Here’s the coronavirus death toll through August 4. The raw data from Johns Hopkins is here.
After more than five months of the coronavirus pandemic in the United States, White House briefings and press conferences still lack an American Sign Language interpreter. On Monday, a week after President Trump resumed his daily briefings, the National Association of the Deaf filed a lawsuit against the White House arguing that the continued refusal to include an interpreter violates the Americans With Disabilities Act. “All 50 states’ governors have provided in-frame American Sign Language (‘ASL’) interpretation during public briefings regarding the pandemic,” the lawsuit notes. “President Trump, however, does not. He now stands alone in holding televised briefings regarding the Covid-19 pandemic without ever having provided any ASL Interpretation.” The suit goes on to mention that other members of the White House coronavirus task force, including Dr. Anthony Fauci and Dr. Deborah Birx, also appear without interpreters.
For advocates in the deaf and hard-of-hearing communities, the White House press conferences have been a months-long reminder of unique challenges during the pandemic. Since the Americans With Disabilities Act was enacted 30 years ago, a number of measures have been taken to reduce discrimination against people with disabilities. In the years that followed, society-wide accommodations—like wheelchair ramps and closed captioning on television—were made to better integrate people with varying disabilities into the mainstream. But even with progress, the world isn’t particularly deaf-friendly, and COVID-19 has undercut many of the advances that have been made.
“The greatest challenges come from the lack of communication access that have been exacerbated by the pandemic,” Howard A. Rosenblum, the CEO of NAD, the group suing Trump, told me in an email last month. And those challenges range from high-level government communications to mundane interactions.
That was the case for Ashley, who’d lost much of her hearing when she was 15 months old and recently went to the Houston-area branch of America’s Best Contacts & Eyeglasses. The employees may have spoken louder so that she could understand them through their masks, but since she reads speech instead of signs, she asked them to lower their masks so she could understand what they were saying. They refused. After all, it was mid-July when cases of the coronavirus were spiking in Houston—on July 14, there were 2,962 new cases in the city on a single day.
Unable to read their expressions or understand what they were saying, Ashley (who asked that her last name not be used) became so frustrated and upset that she left the store—and left the state. She scheduled an appointment in her home state of Louisiana, a five-hour drive away, because even though masks are still required there, a mandate exempts those “trying to communicate with a person who is hearing-impaired.”
Like many others who are deaf or hard of hearing in the United States, Ashley relies heavily on speechreading to understand people. “My lifeline,” she calls it. Usually, Ashley would manage the demands of daily life, like trips to the grocery store or the optician, by letting “the person helping me know that I was hearing-impaired, I lipread so please be patient.” But that’s become complicated during the pandemic. As her experience at the Houston store illustrates, the new rules of engagement that create minor inconveniences for most people have become fundamental disruptions for many people who are deaf or hard of hearing.“It’s already difficult being hearing-impaired in normal settings. It’s a thousand times worse now that everyone is wearing a mask.”
“It’s already difficult being hearing-impaired in normal settings.” she says, “It’s a thousand times worse now that everyone is wearing a mask.”
Ashley’s interaction was troubling, but not unique. “People with hearing loss constantly say that it’s exhausting to communicate in these kinds of settings,” says Dr. Debara Tucci, director of the National Institute on Deafness and Other Communication Disorders at NIH, describing how social distancing and mask wearing have affected many people. “I think that this is going to go on for a very long time.”
A lot of people who can’t hear spend much of their lives making adjustments and compromises to fit a world of those who can. For deaf people, that means deploying a number of tools and strategies to communicate, such as manual language, technology, sometimes medical interventions like cochlear implants, and visual cues. But for the 48 million deaf or hard-of-hearing men, women, and children in the US, the massive social adjustments to combat the coronavirus have created a unique set of challenges—and not just for those who mostly rely on speech reading. American Sign Language, for instance, relies heavily on inferences from facial expressions. With voices muffled behind masks, the effectiveness of cochlear implants—ear implants that deliver sound by stimulating the auditory nerve—are reduced.
In mid-March, like millions of others, Robert Weinstock, interim director of public and media relations in the Office of University Communication at Gallaudet University, began working from home. Gallaudet University is in Washington, DC, and was chartered by Congress in 1864 to serve deaf university students. Today, courses are taught using English and American Sign Language. Weinstock, who lives in the tight-knit suburban Maryland community of Takoma Park, says neighbors regularly meet at council meetings to discuss local and national politics. Resources for deaf people existed on a provisional basis. When Weinstock and his wife, who is also deaf, wanted to attend those gatherings, an interpreter had to be arranged. When those gatherings moved online during the pandemic, an interpreter was not initially included. “We’ve contacted our mayor, who has arranged interpreters for the webinars,” he says. “She’s been very helpful, but my point is that we were not considered in the beginning of the planning stage.”
Like people who aren’t deaf, many deaf people have scrambled to shift as much conventional life online as possible. In March, Gallaudet sent students home and offered online classes and weekly seminars to keep students connected. In some ways the students were well-prepared. According to Weinstock, visual resources like videos and PowerPoint were already part of the Gallaudet curriculum, and all courses are typically taught in ASL, which can be used over Zoom. Since the shift to remote learning, 99 percent of Gallaudet students successfully finished the spring semester online, and ahead of the fall semester, students and faculty are taking online modules to learn techniques—like embedding ASL and closed captioning into video—for more seamless class instruction. Still, digital-only learning isn’t perfect, and the unexpected changes have created their own challenges.
“There are students all over the world,” he said. “Suppose class time is at 8 a.m. in DC. If they’re in California, that’s a 5 a.m. class. England that might be at noon, and that might affect somebody in India because they had to go home.”
For many who are deaf or hard of hearing, aspects of the pandemic that others take for granted have been challenging. As noted in the lawsuit against the White House, briefings from state and local officials on safety measures and virus prevalence may not have initially included ASL interpreters, but by April they were a feature of 47 governors’ emergency press conferences. By the time of the NAD lawsuit on Monday, it was all 50. When New York became the US epicenter of the coronavirus in March, Gov. Andrew Cuomo began giving daily briefings. Disability Rights New York, an advocacy group, filed a lawsuit citing a violation of the Americans With Disabilities Act and charging that the governor’s emergency television press conferences violated the ADA because they lacked a live interpreter. By April, Cuomo was sharing the screen with Arkady Belozovsky, a sign language interpreter.
Closed captioning may be one solution, but it has its own liabilities. “First, we need information at the same time that others are provided that information,” Weinstock says. “Second, yes, many of the televisions have captioning available, but caption quality is highly variable.”“First, we need information at the same time that others are provided that information. Second, yes, many of the televisions have captioning available, but caption quality is highly variable.”
The danger of being out of the loop during COVID-19 can become even greater when illness strikes and someone needs a hospital or health care facility. It’s often nearly impossible for someone who is deaf—with or without an acute illness—to navigate the complicated demands of accessing care. According to Tucci of the NIH, “There are so many issues in hospitals that are so busy, and understaffed, and under-resourced.” In health care facilities slammed by the pandemic, she says it’s possible that the essential question of accessibility for deaf patients wouldn’t “rise to the top.” The National Association of the Deaf established guidelines for hospitals and deaf patients in early April, and what NAD describes is troubling. “Many hospitals will not allow in-person interpreters, family members, or visitors to come into the hospital. You may be alone for a long time when you are in the hospital,” the website states. Guidelines recommend that patients bring a card stating, “PLEASE RESPECT MY LEGAL RIGHT TO UNDERSTAND YOU AND PARTICIPATE IN MY CARE BY ALLOWING ME TO USE THE SMARTPHONE,” to avoid medical decisions being made without legitimate consent from patients.
Beyond health care, experts in the field are also concerned about how heightened tensions between law enforcement and communities of color enter the equation when everyone is wearing masks. Recent deaths of unarmed people of color at the hands of police have shown the challenges disproportionately faced by members of more vulnerable communities as they navigate interactions with the police. Those encounters are especially difficult when someone can’t hear—or possibly speak. According to Vox, a quarter of those shot by police have a disability. With law enforcement wearing masks too, being able to interpret information clearly—and quickly—can be life-or-death. “I’ve had a number of conversations with mostly Black, Indigenous, and POC men who say they intentionally will wear a very cutesy mask in order to diminish any kinds of concerns,” says Teresa Blankmeyer Burke, a philosophy professor at Gallaudet. “If you are a deaf person and a police officer is shouting behind your back, you’re not going to know.” Even if they’re standing in front of you, that still may be the case.
As deaf and hard-of-hearing individuals adjust to the social code of the pandemic, the spaces where they might feel most at home—like schools or social organizations for deaf people—have also disappeared. Burke points out that for many deaf people who practice ASL, the most candid communication comes with other deaf people. She compares it to someone interacting in their home language with another native speaker. “I always have a little bit of a sigh of relief and relaxation when in a signing environment,” Burke says. “A lot of guess work goes into speech reading, so we cannot access language without using a lot more of our working memory or cognitive load. It’s much more mentally fatiguing for us, but in a signing community and using sign language, it’s less fatiguing.” With social distancing, those spaces are unavailable.
As the pandemic wears on, innovations have appeared, including third-party apps that add live closed captioning—which Zoom doesn’t offer itself. Voice-to-text phone apps transcribe dialogue in real time, and they’re becoming widespread even though there are problems with voice recognition software. Increasingly, masks are appearing that display the mouth through a sheet of clear plastic, but the plastic panel “tends to block the flow of sound,” Tucci says. It can also trap air and become uncomfortably hot. In hospitals and other medical facilities, certain provisions of HIPAA—a law designed to protect patient privacy—have been suspended during the emergency, so translators can be included in telehealth sessions, paving the way for clearer communication between providers and patients. “I’m the patient and trying to interact with the doctor, and I have this physical connection with this space and person, but the interpreter is in a box and they can’t see much,” says Erin Wilkinson, a deaf linguistics professor at the University of New Mexico. “That is really complex.”
Increased communication through screens and restricted physical interaction may have the potential to spark enduring linguistic changes for ASL users. After all, the migration of chat from analog to digital isn’t restricted to the world of health care. When deaf people rely on signing as their principle mode of communication, Wilkinson says, they generally “sign with people they know well.” But today, when so much communication is virtual, more deaf people are signing with more strangers, and the popularity of social media that’s video-focused—TikTok and Instagram, for instance—are more adaptable to ASL than other apps. “How do they modify their ASL to communicate with these people they’ve never met before?” Wilkinson asks. “That’s a very big question to research, because so far deaf people haven’t really had big experiences in communicating with people in ASL that they’ve never met before.” She also wonders about physical interactions between mask-wearing ASL users. If requirements to cover faces last long enough, what workarounds will appear in the absence of facial expressions to help decipher meaning?
Burke, the Gallaudet professor, sees an opportunity. She says that after the pandemic, the way deaf people interact with everyone could stop being an afterthought. Rather than deaf accessibility to Zoom in the form of an app update, it could be in the default product. She points out that the neighborhood around Gallaudet is like the border between two countries, where “people will pick up parts of the other’s language.” In non-hearing circles, Burke says, people are more patient in their communications and have to focus on each other. “In spoken-language communities, there is almost an affront when you miss something said,” she points out.
Fortunately for Ashley, that wasn’t the case during her eye exam in Louisiana. For much of the appointment, one of the assisting specialists pulled his mask down to speak. The entire exam took several minutes. It’s possible Ashley could have gotten her eyes checked closer to home. The ADA attempts to ensure that access to services in her life is no different than for anyone else. The demands of a five-hour drive across state lines are grueling, but when she arrived she knew that her needs and those of other deaf people were taken into consideration. Still, it was only one interaction of many. “This is a very frustrating time for everyone,” she says. “I like my independence, but now I feel like I need someone with me all the time.”
On a September morning in 2001, Native American leaders from across the country convened in a ballroom at the Grand Hyatt in Washington, DC to talk strategy. The Supreme Court was escalating a destructive war on tribal sovereignty, weakening the power of Indigenous nations to protect their people and lands. As the meeting opened, Sen. Daniel Inouye of Hawaii took the podium and stunned everyone with the news that two planes had just hit the twin towers of the World Trade Center. The meeting’s 300 attendees flocked to the lobby to watch live coverage of the attacks.
Less than one hour later, some esteemed tribal leaders called for the meeting to continue as planned. “What’s happened is awful,” lawyer Riyaz Kanji recalls them saying. “But we came here from all around the country to address some big issues. So let’s get to work.”
Their willingness to proceed testified to the urgency of their task. Though federal policies were slowly becoming more supportive of Native peoples, the Supreme Court had delivered two decades’ worth of judgments limiting their progress. In 2002, legal scholar David Getches “found that convicted criminals won 34 percent of the time while Indian tribes have won only 23 percent of the time.” He added, “Nobody does worse in this Supreme Court than Indian tribes.” After 2000 brought particularly brutal rulings over taxation and jurisdiction issues, tribal leaders and lawyers decided they needed a new approach. Thus, on September 11, 2001, they formed the Tribal Supreme Court Project—and their luck began to change.
The project was instrumental in securing last month’s victory in one of the most important tribal cases of the past century. In McGirt v. Oklahoma, the Supreme Court found that nearly half of Oklahoma still belongs to the Muscogee (Creek) Nation and other tribes, at least for jurisdictional purposes. In a majority opinion that evoked strong emotions throughout Indian Country, Justice Neil Gorsuch—a Trump appointee—suggested that the court has a duty to hold the US government to its oft-broken promises to tribes, marking the fourth consecutive ruling in favor of Natives’ treaty rights. This may be the dawn of a new judicial era, catalyzed by the Tribal Supreme Court Project and by new justices whose opinions reflect an evolving understanding of Indian law and history.“We’ll be quoting passages in [Gorsuch’s McGirt] opinion for the rest of our lives.”
Federal courts play a much larger role in the lives of Native Americans than most people’s, says Elizabeth Kronk Warner, citizen of the Sault Ste. Marie Tribe of Chippewa Indians and dean of the law school at University of Utah. That’s because “Indian” is technically not a racial identity but rather a legal designation. “It’s by virtue of my political relationship with my tribe that I also have a special relationship with the federal government,” she says. For tribal members, “everyday issues” like hunting rights and land ownership “become questions of federal law,” specifically a long-neglected branch of it called “Indian law.”
