DEPARTMENT OF JUSTICE | OFFICE OF THE INSPECTOR GENERAL

January 6, 2025

Alexander Mallin
[email protected]

Subject: Freedom of Information/Privacy Act Request [25-O1G-250

Dear Alexander Mallin:

This is in response to your Freedom of Information Act request to the Office of the Inspector General
(OIG). Specifically, your request seeks the report related to the Investigative Summary entitled: “Findings of
Misconduct by Three then Senior DO) Officials for Violating the Department's Confidentiality and Media Contacts
Policy; and by one of these Senior Officials for Violating the Department's Social Media Policy.”

The responsive report, consisting of 53 pages, has been reviewed. It has been determined that
certain portions of such report be excised pursuant to the Freedom of Information Act, 5 U.S.C. §552(b)(6)
and (7\(C), as follows:

-5 U.S.C. 8 552(b)(6), protects personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy; and
-5 U.S.C. § 552(b)(7)(C), protects records or information compiled for law enforcement
purposes, but only to the extent that the production of such law enforcement records or
information could reasonably be expected to constitute an unwarranted invasion of
personal privacy.

Please be advised that the OIG considered the foreseeable harm standard of the FOIA Improvement
Act of 2016 when reviewing the responsive records and applying the appropriate FOIA exemptions.
Consequently, please find enclosed that information which can be released pursuant to your request. We
consider this response as closing your request with the OIG.

If you are not satisfied with OIG’s determination in response to this request, you may administratively
appeal by writing to the Director, Office of Information Policy (OIP), United States Department of Justice, 441 G
Street, NW, 6th Floor, Washington, D.C. 20530, or you may submit an appeal through OIP's FOIA STAR portal by
creating an account following the instructions on OIP’s website: https://www.justice.gov/oip/submit-and-track-
request-or-appeal. Your appeal must be postmarked or electronically transmitted within 90 days of the date of
my response to your request. If you submit your appeal by mail, both the letter and the envelope should be
clearly marked "Freedom of Information Act Appeal." If possible, please provide a copy of your original request
and this response letter with your appeal.

950 Pennsylvania Avenue, NW, Washington, DC 20530-0001 | (202) 616-0646

 For your information, Congress excluded three discrete categories of law enforcement and national
security records from the requirements of the FOIA. See5 U.S.C. 8 552 (2012 & Supp. V 2017). This response is
limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is
given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist.

You may contact our FOIA Public Liaison, Deborah Waller, at (202) 616-0646 for any further assistance
with your request. Additionally, you may contact the Office of Government Information Services (OGIS) at the
National Archives and Records Administration to inquire about the FOIA mediation services they offer. The
contact information for OGIS is as follows: Office of Government Information Services, National Archives and
Records Administration, 8601 Adelphi Road-OGIS, College Park, Maryland 20740-6001, e-mail at [email protected];
telephone at (202) 741-5770; toll free at 1-877-684-6448.

Sincerely,

Deborah
UM. Waller
Deborah M. Waller
Supervisory Government Information Specialist
Office of General Counsel

Enclosure
 Released by
) DOJ OIG
” Under FOIA |

An Investigation of Alleged Misconduct by

Senior DO} Officials for Leaking Department
Investigative Activities Concerning COVID-19 in
Nursing Homes to Members of the News Media
in October 2020
 Released by
DO} OIG
Under FOIA

Table of Contents
[aldgels Wiadisl oprerrmen eer tr Teer rise rec rrr TTT er ecier co erarerteren ree recrorrce rr erec rere 1
Il. EGU PE TLR TEN ge ee ae aaa GS EG See 3
Ill. Applicable Statutes, Policies, and Ethics Rules vo... cccccccessseseseeseeeseeeeseeeseseeecaeeeseeescsesesesenececaeeeese 6

A. Contidentiaienarnd iMedia iCOmtacts PAIGE saz: ccsencsncsczsaesisunaspenuecneiiepepuinsdn

criti svoeeieastnceain’ 7
B. Restrictions:on Partisan Political ACUVIUES ciccsscciisesicseauesceiisntessnieet nenuieeaatieesiieaniees 8
1. Hatch Act and Related Department Policies and Ethics Rules...
ae Election Year Sensitivities and Restrictions on Political Activities
Cc. Social Media POlicy.......cesccessseseeseeeesesesessestseeeseesnseseneneeeeseaecaeaeseneeseaeaeseeaesneeeeneeaeseeeneneeeeneees 10
IV. BaCKSPOUNG wu.ccecceecceeeseseceeceneesceeesecesceteececsusececeeesesecacaeeeseoeseatesecacaancneeeiesaeececescresseesuessecersuermteenesanes 10
A, Relevant Federal Statutes .......scscseesssecnesessereessesssersncsrensessesessusassreatensseerssnsassnenteneerensenees 10
1, Fea Ge FAS UAE ccs a snurscijamnessrssuren iamxecenaniren ented manana emer embers 10
is Civil Rights of Institutionalized Persons: Act. wii. ceases seuss remdeuanlies, 11
B. Federal and State Guidance Related to Nursing Homes Early in the COVID-19
PANIGE TC) ee issssciieniannaiacetiniateieaiatininiiiaanedienial
dian petinital nant aay laraNe CaO pau 12
1. U.S. Department of Health and Human Services Guidance to Mitigate
COVID=1SAnfestions (i NURS HOMES: scncesccascenisccenseeneascenneevaenensencemearemaeneceancens 12
2 States Issue Executive Orders to Address COVID-19 Infection in Nursing
GIVES cccaxenvrussntnennexeniseenns eenvatenttanes enna aN ies dean ern ER RONEN Tan OmARNO RRR 13

G, DO] Enforcement of Quality of Care in Nursing Homes Early in COVID-19

PAHGEM Gisicccnceuneies ane OES aes aR eh Rg RL 15
1. DO} Rolls Out a Nursing Home Initiative in Early March 2020 that is
Wnrelsted 6G the COVIDETS PACH. ...csccecccccitsnitsersecncttersatsanntersdterateansterettes 15
2. CRT Publicly Announces COVID-19-related CRIPA Investigation of Soldiers’
Home at Holyoke in Massachusetts in April 2020 uo... cceeeseseeesessseseseseseeeeeseater 16
3. DO) Leadership Suspends COVID-19-related CRIPA Investigation of
Soldiers Home TyAPtH AO 20 es cscescsssss gece oneuses cesses uncurces cos recone yen sce tearee rae ren scat Te
V. Factual Findings sacinnninnacnanin acini ana a es 17
A. Events Related to CRT Leadership’s Decision to Issue a Press Release on August
26, 2020, Announcing CRT's CRIPA Pre-Investigative Letter Requests to New York,
New Jersey, MICHISari seid POPS VIVO cosscverecscamnssausenspeinnnnsaverntnassanoncomnevaapeniaasnssnniess 17
1. CRT Leadership Targets Public Nursing Homes in New Jersey and New
York far Possible CRIPA MMVESHRATONS . isisccean sceassearsavctnersea
tant utaeeatatlatess 17
2. CRT Leadership Decides to Send CRIPA Pre-Investigative Letter Requests
to New York, New Jersey, Michigan, and Pennsylvania and to Issue an
ACCOM Panini PASS: RELGASE a acc encour eonsssiennnesenvenacan
crm mnnraieranie 21
 Released by
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Under FOIA

3. CRT Leadership Issues CRIPA Pre-Investigative Data Request Letters to

Michigan, New Jersey, New York, and Pennsylvania and an Accompanying
BiGSGth Olea ap emar-cesien eee ee 26
B. Events Related to CRT and OPA Leadership’s Decision to Disclose to a News
Reporter, Days Before the 2020 Election, Non-Public Letters Issued by DO) to New
York Seeking Private Nursing Home Death Data and to New Jersey Describing the
Initiation OF We GRIPA IMVestl Beto vss cccecscuscorpe sss cee svurenecesceeare ues aime demreaempete crc yu 31
1. CRT Leadership Pushes CIV to Send Letter Request to New York for Private
Nursing: Home: COVID-19: DEAth Data. ccscissescsscarssencnsacsssectnynrseneeessbevteynoschneetsbentnys 31
Bi Dreiband Approves CRIPA Investigations of Menlo Park and Paramus
Veterans’ Homes in New Jersey in Mid-October.. spine rethac cae
3: CRT Leadership Proposes Notice Letter to Newnjorsey anid Press Release
Announcing New Jersey CRIPA Investigations, Which the USAO NJ
OPPOSES rin icemnumeaz imma MMKRRH TRIN TENaIE ReSeRN EA TATE RRNE Hote CENENIEES 34
4. Following the Approval of the Two New Jersey CRIPA Investigations, CRT
and OPA Leadership Press CIV to Issue a Broad Request to New York for
Private Nursing Home COVID-19 Death Data... ceccseeeeeseeseeeseseeenenens 36
5. [Proposes to “Package” New Jersey CRIPA Investigations Letter and
CIV's New York Letter and Have New York Post"Break It" as “Our Last
PlavasBe tore EIBCHOR ray nonncpsehennopne tet copier erm non ned sehannnonietetiaennniie 37
6. CIV Finalizes Letterto New York and Prepares Draft Press Release; the
USAO NJ Agrees with CRT Leadership on CRIPA Press Release Language;
Ultimately, No Press Releases are ISSUC i... scccisevsasssnneiiviesvanisenevesansersasioneetines 38
7. OPA Provides CIV’s New York Letter Request and CRT's Letter Notifying
New Jersey of CRIPA Investigations to the New York Post Before Officials
in New Jersey and New York Receive the Letters........ccssesssesesereeereseerseneees40
Vi. Fay LTS VAN ce ere rero PRT er erreree ree ty rereerirees rien Vy eraverensrten Ue rraverer vient rr eeyerer ar tent rrereree herr eT errerte rrr er Tey 42
A. October 2020 Disclosures to Reporters Regarding New Jersey CRIPA Investigations
and CIV Letter to New York, and]. Bocial Media POSts ...cccccscsssssesssesssssssssssseeeseees 42
1. | Jand}| __|Violated Section 1-7.400 of the Department's
Confidentiality and Media Contacts Policy... ccceceeeeeieceeeesesesesneeeeeaas 42
2. PHMiolated the Department's Social Media Policy ...ccsssssessssusnsseseesesenssee 46
B. Restrictions on Partisan Political ACtIVILIES ..........scsesesesesssrsesseneecsrenenrsssscnsatseteneatseseseneas 47
VIL. COLEUSOn wanna a SORES Oe
APPENDIX 1: The Department's August 26, 2020 Press REICASC 'sccccsssisscseiissssuessusenausnessusnsssvenessvenssensived 49
 Released by
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I. Introduction

This report describes the Department of Justice (Department or DOJ) Office of the Inspector
General's (OIG) investigation into alleged misconduct by senior DO] officials for leaking non-public
information in October 2020, shortly before the 2020 election, concerning DO}’s investigative activity
related to COVID-19 deaths in public and private nursing homes in New Jersey and New York. The
OlG investigation resulted from allegations that the actions of DOJ’s Civil Rights Division (CRT) in the
summer and fall of 2020 in connection with its review, under the Civil Rights of Institutionalized
Persons Act (CRIPA),’ of state-run nursing home deaths in Michigan, New Jersey, New York, and
Pennsylvania were politically motivated and violated the Hatch Act and DO] policies. Specifically, the
allegations the OIG received concerned (a) CRT leadership's selection in the summer of 2020 of
those four states with Democratic governors to receive pre-investigation data requests despite
having data showing other states had worse quality of care rankings for their state-run nursing
homes;? (b) the Department's issuance of a press release on August 26, 2020, announcing that CRT
had issued the pre-investigation data requests to the governors of those four states seeking data
regarding COVID-19-related infections and deaths in state-run nursing homes; and (c) the
Department's disclosure to a member of the news media on October 27, 2020, days before the 2020
election, of the Civil Division’s (CIV) non-public letter to the State of New York seeking data regarding
COVID-19-related deaths in New York's private nursing homes and a non-public letter from CRT and
the U.S. Attorney's Office for the District of New Jersey (USAO NJ) to the Governor of New Jersey
notifying the state of the Department's initiation of CRIPA investigations of two state-run veterans’
homes.

The Department's August 26 press release was entitled, “Department of Justice Requesting Data
from Governors of States that Issued COVID-19 Orders that May Have Resulted in Deaths of Elderly
Nursing Home Residents.”? The press release announced the Department's letter requests to
Michigan, New Jersey, New York, and Pennsylvania and stated that CRT was seeking to determine if
those states’ executive orders “requiring admission of COVID-19 patients to nursing homes [were]
responsible for the deaths of nursing home residents.” The August 26 press release cited the
Centers for Disease Control (CDC) data of general statewide “death rates by population” (not death
rates for nursing homes) in New Jersey and New York, which at the time had Democratic governors,
and compared those figures unfavorably to the general statewide death rates by population in
Texas and Florida, which at the time had Republican governors. The press release also cited as an
ongoing matter a CRIPA investigation that the Department had initiated in April 2020 of the Soldiers’
Home at Holyoke in Holyoke, Massachusetts (“Soldiers’ Home,” “Soldiers’ Home at Holyoke,” or

' 42 U.S.C. §§ 1997-1997].

* Unless otherwise noted, “CRT leadership” refers to the senior political appointees in the Office of the Assistant
Attorney General for the Civil Rights Division (CRT).

3, Department of Justice (DOJ) office of Public Affairs (OPA), Press Release, “Department of Justice Requesting
Data from Governors of States that Issued COVID-19 Orders that May Have Resulted in Deaths of Elderly
Nursing Home Residents” (August .26, 2020), https://www.justice.gov/opa/pr/department-justice-requesting-
data-governors-states-issued-covid-19-orders-may-have-resulted (accessed December 19, 2024), attached as
Appendix 1.
 Released by
DO] OIG
Under FOIA

"Holyoke" investigation or matter).* However, at the direction of then Attorney General (Attorney
General or AG) William Barr and then Deputy Attorney General Jeffrey Rosen, the Department had
suspended its Holyoke investigation months earlier, just days after its opening.*

Two months later, in October 2020, a senior official in DOJ's Office of Public Affairs (OPA) proposed a
pl an to leak DOJ investigative information to the New York Postregarding its investigations involving
nursing homes deaths in New Jersey and New York. The plan was consistent with an internal DO)
te xt sent by the same senior OPA official in mid-October that stated the effort “[w]ill be our last play
on them before election but it’s a big one." Consistent with this plan, on the evening of October 27,
2020, days before the 2020 election, the New York Post published an article entitled, "DOJ seeks
m ore NY nursing home data after finding COVID-19 death undercount.” The article cited to two non-
public DOJ letters that had been finalized but not yet sent by DOJ to their intended recipients: one to
th e State of New York seeking data regarding COVID-19-related deaths in New York's private nursing
homes and the other to the Governor of New Jersey notifying the state of the Department's initiation
of CRIPA investigations of two state-run veterans’ homes. The article also included a quote from an
unnamed “administration official,” which internal DOJ records reflect was a high-level CRT official.

During our investigation, the OIG reviewed public records as well as emails, telephone call logs,
in stant messages, text messages, and calendar entries of certain personnel from the Office of the
Attorney General (OAG), the Office of the Deputy Attorney General (ODAG), CRT, CIV, the Office of
Legislative Affairs, and OPA. We also reviewed digital and hard copies of select records from the
files of DO) and CRT leadership. In addition, we interviewed 12 witnesses, including career
personnel from CRT, CIV, and multiple U.S. Attorneys’ Offices.

The OIG sought voluntary interviews from former senior- and staff- level political appointees of CRT,
OPA, and OAG; each appointee either affirmatively declined our request or failed to respond to our
request. Specifically, the following former employees affirmatively declined the OlG's requests for
voluntary interviews: Attorney General William Barr; |
|’ Assistant Attorney General for CRT Eric
Dreiband;*] |°

4
In March 2023, the Commonwealth renamed the facility the Massachusetts Veterans’ Home at Holyoke. See
Paris Dunford and John O'Donoghue, "Holyoke Soldiers’ Home gets a new name, new state oversight,” Western
Mass News (March 2, 2023), www.westernmassnews.com/2023/03/02/holyoke-soldiers-home-gets-new-name-
new-state-oversight (accessed December 20, 2024).

> William Barr served as the presidentially appointed Attorney General of the United States from February 14,
2019, until his resignation from the Department on December 23, 2020. Jeffrey Rosen was the presidentially
appointed Deputy Attorney General from May 22, 2019, until January 20, 2021, Following Barr's departure,
Rosen also served as Acting Attorney General from December 24, 2020, to January 20, 2021.

|
7

8 Dreiband was the presidentially appointed Assistant Attorney General (AAG) for CRT from November 1, 2018,
to January 8, 2021.
9
 Released by
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eI
and] |offered to respond in writing to
any questions we provided, | Joffered to consider doing the same. The OIG does not believe
that responding to written questions is a substitute for an interview under oath and, therefore,
consistent with our practice, the OIG declined these offers. | |
|did not respond to the OIG's requests
for voluntary interviews.? | jalso declined our request for a
voluntary interview.'? |

| Because the OIG does not

have the authority to subpoena testimony from former Department employees, we were unable to
compel these interviews.

