State prosecutors are considering a range of legal strategies to hold Dr. Anthony Fauci accountable for his actions during the Covid-19 pandemic, following a broad pardon from President Joe Biden that blocks federal prosecution. Legal experts cited by The Federalist say that while the pardon forecloses federal charges, it leaves open questions about whether state attorneys general can pursue claims against Fauci for alleged deception and controversial policy decisions. However, significant legal barriers remain, including federal immunity statutes that protect government officials from many types of lawsuits.

The renewed interest in state-level action comes after recent disclosures of government records and text messages. Critics argue these documents show Fauci misled the public about the risks of Covid-19 and the safety of vaccines, particularly for pregnant women. The controversy has intensified calls for accountability, especially after Fauci declined to testify before Congress. This refusal prompted subpoenas from the attorneys general of Florida, Louisiana, and West Virginia, who are investigating the impact of federal Covid-19 guidance on their states.

Chad Mizelle, a senior fellow at the America First Policy Institute and former Justice Department official, explained that state governments could look to consumer protection and deceptive practices statutes as possible avenues for legal action. These statutes have previously been used to hold corporations accountable for misleading consumers. Mizelle suggested that states might examine whether Fauci's public statements led residents to purchase masks, receive vaccines, or close businesses under potentially false pretenses. If so, state attorneys general could argue that such actions violated state laws designed to protect consumers from deceptive or unfair practices.

Hans Mahncke, founder of the Counterlawfare Institute, agreed that states could attempt mass tort actions, drawing a parallel to lawsuits against companies responsible for environmental disasters. Tort law, as defined by the Legal Information Institute, allows parties harmed by another's actions or omissions to seek relief, usually in the form of monetary damages. Tort claims are governed by state statutes and common law, giving states some flexibility in pursuing such cases. However, Mahncke cautioned that any state-level lawsuit would face significant hurdles, particularly the need to identify a legal gap not covered by federal immunity.

"I certainly think that state governments have options in pursuing claims against Fauci, and I very much hope that they will."

— Chad Mizelle, America First Policy Institute Senior Fellow

Federal Immunity and the Westfall Act

Both Mizelle and Mahncke pointed to the 1988 Westfall Act as a major obstacle to state-level prosecution. The Westfall Act generally shields federal employees from lawsuits for actions taken as part of their official duties, substituting the federal government as the defendant in such cases. This means that even if Fauci's actions were damaging or potentially criminal, the law could prevent state attorneys general from suing him directly unless they can show he acted outside the scope of his employment.

Mahncke suggested that certain actions, such as Fauci's alleged efforts to suppress information about the origins of Covid-19 or his involvement in funding gain-of-function research, might fall outside the protections of the Westfall Act. If prosecutors can demonstrate that these actions were intended to conceal personal wrongdoing rather than serve government interests, they might be able to argue that Fauci was acting in a personal capacity. Mahncke cited Fauci's diary entry from January 2020, which reportedly contradicted his public statements about the virus's origin, as well as his role in approving grants to EcoHealth Alliance for research at the Wuhan Institute of Virology, as potential areas for further investigation.

Challenges for Private Lawsuits and State Strategy

Legal experts also noted that individual citizens face an even higher bar in bringing medical malpractice or similar claims against Fauci. Proving causation between Fauci's actions and specific harm to individuals would be difficult, and federal immunity statutes would likely block most such lawsuits. As a result, Mizelle and Mahncke advised state attorneys general to coordinate their strategies, consult with experts on the Westfall Act, and focus resources on potential litigation that has the best chance of overcoming federal immunity.

The attorneys general of Florida, Louisiana, and West Virginia have already issued subpoenas to Fauci as part of their investigations into federal Covid-19 guidance and its effects on state residents and businesses. These state-level probes are ongoing, and supporters of Fauci have not publicly responded to the latest legal arguments or the investigations. The outcome of these efforts remains uncertain, but legal experts agree that any attempt to hold Fauci accountable at the state level will face significant legal and procedural challenges.

The debate over state-level prosecution highlights the complex interplay between federal immunity laws and state authority. While some legal avenues remain theoretically open, the practical barriers are substantial. The coming months may clarify whether any state can successfully pursue a case against Fauci, or if federal protections will ultimately shield him from further legal scrutiny.