Under Indian law, crimes committed by Indians on reservations must be tried in federal court if they are felonies or involve non-Indian victims. This was at issue in McGirt v. Oklahoma: A Seminole man named Jimcy McGirt was sentenced to life by the state of Oklahoma for committing sex crimes against a child in 1996. Yet the felony happened on lands that Congress designated as the Muscogee (Creek) reservation after having removed the Muscogee from their southeastern homelands during the “Trail of Tears” in the 1830s.
Later, after encouraging white settlers to purchase much of the land promised to the Muscogee and four other tribes, both Congress and the state of Oklahoma ceased to recognize the original reservation boundaries. Yet the Supreme Court held last month that Congress never officially disestablished any of the five reservations, meaning those lands—making up more than half the state—are still part of “Indian Country,” a patchwork of Native communities across the US where state laws rarely apply. Jimcy McGirt, and dozens of tribal citizens in similar situations, should have been tried in federal court.
They may now be retried, thanks to the efforts of McGirt’s lawyer Ian Gershengorn, Riyaz Kanji (who argued on behalf of the Muscogee), and others connected to the Tribal Supreme Court Project, a nationwide brain trust of more than 300 attorneys and scholars who collaborate to boost tribes’ arguments before the Supreme Court. It was formed out of a sense that the highest court in the land, a sometime ally of tribes throughout history, was turning sour on tribal sovereignty. John Echo-Hawk, founder of the Native American Rights Fund (NARF), was echoing a common sentiment when he declared in 2001, “There’s a crisis in Indian Country, and it’s called the US Supreme Court.”
Since then, the Tribal Supreme Court Project has monitored 400 Indian law cases as they made their way through the courts, watching those likely to reach the Supreme Court and inviting their network to collaborate on petitions, arguments, and representation for the more than 150 that have. Spreadsheets are updated and shared by Joel West Williams, a Cherokee attorney who leads the initiative for NARF, which along with the National Congress of American Indians has anchored the Tribal Supreme Court Project from the start. In that time, says Williams, “the quality of tribal advocacy at the court has substantially improved,” not just with regard to representation but “the whole package of court presentation.”
Within two days of the Supreme Court agreeing to review the McGirt case, Williams was on a call with Kanji to plan a strategy around amicus briefs, the written arguments filed by outside parties interested in a case. Kanji knew from his time clerking for David Souter, in 1994, that Supreme Court justices have neither the obligation nor the time to read every brief that’s filed. He suggested the project focus on coordinating a limited lineup of briefs that clarify key issues, written by people of interest to the court (rather than piling on the briefs ad hoc over time). For McGirt, they recruited former US attorneys to file briefs challenging Oklahoma’s argument that redrawing the jurisdictional lines would create legal turmoil, and they found state elected officials to write about the high degree of existing cooperation between Oklahoma and tribes.
Williams invited everyone on the project’s email list to a call, soliciting feedback from anyone interested—which, given McGirt’s potential implications for all tribes, was an extra large group. “The project has become a clearinghouse for information,” says Kanji, an immigrant from Uganda who has devoted hundreds of pro bono hours to the project. When the lead attorneys needed more evidence of the US “crushing tribal reservations,” they quickly accumulated examples from across the country. “It’s a very inclusive approach,” says Williams.
The Tribal Supreme Court Project was inspired by a similar initiative by the National Association of Attorneys General, which began coordinating efforts to defend states before the court in 1982, as Reagan’s “New Federalism” devolved regulatory powers to states and exposed them to more litigation. Yet despite the groundbreaking intertribal collaboration, the Indigenous project has only begun to win consistently in the past five years, since the arrival of Justices Sonia Sotomayor, Elena Kagan, and Gorsuch. Before that, the court had already flip-flopped several times in its approach to tribal issues.
Indian law as we know it dates back to the 1820s, when then–Chief Justice John Marshall authored the first of three landmark Supreme Court decisions known as the “Marshall Trilogy.” These rulings, two of which involved the Cherokee Nation in the lead-up to the Trail of Tears, established the federal government’s primacy over states in dealing with Indigenous nations, who Marshall said had a sovereign right to manage their own affairs.
Their newly recognized sovereignty was soon crushed when President Andrew Jackson pushed forward with a program of forced removal, kicking off a century in which Indian policy shifted toward conquest, land grabs, and annihilation. The Supreme Court began following Congress’ and the executive’s lead, says Dylan Hedden-Nicely, a citizen of Cherokee Nation and law professor at the University of Idaho. The turning point was United States v. Kagama, which in 1886 held that the federal government could prosecute major crimes committed by one Indian against another, diminishing tribes’ sovereign right to govern their own citizens.
The Supreme Court’s last swing in favor of tribes came during the civil rights movement of the 1960s—the era of the American Indian Movement and the Alcatraz occupation (pictured above).
“Indian tribes are the wards of the nation,” wrote Justice Samuel Miller in that majority opinion, which Hedden-Nicely says “acknowledged the sovereignty framework laid out by John Marshall, but at the same time essentially said, ‘It doesn’t apply anymore.'”
From that point on, Hedden-Nicely argues, the court had two conflicting sets of precedents it could follow. In deciding a case, it would choose one or the other to justify its desired outcome—generally, the one least detrimental to non-Indians. “Rather than using baseline rules and applying them without bias, the court has been weighing tribes’ rights against how they would affect the lives of non-Native people,” he says.
This created a “whipsaw effect”: As successive waves of federal officials tried to weaken tribes, then build them up, then “terminate” their special status, the court followed, hewing back and forth. The legal standing of tribes was always shifting, inhibiting their economic development.
Prior to this past decade, the court’s last swing in favor of tribes came during the civil rights movement of the 1960s, when the American Indian Movement and Alcatraz occupation won federal self-determination policies that gave tribes increasing control over federal lands, funds, and programs. Justice Thurgood Marshall took special interest in Indian law and wrote opinions attempting to fortify it. In Santa Clara Pueblo v. Martinez, his majority opinion advanced the idea that tribes, who pre-date the US Constitution, were not bound by all its limitations on statutory power. In the landmark Oliphant case, he argued in his dissent that tribes should be able to prosecute non-Indians on their reservations as a matter of tribal sovereignty.
With the Indian Regulatory Gambling Act of 1988, money began rolling into tribes that could be spent on more and better lawyers. This was good timing. Under new Chief Justice William Rehnquist, the court was adopting a “colorblind justice” approach to questions of tribal rights, chipping away at Native sovereignty.
Which brings us to 2000, when the project arose after two devastating decisions. One barred tribes from taxing non-Indian businesses on their reservations; the other limited their jurisdiction over Indian lands held in federal trust. In both unanimous rulings, Justices Ruth Bader Ginsberg and Sandra Day O’Connor joined Rehnquist, Clarence Thomas, and Antonin Scalia. Positions on Indian law, still largely opaque even to Supreme Court justices, rarely follow neat ideological lines.
Tribal advocates are not surprised that Gorsuch, a conservative Trump appointee, has consistently favored tribes. Previously appointed by President George W. Bush to the 10th Circuit Court of Appeals, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming, Gorsuch adjudicated many tribal cases and developed an understanding of Indian law commended by Native leaders. Like fellow Westerner Sandra Day O’Connor, Gorsuch met and dialogued with tribal lawyers outside the courtroom. While his “textualist” approach might be reactionary on reproductive freedoms or gun laws, Indian law scholars say it provides a strong basis for upholding the rights and reservations promised to tribes in treaties.
“We’ll be quoting passages in [Gorsuch’s McGirt] opinion for the rest of our lives,” Kanji says. In his ruling, Gorsuch argues that the court shouldn’t ratify “the rule of the strong” over “the rule of law”: Treaty promises can’t be nullified through conflicts or swindles but only by explicit acts of Congress. Similar principles were affirmed in last year’s decision interpreting the Yakama Nation Treaty of 1855 as exempting its reservation from a fuel tax, and another that supported the Crow Tribe’s right to hunt on federal lands.
In 2018, Washington v. United States upheld a lower court decision requiring the state of Washington to spend billions redesigning roadways to support salmon spawning, in order to preserve Indigenous fishing rights. Says Kanji, who helped argue that case, “The idea that tribes can use their treaty rights as a sword to protect the environment has gained greater currency,” especially since the tribes united at Standing Rock in 2016 launched litigation against the Dakota Access pipeline.
A district court judge recently ordered the pipeline to shut down, just one example of how growing respect for tribal sovereignty is also yielding victories in the lower courts. “The Supreme Court definitely sets that tone,” says Kanji. “Its decisions are binding precedent.” But he also acknowledges that the lower courts are diverse: Some appeals judges have construed tribal rights even more narrowly than Rehnquist, while others steadily expand them. Kronk Warner and Hedden-Nicely agree that a positive trend is emerging. As social movements like Standing Rock and Black Lives Matter raise the profile of oppressed groups and their struggles, law schools are finally teaching Indian law, and the new generation of lawyers and judges has been primed to hear it. “It snowballs from there,” says Hedden-Nicely. Those who understand the basis of tribal sovereignty are usually more inclined to defend it.
Today’s reckoning with American history might also play a role. Gorsuch opens his opinion by narrating a surprisingly emotive picture of tribes being marched halfway across the country, only for their new lands to be stripped—in previous eras such pathos may not have carried much weight. Kanji says his side strategically appealed to history. “The states or others will spin these stories about how tribal rights were abrogated over time,” he says. “Unless you’re offering a narrative that’s more historically faithful, your side of the story will be lost.”
While the Supreme Court is insulated from outside advocacy, grassroots movements can beget changes that eventually affect major rulings. Justices “reflect what the political system looked like when they were appointed, which is driven by what our culture is like,” says Hedden-Nicely. “But there’s always a lag,” since judicial turnover is slow; lawmakers and executives only gradually get chances to appoint and confirm new judges. Thus Kanji believes tribes must fight for their rights both in the courtroom and in the arena of public opinion. “Many tribal cases fall at the intersection of the courts and the political system,” he says. “You can’t litigate these cases in a vacuum, because there’s always the possibility that a judicial gain could be undone by a legislative correction.”
The Tribal Supreme Court Project is already working on a Firth Circuit case concerning the Indian Child Welfare Act, which Hedden-Nicely calls “the single most important issue for Indian Country today.” Brackeen v. Bernhardt asks whether ICWA, through which Congress granted tribes priority in deciding foster care placements for Native children, violates an alleged Constitutional restriction on “racial preferences.” A judge ruled in 2018 that overturning the law would violate tribal sovereignty. Hedden-Nicely thinks the case isn’t really about children but is just one of many “unrelenting attacks on the idea that Indians have any special status under the law.”
He doesn’t expect the Supreme Court, which has already twice upheld ICWA, to hear the Brackeen case. And if it did, given recent trends, it’d be unlikely to decide against tribes.
“At a time where Congress is not being particularly helpful on Indian policy, and the executive is being actively antagonistic, it’s very comforting to have at least one branch of government acting in a way that’s consistent with their trust responsibility to Indian tribes,” says Hedden-Nicely. When the court sides with Congress and the president in ignoring tribal sovereignty, “bad things start to happen.”
Like many people, Minu Aghevli watched January’s impeachment proceedings in horror. It wasn’t just because she was outraged that Donald Trump had abused the power of his office. Nor was it because she thought Trump was the victim of a nasty partisan “witch hunt,” as he loves to put it. What shook her was how the intelligence community whistleblower—whose complaint kickstarted the whole impeachment process—was being treated.
In hundreds of statements about the whistleblower—from bullying tweets to negative comments made to reporters—Trump didn’t just publicly question the person’s motives and dispute their account; he threatened retaliation and called for the person’s identity to be revealed. Several Republican members of Congress also claimed to know the whistleblower’s identity and repeatedly tried to name them. When the House Intelligence Committee released its official impeachment inquiry report, it offered a particularly grim summary: “Most chillingly, the President issued a threat against the whistleblower and those who provided information to the whistleblower regarding the President’s misconduct, suggesting that they could face the death penalty for treason.”
Aghevli, herself a federal whistleblower, felt sick watching all this play out on such a public scale. “It made me cry,” she tells me with a quiver in her voice. “Because I felt like, ‘Oh God, I know exactly what that feels like.’”
Anti-whistleblower signs from Republicans during last year’s impeachment hearings.
That feeling would only get worse for Aghevli—and for the thousands of public servants who report misconduct in the federal government each year. In the months since the Senate acquitted Trump of two impeachment charges, the president has declared an all-out assault on whistleblowing. Beginning in April, the president dismissed inspectors general—the very people whistleblowers can confidentially turn to in order to report corruption, waste, and abuse of power—in five different departments in the span of just six weeks, starting with Michael Atkinson, the intelligence community inspector general who alerted Congress to the whistleblower complaint about Trump’s Ukraine phone call.
In the midst of this IG firing spree, Aghevli sent me a panicked email late one night: “It’s hard to express how depressing and scary it is to be required to do your annual Whistleblower Protection and Accountability training while the president is firing the IG for taking a report from a whistleblower and the Secretary of the Navy is essentially threatening the sailors of a ship and publicly disparaging their captain who was fired for reporting a health crisis.”
“It’s literally the definition of gaslighting,” she added.
Aghevli spent nearly two decades as a Department of Veterans Affairs clinical psychologist at an opioid treatment program in Baltimore before she blew the whistle in 2014 on a program manipulating wait lists to reduce the number of patients being treated. She thought filing a whistleblower complaint would solve the problem, but it only made her life worse over the years. She received intimidating emails from superiors urging her to keep quiet. Coworkers treated her like a traitor. Her superiors barred her from seeing patients, some of whom she’d treated for 15 years. Eventually, in early 2019, she was reassigned to menial administrative work at a front desk. Then, on June 24 last year, the day before she was set to testify before the House Committee on Veterans’ Affairs, the VA sent her a letter threatening to fire her.
While VA whistleblowers in particular have long faced a culture of retaliation and intimidation—it was an issue that notoriously plagued the Obama administration—it has dramatically worsened in the Trump era. Since Trump took office, the climate for whistleblowing at the VA and across the federal government has never been worse. Federal workers who want to report wrongdoing or corruption in their workplace don’t just risk becoming a professional pariah like Aghevli, but can be turned into pawns in a hyper-partisan political landscape. Retaliatory actions against whistleblowers are increasingly common and GOP lawmakers threaten to dox and punish these public servants for exposing corruption. And it’s all legal thanks to the weak federal whistleblowing laws that the Trump administration has skillfully exploited.