Il. Executive Summary

As described in this report, we found that, between June and late August 2020, CRT leadership
directed the Special Litigation Section (SPL) to focus on public nursing homes in Michigan, New
Jersey, New York, and Pennsylvania for possible CRIPA investigations based on the connection
between COVID-19 infections and deaths and orders regarding nursing home admission that had
been issued by those states in March and April 2020.'* The evidence also showed that CRT

to}

|
|

|
|

‘| |

4 Although the OIG investigation focused on events that occurred between April and October 2020, we noted
that subsequent data reporting and analysis confirmed that New York's initial reports of the number of nursing
home residents who died of COVID-19 reflected a significant undercount. See, e.g., State Comptroller Thomas
P. DiNapoli, Office of the New York State Comptroller, Division of State Government Accountability, Department
of Health: Use, Collection, and Reporting of Infection Control Data, 3 (March 2022) (finding that, “for certain
periods during the pandemic, the [Department of Health] understated the number of deaths at nursing homes
by as much as 50%"); Impeachment Investigation Report to Judiciary Committee Chair Charles Lavine and the
New York State Assembly, Davis Polk & Wardwell LLP, 36-41 (November 22, 2021) (noting that New York officials
underreported COVID-19 fatalities in nursing homes and did not include “out-of-facility deaths”); New York State
Office of the Attorney General, Nursing Home Response to COVID-19 Pandemic, 10-12 january 30, 2021)
(revised) (reflecting preliminary analysis “that COVID-19 resident deaths associated with nursing homes in New
York state appear[ed] to be undercounted by [the Department of Health] by approximately 50 percent”). We
also noted that news reports and information released by the Office of the Governor of New York reflected that
the state administration delayed responding to state legislative data requests regarding COVID-19 deaths in
nursing homes due to apparent concerns about a potential federal investigation and the data being used
against the state by federal investigators. See Lauren del Valle, “New York governor's top aide admits
administration delayed the release of Cavid-19 deaths in long-term care facilities over federal investigation
Continued
 Released by
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leadership directed SPL to focus specifically on New Jersey and New York despite having been
provided data indicating that the nursing homes with the most significant quality of care issues were
in other states.

Email records and witness testimony indicate that CRT leadership ultimately issued, and the
Department publicly announced, the August 26 data requests to Michigan, New Jersey, New York,
and Pennsylvania without knowing whether the “offending” state orders were still in effect (they
were not, having been rescinded or revised months earlier), whether such orders were consistent
with federal guidance at the time (they were largely consistent with federal guidance), or whether
other states had issued similar orders (they had), The evidence further showed that CRT
leadership—specifically| — fd rafted the August 26 announcement and
sought input from OAG, ODAG, CIV, and OPA. We did not identify evidence that any of the
Department attorneys, career or non-career, or public affairs specialists who reviewed the draft
press release expressed to CRT concerns about its substance.'5

However, many of the current and now former Department employees who agreed to be
interviewed by the OIG stated that they found both the fact that the Department issued a press
release in this instance and its content to be unusual and inappropriate. Email records showed that,
after the Department issued the press release, numerous journalists contacted OPA with questions
about the data requests, including about whether the Department's actions were politically
motivated.

Beginning in late September through October 27, 2020, while CRT was preparing to initiate formal
CRIPA investigations of two public veterans’ facilities in New Jersey, CRT leadership pressed CIV,
which has jurisdiction to ensure quality of care in private nursing homes through its enforcement of
the False Claims Act,'® to send a letter to New York seeking data regarding COVID-19-related deaths

concerns,” CNN (February 12, 2021), https://www.cnn.com/2021/02/12/us/new-york-aide-apology-covid-deaths-

facilities/index.html (accessed December 19, 2024); Statement from Secretary to the Governor Melissa DeRosa,
Office of the Governor of New York (February 12, 2021) (incorporating transcript of Zoom call between Melissa
DeRosa and New York state legislators), https://www.governor.ny.gov/news/statement-secretary-governor-
melissa-derosa-0 (accessed December 19, 2024).

1S We noted that some of the content of the August 26, 2020 press release announcing CRT's data requests to
New York, New Jersey, Pennsylvania, and Michigan appeared to go beyond the information needed to reassure
the public (the information does not appear to relate to public safety). However, as we explained in A Report of
!nvestigation into the Department's Release of Public Statements Concerning a Luzerne County, Pennsylvania,
Election Fraud Investigation in September 2020, the relevant Justice Manual provision, Section 1-7.400(C), “does
not address what information is appropriate to include in a public statement that officials have determined is
necessary to reassure the public that the appropriate law enforcement agency is investigating a matter.” DO]
OIG, Oversight and Review Division Report 24-082, at 61 (July 2024),
https://oig.justice.gov/sites/default/files/reports/24-082.pdf. Rather, Section 1-7.400(C) affords DOJ officials with
discretionary authority to determine what information to include in a sucha statement. /d. Because Section 1-
7.400(C) allows statements that are a departure from the fundarnental Department principle of not
commenting about ongoing investigations, we recommended in that report that the Department revise this
policy to require that the information contained in a statement released pursuant to Section 1-7.400(C) be
reasonably necessary either to reassure the public that the appropriate law enforcement agency is investigating
a matter or to protect public safety. /d! at 6.

16 31 U.S.C. 88 3729-3733.
 Released by
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in private nursing facilities in the state. Certain CRT leadership and OPA personnel—specifically
| pushed to have the
Department issue press releases announcing these actions involving New Jersey and New York
before the 2020 election, For example, on October 17, 2020, in a communication about the press
plans regarding the New Jersey CRIPA investigation and the New York letter] tated: "I'm trying
to get [CRT] and CIV to do letters to [New Jersey/New York] respectively on nursing homes. Would
like to package them together and let [Vew York Pos break it. Will be our last play on them before
election but it’s a big one.” With respect to CIV, email records and witness testimony indicated that
ClV did not have an independent interest at that time in securing the data regarding COVID-19-
related deaths in private nursing facilities in New York and was cautious about drafting an
information request and a press release announcing the same, but ultimately complied because CIV
was led to believe by CRT leadership that the direction was coming from Attorney General Barr.
Documentary evidence and witness testimony also showed that both CRT leadership and OPA
personnel sought to dictate the content of CIV's letter and press release and objected to CIV's
narrowly tailored drafts,

Ultimately, the Department did not issue press releases announcing either the New Jersey CRIPA
investigations or CIV's information request to New York. However, email records showed that
in consultation with (and with knowledge, directed OPA personnel to provide to a
New York Postreporter on October 27, 2020, CRT's and the USAO NJ's non-public letter to the
Governor of New Jersey regarding the initiation of the two CRIPA investigations, CIV’s non-public
information request letter to the New York State health department, and other non-public
background information. Later that day, the New York Post published an article—before designated
New Jersey and New York officials had even learned of the Department's actions—revealing that the
Department was opening two CRIPA investigations in New Jersey and that CIV separately was
seeking from New York State information regarding COVID-19-related deaths in private nursing
facilities there. The New York Postarticle included hyperlinks to the two letters as well as quotes
regarding the letters from an unnamed “administration official.""? DO} email records establish that
the unnamed “administration official” was jand
[ that the disclosure of non-public DO}
investigative information to the New York Postwas done with the knowledge and/or approval of
a
The next day, October 28, The Wal/ Street journal published an article about the New Jersey
investigations that referenced statements provided by an unnamed “Justice Department official.”"®
DOJ email records establish that |
; jalso was the source for the statements in 7he
Wall Street journa/
article and that he was prepared to be identified by name in the article, noting

17 Steven Nelson, “DO| seeks more NY nursing home data after finding COVID death undercount,” New York
Post, October 27, 2020 (7:50 pm), https://nypost.com/2020/10/27/doj-demands-ny-nursing-home-data-after-
covid-19-death-undercount (accessed December 20, 2024),

18 Chris Weaver, “U.S. Investigating Veterans Nursing Homes in New Jersey for Possibly Understating Covid
Deaths,” The Wall Street journal, October 28, 2020, httos://www.wsj.com/articles/u-s-investigating-veterans-
nursing-homes-in-new-jersey-for-possibly-understating-covid-deaths-1 1603900994 (accessed December 20,
2024).
 Released by
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that he did not think being named | |’? However, [J did not
want[gg] to be named in the article. Late on October 28] reposted through her official
DO} account both the Wew York Postand The Wall Street /ourna/articles.2° These
news reports (and others) quoted unnamed Department officials and referenced non-public
information, including some information that had been included in draft DO] letters and press
releases, which information certain DO] officials objected to including and which information was
never released, other than by the leaks,

We found that | | and [> Wiolated the Department's Confidentiality and Media
Contacts Policy through their participation in and/or knowledge of the October 27 and 28, 2020
leaks of non-public DOJ investigative information to the New York Postand to The Wall Street
Journal." We also found that [J] violated the Confidentiality and Media Contacts Policy and the
Department's Social Media Policy in contemporaneously posting on her official Pio]
account links to the New York Postand The Wal! Street journa/ articles.

Further, emails among senior officials expressing urgency about the Department's actions from June
through October 2020 and related direction from those officials to career personnel, as described in
more detail below, suggest that the then upcoming 2020 election may have been a factor in the
timing and manner of these actions and announcing them to the public. We are therefore referring
our findings to the U.S. Office of Special Counsel, which has exclusive jurisdiction regarding alleged
Hatch Act violations, for its review and determination regarding whether any of the conduct
described in this report violated the Hatch Act.

We have provided a copy of this report to the Office of the Deputy Attorney General and, because
the report contains misconduct findings against attorneys, to the Professional Misconduct Review
Unit for any action those offices deem appropriate. In addition, because the facts described in our
report raise the possibility that certain former Department officials may have violated the Hatch Act,
we are referring our findings to the U.S. Office of Special Counsel.

lll. Applicable Statutes, Policies, and Ethics Rules

Unless otherwise noted, the OIG applies the preponderance of the evidence standard in
determining whether DO] personnel have committed misconduct. The Merit Systems Protection
Board applies this same standard when reviewing a federal agency's decision to take adverse action
against an employee based on such misconduct.**

1s]

20] j |
[ [October 28, 2020, |
|
October 28, 2020.

21 We did not find evidence that anyone with authority under Department policy to approve media contacts
about ongoing matters did so in this case. However, even if they did, the leaks still would have violated the
Confidentiality and Media Contacts Policy for the reasons we describe in the analysis.

22 See5 U.S.C. § 7701(c)(1)(B); 5 C.F.R. 8 1201.56(b)(1)(ii).

 Released by
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Several laws and Department policies are relevant to the conduct outlined in this report. We detail
them below.

A. Confidentiality and Media Contacts Policy

The Department's Confidentiality and Media Contacts Policy, which is reflected in Justice Manual
Section 1-7.000, prohibits Department personnel from disseminating non-public, sensitive
information obtained in connection with their work, unless necessary
to fulfill their official duties.77
This policy exists because:

Much of DO}'s work involves non-public, sensitive matters. Disseminating non-public,

sensitive information about DO] matters could violate federal laws, employee non-
disclosure agreements, and individual privacy rights; put a witness or law
enforcement officer in danger; jeopardize an investigation or case; prejudice the
rights of a defendant; or unfairly damage the reputation of a person.*4

A provision of the policy in place from April 2018 to February 2024 also provided that, in
communications with members of the news media, “DO] generally will not confirm the existence of
or otherwise comment about ongoing investigations.’*° Section 1-7.400(B) continued: “Except as
provided in subparagraph C of this section, DO) personnel shall not respond to questions about the
existence of an ongoing investigation or comment on its nature or progress." Section 1-7.400(C)
provided that “comments about or confirmation of an ongoing investigation may be necessary”
when “the community needs to be reassured that the appropriate law enforcement agency is
investigating a matter” or when “release of information is necessary to protect the public safety,”
subject to the approval of the appropriate Assistant Attorney General or U.S. Attorney.*°

23 Justice Manual § 1-7.100.

24 Id.

25 Justice Manual § 1-7.400(B).

26 The Department updated Justice Manual Section 1-7.400 in February 2024. Subsection (C) now provides:
“when the community needs to be reassured that the appropriate law enforcement agency is investigating a
matter, or where release of information is necessary to protect the public safety, comments about or
confirmation of an ongoing investigation may be permissible.”
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B. Restrictions on Partisan Political Activities

1s Hatch Act and Related Department Policies and Ethics Rules

The Hatch Act generally prohibits executive branch personnel from engaging in partisan political
activity while on duty. All DO) employees are subject to the Hatch Act’s restrictions.*”’ The U.S. Office
of Special Counsel has exclusive jurisdiction for investigating Hatch Act violations.®

Among other provisions, the statute specifies that employees may not use their “official authority or
influence for the purpose of interfering with or affecting the result of an election.””? This
admonishment applies equally to career and non-career employees.*°

DO] policy requires employees “to be aware of, and to comply with” the Hatch Act.?" Additionally,
the Standards of Ethical Conduct for Employees of the Executive Branch (Standards of Ethical
Conduct) identify the Hatch Act as one of the statutes “to which an employee's conduct must
conform." The Standards of Ethical Conduct also provide that “employees shall endeavor to avoid
any actions creating the appearance that they are violating the law" or the Standards of Ethical
Conduct.??

Zi Election Year Sensitivities and Restrictions on Political Activities

Consistent with DOJ practice in presidential election years, on May 15, 2020, Barr issued a
Memorandum for All Department of Justice Employees reminding them of their responsibility to
enforce the laws of the United States in a “neutral and impartial manner” and emphasizing that this
obligation is “particularly important in an election year” (Barr Election Year Sensitivities

275 U.S.C. § 7322(1)(A). The Hatch Act and DO] policy provide that certain Executive Branch employees are
subject to additional restrictions on their activities. See eg, Memorandum from Lee Lofthus, Assistant
Attorney General for Administration, for All Department of Justice Career Employees Re: Restrictions on Political
Activities une 10, 2020); Memorandum from Lee Lofthus, Assistant Attorney General for Administration, for All
Department of Justice Non-Career Employees Re: Restrictions on Political Activities (une 10, 2020). These
“further” restrictions on Senior Executive Service and non-career DO] employees are not relevant to this matter.

28 5 C.F.R. § 734.102(a).

235 U.S.C. § 7323(a)(1).

30 5 U.S.C. 8§ 7322(1) and 7323(a).

31 Justice Manual §§ 1-4.010 and 1-4.100(C).

32S CF.R. § 2635.901; see a/so5 C.F.R. § 2635.902(0).

33:5 CF.R. § 2635.101(b}(14).
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Memorandum). The Barr Election Year Sensitivities Memorandum included two sections.*>
Section |, which was framed in the context of criminal matters, provided that “partisan politics must
play no role in the decisions of federal investigators or prosecutors” and that “law enforcement
officers and prosecutors may never select the timing of public statements (attributed or not),
investigative steps, criminal charges, or any other action in any matter or case for the purpose of
affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or
political party.’”°° This section, by its terms, did not apply to civil matters.

Section Il reminded employees of their obligations under the Hatch Act, including that they may not
use their official authority or influence for the purpose of affecting election results.*’ The Justice
Manual also requires employees “to be aware of, and to comply with” the Hatch Act.

A month after issuance of the Barr Election Year Sensitivities Memorandum, on June 10, 2020, the
then Assistant Attorney General for Administration Lee Lofthus issued two memoranda—one to
career Department employees and one to non-career appointees—reminding employees of the
Hatch Act's restrictions on partisan political activities (Lofthus Political Activities Memoranda).*? Like
the Barr Election Year Sensitivities Memorandum, the Lofthus Political Activities Memoranda
emphasized the importance of maintaining the “integrity of our work” and highlighted that “the
public trusts that we will enforce the laws of the United States based on the facts and the law, and
not to achieve purely partisan election objectives.””°

34 William Barr, Attorney General, U.S. Department Justice, Memorandum for All Department of Justice
Employees, Election Year Sensitivities May 15, 2020 (Barr Election Year Sensitivities Memorandum). At the time
of the events detailed in this report, the Department had not yet revised the Justice Manual to address the
recommendation reflected in our Review of Various Actions by the Federal Bureau of Investigation and
Department of Justice in Advance of the 2016 Electionthat the Department “consider providing guidance to
agents and prosecutors concerning the taking of overt investigative steps, indictments, public announcements,
or other actions that could impact an election.” DO} OIG, Oversight and Review Division Report 18-04, 500 June
2018), https://oig.justice.gov/sites/default/files/reports/1 8-04, pdf (accessed December 20, 2024). In August
2022, the Department amended the Justice Manual to include a provision prohibiting federal prosecutors and
agents from selecting “the timing of any action, including investigative steps, criminal charges, or statements,
for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any
candidate or political party.” Justice Manual § 9-85.500. The provision further provides that "[a]ny action likely
to raise an issue or the perception of an issue...requires consultation with the Public Integrity Section, and such
action shall not be taken if the Public Integrity Section advises that further consultation is required with the
Deputy Attorney General or Attorney General.” /a.
35 Barr Election Year Sensitivities Memorandum.
36 id.

a7 id.

28 Justice Manual §§ 1-4.010 and 1-4.100(C).

39. See Lee Lofthus, Assistant Attorney General for Administration, U.S. Department of Justice, Memorandum for
All Department of Justice Career Employees, Restrictions on Political Activities, June 10, 2020; Lee Lofthus,
Assistant Attorney General for Administration, U.S. Department of Justice, Memorandum for All Department of
Justice Non-Career Employees, Restrictions on Political Activities, June 10, 2020.
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Cc. Social Media Policy

In June 2019, with the endorsement of| |the Department issued updated
guidance regarding components’ management of social media content.*’ The updated guidance
supplemented the initial policy statement regarding the use of social media to communicate with
the public, which the Department issued in 2018.*2 The Social Media Policy, as reflected in both the
2018 initial policy statement and the 2019 updated guidance, “applies to all official social media
accounts used or managed by Department employees for official business, whether the account is in
the name of a Department component, office, official, program, initiative, etc."*? The policy reminds
components to comply with applicable laws and guidance, including government ethics rules, laws
and policies regarding partisan political activities, regulations regarding the release of non-public
information, and the Department's Confidentiality and Media Contacts Policy; and provides that the
component head is responsible for ensuring compliance with all laws, regulations, policies, and rules
related to official social media use.“

The policy generally provides that a component may only use its official social media account “to
post information that may be shared with the public in the course of official business” and that a
component “may not use social media to publish non-public information or information clearly
unauthorized for disclosure."4°

The policy also sets forth rules regarding linking and reposting “nongovernmental entity content.”*°
This part of the policy provides in part: “Because linking to or reposting content may in some
circumstances imply endorsement of the entity and/or the content that is being reposted,
components are strongly encouraged to consult with’ their ethics officials, Senior Component
Official for Privacy, public affairs officials, or general counsel before linking to or reposting content
from nongovernmental sources.*”

IV. Background

A. Relevant Federal Statutes

1. False Claims Act

Most of the Department's work ensuring the provision of quality care in nursing homes is handled
by CIV and the U.S. Attorneys’ Offices (USAO) through enforcement of the False Claims Act (FCA),
which empowers the Department to seek damages and penalties from nursing facilities that seek

“’ DO} Policy Statement 0300.02.02, Social Media Content Management Requirements and Procedures.

