Certain cosmetic talc products test positive for asbestos, a contaminant known to cause mesothelioma. A study published in the March issue of the American Journal of Industrial Medicine underscores the link between cosmetic talc and this rare form of cancer.
Researchers studied 64 females and 11 males who have been diagnosed with malignant mesothelioma. Each of the 75 subjects confirmed that their only exposure to asbestos came in the form of repeated exposure to cosmetic talcum powder. Medical researchers checked 11 of the subjects for the presence of asbestiform fibers, and in all cases, anthophyllite and/or tremolite asbestos appeared. From this evidence, the study concluded that:
• Exposure to cosmetic talcum powders can be followed by the development of mesotheliomas.
• One can attribute the development of mesotheliomas in these cases to the existence of anthophyllite and tremolite asbestos found in cosmetic talcum powder.
The U.S. Food & Drug Administration (FDA) does not regulate cosmetic talc products. However, the agency, along with the World Health Organization (WHO), maintains that there is “no known safe level of asbestos exposure.”
For this reason, the FDA has expressed a commitment to protecting consumers from cosmetics that may contain asbestos contaminants. In 2018, the federal agency contracted with AMA Analytical Services (AMA) to test various cosmetic products for asbestos.
The FDA released AMA’s final report following a year’s worth of testing. The group found that 43 of the test samples were negative for asbestos, while nine demonstrated the presence of these contaminants. In the fall of 2019, the agency issued a public statement warning consumers about the AMA’s research findings.
The FDA/AMA research efforts, which will continue through 2020, have already generated responsive action in the form of recalls from cosmetic talc manufacturers.
Johnson & Johnson Consumer Inc. (JJCI) announced in October 2019 that it was initiating a voluntary recall of a single lot of its Johnson’s Baby Powder. It was a precautionary response to a sample of the product showing levels of chrysotile asbestos.
Beauty Plus Global also recalled several cosmetic products that tested positive for asbestos after the FDA advised consumers not to use the products. These products include Beauty Plus Global Inc. City Color Collection Matte Blush (Fuchsia); Timeless Beauty Palette; Bronzer (Sunset; Global Contour Effects Palette 2; and Shimmer Bronzer (Caramel).
Finally, Claire’s voluntarily recalled its JoJo Siwa Makeup Set, also found to contain asbestos.
Consumers should check the FDA website to see if their cosmetic products match the brands and batch numbers from which samples tested positive for asbestos.
Long-Term Proton Pump Inhibitor Use May Exacerbate Cancer Risk
While reasonably safe to use for short periods, long-term proton pump inhibitor use has been linked to an extensive number of serious, even fatal side-effects — including a higher risk for cancer in solid organs such as the pancreas and prostate. Other studies have indicated that PPIs may increase the risk of gastrointestinal cancer when used regularly over an extended period.
The reason this happens is due to a hormone known as gastrin. Stomach acid is a corrosive biochemical brew consisting of hydrochloric acid, sodium chloride, and potassium chloride. When it is time for the digestive system to go into action, gastric cells begin to secrete gastrin, which acts as a messenger, telling the parietal cells lining the stomach to start producing acid. The proton pump, a component of parietal cells, plays a leading role in the production of stomach acid — until a PPI such as Nexium or Prilosec permanently shuts it down.
The problem is that when PPIs block acid production, the gastric cells receive a signal that there is not enough stomach acid — so it produces even more gastrin. According to a study from 2017, patients taking omeprazole (Prilosec and Zegerid) can experience as much as a 500 percent increase in gastrin levels (a condition known as hypergastrinemia).
It also turns out that excess gastrin can increase cancer risk.
Other studies have found evidence that long-term PPI use can lead to an elevated risk of stomach cancer, although some scientists have disputed those findings.
Despite the known risks, PPIs remain the most widely-prescribed medications in the U.S., accounting for over $10 billion a year in revenues for drugmakers. Although a growing number of physicians are rethinking the use of PPIs and even de-prescribing, patients who have been taking them regularly for several years or have had them prescribed are advised not to simply stop taking them all at once. Doing so could result in a “backlash” or “rebound” effect. Before those changes are undertaken, any change in treatment should be discussed with a physician or other health care professional.
