Why Anthony Fauci could've faced five years in jail if Biden hadn't pardoned him

Dr Anthony Fauci was given a pre-emptive pardon by outgoing President Biden on Monday - likely due to fears he could be charged with perjury by Trump's DOJ.

The former National Institutes of Health (NIH) has long been accused of misleading Congress under oath about funding risky virus research in Wuhan before the Covid pandemic.

While Fauci had not been charged with a crime, there were growing calls among Republicans - including Elon Musk - to charge the 84-year-old with perjury, which carries a prison sentence of at least five years.

In a May 2021 Senate hearing on the origins of Covid, Dr Fauci said his old agency had ‘not ever and does not now fund gain-of-function research in the Wuhan Institute of Virology.’

But emails showed that in February 2020 Dr Fauci, NIH head Dr Francis Collins, and Dr Peter Daszak, head of the company that dispersed grants to the WIV, EcoHealth alliance acknowledged that scientists at Wuhan University were working on GOF experiments to study bat viruses adapting to human infection prior to the outbreak in Wuhan. 

In one email, Dr Fauci admits the scientists had concerns that Covid might have been genetically engineered and that these were worsened by the fact that gain-of-function research was taking place in Wuhan before the pandemic.  

Dr Fauci, whose pardon extends all the way back to 2014, has since claimed that he was using a different definition of GOF during his Senate hearing.

The disagreement centers on the definition of gain of function. Dr. Fauci and the NIH argue that EcoHealth’s research didn't involve enhancing a pathogen's transmissibility or virulence in humans, but rather focused on understanding and preventing pandemics. 

At the same time, the NIH's own definition of gain of function reads as follows: 'Certain gain-of-function studies with the potential to enhance the pathogenicity or transmissibility of potential pandemic pathogens (PPPs) have raised biosafety and biosecurity concerns, including the potential dual use risks associated with the misuse of the information or products resulting from such research.'

Critics, however, contend that the research on bat coronaviruses at the Wuhan Institute of Virology, which involved modifying viruses to study their potential to infect humans, clearly fits the definition of gain of function. 

In a meticulous 520-page report by the the House Select Subcommittee on the Coronavirus Pandemic, the group concluded that 'Dr Fauci’s testimony was, at a minimum, misleading.'

During the early stages of the COVID-19 pandemic, emails surfaced that revealed Dr Fauci had exchanged communications with his colleagues regarding the research on gain-of-function experiments. 

In one of the emails, dated February 2020, Dr. Fauci did indeed send a message to his deputy, Hugh Auchincloss, mentioning 'SARS gain-of-function' and attaching a paper related to this topic.

The emails became public through a Freedom of Information Act (FOIA) request,

It’s not clear what charges the Department of Justice would have filed against Dr Fauci, former head of the NIH’s National Institute of Allergy and Infectious Diseases, though many Republicans argue that Dr Fauci is guilty of perjury, a charge which carries a prison sentence of at least five years. 

His critics say he mislead the public and Congress when he said his agency never funded gain of function research, which involves genetically modifying viruses to study how they become more transmissible and/or virulent in animals and humans.

Prosecutors would have to prove that Dr Fauci made a false statement and knew it was false, but deliberately misstated the facts. 

They also have to prove that Dr Fauci intended to deceive the Congress members he testified in front of, rather than making an innocent mistake. 

But proving a false statement in this case is difficult, in part because our understanding of the pandemic is continually evolving and his statements could be a reflection of that, not an intention to spread falsehoods. 

It's also near impossible to prove that Dr Fauci intended to deceive people. 

In the case of the covid pandemic, much of Dr. Fauci's statements were based on the best knowledge available at the time. 

Since scientific understanding of the virus and its origins changed as more data came in, it would be challenging to prove that he intentionally misled others, rather than sharing what he believed to be true based on the information at hand.

Several times in the past few years, Dr Fauci has clashed with Republicans in the Senate, particularly Kentucky Republican Rand Paul, who allege that he purposely mislead Congress about the US’ involvement in funding such research that they believe may have culminated in the Covid pandemic.

They have highlighted what they see as incriminating

It is unlikely that he would have served any prison time. He has no prior criminal record and given he is a prominent public health official, his conviction would take politics and public scrutiny into account. 

And while the stated penalty is five years in prison on felony charges, actual sentences depend on myriad factors. A sentence on the lower end would be more likely.  

There is some precedent though every case is different. Former President Bill Clinton was impeached for perjury and obstruction of justice during the Monica Lewinsky scandal, though he was not convicted by the Senate. 

While incoming President Trump has not stated specifically which charges he would bring against Dr Fauci, Sen Ted Cruz of Texas said in 2022: ‘Dr. Fauci flat-out lied to Congress. Yet Merrick Garland and the Biden DOJ won't prosecute.’ The charge carries a prison sentence of at least five years.

Allies’ calls to punish Dr Fauci have ramped up since Trump’s win in November. Elon Musk, who was instrumental in getting Trump elected and has sway in the administration, has tweeted, ‘My pronouns are still prosecute/Fauci.’

But the odds of Dr Fauci being prosecuted fell to zero in the early hours of Inauguration Day Monday, when outgoing President Biden issued a sweeping pardon to Dr Fauci.

Dr Fauci was instrumental in developing the Covid vaccines whose record-breaking development timeline averted millions of deaths.

But most on the right have turned on Dr Fauci amid mounting, previously hidden evidence that the former top government doctor quashed dissenting theories about the coronavirus’ origins – whether it was the result of natural transmission between animals to humans, or if it leaked from the Wuhan Institute of Virology, located in the pandemic’s original epicenter.

Dr Fauci’s frequent fiery exchanges with GOP senators on the oversight and health committees. Sen Paul has been particularly vocal, asserting in 2021 that the gain of function research funded by the US under Dr Fauci’s leadership could have contributed to the pandemic’s outset.

In 2016 and 2018, health officials added additional safeguards to EcoHealth's research, requiring the organization to report if any coronaviruses created in its experiments showed signs of becoming more dangerous.

Despite this, the NIH chose not to forward the grants to a higher-level review committee tasked with evaluating the risks and benefits of research on pathogens with pandemic potential.

One instance occurred in 2021 where Dr Fauci appeared before the Senate Health, Education, Labor, and Pensions Committee, in which he fired back to Sen Paul that the NIH had ‘not ever and does not now fund gain-of-function research in the Wuhan Institute of Virology.’

The Biden administration’s press team has not responded to a request for comment about what specifically it believes Dr Fauci could have been charged with or whether the charge had any merits.

Meanwhile, incoming President Trump himself has not said with what he would charge the doctor and spent much of his campaign lambasting the doctor for his denial of gain of function as well as his involvement in policy making that resulted in shut down schools and businesses.

In the aftermath of Biden’s sweeping pardons, Trump fumed at NBC News’ Kristen Welker: ‘Many are guilty of major crimes.’