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Prof. Turley: Did Dr. Fauci unlawfully impersonate a federal official?

AP Photo/Patrick Semansky

One of the most basic things to start with when talking about power is to ask where it comes from. When we are talking about federal officials, most basically, their power comes from the Constitution itself. This is the fallacy of officials in the federal government bemoaning that they are limited by the Constitution: ‘why should we be restrained by the Constitution?’

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But what they don’t get, or want you to forget, is that without that Constitution they have no power. So, they want all the power the Constitution grants, but none of the limitations on that power included in the Constitution (as amended).

And to a lesser extent certain offices are created by Congress, through legislation, and the laws contain limitations, too, that the office-holder cannot ignore. And that brings us to Jonathan Turley’s bombshell that we don’t think got quite enough coverage:

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, like Milton in Office Space. Turley has the details:

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.

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Thus, starting on December 12, 2021, Fauci and 13 other National Institutes of Health (NIH) institute and center directors seemed to unlawfully hold their offices for some period. As Turley notes these people not only made significant policy decisions, but also gave out $25 billion in grants—all without having any more authority to do so than your average server at your local Chick-fil-a.

He goes on:

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.

Turley hedges with an ‘if these allegations are true’ but things are definitely suspicious as heck.

We are uncertain of that, but 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.

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The opposition to basic journalism in our time is startling. If you cannot report about bad and possibly illegal behavior by public officials—indeed reporting the possibility of someone impersonating a public official—why even have a First Amendment? Seriously, we have examined the criminal statute prohibiting impersonating a public official, 18 U.S.C. § 912, and it looks like there is a real chance these 14 officials violated that statue. Will Fauci go begging for a pardon—if only for 'cya' purposes?

But the courts probably can’t ignore it.

Actually, this kind of argument has 'held water' in other situations.

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That’s not how it worked with the student loans.

So did Dr. Mengele.

Dang straight. This might end up being a sleeper issue in the coming years.

***

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