There may be alternatives, including diet and lifestyle changes, as well as acupuncture. Your doctor may substitute another class of medications such as H2 receptor antagonists (Pepcid and Tagamet) or simple OTC antacids like Maalox or Tums.
In April, a class-action lawsuit was filed against manufacturers of popular diabetes drug metformin. A prescription medicine, metformin is used by patients with type 2 diabetes to control their blood sugar levels.
A complaint filed on April 3 on behalf of various health care insurers alleges that metformin contains unsafe quantities of N-nitrosodimethylamine (NDMA), a carcinogenic contaminant, and that the drug makers knowingly concealed this information.
The plaintiffs are seeking compensation to recover nearly $124 million in payments they have had to make to their members because of the defendants’ alleged actions.
Defendants in the lawsuit include Aurobindo Pharm LTD, Aurolife Pharma, LL, Heritage Pharmaceuticals LLC, and other pharmaceutical companies.
In March 2020, Valisure, an online pharmacy, conducted tests on metformin produced by defendants. The company issued a press release in March 2020, alerting readers of the high levels of NDMA detected in metformin. Specifically, the pharmacy found the medicine contained nearly nine times the FDA’s interim daily limit of NDMA — at between 37 and 266 ng per tablet.
These findings contradict test results from the FDA, which conducted similar tests with different outcomes. Valisure challenged the FDA’s findings in a citizen’s petition, wherein the pharmacy requested that specific batches of the drug be recalled.
The U.S. Food and Drug Administration (FDA) announced in December 2019 that it was testing samples of metformin being sold throughout the country.
The agency reportedly launched this testing to widen its probing net following the discovery of NDMA in popular heartburn medicine Zantac (ranitidine) [SS1] and nizatidine. This finding prompted CVS, Walgreens, and other distributors to immediately pull the medicines off their shelves and stop selling them. Manufacturers also voluntarily ceased manufacturing the medications.
In other countries, low levels of NDMA were found in certain metformin medicines. These levels fell within the range “naturally occurring in some foods and in water,” said Dr. Janet Woodcock, the director of the FDA’s Center for Drug Evaluation and Research. Although several countries have already announced their recalls of metformin medicines, Woodcock indicated the FDA had not yet considered such plans in the U.S.
Woodcock specified that for the FDA to conclude that NDMA levels in U.S.-sold metformin products posed a danger, the contaminant would have to exceed a daily intake of 96 nanograms.
In February, the FDA announced it had identified low levels of NDMA in the tested metformin samples. The agency says the levels detected in these samples resembled the amounts to which consumers would be exposed to when eating grilled or smoked meats. The FDA said it would continue its investigation of the drug.
In the statement about its findings, the FDA stated that NDMA might heighten the risk of cancer in consumers who are “exposed to it above the acceptable level and over a long period of time.”
To date, metformin has not been recalled in the U.S.
Juul’s Massive “Influence Campaign” Includes Hefty Campaign Donations
The country’s largest electronic-cigarette company, Juul Labs, says it’s trying to earn “the trust of society.”
The stated motive, however you interpret it, explains Juul’s aggressive outreach to various state attorneys general, as exposed by the Associated Press (AP) on Monday, March 9, 2020.
AP reported that as Juul’s efforts to sway states to see things the “Juul way” seemed to fall on deaf ears, the company’s political action committee persisted in its persuasion tactics by donating money — tens of thousands of dollars — to the campaigns of many of the state attorneys general. The donations were often followed by meetings with various state attorneys general who benefitted from Juul’s cash infusions to their campaigns.
When a Juul team met with Georgia Attorney General Chris Carr in the spring of 2019, they arrived with a two-pronged message of commitment: to put a stop to youth consumption of their products and to control, proactively, online and retail sales. Company reps also extolled the health benefits their vaping device offers as an “anti-smoking tool” for the adult smoking population.
