Doctors ask Fauci collaborators to preserve evidence crucial to social media censorship case

Document preservation letters sent to Fauci, Collins, scientists tied to gain-of-function research in light of advisor's comments on helping Fauci evade FOIA. Free speech lawyer "optimistic" about social media case based on NRA's recent victory.
WASHINGTON, DC - JUNE 03: Dr. Anthony Fauci, former Director of the National Institute of Allergy and Infectious Diseases, testifies before Select Subcommittee on the Coronavirus Pandemic

A Supreme Court ruling against government pressure to avoid business with disfavored groups and a 15-month-long congressional inquiry into surreptitious federal influence on COVID-19 origin narratives could together shape one of the most awaited SCOTUS decisions of the term.

The 9-0 ruling last week reinstating the National Rifle Association's First Amendment lawsuit against New York's former financial services superintendent, for "encourag[ing]" regulated entities to stop providing NRA-endorsed insurance programs, adds more wrinkles to oral arguments in the social media censorship case by GOP states and squelched doctors against the feds.

The doctors' lawyers at the New Civil Liberties Alliance, which is seeking reinstatement of an injunction against federal pressure to censor purported misinformation, sent document preservation letters Monday based on emails that NCLA says suggest that federal officials "intentionally schemed" to evade Freedom of Information Act requests – evidence that could be pivotal to their case.

NCLA cites its November 2022 deposition by former National Institute of Allergy and Infectious Diseases Director Dr. Anthony Fauci in light of recent revelations that his senior scientific adviser David Morens told outside scientists, in a discussion of "CoV research in China," that "Tony" was "too smart to let colleagues send him stuff that could cause trouble" if revealed by FOIA and that Morens can give him documents in person or Fauci's "private gmail."

The letters went to Fauci, Morens, former National Institutes of Health Director Francis Collins, EcoHealth Alliance President Peter Daszak and scientists in communication with them on COVID origins. EcoHealth passed through NIAID funding for gain-of-function research, as NIH once publicly defined it, at the Wuhan Institute of Virology, a suspected COVID source.

Just before hearing NRA v. Vullo, some Republican-nominated justices expressed skepticism that White House pressure on social media platforms to censor, without a more tangible threat of adverse action, violated the First Amendment in NCLA's case Murthy v. Missouri.

But the Vullo ruling "strongly reaffirms" the 1963 precedent Bantam Books, which blocked a "system of informal censorship" by a Rhode Island commission to intimidate distributors and retailers against carrying "objectionable" books, NCLA said.

It emphasized Justice Sonia Sotomayor's opinion that said government officials can "forcefully" share their views and "criticize particular beliefs" but not "use the power of the State to punish or suppress disfavored expression."

The court should also remember in Murthy, scheduled for a ruling this month, that "the First Amendment prohibits government from abridging freedom of speech – through coercion, collusion, or any other means," NCLA litigation counsel Jenin Younes said.

The Alliance Defending Freedom, whose friend-of-the-court brief in Vullo argued it was relevant to pro-life pregnancy centers fighting blue-state intimidation, had a similarly cautious response.

"There’s no way to know for sure, but the Murthy case also deals with attempts by the government to coerce private companies to censor," senior counsel Jeremy Tedesco told Just the News. "Hopefully, the Court takes a similar approach" with "tech and social media platforms.”

Foundation for Individual Rights and Expression chief counsel Bob Corn-Revere, whose group filed briefs in both cases, told Just the News he was "optimistic" about the implications for Murthy, "in the sense that the court got the right legal standard" – Bantam – and now must decide how it applies in the context of "cooperation," not just coercion. 

While SCOTUS ruled unanimously that "informal pressure" violates the First Amendment, Vullo has a "pretty unambiguous record," where a regulator explicitly offered favorable treatment in exchange for eschewing the NRA, Corn-Revere said. University of Wyoming law dean Julie Hill told Bloomberg Law "the takeaway ... is you cannot be this blatant."

It's a different situation "when you have many more kinds of diffuse contacts" between public officials and counterparts at social media platforms within the same day and across several months, Corn-Revere said. "It's almost as if there's too much information" to judge whether the pressure is constitutional on the whole.