42 DOJ Policy Statement 0300.02, Use of Social Media to Communicate with the Public.
43 ld.

“4 DO} Policy Statement 0300.02; DO) Policy Statement 0300.02.02.

45 id.

46/7 § (11)(D)(5).
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reimbursement from Medicare and Medicaid when those facilities provide substandard care to
residents.*® Injunctive relief is not available under the FCA.*? As a matter of practice, DOJ uses the
FCA to enforce quality of care in private nursing facilities, which represent the vast majority of
nursing facilities in the United States.

2. Civil Rights of Institutionalized Persons Act

The Department uses its authority under CRIPA to ensure quality of care in public nursing facilities.
The statute authorizes the federal government to bring civil enforcement actions against state and
local governments that systemically violate the constitutional rights of persons institutionalized in
public facilities.°!

CRIPA and related Department policy, however, place restrictions on this authority, including
requirements that any investigation be authorized by the Assistant Attorney General (AAG) for CRT
and that several intermediate steps be taken before the Department files any complaint against a
state or local government.*? For example, the federal government must give written notice to the
governor of the state in which the facility is located, the state Attorney General, and the facility
director upon opening a CRIPA investigation and must wait 7 days thereafter before initiating
investigative activity.>? The Attorney General must personally endorse any formal complaint and, in
doing so, must certify that the federal government has complied with the statutory pre-suit
requirements.** In part due to these statutory restraints on federal authority, it has been
longstanding practice for CRT to refrain from contacting the state for any information prior to the
formal initiation of an AAG-approved CRIPA investigation.

The only remedy CRIPA affords is injunctive relief from the identified constitutional violations.*? As a
result, the Department's practice has been to initiate a CRIPA investigation where a constitutional
violation is believed to be ongoing or “capable of repetition, yet evading review.”*°

48 31 U.S.C. 88 3729-3733

49°31 UISiC, 8/3729.

58 42 U.S.C, 88 1997-1997].

51 42 U.S.C. § 1997a.

2 See 42 U.S.C. §§ 1997a and b; 28 C.F.R. § 0.50 (delegating to the AAG for CRT the responsibility to enforce all
mn

federal statutes affecting civil rights, including those pertaining to the civil rights of institutionalized persons);
Justice Manual § 8-2.261 (providing that the AAG for CRT has the final authority to determine whether a CRIPA
investigation should be opened and affirming that the Attorney General retains exclusive authority to sign
formal CRIPA complaints).

33 42 U.S.C. 8 1997b(a)(2).

54 42 U.S.C. 88 1997 b(a)(2) and (b).

9° 42 U.S.C. § 1997a(a).

°6 This standard reflects an exception to the mootness doctrine, which ordinarily precludes civil action when
the “controversy” no longer exists. See, e.g., Globe Newspaper Co. v. Superior Ct. for City of Norfolk, 457 U.S.
596, 603 (1982).

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Within CRT, SPL handles CRIPA investigations. CRIPA enforcement in the nursing home context has
been a small portion of SPL's portfolio in part because publicly run nursing homes make up a very
small percentage of nursing homes in the United States.”

B. Federal and State Guidance Related to Nursing Homes Early in the COVID-19
Pandemic

Given their congregate nature and vulnerable resident populations, nursing homes are high-risk
environments for communicable airborne viruses, including COVID-19.°° In the spring of 2020,
nursing homes and other long-term care facilities experienced disproportionately high numbers of
COVID-19 infections and related deaths.°? Accordingly, throughout the pandemic, federal and state
authorities issued guidance and executive orders directed toward mitigating COVID-19 transmission
in nursing homes and other long-term care facilities.

1. U.S. Department of Health and Human Services Guidance to Mitigate

COVID-19 Infections in Nursing Homes

On March 13, 2020, the CDC and the Centers for Medicare & Medicaid Services (CMS), both
components of the U.S. Department of Health and Human Services (HHS), issued guidance for
infection prevention and control in nursing homes. The CMS guidance provided that nursing
homes could accept residents diagnosed with COVID-19 so long as the facility could implement
certain practices.®’ The guidance also noted that “nursing homes should admit any individuals that
they would normally admit to their facility, including individuals from hospitals where a case of
COVID-19 was present” and, “if possible, dedicate a unit/wing exclusively for any residents coming or
returning from the hospital.”©* Neither the CDC nor CMS guidance recommended prohibiting
nursing homes from requiring COVID-19 testing prior to admission or re-admission, nor did the
guidance recommend requiring testing prior to admission or re-admission from a hospital.

Thereafter, on multiple occasions during the time period relevant to our investigation—from mid-
March through late August 2020—the CDC and the CMS issued updated guidance and

>? Prior to the pandemic, CRT used its CRIPA authority primarily to investigate and remedy constitutional
violations in state-run prisons and jails.

58 See Centers for Disease Control and Prevention (CDC), Preparing for COVID-19 in Nursing Homes, May 19,
2020; CDC, Testing Guidelines for Nursing Homes, July 17, 2020; see a/so CDC, Morbidity and Mortality Weekly
Report, 1300, September 18, 2020.

53° See id.

89 See CDC, Preparing for COVID-19: Long-term Care Facilities, Nursing Homes, March 13, 2020; Centers for
Medicare & Medicaid Services (CMS), Guidance for Infection Control and Prevention of Coronavirus Disease
2019 (COVID-19) in Nursing Homes, March 13, 2020.

51 See CMS, Guidance for Infection Control and Prevention of Coronavirus Disease 2019 (COVID-19) in Nursing
Homes, March 13, 2020.
62 Jaq.

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recommendations that were intended to help mitigate the spread and effects of COVID-19.° The
CDC guidance and the CMS recommendations consistently provided that discharge from hospitals
to nursing homes should be based on determinations of medical stability, and that confirmed or
suspected COVID-19 infection was not a sufficient basis to deny an otherwise medically stable
patient admission to a nursing home provided that the receiving nursing home had adequate
infection prevention and control measures in place, including screening for symptoms, segregating
or cohorting residents with known or suspected COVID-19 in designated units, and dedicating staff
to those units.

In every instance, the CDC and the CMS guidance did not recommend that admissions or
readmissions to nursing homes be preceded by a negative COVID-19 test nor did they recommend
that nursing homes be prohibited from requiring COVID-19 testing. Rather, the CDC and the CMS
recommended that, to the extent that reliable testing was available, facilities use testing to screen
residents, noting that the results could help inform decisions regarding resident care, medical
interventions, and housing placement.

2. States Issue Executive Orders to Address COVID-19 Infection in

Nursing Homes

In March and April 2020, concurrent with the above-described guidance issued by the CDC and the
CMS, multiple states, including New York, New Jersey, Pennsylvania, Michigan, Arizona, California,
Georgia, Indiana, and others issued executive orders, directives, or guidance (collectively “orders”)
regarding hospital discharges and nursing home admissions.* These orders specified that

83 See e.g, CDC, Interim Infection Prevention and Control Recommendations for Patients with Suspected or
Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings, March 19, 2020; CMS, COVID-19 Long-
term Care Facility Guidance, April 2, 2020; CDC, Responding to Coronavirus (COVID-19) in Nursing Homes, April
30, 2020; CDC, Discontinuation of Transmission-Based Precautions and Disposition of Patients with COVID-19 in
Healthcare Settings (Interim Guidance), May 2, 2020; CMS, Nursing Home Reopening Recommendations for
State and Local Officials, May 18, 2020; CDC, Preparing for COVID-19 in Nursing Homes, May 19, 2020; CDC,
Testing Guidelines for Nursing Homes, July 17, 2020; CMS, Interim Final Rule, Additional Policy and Regulatory
Revisions in Response to the COVID-19 Public Health Emergency (requiring long-term care facilities to test
residents and staff members for COVID-19 and, upon the identification of an individual with symptoms or who
tests positive, to take measures to prevent further transmission), August 26, 2020.

54 See CMS, COVID-19 Long-term Care Facility Guidance, April 2, 2020; CDC, Responding to Coronavirus (COVID-
19) in Nursing Homes, April 30, 2020; CDC, Discontinuation of Transmission-Based Precautions and Disposition
of Patients with COVID-19 in Healthcare Settings (Interim Guidance), May 2, 2020; CDC, Testing Guidelines for
Nursing Homes, July 17, 2020.

8 See CMS, COVID-19 Long-Term Care Facility Guidance, April 2, 2020; CDC, Responding to Coronavirus (COVID-
19) in Nursing Homes, April 30, 2020; CMS, Nursing Home Reopening Recommendations for State and Local
Officials, May 18, 2020; CDC, Preparing for COVID-19 in Nursing Homes, May 19, 2020; CDC, Testing Guidelines
for Nursing Homes, July 17, 2020; CMS, Interim Final Rule, Additional Policy and Regulatory Revisions in
Response to the COVID-19 Public Health Emergency, August 26, 2020.

$6 See New York State Department of Health, Advisory: Hospital Discharges and Nursing Home Admissions,
March 25, 2020; New Jersey Department of Health, Hospital Discharges and Admissions to Post-Acute Care
Settings, March 31, 2020; Pennsylvania Department of Health, Interim Guidance for Nursing Facilities During
COVID-19, March 18, 2020; State of Michigan, Executive Order 2020-50: Enhanced Protections for Residents
Continued

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discharge from hospitals to nursing homes should be based on hospital determinations of medical
stability; prohibited nursing homes from denying admission or re-admission based solely on
confirmed or suspected COVID-19; and either prohibited nursing homes from requiring COVID-19
testing prior to admission or re-admission of a hospitalized patient who had been determined
medically stable or prohibited nursing homes from denying admission or re-admission based on
testing requirements inconsistent with federal guidance.®’ These orders sparked concerns that
discharging patients from hospitals to nursing homes would introduce COVID-19 into the facilities
and place residents and staff members at risk of infection.®*

By mid-May 2020, New York, New Jersey, Pennsylvania, Michigan, and California either had revised
or rescinded their initial orders regarding nursing home admission.®? New York's new order
prohibited hospitals from discharging patients to nursing homes without first testing for COVID-19
and obtaining negative results.”° New Jersey, Pennsylvania, Michigan, and California issued orders
that required COVID-19 testing prior to admission or re-admission to nursing homes and provided
that nursing homes should consider test results in making decisions regarding resident care and
placement, but did not require negative COVID-19 results as a condition of admission or re-
admission.’' Other states, including Arizona, Indiana, and Georgia did not issue new orders, as their

and Staff of Long-Term Care Facilities During the COVID-19 Pandemic, April 15, 2020; California Department of
Health, All Facilities Letter (AFL) 20-33, Interim Guidance for Transfer of Residents with Suspected or Confirmed
Coronavirus Disease (COVID-19)}, April 1, 2020; State of Arizona, Executive Order 2020-22, Protection of
Vulnerable Residents at Nursing Care Institutions, Residential Care Institutions, |CF-IIDs and DD Medical Group
Homes from COVID-19, April 7, 2020; Indiana State Department of Health, COVID-19 Guidance for Hospital
Discharge to Long-Term Care Facilities, April 1, 2020; State of Georgia, Executive Order 04.08.20.03, Executive
Order to Ensure the Safety of Employees and Residents of Nursing Homes and Long-Term Care Facilities, April
8, 2020.
8? See id.

8 See e.g., Over 9,000 Virus Patients Sent into NY Nursing Homes, Associated Press, Feb. 11, 2021,
https://apnews.com/article/new-york-andrew-cuomo-us-news-coronavirus-pandemic-nursing-homes-
512caeQabb55a55f375b3192f2cdd6b5 (accessed December 20, 2024); Whitmer's Veto Continues Bad Nursing
Home Policy, Detroit News, August 5, 2020,
https://www.detroitnews.com/story/opinion/editorials/2020/08/06/editorial-whitmers-veto-continues-bad-
nursing-home-policy/3300487001/ (accessed December 20, 2024)

89 See State of New York, Executive Order 202.30 re Continuing Temporary Suspension and Modification of
Laws Relating to the Disaster Emergency, May 10, 2020; New Jersey Department of Health, Executive Directive
No. 20-013: COVID-19 Testing at Licensed Long-Term Care Facilities, Assisted Living Residences, Comprehensive
Personal Care Homes, Residential Health Care Facilities, and Dementia Care Homes, May 12, 2020;
Pennsylvania Department of Health, Advisory: Test-based Strategies for Preventing Transmission of the Virus
that Causes COVID-19 in Skilled Nursing Facilities, May 12, 2020; State of Michigan, Executive Order 2020-95:
Enhanced Protections for Residents and Staff of Long-Term Care Facilities During the COVID-19 Pandemic, May
21, 2020; California Department of Public Health, All Facilities Letter (AFL) 20-33.2, Interim Guidance for Transfer
of Residents with Confirmed or Suspected Coronavirus Disease (COVID-19), May 15, 2020.

70 See State of New York, Executive Order 202.30 re Continuing Temporary Suspension and Modification of
Laws Relating to the Disaster Emergency, May 10, 2020.

7 See New Jersey Department of Health, Executive Directive No. 20-013: COVID-19 Testing at Licensed Long-
Term Care Facilities, Assisted Living Residences, Comprehensive Personal Care Homes, Residential Health Care
Facilities, and Dementia Care Homes, May 12, 2020; Pennsylvania Department of Health, Advisory: Test-based
Continued

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then existing orders required nursing homes to comply with CMS and CDC guidance, which evolved
as summarized above.’* These orders concerning nursing home admission and COVID-19 testing
remained the subject of public discourse throughout the spring and summer of 2020, and federal
and state responses to COVID-19 were discussed during the 2020 Democratic and Republican
National Conventions.”

C. DOJ Enforcement of Quality of Care in Nursing Homes Early in COVID-19

Pandemic

1. DO} Rolls Out a Nursing Home Initiative in Early March 2020 that is
Unrelated to the COVID-19 Pandemic

On or about March 3, 2020, under the larger umbrella of the Department's Elder Justice Initiative
and just days before the COVID-19 pandemic emergency was declared by President Trump on
March 13, 2020, Attorney General Barr announced a Nursing Home Initiative (NHI)to “coordinate
and enhance civil and criminal efforts to pursue nursing homes that provide grossly substandard

Strategies for Preventing Transmission of the Virus that Causes COVID-19 in Skilled Nursing Facilities, May 12,
2020; State of Michigan, Executive Order 2020-95: Enhanced Protections for Residents and Staff of Long-Term
Care Facilities During the COVID-19 Pandemic, May 21, 2020; California Department of Public Health, All
Facilities Letter (AFL) 20-33.2, interim Guidance for Transfer of Residents with Suspected or Confirmed
Coronavirus Disease (COVID-19), May 15, 2020. See a/so CDC, Discontinuation of Transmission-Based
Precautions and Disposition of Patients with COVID-19 in Healthcare Settings (Interim Guidance), May 2, 2020;
CMS, Nursing Home Reopening Recommendations for State and Local Officials, May 18, 2020; CDC, Preparing
for COVID-19 in Nursing Homes, May 19, 2020.

72 See State of Arizona, Executive Order 2020-22, Protection of Vulnerable Residents at Nursing Care
Institutions, Residential Care Institutions, |CF-IIDs and DD Medical Group Homes from COVID-19, April 7, 2020;
Indiana State Department of Health, COVID-19 Guidance for Hospital Discharge to Long-Term Care Facilities,
April 1, 2020; State of Georgia, Executive Order 04.08.20.03, Executive Order to Ensure the Safety of Employees
and Residents of Nursing Homes and Long-Term Care Facilities, April 8, 2020. Georgia's April 8, 2020 order was
effective for an initial period of 20 days; on April 30, the Governor of Georgia extended the April 8, 2020 order
for an additional 43 days.

3 See eg, “Whitmer's Veto Continues Bad Nursing Home Policyv,” Detroit News, August 5, 2020,
https://www.detroitnews.com/story/opinion/editorials/2020/08/06/editorial-whitmers-veto-continues-bad-
nursing-home-policy/3300487001/ (accessed December 20, 2024); Bernard Condon, Jennifer Peltz and Jim
Mustain, “AP count: Over 4,500 virus patients sent to NY nursing homes,” Associated Press, May 24, 2020,
https://apnews.com/article/health-us-news-ap-top-news-weekend-reads-virus-outbreak-
5ebc0ad45b73a899efa81f098330204c (accessed December 21, 2024). The Democratic National Convention
took place from August 17 through August 20, 2020. The Republican National Convention took place from
August 24 through August 27, 2020. See a/so Governor Andrew Cuomo, Gov. Cuomo Addresses the
Coronavirus During the Democratic National Convention, August 17, 2020,
https://www.pbs.org/newshour/politics/watch-gov-cuomo-addresses-the-coronavirus-during-the-democratic-
national-convention (accessed December 20, 2024); Governor Gretchen Whitmer, Governor Whitmer Speaks at
Democratic National Convention, August 17, 2020,
https://www.freep.com/story/news/politics/elections/2020/08/1 7/governor-gretchen-whitmer-speech-
democratic-convention-dnc/3385194001/ (accessed December 20, 2024); Tamar Lapin, “RNC 2020: Cuomo, de
Blasio appear in video for botched COVID response,” New York Post, August 24, 2020,
https://nypost.com/2020/08/24/rnc-2020-cuomo-de-blasio-appear-in-video-for-botched-covid-response/
(accessed December 20, 2024).

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care."”* At the time of its announcement, the NHI was not focused on COVID-19 issues but rather on
identifying the worst nursing homes around the country—those that had inadequate nursing staff,
failed to adhere to basic hygiene and infection control protocols, failed to provide sufficient food to
residents, withheld pain medication, and used physical or chemical restraints to restrain or sedate
residents—and initiating civil or criminal actions to protect residents.”*> The NHI is supported bya
contract between DO] and a private contractor pursuant to which contract investigators analyze data
collected and produced by the CMS and other information to identify problematic facilities. The NHI
primarily is a collective effort by CIV and USAOs around the country.

