Former National Institute for Allergies and Infectious Disease (NAIAD) Director Dr. Anthony Fauci and a dozen other directors of the National Institutes for Health (NIH) appear not to have been legally appointed to their offices, according to a year-long investigation by House Energy and Commerce Committee Republicans.
Because of the questions about their legal status, every decision made by the directors, including most critically, the winners of nearly $26 billion in research grants, could be subject to extended litigation or outright nullification.
“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.
Among the $26 billion in grants now in question is the latest to Eco-Health Alliance, the New York-based non-profit through which the NIH sent at least $1.7 million to the Wuhan Institute of Virology in China. The Wuhan lab is believed by many intelligence and biomedical experts to have been the source of the COVID-19 Coronavirus that has killed more than 1 million Americans. The disease prompted federal officials to declare a national pandemic that lasted more than a year and inflicted severe social, political, and economic damage.
A spokesman for the Department of Health and Human Services (HHS) defended the appointments, telling The Epoch Times 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.”
Also signing the letter to Mr. Becerra with Ms. McMorris Rodgers were Rep. Brett Guthrie (R-Ky.), who is chairman of the energy and commerce panel’s health subcommittee, Rep. Morgan Griffith (R-Va.), who heads the panel’s oversight and investigations subcommittee.
The heart of the problem, according to the signers, is that Mr. Becerra failed to appoint the 14 to new five-year terms by Dec. 13, 2021, as required by the 21st Century Cures Act, which was approved by Congress and signed into law by former President Barack Obama. The Cures Act also requires the appointments to be made by the HHS chief, not the head of the NIH.
“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.
Multiple additional requests from the committee to HHS for documents regarding the 14 appointments met with no concrete response until a few weeks ago, the signers told Mr. Becerra.
“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.
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.”
If the signers are correct that all of the decisions made by the IC officials after Dec. 14, 2021, were illegal, the impact on the NIH will be all but incalculable because, in addition to putting nearly $26 billion in research grants in limbo for what could be years of costly litigation, contracts signed, personnel actions taken, including hiring and termination, and policy decisions will be thrown into turmoil.
