whether Congress was actively misled.

Fauci, now retired from the federal government, is a professor at Georgetown University and collecting $350,000 per year in government pensions. He left public service with the highest salary in the federal government, at $480,654. Ironically, near the end of his career, those may have been financial gains from a function that he did not legally possess.

Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.


98 thoughts on “Becerra’s Blunder: Did the Administration Allow Fauci and Other Officials to Operate Illegally?”

  1. Let me guess…. none of them were officially in office so none of them can be held accountable for what they didn’t actually do.
    It’s like the MAGICAL “they resigned” in DC, as if suddenly that means they are forgiven, their crimes are excused, humiliated, they are suffering worse than those they maimed murdered and pilfered from. No possibility they could testify, shove in the new guy who knows nothing and pretend that’s legal or fair, and in the next breath go after Naxi’s from nearly one hundred years ago in any foreign nation on earth, as if their time in office never ends.

    It’s a sick twisted lying machine of excuses and the wimps who constantly endorse and allow it.

  2. Anonymous
    ““Biden and Becarra could be impeached for incompetence.”
    No, they can’t be impeached for incompetence. Incompetence is not a high crime or misdemeanor.”
    Of course they can DEMOCRATS already established that language in the constitution is meaningless in their bogus impeachments of Trump.

    “Republicans are abusing the word “impeachment” ”
    Nope. Democrats have established that the criteria for impeachment – is mere politics.

    “like they are abusing the word “treason”.”
    Some republicans are abusing Treason – as are democrats.
    Who are also abusing the word democracy – hint it does NOT mean authoritarian.
    But then if the left uses words – they abuse them.

    If the question is what political group is more deceiptful, more abusive of words – you win.

  3. “An appointment too far removed from the President or the head of an executive agency may, for example, erode political accountability.” That part about “political accountability” is a knee-slapper for sure. That went out with the hula hoop or something like that…

  4. Section 2033 has curious language. What is the Secretary tasked with by “acting through the Director of the National Institutes of Health”?

  5. Dear Dr. Fauci:

    We have determined that you received incorrect payments totaling $480,654. Please return that amount in 30 days. We have enclosed a franked envelope for you to use in returning these funds.

    Thank you for your cooperation


    The Secretary of HHS

  6. “Good morning, [NUTCHACHACHA – Code Name Gigi]. Your mission, should you decide to accept it, is to [slime Professor Turley with ersatz imputation]. As always, should you or any member of your [Bolshevik] Force be caught or killed, the secretary will disavow any knowledge of your actions.”

    – GRU, Communist Party Headquarters

    Da svidania!

    You go, Sista!

    “Republicans argue Fauci emails show NIH funded gain-of-function research at Wuhan lab” July 30, 2021 (Excerpted)

    Top House Republicans argue that emails and other evidence show that the National Institute of Allergy and Infectious Diseases funded gain-of-function research at the Wuhan Institute of Virology and are calling on its director, Dr. Anthony Fauci, to explain his repeated sworn testimony to the contrary. Earlier this month, Sen. Rand Paul requested Attorney General Merrick Garland to start a criminal investigation of Fauci over his Senate testimony, during which he said the National Institutes of Health never funded gain-of-function research at the Wuhan lab. The Kentucky Republican says that is a lie, while Fauci insists the NIH grants did not fund gain-of-function research. Rep. Jim Jordan of Ohio, the ranking member on the House Judiciary Committee, and Rep. James Comer of Kentucky, the top GOP member on the House Oversight Committee, sent a letter to Fauci this week, noting he hadn’t responded to a similar June letter from them about testimony in May and arguing that his July testimony only raised more questions. Jordan and Comer said, “New emails make this recurring testimony even more concerning and show a closer relationship between NIAID and the WIV than previously known.” Jordan and Comer contended that the NIAID “funded gain-of-function research at the WIV and this research did not go through the proper oversight.” They told Fauci that “it is unclear why you would continue to testify otherwise.” They pointed to recently released emails to make their case. The Republicans cited a Feb. 1, 2020, email from Fauci to the deputy director of the NIAID, Dr. Hugh Auchincloss, which included an attached research article published in 2015 in Nature Medicine titled “A SARS-like cluster of circulating bat coronavirus shows potential for human emergence” that was “primarily authored” by Dr. Ralph Baric of the University of North Carolina at Chapel Hill and Wuhan lab “bat lady” Dr. Li-Zhengli Shi, with the paper acknowledging the Key Laboratory of Special Pathogens and Biosafety at the Wuhan Institute of Virology. Jordan and Comer noted that “the paper was funded by NIAID grant U19AI107810” and that both “Baric and Shi acknowledge this.”