The danger extends far beyond the well-known names most people associate with whistleblowing, the civil servants who sounded the alarm on large matters of national security—the Ukraine whistleblower, National Security Agency executive Thomas Drake, who was prosecuted during the Obama administration, or Edward Snowden, who leaked thousands of pages of classified NSA documents. The reality is that most whistleblowing is far more quotidian, often pertaining to small-scale good governance that doesn’t make headlines. Between 2014 and 2018, more than 14,000 federal employees filed whistleblower disclosures or retaliation complaints, according to data compiled by the Government Accountability Office. And while advocates were outraged by the treatment of the intelligence officer in the Ukraine matter, they’re more concerned about the atmosphere of rank-and-file corruption that has flourished within the Trump administration and the less obvious attacks on the system, and how the current political atmosphere might impede the sort of whistleblowing that is required for competent government. The same month as the House impeachment proceedings concluded, a poll conducted by the Government Business Council, the research arm of Government Executive, revealed that one in three federal workers are now less likely to report wrongdoing in their workplace after attacks by the president and his allies on the Ukraine whistleblower.“Everybody’s scared to death of saying anything, which is bad during a pandemic.”
“On paper, the United States has some of the strongest whistleblower laws around,” says Mark Zaid, an attorney who represented the Ukraine whistleblower. “But they just don’t work, because the policies aren’t implemented properly.”
Consider the fate of the Merit Systems Protection Board, a small agency where federal workers who believe they have been unjustly disciplined or fired can appeal—at least in theory. In practice, it has lost all its ability to address federal whistleblower and retaliation complaints. It has lacked a quorum for the entirety of Trump’s tenure, and since February 2019, it hasn’t had a single member sitting on its board; meanwhile, it has a backlog of nearly 3,000 cases waiting in limbo. It’s a “disastrous situation” for whistleblowers who face retaliation, says Liz Hempowicz, the director of public policy at the nonpartisan Project on Government Oversight.
This dismantling of whistleblower protections is culminating at a dire time, when the Trump administration scrambles to dig the country out of the biggest economic recession since the Great Depression, and as the $3 trillion allocated by Congress to help the country fight the coronavirus pandemic trickles out to local and state governments and countless private companies. But anyone who wants to blow the whistle on fraud, waste, or corruption has essentially no protections. Rick Bright, the former head of the US office tasked with developing a coronavirus vaccine, is one early casualty of the system’s failure. In a whistleblower complaint in May, he alleged that he was booted from his position after his warnings about the seriousness of the virus were ignored, as well as his concerns about the potential harm of hydroxychloroquine, Trump’s preferred drug to treat COVID-19. Bright was essentially demoted and his reputation was tarred by the president and his allies.
“Right now I think it is completely unreasonable to expect any whistleblower to go to any inspector general office within the federal government,” Hempowicz says. “Because there’s no guarantee that the president won’t replace that inspector general with another political appointee whose loyalty is to the administration rather than to the administration of the law.”
Zaid echoes Hempowicz’s concerns: “I don’t think there’s any way that people cannot look at where we are in 2020, and not believe that people would be deterred from coming forward.”
In many ways, the VA under Trump is a perfect microcosm of how oversight in his administration works: Don’t just discourage people from speaking out; make it so their lives will be hell if they do.
It didn’t always seem like it’d be that way. In April 2017, Trump signed an executive order to establish an office to help protect whistleblowers at the Department of Veterans Affairs, which had been plagued by scandals and corruption for years. Months later, the Office of Accountability and Whistleblower Protection (OAWP) became permanent law after it passed through Congress with overwhelming bipartisan support—a moment that offered some hope early in Trump’s tenure that despite the conflicts of interest presented by the president, perhaps his administration could work across the aisle to pass laws to stamp out corruption and mismanagement.
Whistleblowing, after all, has a long history of bringing lawmakers together. Ever since the Revolutionary War, when 10 American naval officers reported on their commodore torturing captured British soldiers, Congress has recognized that protecting the rights of whistleblowers is the best defense against corruption. That episode led to the world’s first whistleblower protection law, which was passed on July 30, 1778—two years after the Declaration of Independence was signed. Since then, Republicans and Democrats have traditionally been united in the idea that protecting whistleblowers is “critical to keeping our democracy alive,” explains Allison Stanger, a professor at Middlebury College and author of the book Whistleblowers: Honesty in America from Washington to Trump. The Whistleblower Protection Act, which passed through Congress with overwhelming bipartisan support in 1989, set up modern whistleblowing laws, granting several federal offices with the authority to properly investigate any disclosures while protecting the employees who filed them. In 2012, Barack Obama signed the Whistleblower Protection Enhancement Act into law, which added more protections from retaliation for federal whistleblowers. It had passed Congress with unanimous consent.
“It’s really a democracy preserving system, consistent with the Constitution,” Stanger says of modern whistleblowing laws. “It’s specifically rooted in law, and it’s something that both Republicans and Democrats alike, until very recently, supported.”
That changed with Trump. While his allies like Rep. Devin Nunes (R-Calif.) and his current chief of staff, former Rep. Mark Meadows (R-N.C.), have long records of supporting whistleblower laws and federal whistleblowers, they have been some of the people most vociferously attacking the Ukraine whistleblower. “If I had a degree of certainty who the whistleblower is, I promise you I would tell you,” Meadows told reporters in October amid the House’s impeachment inquiry hearings.
“This administration has brought the worst out in people at so many different levels,” Zaid says.
Trump’s most egregious Twitter attacks on whistleblowers :
“Like every American, I deserve to meet my accuser, especially when this accuser, the so-called “Whistleblower,” represented a perfect conversation with a foreign leader in a totally inaccurate and fraudulent way. Then Schiff made up what I actually said by lying to Congress……”
“Sounding more and more like the so-called Whistleblower isn’t a Whistleblower at all. In addition, all second hand information that proved to be so inaccurate that there may not have even been somebody else, a leaker or spy, feeding it to him or her? A partisan operative?”
“The Whistleblower got it sooo wrong that HE must come forward. The Fake News Media knows who he is but, being an arm of the Democrat Party, don’t want to reveal him because there would be hell to pay. Reveal the Whistleblower and end the Impeachment Hoax!”
Jay DeNofrio, an Obama-era whistleblower at the VA, has been similarly disillusioned by how Trump and allies have worked to silence his peers. Like that of Aghevli, DeNofrio’s experience was maddening and isolating. In 2013, while working as an administrative officer at a VA hospital in Pennsylvania, he suspected that a doctor he had a close working relationship with was suffering from dementia. The last thing he wanted was to get anyone in trouble, but he noticed severe peculiarities—the doctor would forget recent conversations, or the names of employees he had worked with for years. There were complaints about the doctor forgetting to ask about patients’ medical histories, performing invasive exams without gloves, and giving out severely false medical advice, including a near-fatal episode in which he allegedly sent a patient with double pneumonia home with only the instruction that the patient’s spouse massage their ribs as a treatment. DeNofrio reported his concerns to the hospital’s director and chief of staff in a letter. Since another doctor at the hospital attached his name to the letter as well, DeNofrio expected that the hospital would act accordingly and take the doctor off duty to protect patients from more potentially fatal errors. Instead, the hospital ignored DeNofrio’s warnings for months. Finally, the hospital’s leadership gave in to his concerns and agreed to administer a cognitive test—which was later determined to be faulty. The doctor passed and the hospital’s administrators warned DeNofrio to “no longer report concerns related to impairment.”
DeNofrio continued to sound the alarm for two years, going up the chain until it came to the attention, in 2015, of the US Office of Special Counsel—the federal watchdog agency charged with protecting whistleblowers and investigating their claims. All the while, DeNofrio says the leadership of the Altoona VA kept trying to silence him. He claims they’ve retaliated against him through denied promotions, low job performance ratings, denied overtime pay, and threats of dismissal. “I didn’t fully think of it as whistleblowing,” DeNofrio says. “I was just trying to keep patients safe.”
DeNofrio was able to find solace by connecting with other VA whistleblowers, like Aghevli, through a group called the VA Truth Tellers that formed in 2015 as a way to help connect whistleblowers with resources, educate them on their rights, and advocate for stronger protections. Eventually, he became one of the group’s strongest advocates, helping guide other potential whistleblowers through the process. “I would tell them to do what’s right, “DeNofrio says. “That’s the hardest part; it’s trying to show people that you’re going to face retaliation, but I stress that the strongest right you have as a whistleblower is your First Amendment right.”
But as Trump and his allies took control of the VA—both in official leadership and in more behind-the-scenes maneuverings—DeNofrio discovered that the new law meant to protect VA whistleblowers had been manipulated into a tool for the agency’s leadership to single out and impose even more retaliations against whistleblowers. Peter O’Rourke, a Trump loyalist and veteran with experience in government consulting, was appointed the first director of the Office of Accountability and Whistleblower Protection (OAWP). This new office was supposed to offer whistleblowers a direct line to report mismanagement and wrongdoing to an independent office whose sole purpose was to investigate these claims, rather than reporting them directly to their supervisors. Trump said the office would be one of the “crown jewels” of his administration.
Instead, O’Rourke, the very person charged with safeguarding whistleblowers, used his position to retaliate against them, according a blistering report released late last year by the agency’s inspector general. “OAWP leaders made avoidable mistakes early in its development that created an office culture that was sometimes alienating to the very individuals it was meant to protect,” the report states.
Even though both Aghevli and DeNofrio became whistleblowers in the previous administration, they say that because they’d been so public about their experiences, they were targeted by the new office as problematic employees. In one instance, on the eve of the annual Whistleblower Summit on Capitol Hill in 2017, where DeNofrio was scheduled to speak, he says a group of whistleblower attorneys in DC called him with a warning: “They said Peter O’Rourke said that if you come to this summit, he’s going to go to the Republicans on the Hill and tell them to shut it down for the entire whistleblowers summit.”“I don’t think there’s any way that people cannot look at where we are in 2020, and not believe that people would be deterred from coming forward.”
Not long after the OAWP formed, DeNofrio began hearing that many of the whistleblowers in the Truth Tellers group were increasingly being threatened and fired. “If someone had an issue, they would call one of us in this group and we would get them an attorney, or help them with an administrative investigation, or get them with a reporter, whatever they needed,” DeNofrio says. “Before Trump, you could do this and you weren’t going to get fired.”
The inspector general report confirmed what DeNofrio had heard from the Truth Tellers, and in turn eviscerated O’Rourke’s leadership. The IG found that the office was only willing to open cases if a whistleblower was willing to reveal their identity—effectively discouraging people who feared reprisal. Meanwhile, some individuals who attempted to raise concerns about management ended up becoming the target of a probe by the office. O’Rourke and other OAWP officials also “made comments and took actions that reflected a lack of respect for individuals they deemed ‘career’ whistleblowers,” like DeNofrio and Aghevli. One troubling instance in the report “involved the OAWP initiating an investigation that could itself be considered retaliatory”: At the behest of a senior official with social ties to O’Rourke, the office investigated a whistleblower who had filed a complaint against the senior leader. After a brief investigation, the OAWP substantiated the senior leader’s allegations without even interviewing the whistleblower.
O’Rourke was forced out in December 2018, but his ouster didn’t change much. Tamara Bonzanto, who took over the OAWP in January 2019, promised during multiple Senate confirmation hearings to turn around the problems that plagued the department, but a POGO investigation released this March found many of the same issues still festering in the VA. “Employees of the accountability office say it is beyond dysfunctional and that people are ‘terrified’ now that efforts to reach out to Congress and communicate with higher-ups in the department have failed to keep the office’s leaders in check,” the report says.
Brandon Coleman, a high-profile former VA whistleblower who was tapped by O’Rourke to work in the OAWP—initially seen by many as another promising sign that the Trump administration would be friendly toward whistleblowers—has gone on the record about how bad the OAWP became. He filed a complaint last summer, which was also sent to members of Congress, that described the work environment as “toxic” and called the office a “dumpster fire.” Coleman said he and other colleagues in the OAWP had been shut out of important meetings and worried they’d be demoted for speaking out. Last spring, the OAWP even shut down Coleman’s whistleblowing mentorship program, which he had established as a way to help victims of retaliation in the VA. “How can you treat your employees the exact way we’re trying to protect employees from being treated?” Coleman told USA Today.
DeNofrio still works at the VA, though he was recently demoted to a teleworking position. He believes the only reason he hasn’t been fired in the past three years is because of how public he’s been about his whistleblowing—though the OAWP has tried. According to internal OAWP communications that DeNofrio obtained through the Freedom of Information Act and subsequently shared with Mother Jones, investigators in the office interviewed his coworkers and encouraged them to immediately document and report “any instances of poor behavior” by DeNofrio, stating that just because he was a protected whistleblower doesn’t mean he gets to “walk on water.”
Despite the current circumstances, he’s still managed to maintain a loose network of VA whistleblowers who are able to give advice, offer connections to legal support, and provide other resources to potential whistleblowers, albeit much more discreetly than when he was with the Truth Tellers, which essentially disbanded after the failures of the OAWP became apparent. But everything that happened with the Ukraine whistleblower, he says, has spooked some of the people he’s connected with recently.
“Everybody’s scared to death of saying anything,” he says, “which is bad during a pandemic.”
Still, people are saying something: As of July 28, the Office of the Special Council recorded that 73 whistleblower disclosures related to the pandemic have been filed. There’s also been “92 complaints of prohibited personnel practices related to COVID-19,” a spokesperson for the agency tells me in an email. But the risk remains immense. At least 15 of those whistleblowers have filed complaints alleging that they’ve been retaliated against for raising concerns.
“We’re entering a highly unstable period in our history with the public health crisis and economic crisis on top of that,” says John Kostyack, who heads the National Whistleblower Center, a nonprofit organization that connects whistleblowers with legal assistance and advocates for stronger whistleblower protection laws. “We think that the need for whistleblowers is going to grow and the obvious benefit that they deliver will become even more obvious.”
COVID-19 continues to paralyze the country in ways we could never have imagined, and the federal and state response to mitigate the effects of the pandemic has opened up mountains of opportunities for malpractice and corruption. It’s already clear how critical the ability for whistleblowers to act without fear of reprisal is in this moment. Back in February, one senior official with the Department of Health and Human Services raised alarm that the workers receiving the first Americans evacuated from Wuhan, China, did so without proper training or protective gear. And in early April, Christi Grimm, then the acting top watchdog for HSS, signed off on a report that said that the nation’s hospitals were struggling to combat COVID-19. Days later she was criticized by the president, and on May 1, she was ousted when Trump nominated a permanent inspector general to replace Grimm, who had held the position on an acting basis since January. Then, later this spring, Trump also fired Glenn Fine, who had been the Defense Department’s acting IG since early 2016 and was briefly appointed to lead a watchdog panel overseeing the White House’s coronavirus economic relief. Fine hadn’t even been given the chance to begin an investigation.