This meeting — a thinly veiled attempt to avert legal action by Georgia’s attorney general — occurred several times, not only with Carr but also with other state attorneys general.
Despite Juul’s claims that the company has acted with interest in gaining society’s trust, the company did not publicize its efforts. Rather, AP uncovered Juul’s “influence campaign” when its journalists cracked open the company’s history of political donations. The AP team also initiated an open records request from state attorneys general offices, which yielded meeting minutes, internal emails, and company records.
These documents shed light on the disturbing roles that Iowa Attorney General Tom Miller and former Massachusetts and Rhode Island attorneys general have played as unofficial Juul ambassadors.
Besides donating to individual AG election campaigns, Juul also donated to fundraising committees for both the Republican and Democratic parties. With their purchased corporate membership, Juul now benefitted from open access to state officials to whom they could lobby ad nauseam.
This lobbying effort serves as a critical tool for Juul Labs, which faces increasing scrutiny for its role in a growing population of underage nicotine consumers, a number that, according to the Food and Drug Administration, has reached epidemic levels. The company has also made significant changes over the past few months in response to this backlash. No longer does the e-cigarette giant sell its fruity pods. Instead, consumers now can purchase only original tobacco and menthol flavors. At present, the company also has ceased advertising in the U.S. The company additionally backed out of social media, a platform it once stuffed with images of celebrities and young models “juuling.”
These changes are too little, too late. As of February 2020, 39 states had revealed their plans to investigate two brow-raising aspects of the company’s marketing practices: the illegal targeting of teen consumers and claims that misled consumers about how much nicotine the popular smoking devices contain.
To date, Juul has been named in lawsuits from nine states, and we expect that’s just the tip of the iceberg, with more states following suit following their investigations.
A manufacturer must report the event and the underlying problem to the U.S. Food & Drug Administration (FDA) whenever the device manufacturer learns that its medical device caused or contributed to a severe injury or death. It’s the law — and it’s been the law since August 14, 2015.
But big corporations have a knack for sniffing out loopholes in any law that threatens their profits, and this law was no exception.
The loophole, in this case, appeared in the form of “reporting exemptions.” These injury/defect records were generating so much paperwork that the FDA introduced reporting exemptions permitting companies to compile their reports — hundreds at a time — into benign-looking “alternative summaries.” The FDA would then file this document in a separate archive.
In no time at all, medical device manufacturers were milking the system, using their exemptions to sweep millions of injury events and defects under the FDA-approved rug. Initially, had the public known where to find these records, they could have seen them. The archived records were public, and they remained that way until some time after 2000 when they were locked away for no apparent reason.
The activity persisted as “business as usual” — generating virtual stacks of millions of reports of medical device malfunctions and injuries — until one industrious reporter, Christina Jewett, uncovered the hidden database of secrets, dusted it off, and exposed it.
The discovery did not come easily. Once Jewett got the tip about the alternative summary report archive, she trudged through a great deal of bureaucratic mud — following every procedure as directed to gain access to the database, but ultimately finding herself at the “end of the regular line” with a 22-month wait, as Jewett explained to JournalistsResource.org.
The delays and deflections spiked Jewett’s suspicions and fueled her motivation to unearth these mystery files. Her dogged sleuthing led her to an October 2016 article that appeared in Medtech Insight. The article, titled “Adverse Events Stack Up At FDA; 2016 Warning Letter Data Show Troubles With MDRs, Complaints,” called out evidence of underreporting of adverse events through Medical Device Reports (MDRs). The article reported that, at the time, more than 440,000 reports were submitted to the FDA via its Alternative Summary Reporting Program. The number marked a two percent increase from the previous year, 2014.
When Jewett asked the FDA press office to simply update this number, they told her more than one million Alternative Summary reports now existed. This information encouraged Jewett to press forward with requests for specific data — which she eventually got, piece by piece, year by year.
