A Message From the Department of Justice

The U.S. Department of Justice’s decision not to open an investigation into the extraordinarily high rate of deaths in nursing homes in New York, New Jersey, Pennsylvania and Michigan during the pandemic has provoked outrage among lawmakers and thousands of bereaved families.

Deputy Assistant Attorney General Joe Gaeta said that civil rights division lawyers had reviewed the facts and, “based on that review, we have decided not to open a CRIPA (Civil Rights of Institutionalized Persons Act) investigation of any public nursing facility within New York at this time.” The statement was made in a letter sent to several Republicans officials in the aforementioned states.

As quoted by the Associated Press and others, no reason was given in the letter as to why the DOJ had found it unworthy of a formal probe. And they won’t give a reason either.

A Justice Department spokeswoman told CNN the department would not comment beyond what’s in the letter. New York Governor Andrew Cuomo’s office was also in “no comment” mode.

The reactions that followed would have been scathing in any case, but the opacity of the DOJ’s response undoubtedly made them even more so.

“The families and loved ones of the victims of Gov. Cuomo’s failed leadership deserve transparency, accountability and the truth about the lengths of the Cuomo administration’s cover-up and corruption,” said Rep. Lee Zeldin (R-N.Y.), who had requested an investigation. “The Department of Justice has now chosen to willfully participate in the effort to deny the public answers and accountability.”

When allegations of wrongdoing against a senior elected official are so grave, it seems inexplicable that the DOJ would refuse to open an investigation without even giving a reason for it. The DOJ decision hangs in the air, a remote government agency’s unfeeling and baffling refusal to get involved.

As Haydee Pabey, whose mother died of COVID-19 in a northern Manhattan nursing home, told the New York Post. “My heart is broken all over again.”

Yet, from the tone of Gaeta’s letter, there aren’t any broken hearts at the Department of Justice.

Of course, one could answer that emotions are not their department.

But justice is. And people want to know if it is true — and there appears to be ample evidence that it is — that Cuomo was responsible for many unnecessary deaths after the state ordered nursing homes to accept discharging hospital patients, regardless of a suspected or positive diagnosis of the virus.

Compounding the matter, Cuomo’s office stands accused of deliberately undercounting the death toll — in other words, a cover-up. If the charges are true, then he should be prosecuted. But only a formal criminal investigation will determine that.

However, it must be noted that the investigation under discussion would have come under the CRIPA, which is limited in scope, as it can only investigate public facilities, not private ones; and it can only bring lawsuits but not press charges.

Thus, even if the DOJ had agreed to launch a probe, and found the charges against Cuomo and other state official substantiated, it would at most have resulted in further investigations under criminal statutes.

In fact, such investigations are already under way. Cuomo himself directed state Attorney General Letitia “Tish” James to investigate the scandals when they broke in March. The FBI and the U.S. Attorney’s Office in Brooklyn are also looking into it.

Yet politics has infected the nursing home scandal from the beginning. Cuomo sought early on to deflect the allegations against him by saying they were politically motivated.

Now the politicization of the nursing scandal has spread to Washington. It’s about Democrats and Republicans, electoral calculations and power politics of the ugliest kind.

The tightlipped DOJ letter leaves it open to imputations of sinister intent. Perhaps it is not too late for an explanatory follow-up letter that could give the legal grounds for their decision.

It is possible that in the prevailing climate, any explanation will be given a partisan interpretation. Those who are convinced it’s a cover-up of a cover-up will not be unconvinced regardless of the legal arguments presented. But at least those who would be willing to consider the explanation with an open mind would be able to do so.

The bereaved families have good reason to be pained by the outcome so far. But there is still reason to hope that the matter will be thoroughly investigated by other agencies and that in the end justice will be done.