The Justice Department’s thinking was revealed in proposals made to Congress in recent weeks that seek to confer a new power on the chief justice of the United States and give other top judges across the country wider latitude to postpone hearings in the districts they oversee.
Collectively, the measures seem to suggest that the department under Attorney General William P. Barr will not be content to let operations lapse and defendants go free as more court operations are shuttered amid the intensifying public health crisis — even if it means roiling criminal justice reform advocates and civil libertarians. Appearing for the first time Monday at the White House’s regular coronavirus briefing, Barr said his department was keeping enforcement efforts “at full throttle.”
“This doesn’t help anything. There is nothing that this [proposed] law does to make us safer. What it allows for is a sweeping suspension of critical rights for people in the criminal legal system,” said Jeffery Robinson, director of the American Civil Liberties Union’s Trone Center for Justice and Equality. “I think this is a transparent attempt to grab power and make it easier for the government to wield its authority.”
A Justice Department official said the proposals were provided to Congress on a 24-hour deadline, and officials were contemplating “worst-case scenarios.”
Among the department’s proposals is that Congress amend the law to give the Supreme Court’s chief justice the authority to suspend the statute of limitations for criminal cases during a national emergency and for one year after.
It also asked that Congress give the chief judges of each federal district the ability to postpone deadlines in cases when courts are closed. As it stands now, individual judges can do that, but their decisions do not cover entire districts. The Justice Department also asked to be able to hold video conferences even when defendants do not consent.
The proposals, which were first reported by Politico, are not part of the coronavirus relief package being debated by the Senate. Early bipartisan reaction suggested there was little chance of them becoming law.
“OVER MY DEAD BODY,” wrote Sen. Mike Lee (R-Utah), one of several lawmakers to voice concern over the proposal.
Barr announced Monday that more immediately, the department, with help from an executive order by President Trump, is taking steps to target those hoarding medical supplies on an industrial scale in an attempt to rig markets and reap huge profits. Barr said he has directed each of his U.S. attorneys to assign a lead prosecutor to investigate such conduct and related price-gouging, and they were already finding some evidence of it.
“If you have a big supply of toilet paper in your house, this is not something you have to worry about,” he said.
Kerri Kupec, a Justice Department spokeswoman, said on Twitter that the proposals were developed in consultation with Congress and the federal judiciary, and that they were meant to “harmonize what is already being done on an ad hoc basis by courts around the country.”
“Because of pandemic-related measures, courts are closing and grand juries are not meeting. That means prosecutors may not be able to indict criminals before a statute of limitations expires, or dangerous criminals who have been arrested may be released because of time limits,” Kupec said, adding, “Criminals should not be able to avoid justice because of a public-health emergency.”
While some local law enforcement officials have stopped arresting and prosecuting low-level offenders or moved to release certain inmates who are old or close to finishing their sentences, the Justice Department has shown a lesser appetite for such steps. Robinson said the only “sane way” for law enforcement to address the crisis was “to get as many people out of jail as possible.”
In a memo last week, Barr told U.S. attorneys that the Justice Department’s work “must and will continue,” and several law enforcement officials said that while shuttered courts are slowing some work, much of their job remains the same.
Barr directed officials to prioritize cases of fraud related to the coronavirus. Privately, he has told officials to exercise what he calls the “rule of reason” — in effect, use common sense as they press ahead.
The department brought its first coronavirus-related legal action over the weekend, successfully seeking a restraining order to block a website it alleged was fraudulently claiming to distribute vaccines.
Attorneys in the Justice Department’s Consumer Protection Branch have been scouring the Internet and news reports for similar schemes, and the department has set up a system for investigating consumer complaints, said a Justice Department official who, like others interviewed for this story, spoke on the condition of anonymity to talk about internal discussions. In addition to sites selling fake products, law enforcement is concerned with telephone scams in which callers claim that someone’s relative has been diagnosed with covid-19, the disease caused by the coronavirus, and that they must wire money immediately to cover the cost of treatment.
“There’s fraudsters all over the world that will look at this epidemic as an opportunity,” the official said.
The department has also taken a relatively aggressive stance toward immigration enforcement. Immigration and Customs Enforcement announced last week that it would temporarily halt enforcement across the United States — except for efforts to deport foreign nationals who have committed crimes or who pose a threat to public safety — but the department has refused to completely shut down the immigration courts it runs, despite widespread calls to do so.
In its legislative proposals, the department asked for expanded authority when it comes to people in the country illegally who have the coronavirus. The department asked Congress to change the law so that such people would be ineligible to apply for asylum. It also asked to be able to deport such people to unsafe locations across the world, which it generally cannot do.
On Sunday, the unions representing federal immigration judges, the prosecutors who handle such cases and the lawyers representing immigrants again issued a public call for the full closure of all 68 immigration courts, rather than just suspending certain hearings and shutting down courts only in hard-hit areas.
“The DOJ’s current response to the COVID-19 pandemic and its spread is disconnected from the needs and advice of community leaders and scientific experts,” the unions wrote.
A senior Justice Department official said Barr has been particularly focused on the department’s law enforcement functions and on the Bureau of Prisons, where three staffers and three inmates as of Monday had been diagnosed as having the disease. The official said that, with each new diagnosis, Barr personally asks where the inmate is located, what their symptoms are and what officials are doing to respond. The bureau has suspended almost all visits and transfers between facilities as it seeks to stem a possible outbreak.
House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) has urged the department to “put in place measures to ensure that both the flow of prisoners into federal facilities is slowed significantly and that prisoners who can and should be released are released forthwith.”
In its legislative proposals, the Justice Department asked Congress to prioritize giving testing kits and personal protective equipment to staff at the Bureau of Prisons.
“The current inability to guarantee the purchase of infectious disease PPE and supplies now and moving forward is a vulnerability,” department officials wrote, using an acronym for “personal protective equipment.” The department also asked Congress to give the bureau discretion to expand the use of home confinement past the current limitation of 10 percent of a person’s prison term or six months.
Barr has been working at his office on the Justice Department’s fifth floor and from the study in his McLean, Va., home, where he commands the department’s functions from a large brown leather chair surrounded by books, a senior Justice Department official said.
The attorney general was among a group of officials who met earlier this month with an Australian minister who later testified positive for having the novel coronavirus. A spokeswoman said afterward that Barr felt “great” and, based on guidance from the Centers for Disease Control and Prevention, would not be tested.
Barr has daily contact with the White House — though not necessarily the president, said a Justice Department official. In addition to managing his workforce, Barr and his Justice Department have provided legal guidance to the president as he has signed executive orders imposing travel bans and other measures, officials said.