President Donald Trump’s top civil rights official at the Department of Justice announced this week that he was considering launching investigations into how state-owned nursing homes responded to the coronavirus. The four states he targeted all have Democratic governors. This highly unusual public announcement of potential investigations raised alarm bells among Civil Rights Division alumni and Democrats that DOJ’s move was motivated by partisan politics.
Eric Dreiband, the assistant attorney general running the Civil Rights Division, sent letters to Pennsylvania Gov. Tom Wolf, Michigan Gov. Gretchen Whitmer, New Jersey Gov. Phil Murphy and New York Gov. Andrew Cuomo on Wednesday, requesting documents and information under the Civil Rights of Institutionalized Persons Act (CRIPA) about how public nursing homes in their states responded to the COVID-19 pandemic.
Cuomo and Whitmer said in a joint statement that the inquiries were “nothing more than a transparent politicization of the Department of Justice in the middle of the Republican National Convention.” They called DOJ’s move a “nakedly partisan deflection” and questioned why Republican-run states that, based on federal guidelines, had similar rules about nursing home admissions were not being targeted.
In a press release on Wednesday, the Justice Department claimed, without pointing to evidence, that state orders “may have resulted in the deaths of thousands of elderly nursing home residents.” The department said it was “evaluating whether to initiate investigations,” meaning that it had not actually launched a probe. It is unusual for DOJ to highly publicize such a preliminary inquiry.
The press release went on to compare the COVID-19 death rate in the blue state of New York to the death rate in the red state of Texas, despite the vast array of factors and variables ― including population density and the geographical progression of COVID-19 ― that made the Empire State more vulnerable to the pandemic than the Lone Star State.
Drawing The Heat Away
CRIPA is a 40-year-old federal statute meant to protect Americans held in government-run institutions like jails, prisons, mental health facilities and state-owned nursing homes. The vast majority of nursing homes in the United States are privately run and therefore not covered by CRIPA, even if those entities receive most of their funding through Medicare. Pennsylvania, for example, has just seven such state-owned facilities, which house roughly 1,300 residents ― a small fraction of the state’s nursing home population of more than 80,000.
With more than 180,000 Americans dead in a pandemic that has devastated the U.S. economy, Trump’s reelection campaign benefits from drawing heat away from the administration’s handling of the crisis and onto Democratic governors’ decisions. The best-known state-run nursing facilities tend to be veterans homes, allowing the administration to suggest that Democratic governors failed to protect our nation’s elderly war heroes.
Moreover, the most common CRIPA cases involve jail and prison conditions. But DOJ hasn’t announced any inquiries into how such facilities have handled COVID-19 despite the fact that jails and prisons have seen some of the biggest coronavirus clusters in the U.S. Nearly 160,000 incarcerated individuals and staffers have tested positive for the virus, and at least 1,000 have died ― including 116 people held in facilities run by the Justice Department’s own Bureau of Prisons.
While CRIPA gives DOJ limited jurisdiction over state-owned nursing homes, a department official suggested that the inquiry could drive at a much larger question that goes far beyond the scope of the preliminary probe.
“Those 50,000 COVID dead in NY/NJ deserve to have an investigation to determine if their Governors are responsible for their deaths,” the DOJ official wrote.
‘Isn’t Particularly Subtle, Is It?’
There are, without a doubt, legitimate questions to ask about how governors and other state authorities have responded to the COVID-19 pandemic. But the timing of DOJ’s unusual announcement ― and the lack of action against jails and prisons ― has raised alarm. Former Civil Rights Division officials told HuffPost they were deeply concerned that the Justice Department’s authority was once again being weaponized for political purposes under Attorney General William Barr.
“Here we are, 70 days before the election and right in the middle of the Republican convention, and they dropped four letters on four Democratic governors in particularly visible states? Please. This really does smell,” said Sam Bagenstos, a University of Michigan Law School professor who served in the Civil Rights Division during the Obama administration. “It’s absolutely the case that if the Department of Justice were taking the [CRIPA] seriously on COVID, they would have been investigating prisons and jails across the country.”
“I do not recall ever seeing a press release announcing that the Department is ‘evaluating whether’ to initiate a CRIPA investigation,” said Christy Lopez, a Georgetown University Law Center professor and former Civil Rights Division official. “And the New York/Texas comparison isn’t particularly subtle, is it?”
“Using CRIPA to target Democratic governors on the eve of an election is nothing short of an abuse of the Civil Rights Division’s enforcement authority for political purposes,” said Jonathan Smith, the executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs and a former Civil Rights Division official. “This is part of a very disturbing pattern from the DOJ to use its powers to advance the President’s electoral agenda as opposed to the neutral, objective, and independent enforcement of the law.”
DOJ’s press release generated negative headlines against Democratic governors. Some of the media coverage falsely suggested, despite CRIPA’s limits, that DOJ was investigating whether state governments were responsible for all nursing home deaths. “DOJ probes nursing home deaths in 4 states — including in NY,” said the New York Post. “DOJ asks governors about coronavirus orders that may have resulted in nursing home deaths,” wrote The Hill.
Pandemic At The Nursing Home
According to HuffPost’s review of DOJ’s letters to Congress on CRIPA enforcement, the Trump administration hadn’t launched any CRIPA investigations into public nursing homes until the current fiscal year.