    Jordan and Comer stated: “This work was gain-of-function research. There is no need to conduct a scientific analysis of this paper to determine whether or not it constituted gain-of-function; you state it in your email to Dr. Auchincloss and it states it in the paper itself.” The attachment line of Fauci’s email to Auchincloss was “Baric, Shi et al — Nature medicine — SARS Gain of Function.pdf,” and the subject line was “IMPORTANT.” Fauci’s message had a tone of urgency, saying, “Hugh: It is essential that we speak this AM. Keep your cell phone on. I have a conference call at 7:45 AM with [Health and Human Services Secretary Alex] Azar. It likely will be over at 8:45 AM. Read this paper as well as the e-mail that I will forward to you now. You will have tasks today that must be done. Thanks, Tony.” The Republicans noted the paper said its “experiments with the full-length and chimeric SHC014 recombinant viruses were initiated and performed before the GOF [gain-of-function] research funding pause and have since been reviewed and approved for continued study by the NIH.” The Republicans said “this work did not go through proper oversight” and argued Baric and Shi “claimed their gain-of-function research conducted with American taxpayer dollars at the Wuhan lab” was given the green light by the NIH, noting that the paper itself said it was “reviewed and approved for continued study by the NIH.” But Jordan and Comer said Auchincloss “disagrees” with that, pointing to a Feb. 1, 2020, email response from him to Fauci that read, “The paper you sent me says the experiments were performed before the gain of function pause but have since been reviewed and approved by NIH. Not sure what that means since Emily is sure that no Coronavirus work [has] gone through the P3 framework.” Although “Emily” is not identified, Emily Erbelding, the director of the NIH’s division of microbiology and infectious diseases, is mentioned in dozens of Fauci emails. Auchincloss continued, “She will try to determine if we have any distant ties to this work abroad.” After a pause in 2014, HHS announced the creation of the Potential Pandemic Pathogen Care and Oversight Framework in 2017, which was ostensibly set up to review any grants that might involve gain-of-function research, but the 2019 renewal of the EcoHealth Alliance grants was not subjected to the P3CO review. Jordan and Comer argued the statement from Auchincloss “directly refutes” the claims by Baric and Shi “and raises serious questions as to who approved dangerous gain-of-function research to take place in the WIV.” During a Senate hearing in May, Paul pointed to the work between Baric and Shi as evidence of U.S. support for gain-of-function research in China. Fauci replied: “Sen. Paul, with all due respect, you are entirely and completely incorrect — that the NIH has not ever and does not now fund gain-of-function research in the Wuhan Institute of Virology.” He added: “Dr. Baric is not doing gain-of-function research, and if it is, it is according to the guidelines, and it is being conducted in North Carolina, not in China.” Paul pointed to NIH grants going to EcoHealth, which then provided funding to the Wuhan lab that a Trump State Department fact sheet contended carried out secretive gain-of-function experiments and worked with China’s military. NIH’s RePORTER website said the agency provided $15.2 million to Peter Daszak’s EcoHealth over the years, with $3.74 million toward understanding bat coronavirus emergence. Daszak maintained a long working relationship with Shi, sending her lab at least $600,000 in NIH funding. Daszak was part of the WHO-China team that dismissed the lab leak hypothesis as “extremely unlikely” earlier this year. The acknowledgments section of the paper cites grants from the National Institute of Aging at NIH and USAID PREDICT funding from EcoHealth, also stating that “human airway epithelial cultures were supported by” the National Institute of Diabetes and Digestive and Kidney Diseases at the NIH. The National Natural Science Foundation of China also provided funding. The paper by Shi, Baric, and others seemed to acknowledge the risks posed by these experiments and whether the “value of the data generated” outweighed the “inherent risks involved.”

    – Jerry Dunleavy

  7. Let’s see now, Turley: today’s assignment is to slime Dr. Fauci, so Turley alludes to “gain of function” studies, which Dr. Fauci denies were funded by the NIH, but Turley claims is the subject of “scrutiny”. So, have the Cult 45’ers in the House come up with something, anything to prove Dr. Fauci is lying? No, they haven’t, but Turley mentions it anyway–why–other than a feeble attempt to throw dirt on Fauci–which is one of Fox (non) News’ tropes? And, why are they going after Fauci in the first place? Because he wouldn’t kow-tow to Trump.

    Turley’s complaining about people at the NIH “unlawfully holding their offices for some period” and making policy and spending taxpayer money. What about Trump? If you want to talk about someone who “unlawfully” held office–Trump is the best example there is–he cheated his way into office with the help of Russian hackers who were directed where to spread lies about Hillary Clinton, and his invalid “presidency” has cost America dearly–130,000 Americans are estimated to have died just due to Trump’s lies and utter incompetence, not to mention the extra illnesses and disabilities due to people distrusting public health advice because of Trump. How about the trade war with China, resulting in shortages of computer chips and consumer goods, which helped to drive inflation? How much in taxpayer dollars was wasted in Secret Service guarding Trump during the “Stop the Steal” campaigns, all leading up to the insurrection? How much did it cost to repair the Capitol? We could go on, but at the end of the day, what real difference did this alleged failure to reappoint cause America? None. Were any of the taxpayer dollars granted for studies, etc, misspent or misappropriated? Or, is this just another false flag—more red meat for the disciples– a counternarrative to set off the daily headlines about all of the outrageous things Trump did, now that former staffers feel free to discuss them.