One of the biggest challenges to pandemic oversight, according to Stephen Kohn, a whistleblower lawyer who also works with the National Whistleblower Center, is finding ways to both encourage whistleblowers to come forward and protect them when they do—and not just ones working for the federal government.
Flaws in whistleblowing laws make it harder for nonfederal workers to flag corruption or negligence, which Kohn says is particularly crucial as certain front-line sectors are being rushed back to work despite hazardous conditions. One particular area of concern is in the Occupational Safety and Health Administration (OSHA)—the federal agency where these workers can alert the government about fraud and corruption in private corporate action. Kohn explains that OSHA’s whistleblowing laws essentially stymie any worker who files a complaint alleging that their employer broke the law because it creates a “legal mechanism” in which Trump runs the show with no judicial appeal. In other words, any worker who files an OSHA whistleblower retaliation complaint cannot take that complaint to court; it’s up to government officials in the Department of Labor, which houses OSHA, to determine if the complaint has merit. Kohn says it’s an outdated law that he fears Trump administration officials will exploit to reinforce the president’s desire to reopen the country and send people back to work, even if it’s not safe to do so. “If Trump decides that it’s time to return people to work, he can literally give every single business in this damn country a pass, and that puts workers in the same position that these national security whistleblowers found themselves in,” Kohn says.“[Whistleblowing is] a democracy preserving system…and it’s something that both Republicans and Democrats alike, until very recently, supported.”
That puts essential workers, such as health care professionals, at particular risk for reporting wrongdoing. There’s already been a number of health care first responders who have come forward to expose a wide variety of issues in hospitals struggling to fight COVID-19: an appalling lack of N95 masks and personal protective equipment; nurses in New York City hired from out of state and placed in units where they have no experience; and too many cases of workers fired for speaking out against dangerous conditions that unnecessarily put themselves at risk.
The medical field is far from the only industry flooding OSHA with whistleblower complaints; at a House hearing in May, it was revealed that OSHA has already received nearly 5,000 complaints related to COVID-19, and it’s taken enforcement action in only one of those cases.
“We want to believe that the world is basically fair,” Aghevli says. “So the deeper we sink into this climate of intimidation and unethical behavior, the harder it will be for people to keep a clear head and change course.”
There’s no better example of Aghevli’s theory than the plight of Rick Bright, the vaccine expert and HHS whistleblower. In late June, Bright filed an update to his original whistleblower complaint, alleging that since he was ousted from his role in overseeing the federal development of a COVID-19 vaccine in April, HHS Secretary Alex Azar has been “on the war path” to punish him. The complaint alleges that Bright was reassigned to the National Institutes of Health, where he was supposed to be working on coronavirus testing, but his role had been essentially confined to “making contracts with diagnostics companies.” Azar also allegedly told HHS employees to “refrain from doing anything that would help Dr. Bright be successful in his new role,” according to the complaint.
It’s all because Bright dared to cross Trump in his attempt to push hydroxychloroquine as a potential treatment for the coronavirus. Since news of Bright’s whistleblower complaint broke, Trump has used the same playbook that he did for the Ukraine whistleblower: Disparage and discredit. In comments to reporters and on Twitter, both Trump and Azar painted Bright as a “disgruntled employee,” who was unfit for his job and just collecting a paycheck. “I don’t know the so-called Whistleblower Rick Bright, never met him or even heard of him,” Trump tweeted, “but to me he is a disgruntled employee, not liked or respected by people I spoke to and who, with his attitude, should no longer be working for our government!”
“When you see that kind of conversion from the idea that whistleblowers are something that helps keep us on the rails to the rhetoric that they’re an enemy of the people, you’re saying that it’s all political,” Stanger says. “And that’s how democracies die.”
Image credit: Mother Jones illustration; Drew Angerer/Getty
This post was originally published as part of “The Trump Files”—a collection of telling episodes, strange but true stories, and curious scenes from the life of our current President—on October 25, 2016.
Even the death of a child couldn’t keep Donald Trump from talking about hitting on the boy’s mother.
In January 2009, Kelly Preston and John Travolta’s son Jett passed away at the age of 16 after suffering a seizure while on a family vacation. Four days later, Trump wrote a blog post dedicated to Preston on the website of the now-defunct Trump University, which has been sued by the state of New York and former students over claims of fraud.
The mogul expressed his condolences to Preston for her loss, but not before he mentioned the time he tried to sleep with her. According to Trump, the attempt failed.
“A long time ago, before I was married, I met Kelly Preston at a club and worked like hell to try and pick her up,” he wrote on the Trump University website. “She was beautiful, personable, and definitely had allure. At the time I had no idea she was married to John Travolta.”
He continued, “In any event, my track record on this subject has always been outstanding, but Kelly wouldn’t give me the time of day. She was very nice, very elegant, but I didn’t have a chance with her, and that was that.”
Trump ended his blog post by saying his thoughts were with Preston and her family.
This is good news, or as close as we get to it these days:
The White House and Democratic leaders agreed to try to finalize a deal to address lapsed unemployment benefits and eviction restrictions by the end of this week and hold a vote in Congress next week, suddenly trying to rush stalled talks in the face of growing public and political unrest.
I suspect the sudden interest in cutting a deal has more to do with the fact that the Senate goes on a monthlong recess starting Friday, and even Republicans don’t want this hanging over their heads during their visits home. Which is fine. If that’s what it takes to motivate Republicans to reach an agreement, I’ll take it.
I’m also impressed with this statement from Mitch McConnell:
“The American people, in the end, need help,” Senator Mitch McConnell, Republican of Kentucky and the majority leader, told reporters. “And wherever this thing settles between the president of the United States and his team that has to sign it into law and the Democrat not-insignificant minority in the Senate and majority in the House is something I am prepared to support, even if I have some problems with certain parts of it.”
That’s not bad, coming from a Republican leader. No, really.
In a stunning upset, Black Lives Matter activist Cori Bush has defeated 10-term incumbent Rep. Lacy Clay in the Democratic primary for Missouri’s 1st Congressional District, according to the Associated Press. Bush, a minister and registered nurse, has been heavily involved in protests against police violence since the 2014 Ferguson protests. Mother Jones‘ Kara Voght wrote about the race last week:
For 400 days in 2014 and 2015, protesters gathered in Ferguson, Missouri, to register their outrage over the police killing of unarmed Black teenager Michael Brown. For most of those days, Bush joined them—at first, in her capacity as a registered nurse to tend to protesters’ injuries, and later as a community organizer on the front lines. She went out again in 2017 to organize after another white police officer was acquitted of murder in the 2011 shooting death of a Black man during a car chase in north St. Louis. This year, as Americans across the country protested Floyd’s killing, a white police officer in the St. Louis suburb of Florissant—Bush’s hometown—ran over a Black man with his unmarked SUV before getting out of the car to repeatedly kick him. And so Bush and her fellow Ferguson activists organized yet another demonstration against police brutality. During a June gathering, she tweeted that she had been pepper-sprayed in the eyes by the cops.
The race features two Black leaders with very different ideas about how to create change. Clay is a consummate insider who has spent decades building political power, which he has used to secure tangible, if incremental, progress on issues including police abuse. Bush, who is also an ordained minister, has little patience for incremental measures. She believes the district that helped turn Black Lives Matter into a national movement should have an activist in its congressional seat, someone who stands unwaveringly with BLM’s demands.
Bush has also slammed Clay’s coziness with corporate interests. Three-quarters of the nearly $750,000 Clay raised through June of this year came from political action committees, nearly 80 percent of which are backed by big business. His top campaign contributor is Quicken Loans, a mortgage giant that Clay is charged with overseeing from his perch on the Financial Services Committee. In 2015, the Justice Department sued Quicken for originating hundreds of home loans for borrowers who weren’t eligible for them. (The company agreed to pay $32.5 million to settle the case without admitting wrongdoing.)
Clay maintains that his fundraising has no bearing on how he votes. But Fight Corporate Monopolies, a progressive group, placed a six-figure television ad buy to revisit an episode in which Clay sided with financial services companies to fight against a rule that would force investment advisers to act in their clients’ best interests.
You can read the full story here.
Kris Kobach spent the final days of his primary campaign denying that he’s racist. “If I’m a white nationalist, I’m not a very good one,” Kansas’ notorious Republican Senate candidate said at his closing events. In fact, this statement is entirely true. Kobach has the record of a white nationalist, just one who has repeatedly bungled his agenda.
The reason Kobach found himself fending off questions about white nationalism is because his fellow Republicans accused him of having ties to white nationalists in a television ad blanketing Kansas’ airwaves. In a political world that is often sinister, this ad is, like Kobach’s response, an act of political honesty. “Why would Kris Kobach lose again in November?” the ad asks. “Kobach has strong ties to white nationalists.” The message is crystal clear: Kobach will lose to a Democrat in November, so vote against him in the primary.Kobach hasn’t always bore the stench of loss.
Kobach shares an agenda with President Donald Trump, one of a small cohort of national figures who can claim to be as anti-immigrant, anti-Muslim, and pro-voter suppression as Trump. And he can boast that he was advocating these policies before Trump fully embraced that agenda. Republicans’ problem with Kobach isn’t necessarily his policies, it’s that in recent years, he’s become a loser. Republicans have openly admitted that they spent money to defeat him in the primary so that they didn’t have to spend even more money to help him win in November.
On Tuesday, those king-making Republicans got their wish. Kobach appears to have lost the primary to a more palatable Republican, Rep. Roger Marshall. The Republicans managed to dodge a bullet, though the Democratic nominee, Barbara Bollier, has proved a formidable candidate despite the state’s conservative leanings. Still, it was no mystery why Democrats preferred to run against Kobach.
In 2018, Kobach won a bruising Republican primary for governor by less than 400 votes, then went on to lose the general election to a Democrat by five points—an impressive loss for a Republican in deeply red Kansas. As a result, national Republicans, including Mitch McConnell, tried everything to keep Kobach off the ballot this November. First they courted Secretary of State Mike Pompeo, a former congressman from Wichita, to run. When that failed, they tried to get Trump to endorse one of Kobach’s opponents. Trump refused. Democrats also keyed onto Kobach’s weakness as a candidate, thinking Bollier would have a better chance against him. A group of Democrats, whose identity is not known, set up a super PAC and began to prop up Kobach’s lackluster campaign in the final weeks of the primary with at least $4 million in television ads. This prompted panic from Republicans, who also believe Kobach could lose to Bollier, who responded with $3.3 million in ads, including the one that painted him as a white nationalist.
Kobach hasn’t always bore the stench of loss, and his successes have harmed untold numbers of immigrants and people of color, as well as many other innocent people caught up in his machinations to enshrine a white ruling class in America. A lawyer educated at Harvard, Yale, and Oxford, Kobach has spent two decades dedicated to keeping nonwhite immigrants out of the United States and stopping people of color and other Democratic-leaning communities from voting. After September 11, he used a perch in the Justice Department to implement an anti-Muslim program in the name of counterterrorism that secured no known convictions on terrorist charges, but did lead to deportation proceedings against 14,000 Muslim men. Kobach has deemed it a “great success.”
He returned to Kansas in 2003, lost a race for Congress, and then spent the rest of the decade doing legal work to create and defend of nativist laws around the country while serving a stint chairing Kansas’s Republican Party. His proto-Trumpism included encouraging local police departments to enforce federal immigration statutes. This led to Kobach’s starring role in crafting SB1070, a notorious 2010 Arizona law that allowed local police to demand immigration papers of anyone they stopped. His national profile rose, and he wrote a similar anti-immigrant law for Alabama.Too toxic to get an administration post, he launched a failed bid for governor in 2018. Despite Trump’s endorsement, the defeat was sufficient to brand him a loser.
In 2010, Kobach ran for Kansas secretary of state. “My hope is that Kansas will be to stopping election fraud what Arizona is to stopping illegal immigration,” he declared during his successful campaign. In office, Kobach championed two major voter suppression initiatives. The first was the Interstate Voter Registration Crosscheck Program, or Crosscheck, a database that ostensibly allowed states to compare voter registration files and flag people who may be registered in more than one state. There are successful programs that voting officials use to do this work, but Crosscheck especially excelled at boosting Kobach’s propaganda that voter fraud was undermining American elections while simultaneously helping him disenfranchise eligible voters who were chronically misidentified and removed from the rolls. Researchers at Stanford, Harvard, Yale, and the University of Pennsylvania did a statistical analysis of the program, finding that “200 legitimate voters may be impeded from voting for every double vote stopped.” Kobach managed the program so badly that it had a false positive rate of 99 percent, disproportionately affecting people of color. Kobach’s second major initiative was the Secure and Fair Elections Act, a state bill which required Kansans to show proof of citizenship, such as a passport or birth certificate, in order to register to vote. Again, Kobach claimed the law’s purpose was to prevent voter fraud, but all it did was prevent one in seven new voters from registering.
When Donald Trump became president, he falsely attributed his loss of the popular vote to voter fraud, then tapped Kobach to run a commission to investigate election integrity. The roadmap forward was clear: Kobach would back up the president’s lie, while using his position on the commission to push national voter registration restrictions like he had in Kansas and turn Crosscheck into a nationwide requirement. Republicans had control of the White House and both houses of Congress. Kobach-style voter suppression appeared on the brink of a major national breakthrough.
Instead, Kobach faltered spectacularly as his good luck quickly came to an end. The commission immediately ran into legal trouble for violating federal privacy and transparency laws. When Trump finally disbanded it in January 2018 to put an end to the commission’s legal woes, it faced 15 different lawsuits, including one from one of its own commissioners who had been kept out of the loop by Kobach and his allies.
Back in Kansas, things weren’t going any better. The ACLU was suing to block his proof of citizenship law and Kobach’s defense was going very poorly:
The trial…was supposed to showcase examples of what he claims are widespread voter fraud on the national stage. Instead, Kobach and his team repeatedly failed to follow basic rules of evidence, requiring the judge to lecture him on what she called “Evidence 101.”