Shortly after the NHI was announced, COVID-19 exposed infection control and other quality of care
deficiencies in nursing homes, and CIV and the USAOs became busy gathering data to identify
particularly problematic facilities and working to identify potential targets for federal law
enforcement action.

2. CRT Publicly Announces COVID-19-related CRIPA Investigation of

Soldiers’ Home at Holyoke in Massachusetts in April 2020

In early April 2020, during the initial wave of the COVID-19 pandemic, the U.S. Attorney's Office for
the District of Massachusetts (USAO MA) reached out to CRT and proposed opening a CRIPA
investigation into the Soldiers’ Home at Holyoke in Holyoke, Massachusetts, a long-term care facility
for veterans. According to the recommendation memorandum jointly prepared by SPL and the
USAO MA, there had been numerous COVID-19-related deaths at the facility due to poor infection
control procedures. The recommendation to open a CRIPA investigation moved quickly through the
CRT approval process, and then AAG for CRT Dreiband authorized the CRIPA investigation on April 8,
2020.

Because the COVID-19 deaths at the Soldiers’ Home had received extensive media attention, then
U.S. Attorney for USAO MA Andrew Lelling suggested announcing the investigation with a press
release. Following Lelling’s request, Dreiband sent an email to} eeking
his advice, writing: “[W]e normally do not issue [a] press release when we initiate an investigation,”
but he noted the “unusual circumstance.” During the exchange, [i pusgested that Dreiband and
Lelling issue a “barebones and straightforward” joint statement rather than a press release. On
Friday, April 10, 2020, following further discussion, the Department issued a barebones press
release announcing that the Department had “opened an investigation...to examine whether the
Soldiers’ Home violated the rights of residents by failing to provide them adequate medical care
generally, and during the coronavirus pandemic.””*

74 See DO] OPA, Press Release, “Department of Justice Launches a National Nursing Home Initiative,” March 3,
2020, https://www.justice.gov/opa/pr/department-justice-launches-national-nursing-home-initiative (accessed
December 20, 2024).
75 ld.

76 DO] OPA, Press Release, “Federal Investigation into Conditions at a Nursing Home for Veterans in
Massachusetts Announced,” April 10, 2020.

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3. DO] Leadership Suspends COVID-19-related CRIPA Investigation of

Soldiers’ Home in April 2020

Emails show that, while CRT had notified OAG and the Office of the Associate Attorney General of
the investigation, CRT did not notify ODAG of the investigation before its announcement.

After learning about the matter, on Saturday, April 11, 2020, Deputy Attorney General Rosen
scheduled a meeting with Dreiband and Lelling for the following Monday, April 13. Rosen’s notes of
the April 13 discussion reflect a decision to suspend the federal investigation and await the findings
of a then ongoing state investigation and to be prepared to assist state investigators, as needed.”’
LS
SSS told the O'G that, on April 13 or 14,| advised him to have SPL
stand down on the investigation because of concerns raised by DO} leadership.

notes from a discussion with Dreiband on April 20 reflect that Department

leadership wanted SPL to stand down on the Holyoke investigation both because there was already
an ongoing state investigation and because “[the Department] should not be going into state
institutions about [the] pandemic when [DO is] being criticized for [its] pandemic response.” The
Department did not issue a public announcement of the investigation’s suspension.

Vv. Factual Findings

A. Events Related to CRT Leadership’s Decision to Issue a Press Release on

August 26, 2020, Announcing CRT's CRIPA Pre-Investigative Letter Requests
to New York, New Jersey, Michigan, and Pennsylvania

i, CRT Leadership Targets Public Nursing Homes in New Jersey and New
York for Possible CRIPA Investigations

old us that, in the 2 plus months following the April 2020 decision by the
Department's leadership to suspend the Holyoke investigation, SPL did not pursue any other COVID-
19-related CRIPA nursing home investigations, with the understanding that CRT and DO leadership
were not supportive of such investigations at that time. He also told us that, during that time period,
when USAQOs inquired about opening COVID-19-related CRIPA investigations into nursing homes, he
told them about the Holyoke matter and that leadership may not support such an investigation.
However, beginning in June 2020, Dreiband instructed [i pte have SPL explore initiating CRIPA
investigations into nursing homes in New Jersey and New York.

77 DO leadership's instructions allowed SPL and USAO MA to sit in on interviews conducted by state
investigators in a passive role, which USAO MA did.

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a. CRT Leadership Encourages Investigation of COVID-19 Deaths in

Public Nursing Facilities in New Jersey and New York

On June 24, 2020, AAG Dreiband sent an email to mith the subject line “CRIPA—New York
and New Jersey,” which stated: [J]! think | mentioned that we should look at nursing homes in
both New York and New Jersey, but if | did not, please ask the team to do so.”

[ito us that[/ |) informed him by phone of those instructions but stated that
she did not want SPL to “distort [its] ordinary priorities” because Dreiband had asked for a particular
focus on those two states. Consistent with [mm instruction,[
told us that he
directed his team to look at New Jersey and New York, but that he also told them that they should
not limit their survey work to those states. He also reached out directly to the USAO NJ and the U.S.
Attorney's Offices in the Southern and Eastern Districts of New York (USAO SDNY and USAO EDNY)
to alert them that there was an interest in identifying nursing facilities in their jurisdictions for
possible CRIPA investigations.”®

Our investigation did not uncover any additional internal communications among CRT leadership
regarding COVID-19-related nursing home investigations in New Jersey and New York until the
afternoon of August 10, when [iiillsent Dreiband an update.” In that August 10 email,
informed Dreiband that the USAO NJ had submitted a request for authorization to open
CRIPA investigations of two state-run veterans’ nursing facilities, but that USAO SDNY and USAO
EDNY were not prepared at that time to recommend initiating CRIPA investigations. The next
morning, August 11, Dreiband asked in an email to let know that “these
matters are a priority and need to be moved forward promptly.” Dreiband also offered to reach out
to the U.S. Attorneys for USAO SDNY and USAO EDNY, if needed, and copied then newly appointed
| Jon the communications with

On August 11, Dreiband and (exchanged emails stating that they needed preliminary
recommendations on potential investigations of state-run veterans’ homes by the “end of the week,”
an apprised of the deadline. Email communications, contemporaneous notes,
and witness testimony reflect thay |communicated this deadline to SPL.

In another email thread on August 11, jj emailed that preliminary research she had
conducted yielded news articles showing large numbers of COVID-19 deaths in state-run veterans’
homes in New Jersey, North Carolina, Pennsylvania, and Louisiana. [ji eMail did not
reference New York. It is not clear what prompted this research, Around the same time, after
conferring with Dreiband, [advised [I “As to [New York,] the goal would be to start a
statewide investigation, based on the Governor's statewide executive order and the harm it caused.”
Late that evening} sent| la copy of New York's March 25, 2020 executive order—

cS told us that he first learned of concerns about the conditions for residents at two public
nursing facilities in New Jersey in April 2020. However, according to]inn the USAO NJ did not
submit a request for authorization to open CRIPA investigations at that time because of the suspension of the
Holyoke matter.

7 This update was immediately preceded by an email exchange between| and the| fin
which [iii rote: “[Dreiband] just asked me to reach out to you for an update re: the preliminary
investigations into the [New York] and [New Jersey] state-run nursing homes.”

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which, as noted above, had been rescinded on May 10, 2020—that allowed hospitals to discharge
patients to nursing homes without COVID-19 testing. In forwarding New York's order to Dreiband
and] |the next morning, August 12, [py rote: "This order was a
monumental mistake.”

On August 12, at the request of Dreiband, [I] reached out to a contact in the Office of the
General Counsel for HHS to request data reflecting “which 10 states had the highest death rates in
nursing homes due to COVID-19.” The following morning, August 13, || HHS contact
forwarded a preview of data HHS planned to release publicly the following week that reflected the
death rates per 1,000 residents of long-term care facilities—both public and private facilities—for all
U.S. states and territories. According to HHS's data at that time, the 10 states or territories with the
highest death rates from COVID-19 in long-term care facilities were Massachusetts, New Jersey,
Connecticut, Rhode Island, Louisiana, the District of Columbia, Pennsylvania, Mississippi, Maryland,
and Delaware.

[Me
alforwarded the information to Dreiband, | Jand| Jand, upon reviewing the
data] ] expressed doubt about New York not being included. In an ensuing exchange,
fadvised |that HHS did not require nursing homes to report COVID-19-related
deaths until May 2020, which she stated “was after the height of the pandemic” in New York and
opined that the delayed reporting requirement could explain why New York's numbers may have
seemed low.®?

b. CRT Seeks CIV's Assistance in Identifying Public Nursing Facilities with

High COVID-19 Deaths and Low Quality of Care Rankings

On August 12, 2020/9 ]emailed then | |seeking a point of contact

within CIV for CRT “to liaise with” because CRT was “doing some work in the COVID-19 space relative
to nursing homes (moving quickly) and wanted to connect and coordinate with Civil."*! That same
day, [xn communicated with| Jabout CRT joining the
NHI.*?_ In an email to Dreiband summarizing her discussion withf |
wrote: | Jand | think it would be helpful if you called her
since you've spoken with the AG just to make sure we're all on the same page.”

On Monday, August 17, Dreiband and[Jj had a call with land|

as Dreiband’s notes of this call reflect that the participants discussed adding CRIPA
enforcement to the NHI, and that they decided that SPL should confer with CIV's elder justice team.
Dreiband’s notes also reference “AG rollout” and “time announcement w/in week or so” and “can

80 See 42 C.F.R. 8 483.80 (requiring nursing homes and other long-term-care facilities to electronically report to
the CDC information regarding COVID-19 infections and deaths among residents and staff) (May 8, 2020).
|
|

82 During the relevant time frame, the Department's Elder Justice Initiative and the NHI were headed by []
| | who was also an Associate Deputy Attorney General.

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announce investigations."*? Later that day,| | set up an introductory call

between CIV personnel (including al jand a} | and
CRT personnel (including| Jand other SPL attorneys and analysts). During
the call and in a series of ensuing email and telephone communications both between CIV and SPL
personnel and among CIV personnel, it became evident to CIV personnel that SPL had been directed
to focus on specific states and that SPL was proceeding with a sense of “urgency.”

C. CIV Data Identifies Public Nursing Facilities with the Lowest Quality of
Care Ratings, Most of Which Are in Texas and Indiana; None of the 30
Worst-Ranked Facilities Are in New York, New Jersey, Michigan, or
Pennsylvania

In an August 18 email, (havisea or SPL's plan to use CIV's data to identify

public nursing facilities with quality of care issues and to overlay that information with publicly
available data regarding COVID-19 infections and deaths to identify possible targets for CRIPA
enforcement. Although SPL’s proposal was focused on identifying the “top worst 30 public facilities
in the country" based on ClV's established metrics, SPL nevertheless advised[/y) [that they also
intended to gather and analyze data for the two facilities in New Jersey already under consideration
(if they did not show up in the top 30), for a state-run facility in New York that was in the top five for
COVID-19 deaths, and for a veterans’ home in North Carolina that[had identified.*
responded: “Since we've been asked to look at [New York],...we need to broaden our
search beyond just the one [New York facility].... | also think we need the information for [New York,
New Jersey, and North Carolina] as soon as possible (especially [New Jersey and New York] since
[Dreiband] first asked about these states awhile back).”

On August 19, CIV's elder justice team gathered and forwarded to SPL a spreadsheet reflecting
quality of care ratings for over 1,000 state-owned nursing facilities throughout the country. None of
the 30 facilities with the poorest quality of care identified by the data were located in New York, New
Jersey, Michigan, or Pennsylvania. | |flagged that “far and away
the poorest quality government-owned facilities are in Texas and Indiana.”

83 Then Principal Associate Deputy Attorney General Richard Donoghue's notes reflect that] Ln)
briefed her ODAG colleagues that same day about CRT's interest in “pairing” with CIV in “nursing
home enforcement.” According to Donoghue’s notes, |reported that there was a
“need to use data to identify potentially offending facilities” and that CIV and the USAOs “have been working on
these.” Donoghue's notes also reference an “announcement.”

84 During the relevant time frame, this|

85 In an August 17 email exchange between the| land |

regarding CRT’s apparent focus on specific states] __ Wondered “how do you separate out those
nursing homes who are acting in good faith but got overwhelmed by the Covid-19 crisis from those whose
practices contributed to any problems when COVID struck?”
8 The evidence indicates that [Jplso asked SPL to assess whether any public facilities in Louisiana and
Pennsylvania may be worthy of investigation. Although SPL identified one facility in Pennsylvania with
“troubling press,” facilities in those states had high scores for infection control and staffing and therefore SPL
did not recommend “drilling down” any further.

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en CRT Leadership Decides to Send CRIPA Pre-Investigative Letter

Requests to New York, New Jersey, Michigan, and Pennsylvania and to
Issue an Accompanying Press Release

a. CRT Leadership Receives CIV Data Showing Facilities with Poorest

Quality of Care are in Texas and Indiana; CRT Leadership Prepares
for Meeting with Barr

According to DOJ emails, on August 20, 2020, the day before CRT leadership had a scheduled
meeting with Barr to report on “progress/strategy” with respect to the “nursing home initiative,” the
forwarded to[]nn at her request, the spreadsheet that CIV had shared with SPL
showing quality of care ratings for over 1,000 state-owned nursing facilities, as well as the
transmittal flagging Texas and Indiana as having the poorest quality state-run facilities. J 59)
promptly forwarded the entire email chain, including the spreadsheet, to [J]

The following day, August 21, ascent an email to (asking why CRT leadership
was not following the “standard Division practice of having the Section analyze the data and report
to the [AAG's Office].” In the email, the pjroted that [haa contacted him twice
within a 2-day period and also had asked him to generate a “status report” by close of business that
day. explained
[J to us that he sent the email to [mm] because, by that time, he
“had enough concerns about what was going on” that he “wanted to make a record.”

Throughout the day on August 21,] and pxchanged via email versions of an outline
that] prepared for the scheduled meeting with Barr later that day. [Jiilexpressed her
discomfort to[ with the representation in his outline that CRT intended to investigate states
with “reckless” orders, noting that CRT leadership had directed SPL to investigate New Jersey and
New York and that SPL had since gathered “data to determine which facilities are the worst and then
correlating that data with COVID-19 information."

Later that afternoon, |sent Jan email attaching the final version of the outline, which
maintained that CRT's objective was to “investigate effect of reckless state orders requiring nursing
homes to accept COVID-infected patients and prohibiting testing” and noted that the orders
appeared “to have caused the deaths of thousands of mostly elderly.” The outline referenced the
orders in New York, New Jersey, Pennsylvania, Michigan, and California; excerpted portions of New
York's March 25, 2020 order; and indicated that the goal was to announce an investigation “in next 1-
2 weeks.” Joutline further reflected that California's order had been withdrawn but did not
indicate whether the other states’ orders were still in effect. The final bullet read: “Prepared to
restart Holyoke Soldiers Home investigation OK?" [jj jp yesponded that she had “the same
concerns that [she] mentioned earlier," and the two agreed to meet in| ffice. We found no
records reflecting what transpired during the meeting.

Also prior to the meeting with Barr on August 21, | Jsent| Jan email with the subject
“Urgent Question” asking her to confirm whether “all the states that had orders requiring nursing
homes to take COVID patients revoked them: [New York, New Jersey, Pennsylvania, Michigan,
California].” [immediately responded that New York and California had revoked their
orders but that she was not sure about the other identified states. SS asked if she should
check with SPL, and responded, “no” and directed [Jy Ito “keep after this issue.” After

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Dreiband and [I] met with Barr [emailed

E353 new Jersey] appears to have
revoked its original order that was identical to [New York’s].... [Michigan] appears to still have an
order with same language but it’s not as clear as [New Jersey and New York].”

b. CRT Leadership Meets with Barr

Later that day, August 21, Dreiband and met with Barr,| Jando]
| | Emails between various participants indicate that the
discussion included CRT’s efforts to investigate COVID-related deaths in nursing homes.

That evening, after Dreiband and[y| met with Barr, the [EEE forwarded[iiman
update on SPL's “efforts to analyze the [private contractor's] data and the Covid-death data, along
with other relevant factors, to identify nursing facilities for potential CRIPA investigations.” SPL's
update noted several limitations in the CMS data and explained that SPL had overlayed publicly
available data regarding COVID-19 deaths in state-run nursing facilities with the quality scores
attributed to those facilities by the private contractor and other criteria typically used to determine if
a facility is providing substandard care. Per CRT leadership's instruction to focus on public facilities
in New York, SPL noted that four New York facilities had a high number of COVID-19 deaths, but
those facilities were not among the facilities with poor quality scores. In the transmittal, [nn]
[Mjalso noted that he had received an “updated memo” from the USAO NJ recommending that the
Department initiate CRIPA investigations of the Menlo Park and Paramus Veterans’ Homes in New
Jersey and that he intended to review the recommendation.

Over the weekend, on Saturday, August 22, [pp|forwarded to Dreiband (copying and
[ | August 21 update and commented that SPL’s approach was “not
unreasonable” and acknowledged that SPL was focusing on New Jersey and New York at their
direction EEG suggested possibly notifying the governors of Michigan, New Jersey, New York,
and Pennsylvania that the Department intended to investigate all of their state-run facilities to
determine the extent to which the states’ orders regarding nursing home admission “resulted in
death.” [Pj indicated, however, that he continued to look for a "more efficient method” of
investigating the “harm caused by the intake orders.”

& (Proposes Sending Pre-Investigative Letters to Michigan, New

Jersey, New York, and Pennsylvania Because that Approach Would
Allow Them to “Move Quickly”

On Sunday, August 23, documents reflect that, at Barr's request, a follow-up meeting was scheduled
for Barr with Dreiband and_Llon Monday, August 24. Dreiband set up an internal CRT
leadership call for the morning of August 24 to precede the meeting with Barr.