    1. Wow…I didn’t read that in flyover country news. Here I heard from muller there was no Russia collusion by Trump. But there was Noel canning. Where a non agent can’t regulate people….they’d have standing. But apparently a non agent can spend other peopls money…bc who has standing,? So it’s all very convenient. Really. I guess someone who lost their job over non Vax will have to show….fauci caused it. It should be easier than showing Trump caused the “inserrection”….as fauci actually said what to do….get jabbed. Vs Trump said be peaceful. In civil court such plaintiff could win on the preponderance probability…against fauci who couldn’t have govt indemnity….if he was rogue. This could be fascinating

      1. But the tripe will be…”you deal with the government you square corners” …hence its real convenient that he was rogue….because essentially no one except a third party tribe in the hinterlands will have standing justifiable. Only just then because one of their members will be in shock to learn about the internet….and from that third parties concrete harm…..will flow to …..a non profit who will find third party standing that is justicable. Or something like that.?

    2. So here we have the Der riguere defense of Fuaxi.

      Fauxi, as well as others in the US government, in Fauxi’s cliche, in the WHO funded research to genetically modify Viruses – including specifically bat corona viruses.

      That occured – there is ZERO question of that.

      Fauxi and his defenders are trying to argue that “technically” it was not “Gain Of Function Research”.
      They are engaged in that game of technicalities – because AT THE TIME Fauxi approved the funding it was ILLEGAL to Fund Gain Of Function Research – President Obama issued an Executive order stopping US Funding of GOF research.

      We can debate whether the research that Fauxi and company met the narrowest defintion of GOF – though honestly IT DID.
      But there is zero doubt that the US Funded research to genetically modify bat corona viruses in Wuhan China.

      And there is very little doubt anymore that lead to the likely accidental release of Covid 19 into the world and the resulting pandemic.

      The Chinese bear a great deal of responsibility for inflicting C19 on the world.

      But so does the US and particularly individuals like Fauxi and his Cabal.

      Unlike Dr., Mengele Fauxi did not intentionally experiment on Billions of people – killing millions.
      But he did far more harm than Menglele did.

      I would note Fauxi denies many things – and ALWAYS those denials hinge on word games.
      It is likely that he is “innocent” in the strictest criminal sense requiring proof beyond a shadow of a doubt.
      But he is absolutely guilt by the “preponderance of the evidence standard”

      I would further note – this should not have anything to do with Trump, or partisan politics.

      Fauxi worked for Every president since Carter.

      But as is typical of the Left GiGi – you MUST see everything through a political lens.

      Did Dr. Fauxi lie to congress ? Certainly. Did he lie in a way sufficiently clearly to constitute a crime – Probably.
      But you are free to claim otherwise.

      What you will be justifiably booed and criticized for is pretending that Fauxi is decent and honest.

      He is not. That has nothing to do with Trump or Biden of politics – except that YOU insist that
      Those you think are on your side are pure and good and those who you think are not are black and evil – ALWAYS.

      The reality is Fauxi is neither decent nor honest and bears responsibility for a predicted and foreseeable disaster.

    3. Will Russiagate never die? The Clinton emails were not obtained by Russian hackers. Bill Binney proved this a long time ago by analyzing the meta-data. It was an inside job done by a DNC staffer. Nor were the emails lies. Debbie Wasserman Schultz & Donna Braziel had to resign because of them.

  8. Why is massive government incompetence so surprising ?

    It is in the nature of government to be incompetent and corrupt.
    This is just the nature of the beast.
    It is true of republicans and democrats.
    It would be true of libertarians.

    It is one of many reasons that govenrment must be limited.

    1. Infinitesimal government is established in Article 1, Section 8, as Americans are provided maximal freedom by the Constitution and Bill of Rights.

      Get your corrupt, communist friends on the Supreme Court to read it, and digest it, sometime – they’re sworn to “support” it.

      Karl Marx published the Communist Manifesto 59 years after the adoption of the Constitution because none of the principles of the Communist Manifesto were in the Constitution. Had the principles of the Communist Manifesto been in the Constitution, Karl Marx would have had no reason to write the Communist Manifesto. The principles of the Communist Manifesto were not in the Constitution then and the principles of the Communist Manifesto are not in the Constitution now.

      Ain’t no “from each according to his ability, to each according to his needs” around heah!

      Americans enjoy freedom and self-reliance; that’s all anyone needs.

      1. George … Needs…but they get taxed….too. so Tell that to my folks who paid in to social security “forever” who’s checks are as big as the checks to the illegals! No illegals get a bigger check than my neighbor. Who paid in always iaw his need for ss…that they inflated the cost of all. Indeed one my neighbor got as much or more during covid as my husband who severed 22 plus years….in the dod. And they wonder why they have a recruiting problem…or a Joey on fox put it….”I lost my legs for free college”…..let that sacrifice sink in…if everyone and anyone gets it what are milt recruiters peddling? Not much. George buy components for wood gas – ice. I hear ya but self reliance is tu. Your a Winchester one in a million. Make your most of it. But know the circle that knows or hears ya is very small. Very small. They don’t even know Russia was our ally once. Who gave millions of lives for us. We forget they then took the stone mills away.
        And run into containment wars after patton was murdered.. and never taught Pol pot. Ever.

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