From this data, Jewett penned a series of articles for Kaiser Health News, in which she revealed several alarming trends, including the following collections of reports:
• 500,000 breast-implant-related malfunctions or injuries
• 66,000 malfunctions connected to surgical staplers
• 50,000 events resulting from an implantable heart defibrillator
The series also delves into the human aspects of various malfunctions, based on Jewett’s interviews with victims of the defective products. In her interview with JournalistResource.org, the author expressed particular horror at the stories related to surgical stapler malfunctions that led to patients “just bleeding out.”
For years, Johnson & Johnson has occupied the spotlight on talc mesothelioma lawsuits. Now, the mega-corporation shares some of this public attention with cosmetics industry giant Revlon.
On February 25, 2020, Laura and Edward McDaniel filed a lawsuit in which they claim that Mrs. McDaniel’s father’s employment at Revlon played a causal role in Mrs. McDaniel’s mesothelioma diagnosis. Specifically, the plaintiffs assert that Revlon’s now-discontinued Jean Nate Silkening Body Powder contained asbestos-contaminated talc, a substance that has been linked to mesothelioma, ovarian cancer, and other cancers.
Because Mrs. McDaniel’s father worked at Revlon, it is possible he endured heavy exposure to the contaminated talc and carried it home with him via his work clothes. Other household members, including a young Mrs. McDaniel, could also have breathed in the dangerous asbestos fibers and been affected by it. Furthermore, the Revlon employee gave Jean Nate talcum powder to his daughter for personal use, deepening her exposure to the harmful substance.
Mrs. McDaniel, a Maryland resident, received her mesothelioma diagnosis in January 2020. She and her husband filed a lawsuit against Revlon in a New York state court. They claim that Revlon knew about the likelihood that the company’s products were contaminated with asbestos but failed to warn the public of this possibility and its associated risk.
The health concerns surrounding talc stem from the very process by which talcum powder products are manufactured. The talc ingredient is found within deposits in the earth that exist close to asbestos. For this reason, when talc is mined and not sufficiently purified, it may enter the product manufacturing process contaminated with asbestos particles.
In the early 20th century, scientists began piecing together evidence that showed how scarring in the lungs could result from breathing in asbestos. The popularity of the substance had grown immensely across various manufacturing applications due to its strength, heat resistance, and non-conductive properties. By the second half of the 20th century, the evidence connecting asbestos to cancer was too compelling to ignore any longer. Laws were enacted, and standards put in place to cut the amount of exposure workers faced and limit the use of the asbestos mineral in various materials.
To date, Johnson & Johnson, makers of the popular Johnson’s Baby Powder, has born the brunt of the lawsuits from plaintiffs diagnosed with a range of cancers. When the U.S. Food and Drug Administration (FDA) recently detected asbestos in a bottle of the product, they recalled a batch of 33,000 bottles.
On March 9, 2020, the FDA released its final asbestos report from testing talc-based cosmetics. Nine of the 54 products tested contained asbestos.
Simmons Hanly Conroy, one of the nation’s largest mass torts firms, announced The National Law Journal has honored Shareholder Paul J. Hanly Jr. with a 2020 Elite Trial Lawyers Lifetime Achievement Award. The firm also garnered additional honors with a Law Firm of the Year award in the Mass Torts category.
“Paul is relentless in his pursuit of justice for his clients,” Chairman John Simmons said. “Throughout his career, he has led groundbreaking cases against some of the most formidable opponents, always rising to the occasion and setting a precedent of success for those who follow. He has spent a lifetime advocating for the rights of his clients and we congratulate him on this well-deserved honor.”
Hanly is an experienced trial lawyer who has litigated, managed and tried numerous complex jury cases in virtually all areas of civil litigation over the past 40 years. In the last decade, Hanly has represented plaintiffs exclusively in mass tort and other complex civil cases, playing a leading role in the settlement of thousands of pharmaceutical cases resulting in recoveries in excess of $1 billion.
In October, as co-lead of the Plaintiffs’ Executive Committee for the National Prescription Opiate Multidistrict Litigation, Hanly and his team finalized a $260 million settlement deal with the remaining four defendants just hours before opening arguments were set to begin. The deal brought the total recovery to $325 million and avoided what would have been the first bellwether trial in the litigation. Earlier in 2019, Hanly served as co-lead counsel in a class action lawsuit that resulted in a $60 million settlement for more than 170 Haitian boys sexually abused by convicted pedophile Douglas Perlitz, who oversaw a Catholic school for impoverished children.