The Justice Department official pointed out that the Civil Rights Division announced back in April that it had launched an investigation into the Soldiers’ Home in Holyoke, a state-run facility for veterans in Massachusetts. The state’s governor, Charlie Baker, is a moderate Republican and Trump critic, but DOJ’s press release on that investigation made no mention of the governor. There were 76 deaths at the Soldiers’ Home in Holyoke, which was described as a “warzone” and a “nightmare” during the worst days of the pandemic in late March. An independent report authored by a former federal prosecutor at Gov. Baker’s request found that the facility’s superintendent, a retired Marine Corps lieutenant colonel who had no prior experience with nursing homes, created “close to an optimal environment” for the spread of COVID-19.
There have been documented coronavirus outbreaks at veterans homes in Michigan, New York, New Jersey and Pennsylvania. Veterans homes were hit hard in New Jersey, where 81 veterans died at a facility in Paramus. More than 50 veterans died at a facility in New York. A state-run nursing home for veterans in Pennsylvania keep mum about the extent of its outbreak, but a licensed practical nurse told an inspector that it was “awful” to watch people die and have to “wrap the residents in a body bag and meet the undertaker at the elevator.”
The DOJ official also said that the four letters focused on states that had orders requiring nursing homes to admit patients with COVID-19. That’s a particularly difficult question, especially in state-run facilities that were dealing with patients in desperate need of care amid a pandemic that was overwhelming hospitals and leaving nursing homes ― in part because of the failures of the federal government ― short on personal protective equipment (PPE).
There’s some skepticism among civil rights experts that the admission of COVID-19 patients to public nursing homes during a catastrophic pandemic was something that should prompt a Justice Department division with limited resources to launch an inquiry into potential violations of the constitutional rights of confined persons. DOJ’s letters asked for information on how many patients were admitted to public nursing homes from a hospital or other facility after testing positive for COVID-19. Given the relatively small population of public nursing home residents, and the failures of many nursing homes to restrict visitation in the early days of the pandemic or provide adequate PPE, it seems unlikely that the admission of COVID-19 positive patients into public nursing homes was a significant contributor to the overall pandemic.
What About Prisons And Jails?
More broadly speaking, there are major questions about the Trump administration’s overall CRIPA enforcement, which has been somewhat anemic. The Trump administration’s latest report on CRIPA enforcement, sent to lawmakers earlier this month, says DOJ filed no complaints or settlements in the entire 2019 fiscal year but opened three new investigations. The Justice Department did release major CRIPA reports on conditions in prisons in Alabama and a deadly jail in Virginia, but both probes began during the Obama administration. The Trump administration has launched some new prison and jail investigations, including into Mississippi prisons and a New Jersey facility.
Politically, standing up for elderly veterans is much more popular than protecting the civil rights of the incarcerated. During the George W. Bush administration, said former DOJ official Smith, there was a big focus on public nursing home investigations involving veterans, which were “seen as less controversial” than prison and jail probes.
“Republican administrations are much more likely to be driven by this kind of war-on-crime idea that we accept poor conditions in penal facilities,” Bagenstos said. “They have a much higher bar, historically, for getting involved in cases that come out of those facilities. I think it’s as simple as that. It’s just crime politics.”
Dreiband, the Civil Rights Division chief, said in a statement in DOJ’s press release that protecting the rights of “some of society’s most vulnerable members, including elderly nursing home residents, is one of our country’s most important obligations” and that the department must “ensure they are adequately cared for with dignity and respect and not unnecessarily put at risk.”
‘You’re The Pot Calling The Kettle Black’
Incarcerated Americans definitely fall into the category of “society’s most vulnerable,” and prisons and jails have seen massive COVID-19 outbreaks. Some of the largest coronavirus clusters in the country are linked to prisons, including facilities in Florida and Ohio ― both states with Republican governors. But there’s been no announcements from the Trump administration about whether they’re digging into those outbreaks.
Moreover, the Justice Department itself hasn’t done a good job containing the spread of the coronavirus within its own facilities. At least 1,400 incarcerated persons and more than 600 Bureau of Prisons staffers have tested positive for COVID-19, according to the bureau’s latest numbers. The latest federal prisoner lost to the coronavirus, 56-year-old Marie Neba, died on Tuesday.
“You’re the pot calling the kettle black. The banana calling the school bus yellow,” said a Bureau of Prisons corrections officer, speaking on the condition of anonymity to discuss the department’s pandemic response. The officer, who dealt with PPE shortages and COVID-19 outbreaks at his DOJ-run facility for months, found the department’s potential scrutiny of states’ coronavirus responses deeply hypocritical. “How dare they go around complaining about how states are reacting to coronavirus,” he said.
CRIPA investigations are “pattern or practice” civil rights probes, meaning they look broadly at conditions and systems rather than focus on isolated abuses. The only “pattern or practice” policing probe launched during the Trump administration, which focused on a narcotics unit in Massachusetts, found that officers “repeatedly punch individuals in the face unnecessarily” and use “excessive force without accountability.” The Trump administration has all but ended those broad investigations into police conduct, in part because of their belief that identifying patterns of unconstitutional behavior against Americans hurts law enforcement morale. But the administration apparently has no such qualms about how public health care workers who cared for veterans in the middle of a pandemic might feel about the federal government second-guessing their actions.
DOJ veterans worry that this week’s announcement is yet another indication that Trump’s political appointees at the Justice Department are doing his political bidding. They wonder what else Barr has planned in the run-up to Election Day.
“In normal times, one would not suspect political motivations behind a Justice Department investigation ― but we do not live in normal times,” said Vanita Gupta, the president and CEO of the Leadership Conference on Civil and Human Rights and former head of the Civil Rights Division under Obama. “CRIPA is the sole federal civil rights law that the Attorney General must personally approve. This Attorney General and administration’s record on civil rights speaks for itself.”