In April of 2018, federal judge Julie Robinson held Kobach in contempt of court for failing to follow a court order to register Kansas voters. Two months later, she ruled that the proof of citizenship requirement violated both federal law and the US Constitution. She also ordered Kobach to take six hours of continuing legal education on how to introduce evidence at trial.
Meanwhile, states began to pull out of the Crosscheck program, which Kobach had only recently hoped would become national, over bad data. Privacy concerns led to a Department of Homeland Security audit and a class action lawsuit from the ACLU. In 2019, Kobach’s successor as Kansas secretary of state suspended the program indefinitely.
But Kobach wasn’t giving up. Too toxic by now to get a post in the Trump administration—not because Trump had any problem with him but because Senate Republicans might—he launched a bid for governor in 2018. Despite Trump’s endorsement, he came up short against Democrat Laura Kelly, a defeat big enough to sufficiently brand himself a loser. Nevertheless, Kobach decided to run for Senate in 2020.
Some of Kobach’s losing streak can be attributed to hubris. His farcical performance in court against the ACLU could have been avoided if he had not chosen to represent the law himself, a disastrous decision compounded by his failure to study up on how to conduct oneself during a trial. Given the chance to make voting more difficult for people of color on a national scale as the head of Trump’s voter integrity commission, he instead led it into oblivion by failing to follow basic federal privacy and transparency requirements. His failure to become governor in 2018 was in part attributable to a lazy campaign in which he reportedly refused to raise money or implement a basic get-out-the-vote program, relying instead on Trump’s endorsement and his frequent appearances on cable news. One GOP operative told the Kansas City Star that Kobach’s gubernatorial campaign “was the most dysfunctional thing I’ve ever seen in my life.”The Democrats who elevated Kobach in the hopes of winning a Senate seat in Kansas played with fire.
Kobach had transformed himself from the country’s most formidable racist into a buffoon, but his presence in American politics is no laughing matter. Kobach’s losing streak is also a function of his radical agenda, which is so extreme that it is often in violation of federal laws and the Constitution. The Supreme Court struck down significant portions of Arizona’s SB1070 and refused to resurrect the law it inspired in Alabama. But a Supreme Court full of Trump appointees might view things differently today. Yes, there was his embarrassing performance as a trial lawyer, but Kobach failed to defend his own voter suppression law in Kansas because it, too, was unconstitutional. A better lawyer, under a different judge, might have prevailed.
The longer Kobach, Trump, and their allies push their white nationalist agenda, the more the bulwark of federal laws and Constitutional principles blocking their path will crumble. The courts pushed back against the president’s first blunt attempts to ban immigrants from Muslim countries, but the Supreme Court allowed the third, sanitzed version of Trump’s travel ban to take effect. If the Trump administration had been more sophisticated, and hadn’t tried to sabotage the 2020 census in a fashion truly reminiscent of Kobach’s own ineptitude, the Supreme Court would have allowed it. Again and again, hubristic stumbles have thwarted the worst of Kobach and Trump’s goals. But their stupidity won’t undercut them forever.
The Democrats who elevated Kobach in the hopes of winning a Senate seat in Kansas played with fire. Losers are dangerous, too. They can always become winners again. Trump was a national laughing stock with a record of running businesses into the ground when he became president. Democrats who prayed for Trump to win the Republican nomination in 2016 thinking it would benefit Hillary Clinton should have by now learned a valuable lesson: Elevating authoritarian white nationalists can backfire. By Republicans’ own admittance, they don’t have a problem with a racist agenda as long as it wins votes. Kobach’s ideas, particularly in the era of disinformation and polarization, catch fire. Take Jeff Sessions, who was a backbencher in the Senate for 20 years but still managed to kill multiple bipartisan immigration bills and nurtured aides like Stephen Miller before Trump elevated him to attorney general, to devastating effect.
Some Democrats may wish that Kobach had prevailed, boosting their own chances of winning a long-shot Senate seat. But they should be thankful that a dangerous demagogue will not become a senator any time soon. Losers are only losers until they’re not.
“Cat on a Patio, 2020.” On a technical note, this is a panoramic shot. I took the picture of the cat and then lowered the camera to take a close-up picture of the bricks. The two frames were stitched together into a single vertical picture in Photoshop, which I cropped into (almost) a square. It would take a seriously expensive wide-angle lens to do this in a single shot.August 1, 2020 — Garden Grove, California
In his 1954 memoir, Satchmo: My Life in New Orleans, Louis Armstrong paints a vivid portrait of the 1918 pandemic and the connective tissue of solidarity, resilience, and stamina that helped him survive it:
A serious flu epidemic had hit New Orleans. Everybody was down with it, except me…[The city] ordered closed all schools…churches, theaters, movie houses, and other places of amusement, and [banned] public gatherings…Just when the government was about to let crowds of people congregate again so that we could play our horns once more, the lid was clamped down tighter than ever.
He was 17 years old. Or 18, going by the flag-waving musical myth that July 4, 1900, was his birthday. (It wasn’t; biographers converge on August 4, 1901.) The pandemic “forced me to take any odd jobs I could get. With everybody suffering from the flu, I had to work and play the doctor to everyone in my family as well as all my friends in the neighborhood.”
“If I do say so,” Armstrong added, “I did a good job curing them.”
Armstrong continues to cure. He turns 119 today, and the doors to his music are always open, even if the entrance to America’s full range of public accommodations and rights weren’t always: “I had it put in my contracts that I wouldn’t play no place I couldn’t stay,” he said in a 1967 interview.
Armstrong cared for patients in overcrowded hospitals, a fact no less resonant than his towering contributions to music, culture, and American life. “He was the epitome of jazz and always will be. He is what I call an American standard, an American original,” Duke Ellington said of him. “You can’t play anything on a horn that Louis hasn’t played” was Miles Davis’ take.
After hearing Donald Trump blather away about how great the United States has done in its battle with COVID-19—based on a completely meaningless statistic—perhaps you’d like to see how we’re really doing. Here you go:
We are the seventh worst in the world, behind only Belgium, the UK, Peru, Italy, Sweden, and Chile. At the rate we’re going, in a few weeks we’ll probably be the third worst country in the world. And that’s despite a huge and extremely competent health care system.
There was no good reason for this. Maybe we never had the self-discipline and patience to be Germany (109 deaths per million), but even moderately decent leadership could have cut our number in half and had us trending downward instead of heading back up.
NOTE: For space reasons in the chart, only every third country is labeled. I also deleted tiny statelets.
We all know that Donald Trump is an idiot, so I’ve mostly stopped highlighting the idiocy-of-the-day from the White House. By now, you’re either convinced or you aren’t. But every once in a while Trump turns in a performance so jaw dropping that I just have to pass it along. Here is Trump talking about COVID-19 deaths with Axios reporter Jonathan Swan:
I need everyone to watch this. pic.twitter.com/eRPk7Dr1q5
— southpaw (@nycsouthpaw) August 4, 2020
As always, the question is: Is Trump really so deluded that believes this, or is he just willing to say anything to muddy the waters? Or both? It’s stunning either way.
For more, Inae Oh has a more detailed wrap-up of the Axios interview here.
If the current numbers hold, sometime in mid- to late-September, the United States will likely reach the horrific marker of 200,000 people dead due to the coronavirus crisis. No doubt, the media will widely report on this artificial but significant milepost. If, tragically, the trend ticks up slightly after some schools reopen in late summer and after flu season begins in October, this grim headline could appear shortly before Election Day: “COVID-19 Death Count in the US Tops a Quarter of a Million.” One puzzle is why President Donald Trump does not seem to realize that these nightmarish statistics—and the news stories they will generate—could spell doom for his reelection prospects.
By now it’s damn clear that Trump is a narcissistic sociopath who cannot express an ounce of regret over the deaths caused by the virus. He has boasted about the swell TV ratings of his pandemic briefings; he has said almost nothing of those Americans killed by the pandemic. “It is what it is,” he nonchalantly and ghastly observed the other day. Since the start of this epidemic, Trump has gushed out a series of idiotic and false remarks: The virus is no big deal. It will go away. This is a hoax. We will have a national testing program within days. We will have a vaccine within months. Try hydroxychloroquine. Maybe injecting bleach will help. Case numbers are high because of testing. I take no responsibility. I’ve been right all along. We’ve done an amazing job.
He has pushed to reopen state economies and schools before guideposts established by US government experts were met. He has politicized and, thus, discouraged the most basic practice to arrest the pandemic: wearing masks. Imagine being able to prevent tens of thousands of deaths of your fellow Americans with one easy action—and not taking that step. Ladies and gentlemen, I give you the president of the United States. In recent days, yes, Trump has begrudgingly shifted his stance on masks. His campaign sent out an email to supporters telling them that it is “patriotic” to wear a mask. Yet during his latest White House briefings, when he reads his opening statement that includes encouraging the use of masks, Trump hurries his way through this one line and hardly highlights the point. It’s as if he is swallowing a bitter pill. And this reluctant about-face may have come too late to persuade his live-maskless-or-die followers. The damage has been done.
Trump’s self-obsessed behavior, his dismissal of expert advice, his attacks on news media outlets that report the awful truths of the pandemic, his focus on the positive economic indicators that exist within an economic calamity (look at the Dow Jones!)—none of this is shocking. But what is surprising is that Trump, perhaps the most self-interested man ever to reside in the White House, cannot see that his own and much-cherished personal interests—notably, getting re-elected—are aligned with the public interest of curtailing the pandemic.
Do Trump and his campaign minions believe that he can be reelected as the number of COVID deaths top 200,000 or 250,000? Shouldn’t he be doing whatever he can to prevent these headlines in the final weeks of the campaign? What the hell gives?
The responsible course for the president was not tough to discern. Follow the recommendations of public health experts. Model the appropriate conduct. (Wear a mask!) Assist front-line medical workers. Seek to help the economically dislocated. Mourn the dead and address the national fear and anxiety. Yet Trump’s own inner compass is so broken that he could not even fake concern for his own political benefit. His deep-rooted pathologies—I know best, I can bullshit through anything—blocked him from adopting simple measures that would actually advance his own personal agenda.
One small example: In the early weeks of the pandemic, Trump picked a fight with Michigan Gov. Gretchen Whitmer, a Democrat. She is a popular pol in the Wolverine State. She was elected 53 to 43 percent in 2018. And she was doing a good job responding to the crisis. Michigan is (or, now, maybe was) a key state for Trump. It was part of his “beautiful” electoral map in 2016, and he could well need it again to win. Yet he appeared more eager to feud with Whitmer than to help the state acquire equipment it needed to combat the coronavirus. “Don’t call the woman in Michigan,” Trump said he told Vice President Mike Pence. Why piss off Michiganders when you desire their votes? It’s in Trump’s nature. (See the story of the scorpion and the frog.) He placed his love of revenge over his own political survival.
Consider Trump’s treatment of Dr. Anthony Fauci. This highly esteemed scientist is much-respected by the public. About two-thirds of Americans trust what he says about the pandemic. (Only 30 percent have confidence in what Trump utters about the crisis.) Trump was fortunate to have Fauci on the White House coronavirus task force. He should be riding the Fauci wave. Instead, the Trump White House has been backstabbing—and front-stabbing—this acclaimed public servant. Recently, Trump whined about Fauci’s high-approval ratings and complained, “Nobody likes me.” He declared that Fauci’s analysis about the ongoing coronavirus surge is “wrong.” (Trump also turned on Dr. Deborah Birx, the ever-loyal coordinator of the White House coronavirus task force, tweeting “Pathetic!” at her.)
Trump has the LeBron James of public health on his team, and he only wants to dump on him. That’s not a winning strategy.
Neither was Trump’s me-first insistence on holding me-me-me political rallies while the virus wildfire raged. Herman Cain—the co-chair of the president’s Black Voices for Trump outfit—sadly died of COVID-19 weeks after attending that indoor rally in Tulsa, where he and thousands of others sat shoulder-to-shoulder and, emulating Trump, did not wear masks. It’s unclear when and where Cain contracted the virus, but the episode suggests a basic lesson: Insisting on a premature return to normal can yield deadly results and cause serious political embarrassment. Yet for Trump, there are no teachable moments.
Trump cannot stop himself from lying. (Last month, the Washington Post‘s database of Trump’s false statements hit the 20,000 mark.) Trump cannot stop himself from self-aggrandizing. (Trump at the Centers for Disease Control in March: “Every one of these doctors said, ‘How do you know so much about this?’ Maybe I have a natural ability.”) Trump cannot throttle back on his racism (“the China virus”), his ignorance (“supposing you brought the light inside the body”), or his egotism (“we had a lot of people watching, record numbers watching…in the history of cable television, there’s never been anything like it”). But the former reality TV celebrity, who became famous by exploiting the tabloid press, does know a thing or two about PR. So is it that difficult for him to comprehend that this continuing march of death threatens the only thing he cares about: his own standing? Grasping this simple notion should compel him to take immediate and extensive action to limit the number of lives lost to this killer virus—not for the good of others, but for his own sake.
Yet Trump’s demons are in control. He is fueled by spite and by self-glory. Moreover, he appears incapable of peering into the future and considering the effects of his statements and actions. Last month, Trump publicly vowed that he would sign and enact a comprehensive health care plan within two weeks. The fortnight came and went; there was nothing. This was yet one more sign that Trump is 100-percent situational. He says whatever he thinks he needs to say at the moment to gain whatever advantage he seeks, without an iota of regard for later being held accountable. It sure sounds swell to promise everyone a signed, sealed, and delivered health care package within 14 days. Why not say that? So what if there is no new national health care program in two weeks? Trump will deal with that then. Or not. It doesn’t matter to him. Neither present truth nor future consequences hold much reality for him.
Perhaps this explains Trump’s inability to fully fathom the threat he faces. The appalling body count of the present doesn’t move him toward empathy or effective policy, and the prospect of hideous headlines to come also doesn’t motivate him. Not even when his own political career is in jeopardy. Maybe he figures that he will BS his way through all this or rig the system somehow to retain power. Or that he will just get dumb-lucky via an external incident (a vaccine!) that changes the now-dark landscape. But Trump’s inability to make a simple calculation—I should heed the experts and implement the counter-pandemic fundamentals to save lives and (also!) win reelection—is stark and disturbing. It shows Trump cannot perceive or escape the vortex of his own self-destruction. The immense tragedy is that thousands of Americans have died and will continue to die because Trump cannot help even himself.
