REPORT: Fauci, Other NIH officials May Not Have Been Legally Appointed to Their Offices

According to a year-long investigation by the House Energy and Commerce Committee Republicans, former National Institute for Allergies and Infectious Disease (NAIAD) Director Dr. Anthony Fauci and a dozen other NIH directors do not appear to have been legitimately appointed to their positions.

According to GOP committee aides speaking on background, Mr. Fauci and the others were supposed to serve five-year terms beginning no later than December 13, 2021, but repeated requests to Secretary of Health and Human Services Xavier Becerra for documents confirming the appointments have been ignored or delayed since March 2022.

Every choice made by the directors, most importantly the recipients of over $26 billion in research awards, might be the subject of protracted litigation or be completely thrown out due to doubts about their legal standing.

“We are being cautious about the implications here because this is unprecedented,” one of the GOP aides told journalists. It is not clear, the aides said, if, for example, the entire award process would have to be repeated, a process that could cause chaos among researchers and additional costs to taxpayers.

The most recent grant to Eco-Health Alliance, a non-profit organization based in New York through which the NIH donated at least $1.7 million to the Wuhan Institute of Virology in China, is one of the $26 billion in grants that are currently under scrutiny. Many intelligence and biological professionals concur that the COVID-19 coronavirus, which has killed more than 1 million Americans, originated at the Wuhan lab. Federal authorities declared a national pandemic in response to the illness, which caused significant social, political, and economic harm and persisted for more than a year.

A spokesman for the Department of Health and Human Services (HHS) defended the appointments, reportedly saying that “the committee’s allegations are clearly politically motivated and lack merit. As their own report shows, the prior administration appointed at least five NIH IC officials under the process they now attack. The Department stands by the legitimacy of these NIH IC Directors’ reappointments.”

In a July 7, 2023, letter to Mr. Becerra, Rep. Cathy McMorris Rodgers (R-Wash.), the energy and commerce chairman,  said his “failure to follow the law and ensure accountability of billions of dollars in taxpayer funding at [NIH] … could have grave implications for the validity of actions taken by 14 NIH Institute and Center (IC) Directors during their unlawful tenure, including former National Institute of Allergy and Infectious Disease (NIAID) Director Dr. Anthony Fauci.”

Rep. Morgan Griffith (R-VA), leader of the panel’s oversight and investigations subcommittee, and Rep. Brett Guthrie (R-KY), chairman of the health subcommittee, also joined Ms. McMorris Rodgers in signing the letter to Mr. Becerra.

The 21st Century Cures Act, which was adopted by Congress and signed into law by former President Barack Obama, required Mr. Becerra to appoint the 14 to fresh five-year terms by December 13, 2021. According to the signers, this was the root of the issue. Additionally, the Cures Act stipulates that the HHS secretary, not the NIH director, must make the appointments.

“It has become increasingly clear that you never appointed or reappointed the 14 NIH IC Directors in December of 2021. HHS and the NIH repeatedly assured the committee that the NIH IC Directors were validly reappointed but did not produce proper supporting documentation,” the signers told Mr. Becerra.

“For example, in its first response to the committee on April 5, 2022, the NIH claimed ‘[a]ll current IC Directors who were serving as of December 13, 2016, have undergone review and have been reappointed to new 5-year term appointments,’ and submitted a chart showing that the NIH Director was the official who made the reappointments of the NIH IC Directors, which even if true, is contrary to what the law requires,” they said.

The signers informed Mr. Becerra that despite repeated inquiries from the committee to HHS for documentation relating to the 14 nominations, they had not received any firm responses up until a few weeks ago.

“On June 19, 2023, HHS finally produced documents, titled ‘Ratification of Prior Selection and Prospective Appointment: Appointment Affidavit’ (hereinafter ‘Appointment Affidavit’), and signed by you, purporting to show that some of the NIH IC Directors at issue were reappointed,” the signers wrote.

“However, the Appointment Affidavits were signed on June 8, 2023, and June 15, 2023—not December 13, 2021. Critically, no appointment affidavits were produced for two NIH IC Directors, Dr. Fauci and Dr. Roger Glass, who were serving in December 2016, but retired before June 2023,” they continued.

The signers said the June 2023 appointment affidavits “purport to ratify the prior selection of the NIH IC Directors and to prospectively reappoint them. Here selection refers to actions taken by the NIH Director to identify candidates to recommend to [Becerra] for appointment.”

But the affidavits describe the reappointments as prospective, which means, according to the signers, that “the June 2023 reappointments do not retroactively ratify the decisions that NIH IC Directors made while not lawfully appointed—those decisions occurring between December 14, 2021, and the June 2023 reappointments affidavits. A recent U.S. Court of Appeals decision also suggests that actions taken by NIH IC Directors while they were not lawfully appointed are legally invalid.”

The signers added that Mr. Becerra’s “failure to follow the 21st Century Cures Act and reappoint 14 of the 27 IC Directors, which represents just over 50 percent of NIH IC Directors, is unacceptable. You have not complied with your oath to faithfully discharge the duties of your office.”

The House Republicans also accused HHS and NIH officials of spending “15 months obstructing the committee to cover up your failure only makes matters worse. HHS and the NIH should have known within days of receiving the committee’s March 14, 2022, letter that the reappointments as legally required had not occurred.”

The impact on the NIH will be nearly incalculable if the signers are right that every decision made by the IC officials after December 14, 2021, was unlawful. This is because, in addition to putting nearly $26 billion in research grants in jeopardy for what could be years of expensive litigation, contracts that have already been signed, personnel actions, including hiring and firing, and policy decisions, will also be in tumult.