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DOJ Seeks Emergency Powers in Light of Coronavirus—Including Tolling of Statutes of Limitations

The Department of Justice (“DOJ”) recently requested Congress expand DOJ’s powers in order to respond to the coronavirus pandemic. As first reported by Politico on Saturday, these requests run the gamut from broad judicial discretion regarding arrest, trial, and post-trial procedures to revising asylum legislation to make those suffering from COVID-19 ineligible for asylum.

The DOJ has proposed that the statutes of limitations for criminal investigations and civil proceedings be paused during national emergencies and “for one year following the end of the national emergency.” Because President Trump declared coronavirus a national emergency, this legislation would, if approved, allow for the DOJ’s civil and criminal investigations to be unaffected by this national pause for up to a year, significantly lengthening the time companies and individuals currently under investigation will remain under investigation.

Additionally, the DOJ proposal would provide the Attorney General the power to ask the chief judge of any district court to pause court proceedings “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or national emergency.” This power would apply to “any statutes or rules of procedure otherwise affecting pre-arrest, post-arrest, pre-trial, trial, or post-trial procedures in criminal and juvenile proceedings and all civil process and proceedings.” Among other things, this would allow for longer pre-trial detentions. Although individual judges have the ability currently to pause their respective court proceedings in the event of an emergency, the purpose of these proposals would be to have consistency across judges within a district.

DOJ has also requested significant changes to the Federal Rules of Criminal Procedure: eradicating the need for a defendant to consent to use of videoconferencing for initial appearances (where defendants are advised of their constitutional rights) and arraignments (where defendants enter guilty or not-guilty pleas). Currently, defendants may appear and be arraigned via videoconference only if they consent. With these proposed changes defendants may be forced to attend hearings via videoconference. The DOJ’s proposal is geared toward allowing the judicial system to continue to move forward despite the need for social distancing.

On Sunday night, a DOJ spokesperson, Kerri Kupec, responded via twitter to the media reports regarding the DOJ proposals. She said the proposals were “triggered by Congress asking DOJ for suggested proposals necessary to ensure that federal courts would be able to administer fair and impartial justice during pandemic.” She clarified that the “draft suggestions” were made in consultation with Congress and the federal judiciary. Kupec also stated that the purpose of the draft legislative text is to “harmonize what is already being done on an ad hoc basis by courts around the country.” More specifically, she stated that any additional powers granted to the chief judge of district courts would end “upon the earlier of the termination of the COVID-19 national emergency or the Chief Justice’s finding that the emergency conditions no longer materially affect the functioning of the federal courts generally, or in the district.”

If enacted, these broad and varied changes to the DOJ’s power could have a significant impact on companies and individuals currently under criminal or civil investigation. However, news outlets report that the DOJ’s proposed legislative changes are unlikely to make it through the Democrat-held House.

We will continue to monitor the DOJ’s proposals in response to the coronavirus pandemic and provide updates accordingly.

For any Coronavirus-related legal questions, please contact a member of V&E’s Coronavirus Taskforce or visit our Coronavirus: Preparation & Response site for a list of contacts and additional resources we hope will be helpful.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.