What Do Republicans Want To 'Prosecute Fauci' for, Exactly?

"My pronouns are Prosecute/Fauci," Elon Musk tweeted early Sunday, launching a new round of condemnation from his progressive critics and glee from his growing base of right-wing fans. But Musk, while admittedly a skilled pot-stirrer, is little more than that where the substantive demand of the post is concerned: He can't investigate—let alone prosecute—retiring National Institute of Allergy and Infectious Diseases chief Anthony Fauci.

The Republican lawmakers who cheered his tweet, however, can do exactly that, particularly after the GOP regains control of the House in less than a month. Yet there's a crucial piece missing in the vast majority of "prosecute Fauci" discourse, from legislators as much as from Musk: What, exactly, is the anticipated charge?

Reason reached out to the offices of six GOP lawmakers who had positively engaged with Musk's post and/or previously expressed intent to investigate Fauci next year: Sens. Ted Cruz (R–Texas) and Rand Paul (R–Ky.) and Reps. Andy Biggs (R–Ariz.), Marjorie Taylor Greene (R–Ga.), Ronny Jackson (R-Texas), and Kevin McCarthy (R–Calif.), the latter of whom is the embattled front-runner to be the new House speaker. Are there specific charges, I asked, which the lawmakers expect to be brought against Fauci after a probe by Congress or some other investigatory body?

All four representatives' offices ignored the question. But the senators' offices did reply and, in doing so, staked out the better of two ways this cause célèbre could be pursued.

Cruz's team gave the less specific answer of the two. They pointed me to a recent interview the senator gave on Fox, his face placed next to a photo of Musk. "Dr. Fauci lied to Congress—he flat-out lied to Congress when he said that, No, the federal government had not funded gain-of-function research at the Wuhan Institute for Virology," Cruz said. "Subsequently the NIH [National Institutes of Health] has made clear that was a lie, and yet, you know what, [Attorney General] Merrick Garland and the Biden DOJ, they won't prosecute him, so when [Twitter staff] come in front of Congress and perjure themselves, I am sadly confident that Merrick Garland will not prosecute them."

Dr. Fauci flat-out lied to Congress.

Yet Merrick Garland and the Biden DOJ won't prosecute. #JusticeCorrupted https://t.co/ZI4PFOs9iC pic.twitter.com/nH3YU9mBPQ

— Ted Cruz (@tedcruz) December 6, 2022

I asked if it would be fair to say Cruz has a federal perjury charge (or something in that ballpark) in mind for Fauci, but his office was unwilling to commit to the specific statute.

Paul, however, was willing to commit. His office referred me to a July letter he sent to Garland pressing for investigation into Fauci's congressional testimony about National Institutes of Health (NIH) funding for gain-of-function research in Wuhan, China, the city where the novel coronavirus first infected the public in late 2019. Paul's letter specified 18 U.S. Code § 1001, a portion of federal criminal code concerning fraud and false statements knowingly made to a congressional investigation, as the statute Fauci may have violated. 

In a comment sent by email, Paul reiterated his interest in pursuing "a robust and bipartisan investigation into the origins of COVID" in his new role as ranking member of the Senate Homeland Security and Governmental Affairs Committee next year. "Daily we are discovering new information that we will reveal as the investigation continues," he wrote.

Whether a perjury, fraud, or similar charge would stick is far from certain. As Reason science correspondent Ronald Bailey has detailed, whether the research in question is actually gain-of-function work is legitimately disputable, though the more recent NIH statement Cruz seemed to reference may indeed tip the balance of evidence toward "yes." Still, that statement describes the NIH grant recipient, EcoHealth, failing to make a required report, which means it's possible the funding did go to gain-of-function research and that Fauci sincerely believed it didn't. 

That scenario points to a tricky aspect of this sort of allegation: It requires proving knowledge more than action, and it's not always feasible to prove what someone knew and when. But Fauci's long public employment means he has reams of correspondence in federal records, so testing a charge of this sort may be easier than it would be in most circumstances. If he's committed fraud or perjury as a high-ranking federal official, by all means, let's prosecute (but not imprison). 

The trouble is this sort of specific, dis/provable, and fairly narrow allegation of willful deception is not where the great bulk of the "prosecute Fauci" conversation is going. (None of those four House members, for example, clearly have it in view. "I affirm your pronouns, Elon," said Greene's reply.) What Cruz and Paul are trying is the better of two versions of this cause—but it also seems to be, by far, the less popular. 

More common is something in the realm of Musk's follow-up tweet, which cast Fauci as the corrupt Wormtongue to President Joe Biden's decaying King Théoden in a scene from The Lord of the Rings. "Just one more lockdown, my king," Fauci whispers. 

But giving bad advice is not a crime—and baseless calls for prosecution are no improvement over failure to prosecute powerful figures at all. They might be good for collecting likes and donations, but that doesn't make them good for bolstering the rule of law.