The DOJ doesn't GAF what you say, they care what the laws are. Tokens are property. They technically gain all the standard property protections, like people aren't supposed to steal them from you, and fraud is still fraud.
If you want code to be law, you would have to pass legislation to that effect, and good luck. We tried wildly unregulated markets before and it was generally bad for the world economy. After FTX, good luck convincing regulators to let you play around with real money even more
What law says this? Technically, tokens are smart contracts, basically OOP classes with both data and behavior. They also by design have public methods which are meant to be triggered by anyone on the chain. It's not at all obvious that triggering these methods in an unexpected order or with unexpected data is breaking any laws whatsoever. It's bytecode anyway, so there's no human readable EULA's or explanations on what you're allowed to do with the token.
You could alternatively claim that the guys defined their own protocol which addressed market inefficiency (which MEV is). Imo it's insane to claim that a trading technique you invented should have zero risk, and any losses you take are an indication of theft.