Early on Monday, August 24, prior to the scheduled meetings[ sent an email to Dreiband,
| joutlining a “possible approach” to the nursing home matter that included
asking the states that issued orders “requiring nursing homes to take infected patients without
testing them” to provide data regarding the number of COVID-19-related deaths for all state-run

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nursing facilities.®’ If a state did not provide CRT with the requested data, [nn suggested CRT
could then decide whether to open CRIPA investigations of all state-run nursing homes in the state.
He noted that the proposed approach would allow CRT to “move quickly and gather useful data.”®*

[yy email also noted his plan to issue a press release disclosing the data requests and citing
the “shocking deaths per million figures” in New Jersey and New York. We found no evidence in the
documents that we reviewed that Dreiband, | Jor |or anyone else who was
subsequently made aware (as we discuss below) of this plan to issue a press release, questioned or
considered whether a press release would be appropriate under DO|'s general prohibition of
confirming or commenting on ongoing investigations or the Department's longstanding election
non-interference policy.

Emails exchanged between|_ pnd Subsequent to the internal CRT leadership meeting
that same morning reflect the group’s apparent adoption of[JEumn] proposal. Additionally, shortly
after the internal CRT leadership meeting, circulated several items to Dreiband,
and| | First, | | forwarded a brief that CRT and the USAOs for the Middle, Northern,
and Southern Districts of Alabama filed jointly in November 2018 arguing that CRIPA permits multi-
facility or statewide (rather than facility-specific) CRIPA investigations. Second, she sent a link to a
June 2020 letter that two Republican Members of Congress had sent to the HHS OIG asking for an
rn into the New York, New Jersey, Pennsylvania, Michigan, and California state orders.
Finally, shared a link to a June 2020 press release issued by Republican members of the
House Select Committee on the Coronavirus announcing the issuance of letters to the governors of
the same five states and the Representatives’ investigation into those states’ orders. In addition,
mailed | ' asking her to conduct research to determine
whether the COVID-19 state orders identified in the House Select Committee press release were still
in effect.

On August 24, after the internal meeting among CRT leadership but before the AG meeting, [MEE
called to discuss the proposal to send data requests to the four states. [J
|__| told the OIG that, among other things, the discussion was very short, and []jmtold him that
the decision had been made to send the data requests. According to [pp] he likely
raised only “general or vague” objections about the proposed approach during the call because it
was “rushed.” He recalled asking|yyy whether the Holyoke investigation could proceed and
Jasking| |to draft an update on the status of the Holyoke matter. ji)
J
[___|told us that at no point during this call did [jij mention a plan to issue a press release in
connection with the data requests.

About an hour before the scheduled meeting with the AG, Dy emailed | pnd asked her
for a chart showing when Michigan, New Jersey, New York, and Pennsylvania implemented the

®7 As noted above, contrary tq] statement, none of the previously rescinded or revised orders that CRT
leadership was focused on (Michigan, New Jersey, New York, and Pennsylvania) required nursing homes to
accept COVID-19 positive patients without testing them, Rather, the orders prohibited nursing homes from
denying admission based solely on COVID-19 status; nursing homes could deny admission, for example, if the
facilities did not have the ability to care for COVID-19 positive patients or segregate them to protect other
residents and employees.

88 In a subsequent email, a endorsed [proposed approach.

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— home admission orders and the status of each state order. yWeplied that
was working on gathering that information and that she would forward it when it
was complete. | |did not produce the requested chart before the meeting
with Barr.

Shortly before the AG meeting, WMisent himself an email with the subject line: “Nursing Home
Bullet Points for Press Release,” attaching a document with the heading "Nursing Homes State
Orders Causing Deaths.” The attached document reflected his proposal to send pre-investigative
letters to Michigan, New Jersey, New York, and Pennsylvania and requesting data regarding the
number of COVID-19-related deaths for all public nursing facilities in those states. The document
also noted the total number of COVID-19 deaths (not just in nursing homes) in New Jersey and New
York and contrasted those with the total number of COVID-19 deaths in Texas.

That evening, Dreiband and (met with Barr nn and |Subsequent email
communications, discussed below, by Dreiband and to others in CRT and OPA (none of
which included Barr, -EE state that the participants discussed [IN] proposed plan to
send pre-investigative data requests to Michigan, New Jersey, New York, and Pennsylvania, and that
Barr endorsed the plan.

d. CRT Leadership Directs SPL to Draft Pre-Investigative Letter Requests

to Michigan, New Jersey, New York, and Pennsylvania

Early the following morning, August 3/0] emailed the [nn “As | mentioned
yesterday..., we have decided to request COVID-related nursing home data from four states that
required nursing homes to accept COVID patients.” [yijaie not share with[ LLL
either in their discussion on August 24 or in the August 25 email—that the Department planned to
issue a press release announcing the data requests or that CRT leadership had met with Barr.

In the same email, [Ji asked thd to have his team draft letters to the governors of
Michigan, New Jersey, New York, and Pennsylvania for issuance the following day—August 26. The
coc us that, after receiving this email, he advised [[jjjpjthat the Department might
already have access to the information regarding COVID-19 deaths, and Fee ricated
that he would both confirm whether the data already was available and draft the letters “in case we
need them." [Jnnresponded that he would be “very interested” in seeing the data and noted
“there are reports that [New York] undercounted nursing-home related deaths, by not counting
nursing home residents who died in hospital.”®?

83 In January 2021, the Office of the New York State Attorney General issued a report reflecting its preliminary
findings in then ongoing investigations into New York nursing homes’ responses to the COVID-19 pandemic.
See New York State Office of the Attorney General, Nursing Home Response to COVID-19 Pandemic (january 30,
2021) (revised). According to the report, “preliminary data analysis...suggest[ed] that many residents died from
COVID-19 in hospitals after being transferred from their nursing homes” and preliminary analysis of the data
also showed “that COVID-19 resident deaths associated with nursing homes in New York state appear[ed] to be
undercounted by [the Department of Health] by approximately 50 percent.” /d at 10-12.

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jtold us that sending pre-investigation data requests to the states was inconsistent
with the longstanding CRIPA practice not to contact the subject state prior to the formal initiation of
an investigation approved by the AAG.

e, ae Sculstes Draft Press Release to OPA, CRT Leadership, CIV

eadership, and OAG

On August 25, 2020/ippnn

| forwarded to OPA a draft press release that essentially tracked the
bullet points described above. The draft press release suggested that the executive orders may
have been responsible for the deaths of “thousands of elderly nursing home residents,” compared
the total number of COVID-19 death rates (not just in nursing homes) in New Jersey and New York to
those in Florida and Texas, and referenced the investigation of the Soldiers’ Home at Holyoke as an
ongoing matter, even though it remained suspended.” In the transmittal email to oP
wrote: “At the AG's request, tomorrow we likely will send letters to the governors of [New York, New
Jersey, Pennsylvania and Michigan] requesting data on nursing home deaths.” In the same email
chain regarding the press release : alerted an OPA staff member: “The AG mentioned this to
[Dreiband] this morning and asked iff ’ |had seen the draft.” The OPA staff
member responded that she “just sent” it to}, |for review.

forwarded the draft press release via email to Dreiband,| jand Jas well as
td Jand| | In the transmittal email{ nn wrote: “Our plan continues to be to send
letters to [New York, New Jersey, Pennsylvania, and Michigan] tomorrow, and issue the press release
then.” We were unable to determine whether | reviewed the draft (and, as described in Section
V.A.3.b below, discovered evidence that jdid not review the press release before it was issued)
and did not find any documentary evidence that either of them responded tof email or
shared its contents with Barr.

Dreiband responded via email that he would wait until after OAG and OPA had reviewed the draft
before making any “minor” edits. We did not find evidence that anyone in OAG reviewed or
provided edits regarding the draft press release. We also did not find evidence that Dreiband edited
the press release following this email.”'

AAA circulated the draft to staff in the Office of the Associate Attorney General, which cleared
the release. Although it was normal CRT practice for personnel in the responsible section to draft
press releases, CRT leadership never circulated the draft release to SPL or to other personnel in
CRT's AAG's Office, including those with CRIPA experience.

9° Also on August 25, the White House issued a press release about COVID-19 in nursing homes. See The White
House, Press Release, “President Donald |. Trump Is Taking Strong Action to Further Protect Nursing Homes
From the Coronavirus," August 25, 2020, https://trumpwhitehouse.archives.gov/briefings-statements/president-
donald-j-trump-is-taking-decisive-action-to-protect-vulnerable-citizens-in-americas-nursing-homes/ (accessed
December 21, 2024), We found no documentary evidence linking this White House press release to DOJ's data
requests or press release, which were issued the following day.

| Dreiband, however, did have a role in drafting the letters to the governors, making several edits around mid-
day on August 26. Once the letters were final, Dreiband directed
[i jis and ie “please
proceed.”

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In the afternoon on August 25, |forwarded the draft press release to CIV personnel, and it
was subsequently shared with| Jwho complained internally that
the data that CIV had provided to CRT did not support the allegation in the draft press release that
public nursing homes in the four targeted states were providing substandard care. Both[EEn
| and [ | also expressed discomfort
with the draft press release linking CRT's efforts to the Elder Justice and Nursing Home Initiatives,
which, as described above, primarily are CIV endeavors in partnership with USAOs.

f. ahs Advised That the Four States Had Revised or Rescinded

Their Nursing Home Admission Orders and) |Provides
Draft Letters and Details SPL’s Concerns

On August 26 | |whom (a asked with confirming the status of the

Michigan, New Jersey, New York, and Pennsylvania orders regarding nursing home admission
produced the requested research, which reflected that all four states had rescinded or revised the
orders at issue in some manner.

Also on August 26, [sent] an email with the draft letters to the governors of
Michigan, New Jersey, New York, and Pennsylvania that lnad requested the day before. His
transmittal noted that CRT leadership had not consulted with SPL regarding whether to send the
data requests, the unprecedented nature of the data requests, that most of the data was already
available to CRT, that the focus on the four specific states was underinclusive, that many of the
worst nursing facilities identified were in other states, and that the orders issued by the four states
were not “substantially different” from HHS guidance at the time.

[responded by email to [EEE objections 2 days later, after the letters and press
release were issued. explained that CRT leadership “had asked SPL to focus on New York
and New Jersey” because “those states by far had the highest death rates in the country”; as noted
above, reference was to total COVID death rates, not death rates in public nursing facilities.
further indicated that CRT leadership “did not agree with the [data-driven] approach [SPL]
suggested, because it would not have focused on states with the greatest loss of life.” He also stated
that “the public data appears unreliable/incomplete,” and that SPL’s “we always do it this way”
approach did not make sense “even if accurate.”

3. CRT Leadership Issues CRIPA Pre-Investigative Data Request Letters to

Michigan, New Jersey, New York, and Pennsylvania and an
Accompanying Press Release

a. Issuance of Letters to Four States and an Accompanying Press

Release on August 26, 2020

At 12:50 p.m. on August 26, [texted Barr that “Dreiband will have nursing homes out by 3 pm
today. All 3 states.” text did not specify what Dreiband was planning to have out by 3 p.m. or
identify the three states (as compared to the four states that were sent letters that day). The text
also did not reference a press release. Before 3 p.m. that day, CRT issued data request letters

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signed by Dreiband to the governors of four states—Michigan, New Jersey, New York, and
Pennsylvania—as well as the press release,

The data request letters explained that CRT was evaluating whether to open CRIPA investigations of
publicly owned or operated nursing facilities in the respective states and sought facility-specific data
regarding COVID-19 infections and deaths and copies of “all state-issued guidance, directives,
advisories, or executive orders” regarding nursing home admission. The letters requested that the
states produce the information within 14 days.

The press release was captioned, “Department of Justice Requesting Data from Governors of States
that Issued COVID-19 Orders that May have Resulted in Deaths of Elderly Nursing Home Residents,”
The first sentence read: “Today the Justice Department requested COVID-19 data from the
governors of states that issued orders which may have resulted in the deaths of thousands of
elderly nursing home residents.” The press release indicated that CRT was seeking “to determine if
the state orders requiring admission of COVID-19 patients to nursing homes is responsible for the
deaths of nursing home residents.” The release unfavorably compared statewide COVID-19 death
rates in New Jersey and New York with total statewide COVID-19 death rates in Texas and Florida
(not limited to nursing home deaths), stating:

According to the Centers for Disease Control, New York has the highest number of
COVID-19 deaths in the United States, with 32,592 victims, many of them elderly.
New York's death rate by population is the second highest in the country with 1,680
deaths per million people. New Jersey's death rate by population is 1,733 deaths per
million people—the highest in the nation. In contrast, Texas's death rate by
population is only 380 deaths per million people; and Texas has just over 11,000
deaths, though its population is only 50 percent larger than New York and has many
more recorded cases of COVID-19—577,537 cases in Texas versus 430,885 cases in
New York. Florida’s COVID-19 death rate is 480 deaths per million; with total deaths
of 10,325 and a population slightly larger than New York.

Finally, the press release referenced the Department's NHI and added: “As announced on April 10,
2020, the department is also investigating the Soldiers’ Home in Holyoke, Massachusetts...”
However, as noted previously, the Soldiers’ Home investigation had been suspended in April 2020 at
the direction of Barr and Rosen, and the investigation had not been resumed since that time. At the
conclusion of the release, a paragraph noted the data requests and Soldiers’ Home investigation
were not “accusations of fault or wrongdoing by the states or any other individual or entity, and the
department has not reached any conclusions about these matters.”

told us he was "shocked" by the announcement, as he and his SPL colleagues only
learned about the press release after it was issued. He also said that the “press release [was] so
different from anything [they] do with CRIPA” and described it as “contentious,” “tying orders to
COVID deaths” and a “political press release,” citing to the suggestion that the nursing home

92 DO] OPA, Press Release, “Department of Justice Requesting Data from Governors of States that Issued
COVID-19 Orders that May Have Resulted in Deaths of Elderly Nursing Home Residents,” August 26, 2020,
https://www.justice.gov/opa/pr/department-justice-requesting-data-governors-states-issued-covid-1 9-orders-
may-have-resulted (accessed December 19, 2024), attached as Appendix 1.

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admission orders caused COVID-19-related deaths and the “comparison of democratic states with
republican states,” where the republican states were not under investigation or relevant.

Other witnesses also shared with the OIG that they had similar concerns with the press release. [|
characterized the language as “completely out of the norm.... They are setting up
these intentional dichotomies here that lead people to make inferences.” A seasoned Public Affairs
Officer with over a decade of experience in the role told the OIG that the press release suggested
that CRT already had reached a conclusion and was “working backwards" to develop supporting
facts.

b. Barr Calls [J] Immediately After Press Release Issues and [J]
Complains that She Did Not See It

Less than 10 minutes after the Department issued the press release, an email from [Jj to
[ES copying Dreiband, and other OPA personnel indicates that Barr called JJ
about the press release. email did not reflect what she and Barr discussed during their call.
Although email communications show that | had been sent the draft press release by CRT and
OPA personnel multiple times before it was issued, the record indicates that she did not read any of
the drafts.

In the email, [I] stated: “| would not have put out just now and instead given it to someone to
break and worked with some reporters on it. Boss just called me about it and | had no idea what he
was talking about.” In another email to her OPA colleagues, which she blind copied to[jand
Ls complained that “[she] knew nothing about [the press release] and it’s important to
the AG.”

C CRT Leadership and OPA Field Press Inquiries Regarding Alleged

Political Motivation for Data Request Letters

In the afternoon of August 26 and in the couple of days thereafter, OPA received numerous inquiries
from reporters about the data requests and press release, including about (1) what information
supported the suggestion that the state orders “contributed to thousands of deaths”; (2) why DO}
focused on the four selected states and not others, including those with rising infection rates or with
similar orders;?? (3) whether the letters were politically motivated (the Republican National
Convention was that week);** (4) why the requests were being made so close to the election; (5)
whether the cited state orders were consistent with federal guidance at the time; and (6) whether
the Department was focusing only on state-run nursing homes as opposed to all nursing homes. In
addition, the governors of New York and Michigan, both Democrats, issued a joint statement
characterizing the letters as a “transparent politicization of the Department of Justice in the middle

For example, a reporter from 7he Wail Street /ourna/

noted that federal data showed that per capita death
rates were going down in New Jersey and New York and were going up in other states where there had been
increases in community infection rates over the summer of 2020 (i.e., Texas and Florida), and asked if DOJ
would be seeking data from those states as well. The same reporter also noted that Indiana, Kansas, and
Georgia had policies similarto Michigan, New Jersey, New York, and Pennsylvania regarding nursing home
admission.

%4 The Republican National Convention was from August 24 to 27, 2020,

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of the Republican National Convention"** and noting that at least 14 other states, including
Kentucky, Utah, and Arizona, had issued similar nursing home guidance “all based on federal
guidelines.”

In response to the press inguiries about political motivation, [My prepared talking points and
sent them to OPA. The talking points referenced the investigation of the Soldiers’ Home in
Massachusetts, which [J noted had a Republican governor and suggested that this
investigation was an active matter, even though it was suspended.) [talking points also
noted that federal data on COVID-19 deaths was not reliable; that the Department's focus was on
states with orders “requiring” nursing homes to accept COVID-19-infected patients and that, if a
state with a Republican governor had a similar order, CRT would have targeted that state as well:
that the focus was on states with the highest death rates; and that, at that time, the combined total
number of COVID-19 deaths in New Jersey and New York was approximately 50,000. [ji]
separately charged||with—in short order—gathering information about infection rates in
other states; determining whether the orders in Michigan, New Jersey, New York, and Pennsylvania
complied with CDC guidance; and confirming whether other states had similar nursing home
admission policies. [tasked | help with this research.

df |and| |Communicate About

Reporting and| |Circulates Favorable Editorial to “Hill Buddies”
and “Allies”

In email communications with his CRT leadership and OPA colleagues regarding the press inquiries
[a expressed a desire to “walk through the numbers with one of the reporters on background.”
Thereafter,
J participated in a call with a reporter from The Wall Street journal.

On August 27, 2020, The Wall Street journa/ published an article about the data requests that
quoted a public health professor disputing the allegation that the state orders were a “driving force”
for nursing hame deaths; and noted that deaths in the four states had come down and that the
“sunbelt” states were experiencing a rise. In an email to | | about the piece,
[MHA Mwrote: "They still are not reporting the shocking numbers that show [New York/New Jersey]
are far worse than red states Texas and Florida.... Do you think...[The Wall Street journal editorial
board would like to write about it? It is a great snooty New Yorker versus red state rubes story...”

