Missouri AG Bailey’s China lawsuit says masks slowed COVID. He claimed they ‘didn’t work’
Missouri Attorney General Andrew Bailey’s office will argue at a federal civil trial next week that China hoarded masks and other protective gear during the COVID-19 pandemic that would have slowed the virus’s spread.
But Bailey has previously said masks don’t work.
As Bailey prepares for a trial in southeast Missouri aimed at holding China accountable for its alleged role in hampering the United States’s pandemic response, the Republican state attorney general has highlighted the looming legal showdown – but not the tension between his past comments about masks and what his office is arguing in court.
The lawsuit, filed in April 2020 by his predecessor, now-U.S. Sen. Eric Schmitt, has taken a winding road to trial. A judge at one point dismissed the legal challenge, saying the court lacked jurisdiction before an appeals court last year revived the claim that China hoarded personal protective equipment, or PPE, a category that includes surgical masks, N95 masks, gloves and other items.
Bailey’s trial brief, submitted in November and signed by Deputy Solicitor General Samuel Freedlund, asserts that a “lack of PPE for healthcare professionals, especially early in the pandemic, significantly hampered Missouri’s pandemic response.” The brief asserts PPE played a “key role” in mitigating COVID-19’s spread.
The brief is at odds with Bailey’s own blunt assessment of masks that he posted on social media in September 2023.
“We knew masks didn’t work years ago, but Joe Biden and the deep state pressured social media companies to silence anyone who said otherwise,” Bailey wrote on X.
Masks represented one of the core conflicts of Missouri’s pandemic response. Missouri’s governor at the time, Republican Mike Parson, resisted imposing a statewide mask mandate even as leaders in other states, including Kansas Democratic Gov. Laura Kelly, issued one.
Nearly 23,000 Missourians died from COVID-19 from the start of the pandemic through March 2023, according to the Johns Hopkins Coronavirus Resource Center. More than 1.7 million cases were confirmed.
As state attorney general, Schmitt sued a host of local governments and school districts over mask mandates. Schmitt sued Kansas City Mayor Quinton Lucas in August 2021, alleging at the time that the city’s mask directive was not an “appropriate disease control measure” and inadequate to control the spread of COVID-19.
At the U.S. Capitol on Tuesday, Schmitt said the lawsuit doesn’t mean he’s a “believer in masks.”
“Effectiveness aside, they were manipulating,” Schmitt said. “The point was, they knew very early that this was going to be a global pandemic but engaged in a level of market manipulation that is evidence of that.”
The fights over mask mandates played out even as the Missouri Attorney General’s Office was on record in the China lawsuit that a hoarding of PPE had harmed the state, and health care personnel in particular. Bailey became the state attorney general in January 2023, after the end of most lawsuits over mandates, and pushed forward with the China lawsuit.
Rex Archer, who helped lead Kansas City’s pandemic response as director of the city health department before his retirement in 2021, said resistance to mandates and skepticism from state officials hampered local efforts to fight the virus.
Officials need to prepare for the next viral threat, Archer said, mentioning the “bird flu” virus that is occasionally infecting humans in the United States. He said he hopes that when Missouri residents again need to protect themselves with masks and take other measures to combat disease, Missouri asserting the importance of masks and other PPE in court will prove useful.
“The hypocrisy here is unbelievable,” Archer said.
Bailey’s office didn’t respond to a request for comment on Tuesday.
Trial next week
Amesh Adalja, an infectious disease doctor and senior scholar at the Johns Hopkins Center for Health Security, cautioned against trying to understand the contrasts between Bailey’s arguments in court and public statements “using logic or rationality.”
Medical professionals have always known that masks help prevent the spread of infection, Adalja said, noting that wearing masks in hospitals to take care of flu and tuberculosis patients isn’t controversial.
“Some individuals, their positions on COVID-19 are just completely, entirely…inconsistent. This is just another example, so you can only understand it as part of, you know, tribal politics,” Adalja said.
The trial, set to begin Monday in front of U.S. District Court Judge Stephen N. Limbaugh, Jr., in Cape Girardeau, will center on claims of PPE hoarding after other allegations against China, including that China allowed COVID-19 to spread and covered up its origins, were dismissed.
Limbaugh, an extended relative of the late conservative talk show host Rush Limbaugh, dismissed the entire lawsuit in 2022 on the grounds that he had no jurisdiction over foreign governments. The United States Eighth Circuit Court of Appeals in January upheld nearly the entire dismissal, except for the PPE hoarding claim.
Bailey’s past comments about masks would typically be grist for defendants to use to undercut the state attorney general’s case, said Chuck Hatfield, a Jefferson City-based attorney who worked in the Missouri Attorney General’s Office under Democrat Jay Nixon.
Hatfield noted that since the state of Missouri is a plaintiff, comments by other state officials downplaying masks or COVID-19 could also potentially be useful to defendants.
“On the other hand, I don’t know who’s going to bring it up,” Hatfield said.
China isn’t participating in the lawsuit. The defendants include the People’s Republic of China and the Communist Party of China, along with other Chinese entities. No lawyers have appeared on the defendants’ behalf or filed any court documents.
Lawsuit payout unclear
If Limbaugh, an appointee of President George W. Bush, rules in Missouri’s favor, the decision could – theoretically – lead to a large payday for the state.
Missouri’s case relies in part on a report by University of Missouri economics professor Joseph Haslag that estimates the state could lose up to $33 billion in tax revenue because of the damage from PPE hoarding. The report calculates that PPE hoarding led to between roughly $259 billion and $503 billion in overall damage to the Missouri economy.
But it’s unclear how Missouri would collect payment from China. Bailey’s office didn’t respond to a question about whether the state would have a realistic chance to collect judgment.
Hatfield said outside the China lawsuit, he had never heard of the Missouri Attorney General’s Office suing a foreign government and that China’s non-participation in the lawsuit illustrates why.
“Foreign countries don’t care. What are you going to do, levy the bank account of the government of China in China?” Hatfield said. “There’s all sorts of international treaties and rules and all that that largely make this a waste of time, in my view.”
Still, the trial will place a spotlight on Missouri – and Bailey.
“In less than 2 weeks, we become the ONLY state in the nation to face off against China for the harm they caused to Americans during COVID-19,” Bailey wrote on X earlier this month.
Missouri state Rep. Aaron Crossley, an Independence Democrat, said “of course” the global community shouldn’t hoard PPE, but that “it sounds like it’s been more about making sure that they continue to be relevant on social media” and not working on issues affecting Missourians.
“When most of us go to Jeff City, we want to get stuff done for our community, and instead, we can’t seem to get past 2020,” Crossley said. “I don’t know about everybody else, but I am ready to get past COVID, but it seems like they want to keep living under it.”
The Star’s Daniel Desrochers contributed reporting