NCLA's document preservation letters start with Fauci's conflicting answers in his deposition 19 months ago on whether he ever used private email for work-related matters and what role he played in FOIA responses.

Fauci said he "very rarely" carbon-copied his personal address on work emails, then "I don't recall" but "I doubt" doing that. When FOIA requests come in, it's not as if "I look through my e-mails and give the e-mails that they ask for," Fauci said.

Morens' emails, released concurrently with his May 22 hearing on evading FOIA, indicate that Fauci likely "perjured himself during the deposition" and violated the law to avoid FOIA and "discovery requests in our clients' lawsuit," NCLA told the recipients. The adviser told Daszak and others he connected Fauci to a journalist through "our 'secret' back channel."

After that hearing, the House Committee on Oversight and Accountability issued a press release declaring that at the Select Subcommittee on the Coronavirus Pandemic's hearing, Morens likely "lied to Congress on multiple occasions, deleting federal COVID-19 records, and using his personal email account to evade the Freedom of Information Act (FOIA)."

According to that press release, Dr. Morens chalked up his purported federal records violations to “dark humor” and “jokes.” The committee also said that "Dr. Morens admitted to intentionally avoiding FOIA by using his personal email accounts to discuss official government business. He went so far as to say 'I shouldn’t have done that. That’s wrong.'"

Other divulged Morens emails include an April 26, 2020, message to Daszak asking to "send all replies here to gmail" and that "I have let Tony know" and "Tony is aware … there are ongoing efforts within NIH to steer through this with minimal damage to you" and the agency itself, apparently referring to NIH involvement in alleged EcoHealth-facilitated gain-of-function research and a lab leak.

Fauci's adviser also referred to himself and others intentionally deleting emails in several messages to redacted recipients, giving NCLA "more than a colorable reason to believe" more records relevant to its suit have been and are being deleted from private accounts. NCLA said it will ask the court for permission to issue subpoenas as soon as possible.

Besides Fauci, Collins, Morens and Daszak, the recipients of NCLA's letters were Justice Department lawyer Adam Kirschner, Boston University Medical Campus Associate Provost for Global Health Gerald Keusch, New England Biolabs Chief Science Officer Richard Roberts, Google General Counsel Halimah DeLaine Prado, and Christopher Hammond of the Department of Health and Human Services Office of the General Counsel, who recently left NIH's own OGC and is wrongly listed as still there in the letter.

None answered Just the News queries for their response to the letters.

The letters were sent before Fauci's Monday testimony before the House Select Subcommittee on the Coronavirus Pandemic, in which he repeatedly distanced himself from Morens and his adviser's behavior.

"I don't have any idea what he's talking about," Fauci told Rep. Nicole Malliotakis, R-N.Y., when asked about the "back channel" remark by Morens, saying NIAID doesn't have such a system. He "might" have private emails with Morens because the adviser writes "medical scientific chapters with me," Fauci said.

He's baffled how anyone can "conclude that I was trying to cover up the possibility of a lab leak" from China based on emails in which Fauci urges U.S. and U.K. scientists who saw signs of manipulation in SARS-CoV-2 to share their findings with the FBI and MI5 after looking more closely.

The viruses studied under WIV's sub-award from EcoHealth, funded by NIAID, are "phylogenetically so far removed" from COVID-19 that it is "molecularly impossible" they evolved or were "made into SARS-CoV-2," Fauci said. 

House Energy and Commerce Oversight Subcommittee Chairman Morgan Griffith, R-Va., asked how Fauci can "state with certainty" they aren't related when WIV refuses to turn over its lab notebooks and it "worked on adding a furin cleavage site to MERS," the same feature that makes SARS-CoV-2 so infectious.

He cited an off-the-record briefing with Fauci in 2022 in which Griffith asked how likely it was that nature could produce that feature, which requires a "12-nucleotide change." Fauci said he can't account "for other things that might be going on in China" and dismissed the likelihood that China would have relied on NIAID's $120,000 a year to kickstart COVID.

"You want me to prove a negative," Fauci said when Griffith asked whether China could have done potentially dangerous research without "humanized mice" from the U.S.