Can a State Attorney General Successfully Prosecute Anthony Fauci?

I fear that Florida Attorney General James Uthmeier's publicized investigation of Anthony Fauci is a distraction from the fact the Trump's Attorney General isn't doing it.

I woke up to a lot of texts and emails about Florida AG James Uthmeier’s announcement that he is launching a criminal probe into Anthony Fauci’s conduct. Instinctively, my first thought was that this is another species of the “Circus” component of the proverbial “Bread and Circus” means of distracting the plebs from the abuses of their ruling oligarchy.

At the outset of this essay, I would like to reiterate my belief that Anthony Fauci should be prosecuted, and that federal court is the proper venue. In my recent interview with Alex Newman, I attempted to present my argument in the rhetorical style of a federal prosecutor’s summation of what I believe are the main elements of the crime. If the reader has not yet watched this interview, he will, I believe, find it compelling.

A State Attorneys General has limited authority to prosecute Anthony Fauci for alleged state-law crimes allegedly committed during his tenure as NIAID director. State AG authority is subject to strict requirements of jurisdiction, a valid state offense, evidence, and the absence of Supremacy Clause immunity. This being the case, success in this matter faces substantial practical and legal hurdles.

To be sure, Biden’s ridiculous “preemptive presidential pardon” covers only federal offenses and does not bar state prosecutions for distinct violations of state law.

Under the dual-sovereignty doctrine, the same conduct can theoretically violate both federal and state law, allowing independent state action. Several state attorneys general (notably in Florida, Alabama, and Louisiana, with earlier interest from a broader group of Republican AGs) have publicly announced or joined investigations into possible state charges related to Fauci’s COVID-19 statements, funding decisions, or testimony (including depositions given to states). No charges have been filed as of the available information.

• State AGs possess standing to enforce their own criminal laws within the state’s territory. They cannot prosecute pure federal crimes such as lying to Congress under federal statutes.

• Any case requires identification of a specific state criminal statute (for example, perjury in a state deposition or proceeding, fraud, or other offenses under state law), admissible evidence of a violation, and personal jurisdiction over the defendant.

• Personal jurisdiction requires that the alleged offense occurred in the state or that the defendant has adequate minimum contacts with it.

• Purely federal policy advice or public statements originating from Washington, D.C., present significant jurisdictional challenges unless tied to concrete state-specific acts or harms that a court would recognize as establishing venue and jurisdiction.

• Even where a state offense and jurisdiction exist, federal officials enjoy Supremacy Clause immunity for actions that were authorized by federal law and “necessary and proper” to the performance of their official duties.

• This doctrine, rooted in the Supreme Court’s decision in In re Neagle (1890) and subsequent case law, prevents states from using criminal prosecution to obstruct legitimate federal functions.

• Immunity is not absolute or blanket: it does not shield conduct outside the scope of federal duties, actions that violate federal law, or behavior that is unreasonable or egregious.

• Courts—often federal courts after removal of the case—decide these questions, frequently resolving factual disputes about reasonableness or authorization.

• Applied to Fauci, prosecution would require showing that particular acts constituted state crimes rather than discretionary federal public-health judgments, scientific communications, or congressional testimony.

• Allegations centered on disputed scientific advice, funding oversight, or statements about origins, masks, or lockdowns face high evidentiary and legal barriers.

• Claims of perjury based on “I do not recall” answers are notoriously difficult to sustain. Overcoming Supremacy Clause immunity would demand proof that the challenged conduct fell outside authorized federal responsibilities or was not necessary and proper—an uphill showing for actions taken in an official capacity during a purported national emergency.

• Procedural realities compound the difficulty: some state AGs lack unilateral charging authority and must coordinate with local prosecutors; any indictment could be removed to federal court; and statutes of limitations, evidentiary rules, and defense challenges would apply.

To reiterate, I fear that all the hurly burly about Anthony Fauci in the Forum Americanum is a distraction from the salient fact the Trump’s Attorney General isn’t doing it, and from the equally salient fact that Trump still touts the mRNA COVID-19 vaccines as one of the great achievements of his first term.