The following day, August 28, The Wall Street journal published an editorial criticizing then New York
Governor Andrew Cuomo for the state's policy of allowing COVID-19 patients to return to nursing
homes, writing: “New Yorkers may finally get an honest accounting thanks to the Trump Justice
Department.” The next day, Saturday, August 29, (forwarded the editorial to dozens of people
both inside and outside of the Department, including Republican congressional staff members,
White House personnel, and persons from conservative-leaning non-profit organizations. And, on
Monday, August 30, forwarded the editorial to Office of Legislative Affairs (OLA) personnel and
stating: “| sent to a few of my Hill buddies and they were very pleased. Worth sending to all
[Republican] offices tomorrow morning? Members [of Congress] from [New York, New Jersey,
Pennsylvania and Michigan] along with [a Republican Representative and Senator] may feel like
piling on (if we give a nudge and push) and turning up the heat ahead of two week deadline...” (when

3 jo

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the states’ responses to the data requests were due). In response, [Jy |wrote: “Thanks
for sharing. We most definitely can distribute. However,...some [Democrats] on Ways & Means
believe the DOJ announcement contradicts the Administration's guidance from CMS to states to
continue admitting nursing home patients during the pandemic.”

Regarding the Ways and Means concerns about the announcement contradicting CMS guidance,
[wrote to | | and OLA personnel: “Don't think it contradicts but no matter
what | don't think should prevent us from pushing the editorial to our allies.” in a separate email
to[ | and reported that he had “talked to the House [Republican] Conference” and
that “they are going to flag our letters to appropriate Members in states to back our ask for data. |
told them there'd be another news hook when the two week window closes.”

e, State Officials Respond to the Pre-Investigative Letter Requests and

Allege Political Motivation

On September 9, 2020, Michigan, New Jersey, New York, and Pennsylvania submitted responses to
CRT's data requests.

Michigan provided certain data along with a cover letter stating that most of the requested data was
publicly available; expressing concern about the seemingly partisan nature or motivation of the
requests, noting that the requests were issued only to 4 states with Democratic governors despite
the fact that other states had similar orders regarding nursing home admission; and noting that
Michigan ranked 31st in cases per 1,000 residents and 18th in deaths per 1,000 residents.

Pennsylvania provided the requested data but expressed concern about the request, including the
citation to comparative death rates by population in the press release, and noting that “Pennsylvania
ranks 14th in the country in this regard, behind a number of other states to include Mississippi and
Arizona, which were not asked to provide information to the US DOJ.”

New York provided the requested data but characterized DO|'s request and accompanying press
release as “highly unusual”; explained that the March 25 order was modeled after then existing CDC
and CMS guidance and noted that at least 11 other states issued similar guidance, including Arizona,
Florida, Indiana, Kentucky, Nevada, and Utah; disputed the “irresponsible suggestion in the press

%© Ina follow-up email later that day, jnsisted that the New York order was not consistent with CMS
guidance because it did not require COVID-19 testing upon entry. However, as explained in Section IV.B, and as
[acknowledged in his email, CMS guidance at that time did not require testing prior to nursing home
admission; rather CMS guidance recommended that nursing homes implement a host of infection control
measures, including screening residents through testing, “if available.” New York's March 25, 2020 order
prohibited nursing homes from “requiring a hospitalized resident who is determined medically stable to be
tested for COVID-19 prior to admission or re-admission.” New York State Department of Health, Advisory:
Hospital Discharges and Nursing Home Admissions, March 25, 2020. As noted in Section IV.B.2, on May 10,
2020, the Governor of New York issued a new order that prohibited hospitals from discharging patients to
nursing homes “without first performing a diagnostic test for COVID-19 and obtaining a negative result.” State
of New York, Executive Order 202.30, Continuing Temporary Suspension and Modification of Laws Relating to
the Disaster Emergency, May 10, 2020.

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release” that the health advisory caused the deaths of nursing home residents; and alleged that the
request for data was an abuse of CRIPA authority.

New Jersey directed the Department to the State's website, which reflected information regarding
COVID-19 deaths; stated that CRT’s request was “inappropriate and premature” per CRIPA; and
noted that New Jersey's policies regarding nursing home admission were consistent with the CDC's
March 2020 guidance and that “at least ten other states” took a similar approach, including
California, Delaware, Florida, Kansas, Maryland, Michigan, Minnesota, New York, Pennsylvania, and
Utah.

f. raises the Possibility of CIV Issuing a Request to New York for

Private Nursing Home Data and an Additional Press Release

On September 21, an OLA staff member wrote to [and others, including re and
[I to ask if there was a plan to issue another press release relating to the nursing home data
requests because “a few Hill offices...[had] asked for additional information and updates.” In
response,[J) |wrote:

[W]e hope to do so shortly. As to [New York], while we are still reviewing the data,
they appear to show nursing home death rates are at least one-third higher than
previously reported.... We are suggesting to Civil that it demand similar data through
its elder justice initiative for [New York's] 1000+ private nursing homes. Civil can do
so through a letter and we could have a press release announcing our initial findings
and Civil’s request. [New Jersey] refused to produce data and we likely will open a
CRIPA investigation...
[weighed in: “This is a big story—OPA will want to tightly time the press around this."

As we discuss in the next section, CRT leadership successfully urged CIV to issue a letter to New York
in October seeking private nursing home data regarding COVID-19 deaths. Also in October, CRT
leadership separately authorized CRIPA investigations of two public veterans’ homes in New Jersey.
However, following objections from CIV, the USAO NJ, and SPL, the Department did not issue a press
release regarding those matters, as CRT leadership and OPA wanted. Nonetheless, without the
knowledge of CIV or the USAO NJ, CRT and OPA leadership disclosed to a reporter, days before the
election, non-public information about the New York request and New Jersey investigations.

B. Events Related to CRT and OPA Leadership’s Decision to Disclose to a News

Reporter, Days Before the 2020 Election, Non-Public Letters Issued by DO to
New York Seeking Private Nursing Home Death Data and to New Jersey
Describing the Initiation of Two CRIPA Investigations

1. CRT Leadership Pushes CIV to Send Letter Request to New York for
Private Nursing Home COVID-19 Death Data

Consistent with [iiiiie|September 21 communication, referenced above, with OLA, OAG, and OPA,
the following day, September 22, CRT leadership began pressing CIV to gather from New York data
regarding the numbers of COVID-19-related deaths in private nursing homes in the state, At that
time[ }tola| |that Barr wanted CIV to send a letter to New York

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requesting COVID-19 death data from private nursing homes in the state.*’ According to oT
he discussed the request with DSS Awho indicated that CIV would need to “figure out
what to do,” given they were told by hat the direction was coming from the AG and it’s “[his]
Department of Justice.”

[ then engaged witt{] |

| | about jrequest. On September 25, |
jreported to that the publicly available data regarding COVID-19 deaths
in New York nursing homes was incomplete. [Jy Dn nnitold us that, because of the “potential
utility” of complete data to ongoing and potential CIV matters, he was willing to accommodate
[A request “with appropriate guardrails,” such as only seeking data regarding COVID-19-
related deaths in private nursing facilities in New York and avoiding any suggestion that CIV was
investigating the State of New York, as any FCA action would be against a private nursing facility.
Sometime between September 29 and October 2, he asked| |
to prepare a draft “information request.”

As evidenced by his subsequent communications with CRT leadership and OPA personnel, and as he
told us, [predominantly was concerned about the possibility that Department
leadership intended to publicize ClV’s request. In his OIG interview, he stated that the issuance of a
data request to New York—a “third party fact witness” in this instance—was not “newsworthy,” and
the issuance of a press release in those circumstances is not something that CIV ordinarily would do.
urther explained that making statements about an ongoing investigation may
prejudice a party under investigation, including by creating an inaccurate perception that a party has
broken the law, or give the public a false sense that a party did not engage in wrongdoing if formal
law enforcement action does not follow.

As we describe in the next section, on October 13, 2020, while awaiting a draft from CIV of the letter
to New York, Dreiband approved two CRIPA investigations of veterans’ homes in the State of New
Jersey.

2. Dreiband Approves CRIPA Investigations of Menlo Park and Paramus

Veterans’ Homes in New Jersey in Mid-October

As noted above in Section V.A, in August 2020, the USAO NJ submitted a memorandum to SPL
seeking authorization (from the AAG of CRT) to open CRIPA investigations of two New Jersey
veterans’ homes: Menlo Park and Paramus. aol us that SPL began its review of the
USAO NJ's memorandum when the USAO NJ first submitted it (in August), but SPL delayed
submitting a recommendation to the AAG of CRT because SPL personnel believed they needed to
review New Jersey's response to the August 26 data request before finalizing SPL’s recommendation.

*” The next day, September 23[s| forwarded tof are aforementioned (September 21)
email exchange, see Section V.A.3, in which[{g reported to senior Department personnel, including [jg]
and [jg that CRT had suggested that CIV demand from New York data regarding COVID-19-related private
nursing home deaths in the state and that the Department could announce ClV's request in a press release.
According to[[Enn) the fact that [iiGibnd [i were included in these communications
confirmed in his mind ae presentation that the AG was behind the request and that CIV's “hands [were]
tied.”

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Although] Jand | |were aware of the USAO NJ request in early August, CRT leadership
did not expedite opening a CRIPA investigation at that time.

After receiving New Jersey's response to CRT’s data request, the USAO NJ submitted an updated
memorandum in early October reiterating its request for authorization to open CRIPA investigations
of the Menlo Park and Paramus Veterans’ Homes. During its preliminary investigation, the USAO NJ
found that both facilities failed to implement and maintain infection control procedures, including
social distancing, separating residents based on infection status, and using personal protective
equipment. The USAO NJ further found that the veterans’ homes failed to maintain adequate
staffing during the pandemic and did not communicate the severity of the outbreak to patients’
families. The updated request expressly identified New Jersey's response to CRT’s August 26 data
request as a source of information that the USAO NJ had considered and specifically acknowledged
that New Jersey's March and April 2020 directives regarding nursing home admission were
consistent with federal guidance at the time and stated that the directives “had no impact on COVID
infections or deaths at Menlo Park” and were “not the cause of the outbreak at Paramus.” In early
October, SPL submitted the recommendation, and inctuded a separate cover
memorandum reflecting his concurrence in the USAO NJ's recommendation.

In his interview with the OIG, [| explained that he recommended initiating the
proposed CRIPA investigations based on the rationale provided by the USAO Nj, and that he
included a separate cover memorandum to highlight, among other considerations, that NewJersey's
March 2020 guidance regarding nursing home admission could not have caused the COVID-19
deaths in the New Jersey facilities. He further stated that he included this information in part
because “it showed that their hypothesis about the orders being the cause of the deaths wasn't
accurate” at least as to the two New Jersey facilities that were the subject of the recommendation
memorandum. In his cover memorandum, [J pIso highlighted that the New Jersey
Attorney General was investigating the Menlo Park and Paramus Veterans’ Homes, but that SPL did
not “know the nature or scope of the investigation.” As explained in his memorandum and in his
OlG testimony,
J fiaggec the state investigation because Department leadership
purportedly had suspended the CRIPA investigation of the Soldiers’ Home at Holyoke in deference to
the then pending investigation by Massachusetts state authorities. EE cove:
memorandum noted that Massachusetts state authorities had completed their investigation and
recommended that CRT also proceed with the Soldiers’ Home CRIPA investigation.

Dreiband approved the CRIPA investigations of the Menlo Park and Paramus facilities on October 13,
2020. After learning that Dreiband had approved the New Jersey investigations,
asked [pif the approval meant that SPL and the USAO MA would be able to move forward
with an independent investigation of the Soldier's Home at Holyoke. |/iiiiseplied that a
decision was "pending."[I EEE told us that he was troubled by the disparate handling of
the New Jersey and Holyoke investigations.

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3. CRT Leadership Proposes Notice Letter to New Jersey and Press

Release Announcing New Jersey CRIPA Investigations, Which the USAO
NJ Opposes

a. CRT Leadership Drafts a Notice Letter to New Jersey and a Press

Release Stating that the CRIPA Investigations Covered All Public
Nursing Homes in New Jersey

On October 14, 2020, following Dreiband’s approval of the two New Jersey CRIPA investigations, SPL
prepared and forwarded a - draft letter notifying New Jersey of the investigations (notice
letter), as required by the statute.°° SPL’s draft did not reference New Jersey's March 2020 order
regarding nursing home admission or New Jersey's response to CRT’s August 26 data request.

Earlier that same day, October 14) prepared a draft press release that was circulated to
Dreiband; |OPA personnel, Office of the Associate Attorney General (CASG)
personnel, OAG personnel, and the USAO NJ. At that point, no one in CRT’s AAG's Office or OPA had
circulated the draft press release to sPL[ arate press release announced CRIPA
investigations of a//of New Jersey's public nursing homes, not just the Menlo Park and Paramus
Veterans’ Homes. The draft explained:

The investigation follows the Department's request for COVID-19 data from states
that issued orders which may have resulted in the deaths of thousands of elderly
nursing home residents. These states required nursing homes to admit COVID-19
patients to their vulnerable populations, often without adequate testing or
protection to prevent infection. New Jersey was the only state that refused to
produce data in response to the Department's request.

The draft also noted that “recent news reports” claimed that New Jersey had understated its COVID-
19 death toll at some nursing homes. The draft ended with a reference (and a link) to the
Department's April 10, 2020 announcement of its investigation of the Soldiers’ Home at Holyoke,
without disclosing that the investigation remained suspended.

That evening} responded: “This is great. | pinged [Jy] to make sure the AG wants press. |
can't imagine he'd want to keep this quiet. Would like to roll tomorrow or [Thursday] morning. We
are going to have a ton of news next week so need to go this week.”

Late on October 14 ]] learned about the draft press release from the USAO NJ and
contacted | After] yesponded to| ] via email the following day,
October 15, that the press release was “still being drafted,"| jadvised | [that
CRT's “standard practice” in those instances when issuing a press release announcing an
investigation is to identify “our statutory authority, the institution(s) subject to the investigation, and
the subject matter of the investigation—all in_a neutral tone to convey that we have not made any
pre-determinations about the investigation."[ | forwarded [Fy mail to
[|

% See 42 U.S.C. 8 1997b(a}(2).

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On October 16—2 days after the draft press release had been circulated to CRT leadership, OPA,
OASG, OAG, and the USAO NJ forwarded the draft press release tof yy iter
his “review and comment.’[]jjpp
also attached a draft notice letter to New Jersey that she had
prepared. Unlike SPL's version,[ Jjraft notice letter expressly referenced CRT's August 26,
2020 data request and stated that “your office failed to produce the data requested.” [III]
draft also cited to “recent reports” that New Jersey had “understated the number of COVID-19
deaths at some nursing homes” and stated that the Department was commencing an investigation
of all public nursing homes in New Jersey. [i proposed notice letter became the operative
draft.

b. The USAO NJ Expresses Opposition to the Draft Press Release and to

Opening Investigations Beyond the Two Veterans’ Homes

DOJ records reflect that the USAO NJ was troubled by[J draft press release. On October 14,
2020, then U.S. Attorney for the District of New Jersey Craig Carpenito reached out to Dreiband to
schedule a call, which took place that afternoon.”

Following the call, and per the agreement of the participants, the District of New Jersey
[ |sent Dreiband a detailed email summarizing the USAO N's
objections to the draft release. In the transmittal email| noted that the USAO NJ “would
not normally do press to announce the opening of a CRIPA investigation” but, understanding that
others within the Department favored issuing a press release [yy articulated the office's
“orincipal concerns” with the draft as follows:

« Regarding the language indicating that New Jersey's orders regarding nursing home
admission may have resulted in the deaths of thousands of nursing home residents,[/]
rote, “We have no basis to say this.” [J] explained that the USAO NJ did not
believe that any of the deaths resulted from the actions taken in response to New Jersey's
COVID-19 orders regarding nursing home admission.
° Regarding the suggestion that the investigation was prompted by New Jersey's response to
the data requests, DA aarified that the data request was unrelated to the USAO NJ's
preliminary assessment of the issues at the veterans’ homes.
° Regarding the statement that New Jersey required nursing homes to admit COVID-19
patients “without adequate testing or protection to prevent infection,” [En stated that
the USAO NJ had no evidence that the two entities at issue in this investigation admitted
anyone from hospitals after the pandemic began; and, therefore, the statement was “highly
misleading.”
e Regarding the statement that New Jersey was “the only state that refused to produce data in
response to the Department's request, noted that the request sought data that
was mostly publicly available and that the USAO NJ viewed the statement as “unnecessary
and unhelpful,” and as serving “no purpose other than to lose our goodwill with the State
and to invite a lack of cooperation.”

% Carpenito was the presidentially appointed U.S. Attorney for the District of New Jersey from January 5, 2018,
to January 5, 2021.

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° Regarding the reference to news reports claiming that New Jersey had understated the
COVID-19-related death toll at some nursing homes | |noted that the statement
was “speculative” and that the USAO NJ did not have data to support this claim. |
also asserted that the Department “should not be suggesting in a public press release that
the State has acted improperly on this point.”
. Regarding the statement that CRT and the USAO NJ “have opened investigations into New
Jersey's publicly run nursing homes,” [i] clarified that the investigation was limited to
the Menlo Park and Paramus Veterans’ Homes.

Between October 14 and 19, CRT leadership communicated with USAO NJ leadership regarding both
the scope of the investigations and the language of the proposed press release. On October 19,
believing that the Department intended to make an announcement that day, Carpenito wrote to
[copying Dreiband and |e let them know that the USAO NJ opposed both the
release and opening any investigations beyond the two that his office had recommended. In
response, Dreiband assured Carpenito that the release would not be issued that day.