In addition to the cases Hanly spearheaded, the firm held leadership roles in several significant MDLs that contributed to its Law Firm of the Year award, including:
In addition to Mass Torts, the firm was also named a finalist for Law Firm of the Year in the Pharmaceutical Litigation and Products Liability categories. Significant Products Liability verdicts include:
$34 million awarded to Arthur Putt, a former auto mechanic who was diagnosed with mesothelioma after he was exposed to asbestos-containing brakes manufactured by Ford Motor Co.
$40.1 million awarded to Washington Navy veteran Walter Twidwell, who was exposed to asbestos released from Durabla gaskets manufactured by Goodyear Tire & Rubber Co.
$30 million awarded to Norris and Lori Morgan after a California jury found defendant J-M Manufacturing Company Inc. negligent and strictly liable for distributing the asbestos-cement pipe that led to Norris’s mesothelioma diagnosis.
The award ceremony took place Jan. 20 during the NTL Trial Lawyers Summit.
About Simmons Hanly Conroy LLC
Simmons Hanly Conroy is one of the nation’s largest mass tort law firms. Primary areas of litigation include asbestos and mesothelioma, pharmaceutical, sexual abuse litigation, environmental and personal injury. The firm’s attorneys have been appointed to leadership in numerous national multidistrict litigations, including Prescription Opiates, Vioxx, Toyota Unintended Acceleration, BP Deepwater Horizon Oil Spill, DePuy Pinnacle and the Volkswagen Emission Scandal. The firm also represents small and mid-size corporations, inventors and entrepreneurs in matters involving business litigation. Offices are located in Alton; Chicago; Los Angeles; New York City; San Francisco; and St. Louis. Read more at www.simmonsfirm.com.
HOUSTON, March 17, 2020 (Newswire.com) – Greg Baumgartner this week received an honor limited to just 100 individuals in each state. He was named to the National Trial Lawyers: Top 100. And that is no minor accomplishment considering there are 1.3 million attorneys in the United States and that the American Bar Association is actively working to address a shortage of qualified trial lawyers.
Baumgartner is the founder of the Baumgartner Law Firm, a leading personal injury practice based in Houston. With over 30 years of experience, he spends his days – and many nights – helping personal injury victims and their families throughout Texas battle large corporations and insurance companies. Yet it is a decision he made in more recent years that he says set him on the path to the elite designation.
“I have always rigorously fought for each of my clients. Yet I have been especially affected on a personal level by the cases where families lost loved ones in wrongful death accidents or individual clients’ lives were drastically altered as the result of a serious injury – especially in the cases of car accidents and truck wrecks,” Baumgartner explained. “A few years ago, I limited the scope of my practice to concentrate on a limited number of these cases so I can devote maximum time and attention to get them the compensation they deserve. The close working relationships that result from that level of involvement has been life-changing, and today I count many former clients and their family members as close friends.”
National Trial Lawyers is not the first organization to award Baumgartner’s skills. He has been rated as a Preeminent attorney for over 15 years, named a Top Lawyer by Houstonia Magazine, is a two-time Who’s Who recipient, received perfect Martindale ratings from both peers and clients, received a perfect rating from Avvo, and was named by Newsweek to its list of the best personal injury lawyers. He is also among the less than one percent of attorneys nationally to hold double law degrees: in his case, a juris doctor from the University of Nebraska and a master of law from the University of Denver. He is admitted to practice law by both the Colorado and Texas State Bar Associations and is a member of the American Bar Association.
The National Trial Lawyers: Top 100 is an invitation-only organization composed of the premier trial lawyers from each state or region who meet stringent qualifications as civil plaintiff and/or criminal defense trial lawyers. Selection is based on a multi-phase process which includes peer nominations and third-party research. Membership is extended only to the most qualified attorneys from each state or region who demonstrate superior qualifications of leadership, reputation, influence, stature and public profile measured by standards in compliance that comply with state bar and national rules.
