Throughout the pandemic, the department has waged a months-long legal campaign to fight state and local measures to contain the virus — each time in states and localities that were run primarily by Democrats. In March, for instance, the department filed a statement of interest in support of a challenge to an order by Maine’s governor requiring out-of-state visitors to quarantine for 14 days. (The state has since amended the policy.)
Each time, the department cited a variety of constitutionally dubious arguments. In the challenge to Maine’s quarantine order, the department claimed that the state had violated out-of-staters’ right to interstate travel, but the court explained that it was “not at all clear that there” were “any less restrictive means” available to achieve the state’s public health objectives. In other cases, the Justice Department has intervened to support churches arguing that restrictions applicable to them (like occupancy limits) violate the Constitution’s free exercise clause, but those churches have thus far failed to show that they have been improperly singled out (as opposed to being subjected to restrictions that are applicable to comparable secular businesses).
These challenges come as Republicans are disproportionately opposed to even modest restrictions on public activities and trust their state governments less — and the Trump administration more — than Democrats do. The Justice Department’s work may have contributed to the politicization of public opinion in the country and softening of support for public health measures.
Courts have, so far, rejected preliminary requests for relief, and although these are not final rulings, they do not bode well for the Justice Department and the plaintiffs that the department is supporting. In May, Chief Justice John G. Roberts Jr. noted that the judiciary “lacks the background, competence and expertise to assess public health,” but Roberts’s observation is also true of the Justice Department. Indeed, there is no indication that the department’s campaign has been informed by any input from federal public health officials, which is the only good reason that it might have for getting involved in these disputes in the first place.
The department also created something it called the Hoarding and Price Gouging Task Force at the end of March to address efforts to profiteer from the sale of critical medical supplies. In a summary in late June, Craig Carpenito, the New Jersey U.S. Attorney who is also the head of the task force, cited the existence of “hundreds of investigations,” but described just three prosecutions for actual hoarding and price-gouging that have resulted. Assuming that this sort of conduct has, in fact, been a significant problem, the paucity of prosecutions is hard to understand.
The Justice Department’s Fraud Section — where I worked until earlier this year — has also aggressively pursued fraud in connection with applications to the Paycheck Protection Program, the loan system set up to help businesses keep employees on the payroll despite the economic collapse the virus caused. But the effort has only further confused an already fraught program. It began with a public announcement in early May by a senior Justice Department official before any cases were filed, suggesting that it would draw on vaguely defined data analysis to review both rejected and approved loan applications — using, as one report put it, “computer-programming and other analytical strategies to look for red flags in loan applications and other documents.”
But that posed a serious risk of ensnaring small businesses that had made honest and understandable mistakes amid the frantic and chaotic rollout of the program. Government officials seemed to walk it back in a matter of weeks, and the Treasury Department announced that companies that accepted less than $2 million from the program would largely be exempt from scrutiny.
The initiative has so far generated around 20 prosecutions, primarily involving applications that were rejected as a result of obvious irregularities, like a filing on behalf of a nonexistent business. Perhaps this emphasis reflects a good-faith effort to respond to the concerns that were raised when the department first announced that it was closely looking at the program.
Regardless, businesses throughout the country have been desperate for clarity about the parameters of the PPP since it began. That interest has increased since the inevitable scrutiny from the Justice Department and other government agencies has now materialized without any clear understanding of what types of misconduct — short of doing things like entirely making up businesses — would trigger criminal liability.
The department’s priorities look even worse when you consider what it is not doing — in two areas in particular.
First, a huge number of virus-related consumer frauds have operated in plain sight for months for necessary items like fake test kits and vaccines. As of July 31, about 150,000 people have told the Federal Trade Commission that they have been victimized — a more than 3,500 percent increase from the figure as it stood in late March — and they have reported about $100 million in losses. According to the FTC, the median reported loss from these schemes is nearly $300, and for victims older than 80, the figure is over $500. Fraud is a notoriously underreported crime, so it is likely that even these numbers vastly underestimate the reach of these frauds.
In response, the Justice Department has spent a good deal of time shutting down fraudulent websites — a defensible approach in the very short term. But the people behind those sites can easily set up more. The real deterrent is the threat of criminal prosecutions, which, judging by the public record, has been virtually nonexistent.
Second, there is no indication that the department is meaningfully investigating the loss of hundreds of millions of dollars by state unemployment agencies because of fraudulently obtained unemployment benefits. Much of this criminal conduct appears to have originated overseas — using sensitive personal information that was stolen from Americans in cyberhacking schemes — and it has further burdened agencies already struggling to make payments to Americans who are desperate for economic help.
This issue was covered at a hearing in June before the Senate Judiciary Committee, but senior federal law enforcement officials had nothing useful to say about it. Sens. Dianne Feinstein (D-Calif.) and Sheldon Whitehouse (D-R.I.) asked pointed questions about what, if anything, the department is doing.
But the answers were unhelpful.
The Trump administration has rightly been scrutinized for its poor response to its approach toward public health in the pandemic, from calling on schools and businesses to be reopened too quickly, to its overall delayed response, to President Trump promoting unverified treatments. But it is during times of public health crises that the public relies on legal institutions for protection. So far, the Department of Justice is dangerously uninterested.