The Justice Department’s civil division is retaining criminal authority on healthcare statutes being used to probe children’s hospitals on gender-affirming care, backtracking from an April plan to transfer all criminal prosecutors from its consumer protection branch to the criminal division.
The arrangement, which was confirmed in an internal memo Monday from civil division head Brett Shumate, came after acting assistant attorney general of the criminal division, Matthew Galeotti, resisted absorbing the investigations of medical providers, said three lawyers familiar with the situation.
The civil branch has been subpoenaing hospitals nationwide for vast patient and employee data on youth gender care services, in one instance causing a federal judge to block the demand for records by finding DOJ was “motivated only by bad faith.”
The civil division’s political leadership—including a deputy to Shumate with a background focused on suing doctors on behalf of “detransitioners"—was far more keen than its criminal counterparts to continue advancing this White House-driven project, added the sources, who spoke on condition of anonymity to avoid reprisal.
In a statement, a senior DOJ official said, “The Civil Division is retaining the gender affirming care investigations because the Attorney General directed the division to handle these cases, and they are part of the Civil Division’s enforcement priorities.”
After Attorney General Pam Bondi gave final approval last week, following months of delays, to the department’s broader cost-cutting reorganization, Shumate messaged the civil division Monday to describe the new structure. His memo, a copy of which was obtained by Bloomberg Law, said that the consumer protection unit will be dissolved and split into two parts to separate its civil and criminal enforcement responsibilities.
One exception, Shumate added, is that the civil division’s newly launched enforcement and affirmative litigation branch “will retain concurrent authority” with the criminal division “to investigate and prosecute criminal violations of the Food, Drug & Cosmetic Act, the Consumer Product Safety Act, and other healthcare related statutes.”
Attorneys briefed on the plan said it required the civil and criminal leaders to broker a deal that maintains at the civil division through the end of the Trump administration around eight trial attorneys and supervisors who’ve been handling the transgender care subpoenas. Those lawyers will stay in the civil division while their criminal-side colleagues move to the criminal fraud section.
In theory, the gender-affirming care litigators will be able to pursue other health and safety violations during this time, but former department attorneys are skeptical that they will have bandwidth to do so given the determination of Trump administration officials to target what Bondi has referred to as providers who’ve “mutilated children in the service of a warped ideology.”
The severed jurisdiction at the civil and criminal divisions to pursue overlapping matters along with the stalled rollout of the merger raises concerns as to why the consumer protection office was eliminated in the first place, former DOJ lawyers said. They argue that in the service of achieving efficiencies by shifting all criminal work into one unit, the administration is doing the exact opposite.
Sharing the criminal authorities at both divisions could “result in the inefficient use of limited resources, generate internal conflicts over jurisdiction, and create confusion among regulated entities,” said Arun Rao, a partner at Mayer Brown and a former deputy assistant attorney general who oversaw the soon-to-be defunct consumer branch during the Biden administration.
Other lawyers familiar with the branch’s work said the delayed split is also hindering progress on a range of other cases that align with Trump’s Make America Healthy Again agenda, including on youth vaping.
Morale Problems
After DOJ said last spring that it would be breaking apart the branch, morale dropped and attrition increased among managers and line attorneys due to concerns about whether their specialization in food safety and pharmaceutical misbranding, among other issues, will remain a priority, multiple lawyers said.
That dynamic worsened when employees learned the day before they were scheduled to officially move to the criminal division in July that the plan was on hold. The only reason provided to staff, who’d already undergone extensive IT and logistics preparations for the move, was that Bondi had yet to sign the reorganization’s authorizing papers, the lawyers said.
As weeks of delays turned into months, more consumer protection attorneys started departing DOJ. Those remaining ran into hurdles in advancing cases, the sources added.
In a statement, the senior DOJ official said the civil division is “moving without delay and aggressively to implement the Attorney General’s directives to use all available resources to prioritize investigations of doctors, hospitals, pharmaceutical companies, and others whose illegal actions threaten children’s health.”
Branch attorneys on other matters, however, have been getting conflicting information about whether they should be seeking case approval from the current bosses at the civil division or their managers at criminal, said multiple lawyers with knowledge of the process. And defense lawyers started seizing on the confusion by slow-rolling their representation of clients being prosecuted by the branch, mindful that the criminal division may no longer prioritize the case if they waited it out.
“What you see is an internal tug of war being played out within the DOJ,” said Jack Korba, a former federal prosecutor who’s now an attorney with Foley & Lardner. “Whenever you have disarray, confusion, and uncertainty on the side of the government, that usually plays to the benefit and the advantage of a defendant or a subject under investigation.”
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