4. Following the Approval of the Two New Jersey CRIPA Investigations,

CRT and OPA Leadership Press CIV to Issue a Broad Request to New
York for Private Nursing Home COVID-19 Death Data

On October 13, the same day that Dreiband approved the initiation of the two CRIPA nursing home
investigations in New Jersey,| Jexpressed interest in the status of ClV's
request of New York for private nursing home COVID-19 death data. [wrote to | “Need
to know on [New York] as soon as you can find out. Need to coordinate on timing.” Later in the day,
Jtold |“Need to step on the gas.” [iijresponded: “We have been pushing Civil to
move. Perhaps you can encourage them.”

That evening, October 13[9] spoke by telephone with [jn After the call] wrote:
“good talking to you—pls shoot us your letter when you have it done.” The| responded,
“Absolutely, will do—we should have a draft very soon.” Later that evening, October 13, [iil
|produced a draft letter addressed to the New York State Department
of Health, which | forwarded til) and others the following day. The draft
referenced CIV's responsibility to “investigate[] and enforce[] certain laws against nursing homes
that provide grossly substandard care to their Medicare and Medicaid beneficiaries” and requested
data reflecting the “the total number of COVID-related nursing home resident deaths that occurred
(both confirmed and presumed, and whether in the facility or elsewhere)” from March 9, 2020, to
May 24, 2020, “in the privately operated nursing homes in New York.”

In his email transmitting the draft letter td Jana others on October 14, [nny
also inquired about whether there was “interest in referencing [the] request in a press release” and
“welcomed the opportunity to discuss the potential options for doing so.” He told us it was his
understanding that Department policy, to which CIV adhered, did not allow for comment on ongoing
matters absent a determination from “senior leadership” that there is a unique, strong public
interest for doing so.

Upon reviewing the draft, CRT leadership expressed concern about the narrowness of CIV's
proposed request, including that it covered a time frame that was too limited. On October 16, at

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GE urcing, [forwarded tof copy of CRT's August 26 letter to New York

with the expectation that CIV would use it as a template for its next draft.

Later that day, \forwarded to| jand others an updated draft,

which indicated then Acting CIV AAG Jeffrey Clark had approved.’ This draft kept the
same time period and added a reference to the FCA, but otherwise was identical to the draft
circulated on October 14,

Internal communications among CRT leadership and between a October 16 and

17 reflect their continued frustration with CIV. Both Dreiband and expressed concerns
about the limited time period covered by CIV's draft. And Dreiband complained that the “tone” of
the draft letter was “too deferential” and that CIV seemed “embarrassed” by the request. Dreiband,
and] agreed to again urge CIV to draft a letter that tracked CRT’s August 26 data
request.

On October 19, [a reported to Dreiband[ A] and that she had spoken with the
(AA anc that [was going to “tweak the letter and then send it to him.” That same day,
[sent ae a redlined draft that closely tracked CRT’'s August 26 data request to
New York. proposed draft included four requests, including the number of private
nursing home residents, employees, other staff, guests, and visitors who contracted COVID-19; the
number of private nursing home residents, employees, other staff, guests, and visitors who died of
COVID-19, including those who died in a nursing home or after being transferred to a hospital or
other medical facility, home care, or hospice; all State-issued guidance regarding the admission of
persons to private nursing homes; and the number of persons admitted to a private nursing home
from a hospital or another facility after testing positive for COVID-19. The draft did not specify a
time period for the requested material.

5. Proposes to “Package” New Jersey CRIPA Investigations Letter

and ClV's New York Letter and Have New York Post“Break It” as “Our
Last Play...Before Election"

While CRT leadership and OPA separately were communicating with the USAO NJ and SPL regarding
the draft notice letter and press release regarding the New Jersey CRIPA investigations and with CIV
regarding its draft data request letter to New York, CRT leadership and ]continued to push
forward with a press plan. On October 17, 2020[ |texted|___| “I'm trying to get [CRT] and CIV
to do letters to [New Jersey/New York] respectively on nursing homes. Would like to package them
together and let [the New York Posd break it. Will be our last play on them before election but it's a
big one. CRT is in good place. ClVis the problem.” We did not find evidence that[ responded
tof text, or that she provided information about it to Barr,[ br anyone else.

On October 23, [alerted | jand |to the prospect that ClV‘s letter to New York
would “not be accompanied by a press release.” In responding to everyone on mail,
wrote: “[F]ine with no press release, but we are going to give it to a reporter ahead of time.

100 Clark was the presidentially appointed AAG of the Environment and Natural Resources Division when he
was appointed the Acting AAG for CIV from September 2020 until his departure from the Department in early
2021.

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Otherwise, [New York Governor's] office will leak it and we lose the upper hand. This is going to be a
big story up there and if we are going to send the letter we are going to do press right or we may as
well not do it at all.” [i] responded: “Agreed.” In a separate email just to [i |wrote:
“We gotta do all this next week. Have to.”

6. CIV Finalizes Letter to New York and Prepares Draft Press Release; the
USAO NJ Agrees with CRT Leadership on CRIPA Press Release
Language; Ultimately, No Press Releases are Issued

a. CIV Finalizes Letter to New York and Prepares Draft Press Release

On October 26, i cireulatea to| | and others an updated version

of the letter to New York, which Clark signed later that day. CIV's final letter was consistent with the
draft forwarded bin except that CIV did not request copies of any state guidance regarding
nursing home admission. Like [ij did with each of the prior drafts, in forwarding the final
version, he wrote: “What is the plan from a press standpoint—is there a press release in the works
that we could take a look at?” [i fesponded: “We should do release. Needs to be finalized by
noon tomorrow.” CIV agreed to prepare a draft, which [suggested CIV model after CRT's August
26 announcement.

The next day, October 27,| lsent to la short

draft press release explaining that the Department “requested data from New York regarding the
number of private nursing home residents who died from or were infected by COVID-19,” including a
quote from Clark regarding the Department's commitment to “protecting nursing home residents
from abuse and neglect” and referencing the Department's NHI; the draft did not reference the
FCA,* | |forwarded the draft to an OPA staff member, after which the OPA staff
member] | and| exchanged edits that
resulted in the addition of a few details from the letter request and the deletion of the reference to
the NHI.

b. CRT Leadership and USAO NJ Leadership Agree on CRIPA

Investigation Press Release Language

Between October 19 and 27, Dreiband, [EE Carpenito, and [pH icontinued to
communicate about the scope of the investigation and the content and tone of the press release.
During this time period, given the concerns raised by the USAO NJ, Dreiband asked [gto
confirm that OAG insisted on issuing a press release.

101 In sending the draft to SSS ior review, | |wrote: "[A]s you
know, the Civil Division does not discuss pending investigations much less data/information requests, so this is
already a departure from our normal practice.”

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On October 27, following a meeting between CRT leadership and Barr,'° | sent| pn
email stating that the “AG approved [New Jersey] and Holyoke” and directed her to alert]nn
[that the Department intended to issue the notice letter and the press release that day.

Ultimately, CRT leadership did agree to limit the scope of the investigations to the two veterans’
homes that the USAO NJ initially had identified. CRT leadership and the USAO NJ also eventually
reached agreement regarding the content and tone of the press release. The agreed-upon final
draft press release did not reference New Jersey's executive orders regarding nursing home
admission, the Department's August 2020 data request, or New Jersey's response thereto. In
forwarding a revised press release to Carpenito (copying[IEEEEEEE|Mid-day on October 27, [i
acknowledged the USAO NJ's preference not to issue a press release, but explained that “the sense
here is that one is appropriate.”

& [complains About Draft CRIPA Investigation Press Release; DOJ

Does Not Issue Press Releases for Either the New Jersey CRIPA
Investigations or New York Information Request

On October 27, CRT was proceeding with plans to issue the notice letter to New Jersey and the
accompanying press release that same day. That afternoon, upon learning that the language
regarding New Jersey's response to the August data requests (as well as the reference to “recent
reports” that New Jersey had undercounted nursing home deaths) had been eliminated from both

necessary context.” In a follow-up email to[[/pp wrote: "Whatever happens, this section
HAS to stay in there. | will crawl over broken glass to ensure it is included.”

Later in the day, after advised that CRT was working with the USAO NJ and SPL to try to
get the language re-inserted, (who had been added to the email chain) wrote:

I'm less interested in the release (we don’t even need to do one) and far more
interested in the substance of the letter. We owe it to the many families who lost
loved ones in nursing homes during COVID to provide a clear update to assure
them—and the public—that the Department of Justice is on this and taking it
seriously.

Ultimately, the Department did not issue press releases announcing either the New Jersey CRIPA
investigations or CIV's information request to New York. We were unable to determine from the
documents we reviewed, or from the witnesses who agreed to speak with us, who made the
decision(s) not to issue the press releases or the reasons for the decision(s).

'©2 Calendar entries reflect thatsalso attended. Email records and calendar entries indicate that
AH} 2s 10t included in the meeting.

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7. OPA Provides CIV’s New York Letter Request and CRT’s Letter
Notifying New Jersey of CRIPA Investigations to the New York Post
Before Officials in New Jersey and New York Receive the Letters

In the late afternoon on October 27, as} previewed in his October 17 text to
packaged together the CRIPA notice letter to New Jersey and the data request letter to New York and
had them provided to a New York Postreporter. Neither New Jersey nor New York had been
provided the letters at the time.

initially forwarded to a New York Postreporter via email copies of CRT’s August 26 press
release and data request letters to the governors of Michigan, New Jersey, New York, and
Pennsylvania (the letters were public, as the Department attached copies of the letters to the August
26 press release), and promised “letters coming soon.” Shortly thereafter, a non-career OPA staff
member emailed the same reporter non-public copies of the CRT notice letter addressed to New
Jersey Governor Phil Murphy as well as CV's letter to the New York State Department of Health.
[Mes copied on the email. The email further advised the reporter that[Jjjjand the OPA staff
member would call the reporter “when we lift the embargo on this.”

At 6:47 p.m. on October 27) alerted [ | "The New

York Postis] going to break nursing home story tonight and we will follow by sending out letter.”
]told us that he did not know at the time that OPA had
affirmatively disclosed the information to the reporter.

The New York Post published the resulting article online at approximately 7:50 p.m. on October
27.'% The article provided hyperlinks to the two non-public letters the New York Post received from
OPA. The article began: “The Justice Department is requesting more data on COVID-19 deaths
linked to New York nursing homes after receiving figures that indicate a significant under-count of
deaths at publicly run nursing homes in the state.""°* Regarding CRT’s actions, the article stated:
“The division launched an investigation in April of a publicly run nursing home in Republican-
governed Massachusetts and on Tuesday night informed New Jersey that it was opening an
investigation of two of its three publicly run nursing homes, after New Jersey officials declined to
supply data.”"® The article also included the following quote from “an administration official”:
"What we're trying to determine is why these people died so it doesn't happen again.... We're going
where the greatest carnage occurred."'° In an email the following day) praised[ nn] for
“bringing the heat” and by referencing “carnage” in the quote to the New York Post.

At 8:02 p.m., 12 minutes after the New York Post published its online article,
[jg |forwarded to
dozens of reporters (i.e., those who regularly cover the DOJ) copies of both the CRIPA notice letter to
New Jersey and the information request letter to New York. One minute later, at 8:03 p.m.,

103 Steven Nelson, “DO| seeks more NY nursing home data after finding COVID-19 death undercount,” New York
Post, October 27, 2020 (updated October 30, 2020), www.nypost.com/2020/10/27/doj-demands-ny-nursing-
home-data-after-covid-19-death-undercount (accessed December 20, 2024).
104 fat.

105. jg

106 jaf

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circulated a link to the New York Postarticle to| Jand OPA personnel.
responded: “Nice job.” No one else responded.

At 8:26 p.m., more than 30 minutes after the New York Post published its online article, CRT emailed
the CRIPA notice letter to the New Jersey Governor's office; and, at approximately 9:00 p.m., CRT and
the USAO NJ jointly alerted the New Jersey Attorney General's Office by telephone. CIV sent its data
request letter to the New York State Department of Health via regular mail.'°”

On October 28, in consultation with[Jand an OPA staff member, DO] records indicate that
spoke with a reporter from 7he Wall Street journa/ about the New Jersey investigations. The
resulting article, which was published online that same day, included comments by a “Justice
Department official” who “disputed the idea [put forth by a spokesman for the New Jersey Governor]
that the investigation was politically motivated.""° The article reflects that the DOJ official provided
non-public information to the reporter to respond to the allegation of political motivation, including
that the USAO NJ “began investigating the state’s veterans homes in the spring,” that the USAO NJ
had “provided a report in August” to CRT, that CRT had “continued the probe” after receiving the
USAO NJ's report, and that “New Jersey had failed to respond” to the Department's August data
request.'°? While [| was identified as a “Justice Department official” rather than by name in the
article, internal DO) emails reflected his willingness to be quoted on the record. In one of those
emails, wrote: “It would not be the end of the world if they quoted me by name. | leave it to
youl If
| Gs

[5 however, in an email to || with a copy toL___|stated that she wanted “it on background
since they have the letter.”

Late in the evening on October 28, using her ae |

both the New York Postand The Wall Street journal articles. posts highlighted
introductory quotes from both articles; the posts did not include any original or personal
comments."

107 After learning of ClV’s data request letter from press accounts, New York officials contacted the Department
on October 29, and CIV emailed the letter to the identified New York State Department of Health point of
contact.

108 Chris Weaver, “U.S. Investigating Veterans Nursing Homesin New Jersey for Possibly Understating Covid
Deaths,” The Wall Street journal, October 28, 2020, www.wsj.com/articles/u-s-investigating-veterans-nursing-
homes-in-new-jersey-for-possibly-understating-covid-deaths-1 1603900994 (accessed December 20, 2024), The
article appeared in the print edition on October 29, 2020.
109 ff

1G |

| |
[October 28, 2020,[ ]
| October 28, 2020]
October 28, 2020.
Tz lat.

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On October 30, the New York Post posted an updated version of its (October 27) article.''? The
updated piece quoted spokespersons for New York Governor Cuomo and New Jersey Governor
Murphy accusing DO] of taking the actions for political purposes and in proximity to the then
upcaming election.'4

Vi. Analysis

As discussed below, we found that and Violated the Department's

Confidentiality and Media Contacts Policy through their participation in and/or knowledge of the
disclosures to the New York Postand The Wall Street journa/on October 27 and 28, 2020, days
before the 2020 election, of non-public DOJ information regarding both the New Jersey CRIPA
investigations and CIV's information request to New York. In addition, we found that [Jj] violated
the Confidentiality and Media Contacts Policy and the Department's Social Media Policy by posting
on her official DO account on October 28, 2020, links to the New York Postand The
Wall Street journal articles, which included references to the non-public DO) investigative
information that had been disclosed to those publications in violation of the Department's
Confidentiality and Media Contacts Policy. We also found that the conduct of these senior officials
raised serious questions about partisan political motivation for their actions in proximity to the 2020
election that warrant referral to the U.S. Office of Special Counsel, which has exclusive jurisdiction to
investigate alleged Hatch Act violations, for its review and determination regarding whether their
conduct violated the Hatch Act.

Separately, we intend to issue a Management Advisory Memorandum to the Department with

recommendations to address the systemic concerns that we identified as a result of this
investigation.

A. October 2020 Disclosures to Reporters Regarding New Jersey CRIPA

Investigations and CIV Letter to New York, and []j] Social Media Posts
1. [J and} Violated Section 1-7.400 of the
Department's Confidentiality and Media Contacts Policy

On October 27, at{§iidirection, and with the knowledge and/or approval of [ Jand |
an OPA staff member provided to a New York Postreporter the non-public CRT notice letter to New
Jersey and CIV’s non-public information request letter to New York; in addition, [iii}provided
additional background material to the reporter and facilitated communications between the
reporter and So The resulting New York Post article that same day included hyperlinks to the
two non-public letters and contained other non-public information that was not included in the
letters. Email records confirmed that] jas the unidentified administration official
responsible for the following quote in the article: “What we're trying to determine is why these
people died so it doesn’t happen again.... We're going where the greatest carnage occurred.”

113 Steven Nelson, “DO| seeks more NY nursing home data after finding COVID-19 death undercount,” New York
Post, October 30, 2020, https://nypost.com/2020/10/27/doj-demands-ny-nursing-home-data-after-covid-19-
death-undercount (accessed December 20, 2024).
114 fq

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Moreover, this information was provided to the New York Post—and the New York Post published
the piece online—e/ore the Department had even provided the letters to New Jersey and New York
officials.

The evidence also showed that, on October 28, with knowledge and approval] and
[AA provided non-public information regarding the New Jersey CRIPA investigations to a reporter
for The Wall Street journal, wno published an article that same day that included the non-public
information. Late that evening, reposted links to both the New York Postand The Wall Street
Journal articles on her official DO) account,

The CRT notice letter and ClV's non-public information request letter and the substance of internal
DO} discussions and deliberations regarding these matters constituted non-public Department
information about DO| investigative matters that| 1 | | and| |obtained in the course of
their work. Accordingly, the Confidentiality and Media Contacts Policy set forth in Justice Manual
Sections 1-7.001 through 1-7.900, which “governs the protection and release of information that DO)
personnel obtain in the course of their work,” applied to their actions.

Except as necessary to fulfill official duties, Section 1-7.100 expressly prohibits Department
personnel from disseminating non-public, sensitive information obtained in connection with their
work, The policy includes a statement as to the reasan for its existence:

Much of DO|'s work involves non-public, sensitive matters. Disseminating non-public,

sensitive information about DO] matters could violate federal laws, employee non-
disclosure agreements, and individual privacy rights; put a witness or law
enforcement officer in danger; jeopardize an investigation or case; prejudice the
rights of a defendant; or unfairly damage the reputation of a person.''°

In particular, Section 1-7.400(B) of the policy provides that the Department “generally will not
confirm the existence of or otherwise comment on ongoing investigations. Except as provided in
subparagraph C of this section, DO] personnel shall not respond to questions about the existence of
an ongoing investigation or comment on its nature or progress before charges are publicly filed.”
The version of Section 1-7,400(C) in effect from April 2018 to February 2024 provided: "When the
community needs to be reassured that the appropriate law enforcement agency is investigating a
matter, or where release of information is necessary to protect the public safety, comments about
or confirmation of an ongoing investigation may be necessary, subject to the approval” of the
appropriate Assistant Attorney General or U.S. Attorney."®

The decision by|. | | and |to disclose non-public investigative information to

selected reporters outside of official DOJ channels violated the Department's Confidentiality and
Media Contacts Policy. As we noted in An Investigation of Alleged Misconduct by United States

115 Justice Manual § 1-7.100.

118 Justice Manual 88 1-7.400(C) and (A) (2018). In February 2024, the Department updated Justice Manual § 1-
7.400; these 2024 modifications do not affect our findings in this report. Notably, the amended policy allows
for a “designee” of the appropriate U.S. Attorney or AAG to contact the media; however, at the time of these
events nl could not have been authorized by the AAG as a designee to approve a contact with the media
about an ongoing investigation.