Here’s the coronavirus death toll through August 3. The raw data from Johns Hopkins is here.
For the second time in less than a month, President Donald Trump sat down for a mildly tough interview, which aired Monday on HBO, during which he was confronted with facts and some of his most glaring falsehoods were appropriately challenged. It was a sweeping conversation with Axios’ Jonathan Swan that produced a string of jaw-dropping and maddening moments. But even in the long list of appalling remarks from the president, the worst exchanges are likely to be remembered as these.
“You can’t do that.”
In a heated back and forth, Trump and Swan sparred over the best statistics to assess the United States’ response to the coronavirus pandemic. Trump falsely asserted that US deaths from the virus are “lower” than anywhere in the world, rifling through a disorganized stack of printed charts to somehow back the absurd claim. “Lower than the world? In what?” Swan asked.
Glancing at the charts Trump was referencing, Swan said, “You’re doing death as a proportion of cases. I’m talking about death as a proportion of the population.”
“You can’t do that,” an outraged Trump replied.
After a brief explanation of the statistical importance of comparing coronavirus numbers in proportion to a country’s population, Trump then pivoted and suggested that South Korea has been falsely reporting its numbers in order to give the appearance of a more effective response. “You don’t know that,” Trump said when Swan mentioned South Korea’s low number of deaths from coronavirus. “You think they’re faking their statistics, South Korea?”
“Uh, I won’t get into that because I have a very good relationship with the country but you don’t know that.”
.@jonathanvswan: “Oh, you’re doing death as a proportion of cases. I’m talking about death as a proportion of population. That’s where the U.S. is really bad. Much worse than South Korea, Germany, etc.”@realdonaldtrump: “You can’t do that.”
Swan: “Why can’t I do that?” pic.twitter.com/MStySfkV39
— Axios (@axios) August 4, 2020
“I don’t know John Lewis.”
When asked how history would memorialize the late civil rights icon Rep. John Lewis, Trump claimed that he didn’t know Lewis. That lack of familiarity, Trump suggested, was a direct result of Lewis’ refusal to attend his inauguration ceremony. Trump immediately followed that breathtaking display of pettiness by declining to describe Lewis as impressive—twice.
“I can’t say one way or another,” Trump said. “I found a lot of people impressive, I find many people not impressive but he didn’t come to my inauguration, he didn’t come to my State of the Union speeches.” He then declared, falsely, that as president he’s done more for Black people in America than anyone else in history.
.@jonathanvswan: "How do you think history will remember John Lewis?"
— Axios (@axios) August 4, 2020
“Yeah, I wish her well.”
In an extraordinary moment last month, Trump offered warm wishes to Ghislaine Maxwell, the longtime associate of Jeffrey Epstein who was recently charged with helping Epstein’s child-trafficking operation. “I just wish her well, frankly,” he said at a July 21 news conference.
Asked for his thoughts on Maxwell, Trump stood by his remarks and said, “Yeah, I wish her well. I’d wish you well. I wish a lot of people well.”
He also promoted the conspiracy theory that Epstein was murdered. “Her friend or boyfriend was either killed or committed suicide in jail.”
“I mean, she’s an alleged child sex trafficker,” Swan interrupted at one point.
Trump sure got defensive when talking about his friends Ghislaine Maxwell and Jeffrey Epstein. Wonder why.
— MeidasTouch.com (@MeidasTouch) August 4, 2020
In 2006, Donald Trump purchased a 1,400-acre swath of the old Menie Estate in Aberdeenshire, a rambling property situated on Scotland’s rugged and remote northeastern coast. Trump pledged to develop a world-class golf resort replete with luxury villas there, and he vowed to revitalize the region with more than a billion dollars of investment. Though not an obvious location for a glitzy development—the area is mostly known for its offshore oil industry, and it rains more than a third of the year—Aberdeenshire was to be the beachhead of the mogul’s ambitious plan to insert his family name among the storied golf courses of Scotland, the birthplace of the sport, and attain for his brand the kind of old-world prestige that had eluded Trump in the United States.
The development seemed particularly important to Trump, whose mother hailed from the Isle of Lewis, a far-flung island in the Outer Hebrides. And it was unlike anything he had undertaken before. He often licenses his name to projects financed by others. And the self-proclaimed “king of debt” typically takes out large loans to finance the ventures he does bankroll. In this case, Trump’s company proceeded with the development on its own. And it says it paid for everything in cash.
Such was also the case for Turnberry, the historic golf resort, an hour south of Glasgow, that Trump purchased in 2014 for $60 million. His large expenditures in Scotland were notable because they came during a rocky financial stretch for Trump. The year before purchasing the Aberdeenshire estate, he was ousted as CEO of his thrice-bankrupted casino business; in 2008, he defaulted on a large Deutsche Bank loan tied to a development in Chicago.
Like other Trump wagers, his Scottish gamble has so far not worked out. Both resorts are bleeding millions annually. Meanwhile, he and his company have spent years viciously skirmishing with various locals and government agencies that resisted Trump’s plans to build luxury housing on the fringes of the resorts, which the Trump Organization seems to view as vital to profitability.
If business was lackluster before, it’s dismal now that the coronavirus pandemic has all but halted the Scottish golf season, at least as far as international travelers are concerned. To make matters worse, as Trump’s hospitality empire grapples with the fallout of COVID-19, it also faces a series of maturing debts, loans amounting to nearly a half-billion dollars, which need to be paid down or refinanced over the next four years.
Recently, a new—and perhaps bigger—threat to Trump has emerged in Scotland. Scottish lawmakers are pushing to peer into Trump’s finances using an anti-money-laundering statute typically employed against kleptocrats, oligarchs, and crime kingpins. Their question: Where did the hundreds of millions Trump poured into his Scottish courses actually come from?
Early promotional materials for Aberdeenshire carried what purported to be the Trump clan’s baronial crest—three lions under an armored fist brandishing a spear and surrounded by a flourish of red and white feathers.
It was, no surprise, a fake. Trump had cribbed the coat of arms from Joseph Edward Davies, whose wife had built Mar-a-Lago and who had legitimately been granted the crest in the 1930s. He had made only one minor change, erasing the Davies family motto of “integritas” (integrity) and replacing it with “Trump.” He had used the doctored crest for years to peddle all sorts of products—from ties to beach towels—and it was plastered across his US properties.
But that didn’t fly in Scotland.
For centuries the country has had an office devoted to making sure people do not claim someone else’s family name. And after it determined Trump was indeed displaying a stolen coat of arms, he was barred from using it. The episode foretold Trump’s subsequent misadventures in Scotland, a country particularly resistant to his brand of flimflam.
In Aberdeenshire, Trump initially won over locals with his plans for a sprawling upscale golf community containing multiple courses ringed by tastefully designed homes. He vowed to bring 6,000 jobs to the area. But fierce opposition formed when Trump revealed his plans to build the first course atop environmentally sensitive sand dunes. In late 2007, local planners rejected Trump’s proposal, but after Scotland’s then–First Minister Alex Salmond met with Trump, the Scottish government stepped in to overrule the local authorities. Construction proceeded. But when Salmond refused to block a planned offshore wind farm in view of Trump’s course, Trump went ballistic. He wrote Salmond a series of bizarre letters in which he insisted that if Salmond allowed the wind farm, he would destroy any chance of Scottish independence, and “your economy will become a third world wasteland that global investors will avoid.”
At a hearing in 2012, a member of the Scottish Parliament asked Trump, who appeared in person, for evidence that the turbines would damage Scottish tourism.
“Well, first of all, I am the evidence. I’m more of an expert than the people you’d like me to hire…I am considered a world-class expert in tourism,” Trump declared without missing a beat, as the room broke out in laughter and audience members rolled their eyes.
Trump eventually sued the Scottish government but lost so resoundingly that in 2019 he was ordered to pay its legal fees. The wind farm had been completed the previous year.
Meanwhile, Trump became embroiled in petty disputes with his neighbors in Aberdeenshire. At first, these were the type of NIMBY contretemps that are to be expected when a large development is proposed in a small community. But with Trump, whose business credo is “get even with people,” things quickly escalated.
The Menie Estate had been sold off in parcels over the years, requiring him to purchase it piece by piece. But a group of homeowners whose properties formed small enclaves amid the larger estate defied Trump’s entreaties to sell.
David Milne was one of them. In 1992, he purchased a decommissioned coast guard watch station on the property. It was government-owned, Milne says, and “dead cheap.”
“It was an empty, cold industrial building,” Milne recalls, describing how he wandered through the structure, eventually making his way to a tower with a panoramic view of the North Sea. “I came upstairs and got into what is now my office and looked out at the view and it was just a case of, ‘Wow! Yes, I’m having this!’ And the deal was done. I put down my roots and never moved. There’s literally my blood, sweat, and tears in this building in various walls. Heartaches, heartbreaks, success, pain, and triumph. I’m proud of this building, proud of this house.”
Perched on a hillock overlooking what would become the 18th hole, Milne’s home stood dead in the center of Trump’s vision of a pristine golf course for elite jet-setters. “I want to get rid of that house,” Trump declared during a visit to his course in 2010, adding, “We’re trying to build the greatest course in the world. This house is ugly.”
Milne and his wife rejected Trump’s purchase offer, which Milne describes as laughably low. Trump raised his price slightly and attempted to sweeten the deal by offering Milne, who rarely golfs, a lifetime membership at the club and access to its spa. After the Milnes rebuffed that offer, Trump’s lawyer asked local authorities to take their home—and those of others who refused to sell—by compulsory purchase (the UK version of eminent domain). Milne and several other neighbors fought off the attempt. He contends Trump then tried to harass them out of their properties.“You don’t have to sniff the air very long to see there’s something that smells,” says Scottish Parliament member Patrick Harvie.
Construction work severed Milne’s water and phone lines. Milne says the Trump Organization also encircled his property with trees to block his view, attempted to construct a giant berm hemming him in, and threatened to knock down his garage for allegedly being built over the property line (it wasn’t). Ultimately, Trump’s company erected a fence around the Milnes’ property—then billed the couple for the work.
Milne tossed the bill and has delighted in telling the story ever since—especially since Trump made his famous campaign pledge in 2016 to “build a great, great wall on our southern border” and make Mexico pay for it. The Milnes now fly a Mexican flag (next to the Saltire, the Scottish flag) outside their home, within view of the Trump clubhouse.
Trump’s heated squabbles with Milne and other neighbors had a sideshow quality—bizarre, ham-handed, and often self-defeating—but there was something stranger still about the amounts of cash he has dumped into Aberdeenshire and Turnberry.
He spent nearly $13 million purchasing the land for the Aberdeenshire course, and as much as $50 million developing the property. All, apparently, in cash. According to Trump, after purchasing Turnberry in 2014 for $60 million from a holding company owned by the government of Dubai, he dished out as much as $200 million rehabbing the venerable property.
Neither has ever turned a profit. Turnberry, considered one of the top Scottish courses, has seen its golf business decline. When it opened in 2012, Aberdeenshire was touted as a technically interesting and highly challenging course, but it has struggled to attract crowds. Milne says that over the last few years he’s found it so sleepy it rarely bothers him.
“To be quite honest, it’s not a major issue to me,” he says. “The car park is very rarely more than half full.”
The size of Trump’s wealth is a source of great debate, but two things are fairly well known—the period between 2006 and 2014 included some of his lowest points, financially speaking, and even in the best of times, the amount he splurged in Scotland would be a ton of cash for him to have on hand, let alone spend so freely. And Trump made these Scottish investments amid a $400 million cash spending spree, documented by the Washington Post, in which he also purchased a golf club in Ireland, five courses in the United States, and several pricy homes.
The New Yorker estimated that Trump would have spent half his available cash on the purchase of Turnberry alone, concluding there wasn’t “enough money coming into Trump’s known business to cover the massive outlay he spent” renovating the property.
And the mystery deepens. Martyn McLaughlin, a Glasgow-based reporter for the Scotsman newspaper, discovered that in 2008 Trump approached a Scottish bank asking for a $63 million loan to buy and renovate a historic hotel in Edinburgh overlooking the final hole of St. Andrews, the most famous golf course in the world. The terms he proposed were so ludicrously favorable to him that bank executives concluded Trump was asking for a “free loan,” and doing business with the developer was “too risky.” Meanwhile, Trump was touting his “very strong” cash position and his representatives were telling the Scottish public that he had more than $1 billion available to spend in their country. (The Trump Organization did not respond to questions from Mother Jones.)
This February, a group of Scottish Parliament members began making the case that Scotland should use an investigative tool under UK law called an Unexplained Wealth Order (UWO) to scrutinize Trump’s transactions. It can’t be wielded against just anyone; it’s designed to make inquiries into the finances of “politically exposed persons” suspected of money laundering. It has been invoked several times in London; for example, examining how the wife of a jailed ex–Azerbaijani government official had managed to afford a 16 million-pound shopping spree at Harrods.
Patrick Harvie, a Scottish Parliament member and co-leader of Scotland’s Green Party, has led the campaign for a UWO against Trump. “This is not someone who inspires confidence in sound finances and sound business,” he says. “The fact that there are many allegations floating around that the US authorities have investigated, whether it’s in relation to Russia or his political dealings domestically—you don’t have to sniff the air very long to see there’s something that smells.”
Harvie cited a report by Avaaz, a global nonprofit activist group, that has been key to the campaign. It highlights Trump’s association with people scrutinized by US law enforcement for illicit financial transactions, including Paul Manafort, his campaign chair who was convicted of tax and bank fraud, and Michael Cohen, who was sent to prison for campaign finance crimes committed on Trump’s behalf.
“Without more information from Mr. Trump, there is reasonable doubt that his income during the time of Turnberry’s purchase and renovation would have been sufficient to cover all of these expenditures,” the report concludes.
McLaughlin puts it in simpler terms. “The abiding mystery is why Mr. Trump and his companies seem to relish in spending exorbitant amounts of money and losing exorbitant amounts of money here,” he says. “Given all the difficulties the Trump Organization has had, why is it so determined to throw more money at it?”
One theory is that Trump hoped to own a course that hosts a “major”—one of the top-tier professional golf tournaments each year. Turnberry used to regularly host the British Open, but it hasn’t since Trump took over. “He desperately wants a major. That was the big idea,” says sports writer Rick Reilly, who has golfed with Trump and in 2019 published the book Commander in Cheat: How Golf Explains Trump.
Indeed, the New York Times reported this summer that in 2018 Woody Johnson, a Trump donor who was appointed as US ambassador to the United Kingdom, told several colleagues that the president had asked him to make inquiries with the British government about steering the British Open to Turnberry. According to the Times, Johnson did raise the question with the Scottish secretary of state, against the advice of career diplomats; nothing came of it.
Reilly says Trump ruined any chance of getting the British Open with his racist and sexist conduct. “Of all the people in the world that aren’t going to put up with a fool, it’s the Scots,” he says. “They’re just such a no-nonsense people and they see him for what he is: He’s a big blowhard con man who is trying to tell them what they know isn’t true.”
Trump’s alleged entreaty to his UK ambassador is not the first time his administration has been accused of taking action to boost Turnberry’s lackluster business. Last year, Politico reported that Air Force flight crews stopping for overnight layovers in Scotland were being sent to Turnberry’s hotel—a luxury establishment close to an hour away from the airport—even though cheaper lodging was available nearby. The Air Force, which spent nearly $184,000 at Turnberry, denied any wrongdoing.“Buying a place there would be like flying to Italy to go to an Olive Garden. Who would do that?”
If Trump’s Scottish ventures seemed ill-fated before, things are about to get much worse. In 2018, the most recent year for which numbers are available, both courses lost more than $15 million combined. And that was a good year. A golf industry expert familiar with Trump’s operations says he expects that 2020 revenues at Turnberry and Aberdeenshire will be down 80 to 90 percent from 2018.
Gordon Dalgleish, president of PerryGolf, which organizes golf tours for well-heeled clients in the British Isles, says the pandemic has brought Irish and Scottish golf tourism to a standstill. At many of the iconic Scottish courses, including Trump’s, “well north of 50 percent” of the patrons are wealthy Americans. “If you sat in the lobby at Turnberry, you’d hear a lot of American accents,” he says.
Not this year. In May, Scottish authorities allowed golf clubs to reopen, but under strict guidelines: Clubhouses were shuttered, caddies can work for golfers from just two households a day, and players are barred from congregating on the course before, during, or after play. But the far bigger impediment is that, as of July, the United Kingdom required international travelers to quarantine for two weeks. “It’s pretty hard to sell a one-week trip until there’s no quarantine,” Dalgleish notes.
Last fall, local authorities rejected Trump’s initial proposal to build a golf community at Turnberry, but in July, McLaughlin revealed that the Trump Organization had quietly drawn up plans for an even more ambitious expansion—one that could cost hundreds of millions of dollars. Meanwhile, Aberdeenshire officials have finally approved Trump’s plan to begin building a second course along with luxury homes and “five-star hotel cottages.” The cost, according to Trump, is almost $200 million.
Dubbed the Trump Estate, promotional materials show rows of quaint dwellings crowded along elaborately landscaped lanes. Homes range in price from about $370,000 for a two-bedroom cottage to $1.6 million for a five-bedroom mansion.
But with revenues so low, the money needed to complete the project—let alone a major development at Turnberry—may be hard for the Trumps to come by. McLaughlin also says he doesn’t understand how luxury homes in an out-of-the-way region of Scotland, known for blustery North Sea winds and offshore oil, make sense.
“Quite how they’ll have a viable business scheme out of that, I’m not sure,” he says. “Who pays hundreds of thousands of pounds for a family villa in the northeast of Scotland that’s got the corrosive brand of Trump attached to it?”
Reilly agrees. “Buying a place there would be like flying to Italy to go to an Olive Garden,” he says. “It’s insane. Who would do that?”
McLaughlin says that at an open house for prospective buyers last winter, the interested parties seemed mostly foreign. “Which raises the question, Who is investing? Who is giving money to the president’s company? It’s the most explicit opportunity to put money into the Trump Organization in return for property.”
Of course, if Trump’s finances continue to suffer, he may have to offload the courses before he builds a single villa. “He’ll have to. It’s a matter of when,” says the golf industry expert. “He doesn’t have the cash flow.”
David Milne says he hasn’t heard from the Trumps in years. But one early evening 11 years ago, at the height of the planning battle over Aberdeenshire, Milne says he heard a knock at his door. He opened it to find Donald Trump Jr. and then–Trump Organization executive George Sorial. They had visited before, Milne says. “They quite often showed up and tried to discuss something. Usually they were told to go away. None of them have ever been over the doorstep.”
That evening, they weren’t there for a discussion; just to deliver a message—or, as Milne understood it, a threat. “Remember, whatever you say and whatever you do, we usually get what we want,” Milne recalled being told.
“Not this time,” he responded.
This post was originally published as part of “The Trump Files“—a collection of telling episodes, strange but true stories, and curious scenes from the life of our current president—on August 1, 2016.
In its short-lived existence, Spy magazine had a lot of fun with Donald Trump. The New York-based monthly is best known for making fun of the size of Trump’s fingers, but its deepest cut may have come as part of a 1990 prank.
Spy correspondent Julius Lowenthal wanted to know just how cheap some of the city’s richest figures were. So he set up a company, called the National Refund Clearinghouse, and sent letters with checks for $1.11 enclosed, “for services that you were overcharged for.” The letters went out to 58 “well-known, well-heeled Americans,” 26 of whom promptly cashed them. Curious as to how low they might go, Lowenthal sent those 26 “nabobs” a second refund check, for $0.64. This time, 13 people cashed them.
Finally, he sent those 13 respondents a check for $0.13. This time, only two people cashed the check. One was an arms dealer. The other was Donald Trump, whom the magazine identified as a “demibillionaire casino operator and adulturer.”
In 1990, Spy sent 13-cent checks to the world’s richest people. Only two cashed them: an arms dealer & Donald Trump. pic.twitter.com/f6Kjt1hMYp
— Nick Bilton (@nickbilton) August 4, 2016
In July, St. Louis prosecutor Kim Gardner revealed that she had found a terrifying note on her car. “I hope you hang from a tree,” it read.
Gardner, the first Black woman to serve as circuit attorney in St. Louis, was elected four years ago after pledging to make the criminal justice system more fair for people of color. (Like a district attorney, a circuit attorney is a chief prosecutor for a particular jurisdiction.) While in office, she has faced incredible pushback. Most recently, President Trump objected when she filed criminal charges against a white couple who pointed guns at Black Lives Matter protesters walking through their gated community in June; he told the conservative Townhall Media that Gardner’s decision to prosecute them was “a disgrace.”Dozens of progressive prosecutors around the country have come to Gardner’s defense.
The hate mail quickly flooded her inbox. “It is YOU who are the racist, unfairly targeting white McCloskeys for exercising their 2nd Amendment rights,” someone emailed her, according to the Washington Post, referring to the gun-toting couple. “U really need to be run out of town you black b—-!”
On Tuesday, Gardner is up for reelection. She faces Mary Pat Carl, a white prosecutor who used to work in the same office but resigned from that post in 2017 after Gardner became circuit attorney. In some ways, the race will be a test of whether Gardner’s reformist bona fides can withstand the harsh backlash from Republicans, who have questioned her at every turn—offering a stark reminder of the double standards that progressive Black women often face when they’re elected as district attorneys or circuit attorneys.
Historically, a chief prosecutor’s decision on a case is the last word. People who hold this title have immense discretion to choose whom to charge with crimes, and what types of crimes to charge them with. But in Gardner’s case, politicians and courts have pushed back against her power again and again. After she was elected, a police union spokesperson described her as a “menace” who needed to be removed from office “by force or by choice.” When Gardner’s office investigated then-Gov. Eric Greitens over allegations of sexual misconduct in 2018, the police petitioned a court to appoint a special prosecutor who charged one of her investigators with perjury and got a search warrant to seize the server with her office’s emails. (Gardner later dropped the charges against the governor, who resigned.) This year, state lawmakers tried to pass a bill transferring some of Gardner’s authority to the state’s Republican attorney general.
In January, Gardner filed a lawsuit accusing her city of a racially motivated conspiracy to push her out of office and block her attempts to make the legal system fairer for minorities. Other Black women prosecutors from around the country flew to St. Louis to support her, saying she “faced an unprecedented campaign by the city’s corrupt and racist political establishment to destroy her.” The prosecutors—including Orlando’s Aramis Ayala, Baltimore’s Marilyn Mosby, and Boston’s Rachael Rollins—could understand what Gardner was going through. They’d seen their own power questioned in unusual ways too, as I’ve previously reported:
In Orlando, Aramis Ayala, the first Black district attorney in Florida, saw some of her powers removed by the governor in 2017 after she decided to stop seeking the death penalty. Then-Gov. Rick Scott made the unusual decision to issue an executive order preventing her office from handling a case in its jurisdiction involving a murdered police officer; he assigned it and 22 other capital cases to a prosecutor in another county instead. A month later, Aramis received a noose in the mail. In September, Rachael Rollins, Boston’s first elected Black woman prosecutor, asked a court to dismiss the charges against nonviolent protesters who opposed a “straight pride” parade; a local judge refused…
After Marilyn Mosby, a Black chief prosecutor in Baltimore, flew to St. Louis in a show of support for Gardner’s lawsuit, she got a voicemail from a caller in Illinois who accused her of hating police and white people. “If we’d known you all were gonna be this much fucking trouble we would’ve picked our own fucking cotton,” the caller said. Mosby had been sued by police after she tried to prosecute officers for the death of Freddie Gray, who fell into a coma in a police van in 2015. Filing a lawsuit against a prosecutor is “essentially unheard of,” according to the Marshall Project, a criminal justice-focused news organization. A judge let the suit proceed; the Supreme Court later sided with Mosby…
“A prosecutor’s discretion is something that’s usually considered sacred,” says [Jamila] Hodge [a former federal prosecutor who now works at the Vera Institute of Justice]. “It’s only when those decisions are being made by Black women in this role, and when they’re done to the benefit of populations who have been traditionally marginalized and harmed by the system, that now prosecution’s discretion is a problem.”
Gardner filed charges on July 20 against the white couple, Mark and Patricia McCloskey, who say they pointed their guns at Black Lives Matter protesters because they feared for their lives and property. The couple—who have a history of suing neighbors, family members, and employers over various disputes—claimed the protesters damaged a gate and threatened their safety. But video obtained by the St. Louis Post-Dispatch showed protesters walking peacefully through an open gate, and keeping their distance on the sidewalk as they moved past the house. The marchers admitted to trespassing by entering the gated community, private land, on their way to the mayor’s house, but denied damaging any property.
“It is illegal to wave weapons in a threatening manner at those participating in nonviolent protest,” Gardner said in a statement when she charged the couple with unlawful use of a weapon, a felony. “And while we are fortunate this situation did not escalate into deadly force, this type of conduct is unacceptable in St. Louis,” she added. Gardner said she would not seek prison time against the McCloskeys if they were convicted, but would encourage a court to put them into a diversion program, such as community service.
Trump isn’t the only politician who publicly criticized Gardner for her decision to prosecute the couple. “We will not allow law-abiding citizens to be targeted for exercising their constitutional rights” to carry firearms, tweeted Missouri Gov. Mike Parson, who vowed to pardon the McCloskeys if they were convicted. Missouri Attorney General Eric Schmitt also posted a video on Twitter condemning Gardner, and filed a brief to the court attempting to get her case against the couple dismissed. US Senator Josh Hawley (R-Mo.), wrote that Gardner’s decision to prosecute was “an unacceptable abuse of power” and asked the Justice Department to investigate her. And the McCloskeys filed a motion attempting to disqualify her from their case because she referenced them in a campaign email seeking donations for her reelection.
Dozens of progressive prosecutors around the country have come to Gardner’s defense. They include Aramis, Mosby, and Rollins, along with Chicago’s Kim Foxx, San Francisco’s Chesa Boudin, and Philadelphia’s Larry Krasner. In an open letter released on July 22, they wrote that they had “deep concerns” about the “shameful, aggressive, and blatantly political attacks” on Gardner over the McCloskey investigation. “It is up to Missouri law and a jury composed of the people of St. Louis to determine whether the McCloskeys should be held criminally responsible for their actions, not a handful of politicians who neither live nor vote in that jurisdiction and, in some cases, do not even have any prosecution or law enforcement experience,” the prosecutors wrote.
“The disturbing intervention in this local case is reflective of a broader, dangerous pattern that we have seen far too often in recent years,” they added, referring to politicians who criticized or tried to intervene in other reformist prosecutors’ decisions to charge certain crimes or, more often, to not charge minor nonviolent offenses. “These attacks have ignored the fact that the local prosecutors were elected with a mandate from their communities to build a more effective and equitable justice system and that their decisions are squarely within the purview of the job they were duly elected to carry out.”
Even Gardner’s opponent in Tuesday’s primary election, prosecutor Mary Pat Carl has condemned the political attacks against Gardner over the McCloskey case. “These racist attacks and threats against my opponent and #women of color in general, must stop,” Carl tweeted last week. “We will not make St. Louis safer by tearing others down.” But Carl, who ran unsuccessfully against Gardner four years ago, has criticized her opponent for “being ineffective” and lacking “competence“; for a high turnover rate among attorneys in the office; for a decrease in the rate of trials that lead to a conviction; and for straining relations between the prosecutor’s office and the police. “I think you can hold the police accountable, without going to war with the police,” Carl told local radio station KMOX. She also blasted Gardner for not properly reporting some campaign contributions and flights.“This is not about a Second Amendment right,” Gardner argues.
Meanwhile, some reform-minded activists have criticized the circuit attorney for not being progressive enough. But she has racked up several notable Democratic endorsements, including from Sens. Elizabeth Warren and Bernie Sanders, who commended her for significantly reducing the city’s jail population without increasing overall crime, and for declining to rely on the testimony of police officers accused of misconduct.
Gardner, for her part, says the racist attacks and death threats against her got worse after Trump and other Republicans tried to intervene in her case against the McCloskeys. “It’s been disheartening,” she told CNN. “This is not about a Second Amendment right,” she added later in the interview. “This is about an elected prosecutor doing their job, like they do everyday without fanfare or any political pandering that’s going on, and evaluating criminal activity in their jurisdiction.”
There is no more tear gas in front of the White House, where for weeks activists had gathered to protest against racial injustice and police brutality after George Floyd was killed by Minneapolis police on May 25. Though Washington, DC, demonstrations have slowed down since early June—when police violently cleared protesters from Lafayette Square for Trump’s now-infamous Bible photo shoot—groups like Occupy DC still maintain a presence there. But the atmosphere has changed. Now, activist-led yoga classes and group painting sessions draw sympathetic crowds. And the raw frustration that surged across the city in the weeks following George Floyd’s death has been redirected into specific policy demands—like cutting the police budget and firing its chief, Peter Newsham.