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Attorney Rachael Rollins, reassuring the public that the Department is investigating a matter
necessarily involves doing so in a transparent and official manner, not by leaking the information to
the news media.''"? We made a similar finding with regard to the FBI's media policy in A Report of
Investigation of Certain Allegations Relating to Former FB/ Deputy Director Andrew McCabe, in
response to McCabe's argument that his disclosure, through an anonymous source, of FBI
investigative information was allowed under FBI policy.'*® As we further noted in the Ao/ins report,
disclosing DOJ investigative information by leaking it to reporters, rather than reassuring the public,
has the potential to have the opposite effect by undermining the public's trust and confidence in the
Department and its personnel by, among other things, raising questions about why the Department
itself was not making the information public, about the validity and accuracy of the public reports,
and about the motivations of those involved in making the seemingly unauthorized disclosures.'"9
That is particularly the situation where, as here, the investigative information concerns a potential
politically sensitive matter and is leaked just days before an election.'“°

Moreover, here the documentary evidence showed that the upcoming election was the motivating
factor for[) |plan to disclose to selected press the non-public letters to New Jersey and New
York, a plan he communicated to] jand | | The clearest evidence of this motivation is
|text to[/ Jon October 17, 2020: “I'm trying to get [CRT] and CIV to do letters to [New
Jersey/New York] respectively on nursing homes. Would like to package them together and let [the
New York Pos] break it. Will be our last play on them before election but it's a big one.” Less than a
week later, on October 23, when[jjearned that a press release might not be issued regarding
ClV's letter to New York], wrote to] Il | and | |‘[Fline with no press release, but
we are going to give it to a reporter ahead of time. Otherwise, [New York Governor's] office will leak
it and we lose the upper hand. This is going to be a big story up there and if we are going to send

"7 DOj OIG, An Investigation of Alleged Misconduct by United States Attorney Rachael Rollins, Oversight and
Review Division Report 23-071 (May 2023), oig.justice.gov/reports/investigation-alleged-misconduct-united-
states-attorney-rachael-rollins, 118-19.
"8 DOJ OIG, A Report of Investigation of Certain Allegations Relating to Former Deputy Director Andrew
MeCabe, Oversight and Review Division Report (February 2018), oig.justice.gov/reports/report-investigation-
certain-allegations-relating-former-fbi-deputy-director-andrew-mccabe, 2. In rejecting McCabe's argument, we
noted that “the FBI never officially confirms the existence of an ongoing criminal investigation through an
anonymously quoted source.” /d at 35.

12 DO] OIG, Rollins, 119. We did not find evidence that anyone with authority under Department policy to
approve media contacts about ongoing matters did so in this case or made a determination that doing so was
necessary to reassure the public. However, even if they had, the leaks still would have violated the
Department's Confidentiality and Media Contacts Policy. In the Ro/lins matter, U.S. Attorney Rollins had
authority under the Confidentiality and Media Contacts Policy to disclose the existence of investigations if she
determined that doing so was necessary to reassure the public. DO] OIG, Rollins, 118. However, we
determined that she violated the Confidentiality and Media Contacts Policy by leaking information because
reassuring the public requires doing so overtly, DOJ OIG, Rollins, 118-19,
120 We further found in the Ao/lins report that her decision to leak non-public DOJ investigative information to
news reporters shortly before a local election was for the purpose of influencing an election and therefore
violated Justice Manual 8 9-85.500, entitled “Actions that May Have an Impact on an Election.” /d, at 74-75.
However, as noted earlier in this report, that provision of the Justice Manual was added in August 2022,
subsequent to the events that occurred in this report, and we therefore do not address that provision in this
report.

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the letter we are going to do press right or we may as well not do it at all.” [MS responded:
“Apreed,""*1

| y jpolan to disclose non-public DOJ information to a selected reporter was consistent with
| reaction to the Department's August 26 press release regarding the data requests to the
four states. At the time, [i] criticized the approach taken by CRT and her OPA colleagues in
issuing the press release and explained in an email toll] copying Dreiband,
and other OPA personnel, that she “would have given it to someone to break and worked with some
reporters on it."'44

We noted that [J in an October 27 email tdf Jana| |referenced an interest in

reassuring the public, even as she indicated her lack of interest in an official DOJ press release:

I'm less interested in the [press] release (we don't even need to do one) and far more
interested in the substance of the letter. We owe it to the many families who lost
loved ones in nursing homes during COVID to provide a clear update to assure
them—and the public—that the Department of Justice is on this and taking it
seriously.
Even if [i] was motivated by an interest to reassure the public, as [J she surely
knew that when the Department seeks to reassure the public that it is investigating an allegation, it
does so by issuing an official DO] statement—not by leaking non-public DOJ records to a reporter
and having an unnamed “administration official” confirm the existence of the investigation,'7

21 did not respond in writing to either [Jp ext on October 17 or to his email on October 23, and we
did not find evidence that she was otherwise made aware of the decision to disclose non-public DO}
information to the press on October 27 and 28.

122 We noted that some of the content of the August 26, 2020 press release announcing CRT's data requests to
Michigan, New Jersey, New York, and Pennsylvania appeared to go beyond the information needed to reassure
the public (the information does not appear to relate to public safety). However, as we explained in A Report of
Investigation Into the Department's Release of Public Statements Concerning a Luzerne County, Pennsylvania,
Election Fraud Investigation in September 2020, the relevant Justice Manual provision, Section 1-7.400(Q), “does
not address what information is appropriate to include in a public statement that officials have determined is
necessary to reassure the public that the appropriate law enforcement agency is investigating a matter.” DO}
OIG, A Report of Investigation Into the Department's Release of Public Statements Concerning a Luzerne
County, Pennsylvania, Election Fraud Investigation in September 2020, Oversight and Review Division Report
24-082 (July 2024), oig.justice.gov/reports/report-investigation-departments-release-public-statements-
concerning-luzerne-county, 61. Rather, Section 1-7.400(C) affords DO) officials with discretionary authority to
determine what information to include in a such a statement. /a. Because Section 1-7.400(C) allows statements
that are a departure from the fundamental Department principle of not commenting about ongoing
investigations, we recommended in that report that the Department revise this policy to require that the
information contained in a statement released pursuant to Section 1-7.400(C) be reasonably necessary either to
reassure the public that the appropriate law enforcement agency is investigating a matter or to protect public
safety. /d. at 6.
123, See Justice Manual § 1-7.400 (A) and (C). The information released does not appearto relate to public
safety. Moreover, even if the statement had been issued as an official DOJ statement rather than leaked, under
Justice Manual Section 1-7.400,| |did not have the authority to make the
determination as to whether the statements were necessary to reassure the public that the appropriate law
Continued

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In addition, |_ reposting of the two articles that resulted from the unauthorized disclosures on
her official DOJ} account essentially affixed DO}'s stamp of approval on their
substance and, thereby, confirmed the existence of these investigative matters and verified the
other non-public DOJ information reflected in the articles. For these reasons, [J reposting
through her official ie account of the New York Postand The Wall Street Journal
articles was an additional violation of Section 1-7.400 of the Confidentiality and Media Contacts
Policy.

The facts and circumstances that we identified in this investigation also raised systemic concerns
regarding the sufficiency of DO] policy that we intend to address in a forthcoming Management
Advisory Memorandum.

2. [i Violated the Department's Social Media Policy

The Department's Social Media Policy provides that a component may only use its official social
media account “to post information that may be shared with the public in the course of official
business” and that a component “may not use social media to publish non-public information or
information clearly unauthorized for disclosure."'24 Component heads are responsible for ensuring
compliance with all laws, regulations, and DOJ policies related to official social media use.'?5

The information contained in the New York Postand The Wall Street fournal articles, including the
Department's letters to New Jersey and New York state officials, was not authorized for public
disclosure in compliance with Justice Manual 1-7.400, as described above. While there had been
extensive internal discussions about issuing press releases announcing the New Jersey CRIPA
investigations and CIV's information request to New York, the Department ultimately did not issue
either press release or make any other formal, on-the-record statement disclosing these actions.
Email records reflect that [BJ knew about these discussions and decisions, yet nonetheless
supported and was involved in the decision to instead announce the Department's actions by
providing non-public DOJ records and other non-public background information to selected
reporters. She thereafter reposted the resulting New York Postand The Wall Street journal articles,
which included links to the non-public DO) letters that had been leaked to the reporters, on her
official po account. Accordingly, because the Social Media Policy prohibits
components from using social media to publish information clearly unauthorized for disclosure,
_ | violated this prohibition of the Social Media Policy.

enforcement agency was investigating the matters or to approve the release of a statement for public
reassurance purposes.
124 DO] Policy Statement 0300.02.02, 88 (II)(A)(2) and (III)(C). The Social Media Policy also expressly requires
components to comply with the Confidentiality and Media Contacts Policy. See /a. § (II(A)(1). The Social Media
Policy includes a section on linking and reposting “nongovernmental entity content.” See /a! 8 (I!)(D)(5).
However, that section neither conflicts with nor overrides the provision prohibiting Department personnel from
using their official social media accounts to publish information that has not been authorized for public
disclosure.

123 DO Policy Staternent 0300.02, § (III)(B).

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B. Restrictions on Partisan Political Activities

On May 15, 2020, consistent with the practice of prior Attorneys General, Barr issued a
Memorandum for All Department of Justice Employees (Barr Election Year Sensitivities
Memorandum)."'26 Section | of the Barr Election Year Sensitivities Memorandum, much like prior
Attorneys General Election Year Sensitivities Memoranda, was framed in the context of criminal
matters. It provided that “partisan politics must play no role in the decisions of federal investigators
or prosecutors” and that “law enforcement officers and prosecutors may never select the timing of
public statements (attributed or not), investigative steps, criminal charges, or any other action in any
matter or case for the purpose of affecting any election, or for the purpose of giving an advantage or
disadvantage to any candidate or political party.”'*’

Because the language of Section I, on its face, seemingly applied only to criminal matters, we do not
address it in this report because the events at issue here concerned civil matters. We intend to
address our concerns about the limited nature of the Election Year Sensitivities Memoranda in the
forthcoming Management Advisory Memorandum.

Section || of the Barr Election Year Sensitivities Memorandum reminds DOJ employees of their
obligations under the Hatch Act, including the responsibility not to use their authority for the
purpose of affecting election results.'*® Among the Hatch Act’s provisions is one specifying that an
employee may not “use his official authority or influence for the purpose of interfering with or
affecting the results of an election.”'*° This admonishment applies equally to career and non-career
employees.'2° DOJ policy also specifically requires employees “to be aware of, and to comply with”
the Hatch Act. '3

In addition to the Barr Election Year Sensitivities Memorandum, on June 10, 2020, the then AAG for
Administration issued two memoranda—one to career Department employees and one to non-
career appointees (Lofthus Political Activities Memoranda)—reminding employees of the Hatch Act's
restrictions on partisan political activities.'°* Like the Barr Election Year Sensitivities Memorandum,
the Lofthus Political Activities Memoranda emphasized the importance of maintaining the “integrity

126 William Barr, Attorney General, U.S, Department of Justice, Memorandum for All Department of Justice
Employees, Election Year Sensitivities, May 15, 2020 (Barr Election Year Sensitivities Memorandum).

127 Jd at 1.
128 Barr Election Year Sensitivities Memorandum, 2.

1225 U.S.C. § 7323(a)(1).

130 Barr Election Year Sensitivities Memorandum, 2.

131 Justice Manual 88 1-4.010 and 1-4.100(C), Additionally, the Standards of Ethical Conduct for Employees of
the Executive Branch (Standards of Ethical Conduct) identifies the Hatch Act as one of the statutes “to which an
employee's conduct must conform" and requires employees to “endeavor to avoid any actions creating the
appearance that they are violating the law” or the Standards of Ethical Conduct. 5 C.F.R. § 2635.901; 5 C.F.R. §
2635.902(0); 5 C.F.R. § 2635.101(b)(14).

132° See Lee Lofthus, Assistant Attorney General for Administration, U.S. Department of Justice, Memorandum
for All Department of Justice Career Employees, Restrictions on Political Activities, June 10, 2020; Lee Lofthus,
Assistant Attorney General for Administration, U.S. Department of Justice, Memorandum for All Department of
Justice Non-Career Employees, Restrictions on Political Activities, June 10, 2020.

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of our work” and highlighted that “the public trusts that we will enforce the laws of the United States
based on the facts and the law, and not to achieve purely partisan election objectives.”'74

As detailed in this report, communications among senior officials from June through October 2020
and related directions from those officials to career personnel raise questions about whether the
senior officials were motivated by partisan considerations to take and announce certain actions in
proximity to the then upcoming 2020 election. Accordingly, we are referring our findings to the U.S.
Office of Special Counsel, which has exclusive jurisdiction to investigate alleged Hatch Act violations.

VIL. Conclusion

As explained above, we found that] | Jand violated the Department's

Confidentiality and Media Contacts Policy through their participation in and/or knowledge of the
disclosures to the New York Postand The Wall Street fjourna/on October 27 and 28, 2020, days
before the 2020 election, of non-public DO) information regarding both the New Jersey CRIPA
investigations and CIV's information request to New York. In addition, we found that [J violated
the Confidentiality and Media Contacts Policy and the Department's Social Media Policy by
contemporaneously posting on her official COE eccoune links to the New York Post
and The Wall Street Journa/ articles.

We have provided a copy of this report to the Office of the Deputy Attorney General and, because
the report contains misconduct findings against attorneys, to the Professional Misconduct Review
Unit for any action those offices deem appropriate. In addition, because the facts described in our
report raise the possibility that certain former Department officials may have violated the Hatch Act,
we are referring our findings to the U.S. Office of Special Counsel.

133 lat.

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APPENDIX 1: THE DEPARTMENT'S AUGUST 26, 2020 PRESS RELEASE

Department of Justice Requesting Data From Governors of States that Issued COVID-19 Orders that May Have Resulted in Deaths of Elderly Nursing Home Reside...

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Department of Justice Requesting Data From Governors of States that Podeasts

Issued COVID-19 Orders that May Have Resulted in Deaths of Elderly
Nursing Home Residents

Data will help inform whether the Department of Justice will initiate investigations
under the Civil Rights of Institutionalized Persons Act (CRIPA) regarding New York,
New Jersey, Pennsylvania and Michigan's response to COVID-19 in public nursing
homes

Today the Justice Department requested COVID-19 data from the governors of states that issued
orders which may have resulted in the deaths of thousands of elderly nursing home residents. New
York, New Jersey, Pennsylvania, and Michigan required nursing homes to admit COVID-19
patients to their vulnerable populations, often without adequate testing.

For example, on March 25, 2020, New York ordered: “No resident shall be denied re-admission or
admission to [a nursing home|] solely based on a confirmed or suspected diagnasis of COVID-
19. [Nursing homes] are prohibited from requiring a hospitalized resident who is determined
medically stable to be tested for COVID-19 prior to admission or readmission.”

“Pratecting the rights of some of society's most vulnerable members, including elderly nursing
home residents, is one of our country’s most important obligations,” said Assistant Allorney
General for Civil Rights Division Eric Dreiband. “We must ensure they are adequately cared for
with dignity and respect and not unnecessarily put at risk.”

According to the Centers for Disease Control, New York has the highest number of COVID-19
deaths in the United States, with 32,592 victims, many of them elderly. New York's death rate by
population is the second highest in the country with 1,680 deaths per million people. New Jersey's
death rate by population is 1,793 deaths per million people — the highest in the nation. In contrast,
Texas's death rate by population is 380 deaths per million people; and Texas has just over 11,000
deaths, though its population is 50 percent larger than New York and has many more recorded
cases of COVID-19 — 577,537 cases in Texas versus 430,885 cases in New York. Florida’s COVID-19
death rate is 4806 deaths per million; with total deaths of 10,325 and a population slightly larger

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Departrient of Justice Requesting Data From Governors of States that Issued COVID-19 Orders that May Have Resulted in Deaths of Elderly Nursing Home Reside...

than New York.

The Department of Justice's Civil Rights Division is evaluating whether to initiate investigations
under the federal “Civil Rights of Institutionalized Persons Act” (CRIPA). which protects the civil
rights of persons in state-run nursing homes, among others. The Civil Rights Division seeks to
determine if the state orders requiring admission of COVID-19 patients to nursing homes is
responsible for the deaths of nursing home residents.

On March 3, 2020, the Attorney General announced the Justice Department's National Nursing
Home Initiative. This is a comprehensive effort by the department, led by the Elder Justice
Tnitiative and in strong partnership with the U.S. Department of Health and Human Services that
uses every available tool to pursue nursing homes that provide substandard care to their residents.
As announced on April 10, 2020, the department is also investigating the Soldiers’ Home in
Holyoke, Massachusetts, where COVID-19 has taken the lives of at least 76 residents.
https: / /www.justice.
gov /opa, pr/federal-investigation-conditions-nursing-home-veterans-
massachusetts-announced

The data requests and Soldiers’ Home investigation are not accusations of fault or wrongdoing by
the states or any other individual or entity, and the department has not reached any conclusions
about these matters.

Attachment(s): Component{s):
Download Letter to Governor Cuomo Civil Rights Division
Download Letter to Governor Murphy
Download Letter to Governor Wolf Press Release Number:
Download Letter to Governor Whitmer 20-828

Topic(s):
Elder Justice
Civil Rights
Updated August'26, 2020

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