At first, the protests were spontaneous without any formal organization. But they wore on over weeks and then months, and after most protesters packed up and returned to what passed for their normal routines during the pandemic, a small number of local activist groups emerged to continue the effort to bring accountability to the city’s law enforcement.
Mahadi Lawal, a 26 year-old organizer with Occupy DC, once worked in the restaurant industry as a server, but when his employer shifted to takeout only in response to the pandemic, he was laid off. Now he has no plans to return, having become one of the leaders of Occupy DC, a racial justice movement focusing on the Nation’s Capital. Mother Jones caught up with Lawal over the phone to find out how activism has evolved since protests began in late May.
The last three months have brought into sharp relief many issues that have been problems for a long time. Aside from the police killings in other parts of the country, was there a moment here in DC when you realized you had to devote yourself to this movement?
The realization of what I should be doing was kind of gradual. Obviously, the first moment was on May 25th, watching the eight-minute-and-46-second video of George Floyd being murdered. That motivated me to get up and start going out to protest to make sure my voice was heard. I was very consistent; I kept going. The second thing that happened—a big turning point for me—was on June 2 when I was protesting in front of the White House. I was moving back, as per police instructions, when I was struck on the cheek by a flashbang that the police shot. Basically, it exploded on the right side of my face. I was extremely traumatized. I was deaf for about five minutes. I couldn’t see or hear anything. I was just rolling on the ground screaming.
After that, I decided that I was going to be there every day.
Then on June 24, around 2:00 a.m., I was out there protesting on Black Lives Matter Plaza, standing right on the words. An old man was being arrested, detained by the police. I went up to record the arrest. I was following him and police pushed me back, and I kept following. They decided that my actions were assaulting a police officer and they slapped me on the ground and detained me, arrested me, and kept me overnight.We can be organized. We can mobilize. We can actually demand change and do something together—as opposed to just misguidedly protesting everyday.
I managed to get in touch with one of my friends from inside and my friends mobilized. I had so much support while I was in jail, and I came out to maybe 50 or so people waiting there for me. Just seeing that showed me that, we can be organized. We can mobilize. And we can actually demand change and do something together—as opposed to just misguidedly protesting everyday. That really made me want to get organized.
The actions of the police, in a weird way, illustrated that the very dynamic protesters were demonstrating against, was what they faced. It’s like the police have mismanaged this so they became the explanation for why everyone came out in the first place.
It would be really simple to just placate the protesters like us and be like, “Okay guys, we’re just going to chill out. We’re not bothering you.” And people will stop protesting. They tried doing it in a lot of cities, with the cops marching with people or kneeling, but that hasn’t happened here. What has happened is the mayor going to brunch with the chief of police.
This has been the first time that there’s been a massive call to defund and abolish the police. The previous protests have really centered around getting justice, like arresting the cops and charging them. Now, lot of people want cops arrested—like the cops that murdered Breonna Taylor—but at the same time, there are a lot of people that understand that if we want to abolish the police, that means that they have to be abolished for everyone. We have to come up with other ways to deal with it and address these things in our community.
Why do you think this movement hasn’t faded out?
People are living in very uncertain times, not knowing whether they’re going to have another paycheck. Lack of trust in the government, I think, is at an all time high. This was just something that happened at the right moment, where there’s a combination of millions of people—angry, disenfranchised, dissatisfied—and they had a lot of free time because they don’t have jobs. So people were willing and ready to fight and support each other. The whole quarantine created a pretty huge community network and really brought things like mutual aid and dual power to the forefront where we have communities just supporting themselves and people supporting themselves—and the government not doing anything.
It’s going to be a sustained movement. It’s going to keep going because people realized that the fight is a long-lasting battle. We can’t give up until we get the change that’s necessary.
How have things changed since everyone was first out there at the end of the May? Could you take me through how this group DC protest groups have evolved?
There were obviously already social justice organizations before this. Everything didn’t just pop up over the past few weeks. Those organizations were active but not as much as they needed to be. Specifically at the end of May, we had a lot of individuals taking the mantle and deciding, “Okay, I’m just going to go on Instagram, and I’m going to start my own protest. I’m going to arrange a demonstration.” That’s how I got familiar with a lot of the first demonstrations. I had a friend on Instagram who decided that he’s just gonna post a place and a time and tell people to show up and march.
Some organizations started coming together. Some were people in the same industry or who had the same hobby. There were protest groups of cyclists. There’s also Bartenders Against Racism, which popped up very recently. And others were groups of people who had met each other at the protests and had each other’s back consistently. The group came together out of proximity.
Between the 15th and the end of June, the whole White House area became sort of an open air flea market. That’s part of the reason why we came together with Occupy DC. We staged our sit-in on the third because there was no direction as far as protests. People were no longer coming there every day to occupy the space and demand change.
The energy had shifted. It’s good that people aren’t being violent and being attacked anymore, but it’s bad that people aren’t here. So we decided to start doing these protest-centered events, right there on the Plaza to bring people back and make sure that everything is still fresh in their minds.The energy had shifted. It’s good that people aren’t being violent and being attacked anymore, but it’s bad that people aren’t here
Yoga is a big thing I’ve seen down by the White House. It seems like folks are getting creative. But in addition to programmatic changes, how have the objectives changed? Are they becoming more specific?
Absolutely. At the start, we were all protesting about George Floyd’s murder and Breonna Taylor’s murder and Elijah McClain’s and so many others. And that was good. And our anger was directed toward the right place. But after all the anger subsided and the protests stopped—not that I want them to stop—we have to actually move towards changing the system. The most possible thing, or the most likely thing for us to change, is our position in our own communities. So we’ve narrowed our focus toward these needs and towards the DC council and the DC police department. Because, like I said, we’ve suffered abuse at their hands as well. We can’t direct our anger to police departments all across the country. Yes, abolish police all together, but it has to start within our own communities. Just like we’ve seen in Minneapolis, that’s possible. I think small victories, like that, are all we need to rack up, and we will get there.
In the short term, specifically for DC, what does success look like to you? A year from now, on the horizon.
A year from now ensuring that the MPD budget is at least $30 million less than it was this year, and then ensuring that the MPD budget will be reduced every single year. I think we managed to get it cut down by $15 million. But that $15 million was basically already kind of like a bonus thing. I’m hoping by this time next year, we’ve exerted enough pressure on the council and the mayor to reduce the budget. Another sign of victory would be the immediate resignation or firing of chief Peter Newsham.
Over the last few weeks have there been any victories that you and the folks around you have chalked up already? What is the high point, so far?
The high point was definitely getting the mayor to sign the emergency police reform bill, which says that police have to release body-worn camera footage and the names of officers involved in death or serious use of force within five days. That was really big for us but, again, a small victory. We still have to keep fighting for these things.
For months, Senate Majority Leader Mitch McConnell has upheld an ultimatum about passing new COVID-19 relief legislation this summer: No economic stabilization package will pass the Senate unless it protects businesses from coronavirus-related lawsuits. “We need to provide protection, litigation protection, for those who have been on the front lines,” McConnell said during a Fox News interview in April. “We have a red line on liability.”
Last Monday, a bill introduced by Sen. John Cornyn (R-Texas) and coauthored by McConnell clarified exactly which front lines Senate Republicans are interested in defending. The proposal, titled the Safe to Work Act, would make it harder for workers and customers to sue companies for negligently exposing them to the coronavirus and raises the bar for patients to sue healthcare providers for coronavirus-related malpractice. It also extends “front line” protections to healthcare executives, including nursing home owners, until 2024.
As negotiations over the coronavirus relief package stall, in part due to McConnell’s red line, experts on elder law and advocates for nursing home residents are alarmed that the Republicans’ proposed immunity shield could destroy what little accountability there is for nursing homes at a time when they’ve become deadly hotspots of COVID-19. According to the Centers for Medicare and Medicaid services, more than 40,000 people living in skilled-nursing facilities have died of the coronavirus—more than one quarter of all deaths from the illness. Those deaths represent around 1 in 32 of the country’s 1.3 million nursing home residents, though that is likely an undercount due to incomplete data.
Nursing home industry representatives have argued that a liability shield is necessary to protect providers’ ability to make difficult decisions in an emergency situation. “Subjecting health care workers and facilities to onerous litigation even as they have done their level best to combat a virus about which very little was known when it arrived in the United States would divert important health care resources from hospitals and providers to courtrooms,” the bill reads.
Yet by making liability lawsuits all but impossible, experts warn that corporate owners would not only be protected from claims of mismanaging their response to COVID-19, they would be free to pursue the kinds of cost-cutting that could endanger their vulnerable residents. “This act is not about responding to COVID-19,” says Nina Kohn, an elder law expert at Syracuse University. “It’s about using COVID-19 as a screen to eviscerate a system of public accountability that average individuals in this country rely on, but which certainly can limit corporate profitability.”
The pandemic has already created an unprecedented lack of oversight for nursing homes. In March, the Centers for Medicare and Medicaid Services ordered federal and state inspectors to only enter facilities deemed in need of infection control oversight, and didn’t clarify until June that facilities with COVID-19 outbreaks required state inspections. In May, the Government Accountability Office found that even before the pandemic, most nursing homes had infection control problems but faced no fines or other consequences. (Inspectors also may enter facilities where residents are considered to be in “immediate jeopardy”—emergency situations authorities are notoriously bad at identifying.) Meanwhile, family members, who often flag problems with their loved ones’ care, were banned from visiting all facilities starting in early spring, except for end-of life visits. So were volunteers and ombudsmen who resolve complaints and fight for residents’ interests.
“Essentially, the nursing home industry was given a holiday from any type of monitoring, oversight, or accountability during the COVID-19 pandemic, and most of that is still continuing to this very day,” says Richard Mollot, executive director of the Long Term Care Community Coalition, a New York-based nonprofit. “The normal systems that are there to protect residents are gone,” says Toby Edelman, senior policy attorney at the Center for Medicare Advocacy. “The last thing that exists is litigation.”
Fewer than 50 lawsuits have been filed so far against long-term care facilities for their handling of the coronavirus or treatment of residents during the pandemic, according to a database maintained by Hunton Andrews Kurth, a corporate law firm. In April, a woman filed a wrongful death suit against the Life Care Center of Kirkland, Washington, where her mother died of COVID-19 in March. (The facility has been linked to 129 cases and 37 coronavirus deaths.) Last month, a Tennessee woman sued a nursing home, claiming it did not adequately isolate patients with respiratory symptoms; her mother, a resident there, was infected and died of COVID-19 in late March. Another lawsuit against a nursing home in Southern California alleges it ignored infection control protocols, failed to hire enough staff, and downplayed the threat of COVID-19, leading to a resident’s death.
Senate Republicans’ relief bill would provide nursing homes sweeping protections against coronavirus related-lawsuits, moving them to federal court and imposing stringent requirements on plaintiffs. Families would only have a year to pursue cases and would be required to obtain costly affidavits and certified medical records before filing. The bill would also raise the standard of proof plaintiffs must meet while narrowing the definition of gross negligence so that, Kohn says, it is “almost impossible to satisfy.” The bill also specifies that any problems at a nursing home due to a lack of staff or resources can’t be considered gross negligence—providing a ready-made defense for most facilities, which are often understaffed and have been losing money.“The nursing home industry was given a holiday from any type of monitoring, oversight, or accountability during the COVID-19 pandemic.”
“The intention is to stop all litigation,” Edelman says. The staffing exemption, she predicts, could be a defense for any nursing homes that do get sued: “‘Yeah, we didn’t feed your mother or give her her medication, but it’s not our fault, because we didn’t have the staff.'”
Even in normal times, advocates say, lawsuits against nursing homes are uncommon, both due the difficulty of bringing cases and their emotional toll on family members. “They don’t want to dwell on on how terrible the end of their loved one’s life was,” Mollot says. “They want to move on, to think of their loved one as not being in pain any longer.” Many cases are blocked by arbitration agreements, which were permitted after the nursing-home industry fiercely fought the Obama administration’s effort to ban them. Cases that do make it in front of a judge typically involve serious allegations such as severe bed sores, falls, and malnourishment. Plaintiffs must prove that their loved one would have survived if not for neglect or serious mistakes, and that their death was foreseeable, Kohn says. And families don’t stand to win much in damages, in part due to residents’ already-short life expectancy.
But advocates say lawsuits, though rare, matter because they can deter maltreatment. While few lawsuits make it to court, the “small threat of a big loss,” as Kohn puts it, can keep nursing homes from cutting corners to increase their profit margins. About 70 percent of the country’s 15,400 nursing homes are operated for profit. Those privately owned facilities are less likely to receive four or five-star ratings on the federal nursing home quality scale than nonprofit or government-operated homes, and more likely to be flagged as persistently low-performing or cited for abuse, a New York Times investigation found in May.
The nursing home industry, which Politico calls “one of the lobbying world’s quiet powerhouses,” has been arguing since early in the pandemic that long-term care companies should be granted legal immunity for their response efforts. The push began on the state level, where nursing home interest groups pressured governors to protect them from lawsuits. In an April 2 letter, the Florida Health Care Association, a trade group, asked Florida Gov. Ron DeSantis, to “extend sovereign immunity” to healthcare workers, including nursing homes. By late July, at least 28 states had enacted executive orders or laws protecting healthcare providers, sometimes including nursing homes, from liability lawsuits, according to the National Consumer Voice for Quality Long-Term Care. New York and New Jersey went further, granting providers some protection from criminal prosecution.
But those state-level successes were not enough for the nursing home industry. The American Health Care Association, which represents long-term care facilities, has spent more than $1.7 million this year lobbying the federal government on issues including coronavirus relief, according to the Center for Responsive Politics. Last month, Mark Parkinson, the organization’s president and CEO, wrote in a message to members that a federal immunity shield was a top priority for his organization, along with obtaining additional funding. (On July 22, President Donald Trump announced an additional $5 billion in nursing home funding.) “Only a reasonable federal immunity solution that will protect our operators and staff for their good faith efforts during this challenging time is what we’re asking for,” Parkinson wrote.
“Fortunately, Senate Majority Leader McConnell is strong on this issue and has said that if liability immunity is not in the next stimulus bill, he will not allow the bill to advance,” he added. “That gives us a real shot at success.”