NTL member Joseph Low has accomplished the unexpected many times in his career, but 2019 was exceptional.
While so far spending 2020 handling media interviews, speaking engagements and academic preparations, as well as ongoing cases, this year Low has been nominated and awarded for his work in five separate cases – three civil cases all listed as Top 100 Verdicts for 2019, one criminal case and one appeal.
Low’s creative lawyering typically defies the odds and most people’s predictions to pull off win after unexpected win.
“Joe did a phenomenal job” winning an acquittal, said Robert B. Cummings, of Salt Lake City-based Snow Christensen and Martineau, who worked as co-counsel with Low in October 2019 on a successful Medicaid fraud criminal trial in Utah. “He’s one of the best trial attorneys.”
Low’s plaintiffs in his civil cases included three women and two children harmed by the negligence of three male defendants, who then compounded their wrongdoing by lying about their culpability because they either believed no evidence existed or that Low would never find the evidence to prove their dishonesty. Nevertheless, Low prevailed over the lies, over inaccurate and incomplete law enforcement investigations, over insurance company hubris, and over his plaintiffs’ brain trauma hampering their testimony.
In his record-setting verdict for Kern County, Cuevas v. Rai, the No. 1 motor vehicle and personal injury verdict in California for 2019, the investigators found video of the crash that proved the defendant ran a red light and records showing that he had more than a dozen previous traffic collisions. The jury awarded $70.5 million for the injuries of three plaintiffs, one receiving $5.5 million for post-traumatic stress alone.
Tomasa Cuevas suffered skull and facial fractures and a catastrophic brain injury. Her son Alejandro was seated in the passenger seat and also suffered skull and facial fractures, as well as a brain injury that, according to medical experts, meant he might never be able to run again. Prior to the accident, Alejandro was a decorated high school cross country runner. Cuevas’ daughter Maritza was sitting in the back seat at the time of the crash and witnessed the injuries. Maritza suffered only scratches but later was diagnosed with post-traumatic stress disorder.
During the 12-day trial in December 2019, Joe and his team from Bakersfield-based Rodriguez & Associates won the astonishing jury verdict for the California Central Valley farmworker and her family. He conducted voir dire; prepared and delivered the opening argument; examined the majority of the witnesses and experts; cross-examined the majority of the defense witnesses and experts; and delivered the closing argument.
Low said having the resources to recover from an injury is “first and foremost” for the Cuevas family, as they will need physical therapy for the rest of their lives.
“The mother was a true matriarch, but now she’s out of the game,” Low said. “It really, really tests a family.”
Rai’s insurance carrier, United Specialty Insurance Company, disputed that the defendant ran the light, believing no evidence existed to prove he was at fault. Cuevas was not questioned after the crash because she was unconscious (she still doesn’t remember the incident). California Highway Patrol canvassed local businesses to find two surveillance videos of the intersection, but neither helped determine who was at fault. Undeterred, the investigators found video from a bus stopped at the intersection that showed Aulakh failed to obey the traffic signal. Low added that the truck’s black box data was erased, justifying another reason for the trial.
“You may not have it in your hand, [but] lawyers who work in the system know you’re obligated to get it,” Low said. “Instead, this company was playing games.”
Cuevas topped California TopVerdict.com and Jury Verdict Alert lists.
Low was also recognized in the Los Angeles Daily Journal’s Top Plaintiffs and Top Verdicts of 2019. The verdict appeared as No. 5 overall and No. 35 on the nationwide Top Verdict.com lists. He is being considered for top lawyer honors to be awarded later this year by plaintiff lawyer associations.
Also on Mr. Low’s busy and winning 2019 roundup:
In McPhoy v. Ramirez, Low captivated the jury with his graphic description of how the defendant’s deliberate action dehumanized the plaintiff and scarred her both physically and emotionally. The jury awarded her $11.1 million and agonized that they couldn’t find Ramirez 100% liable.
In Bibbie v. A-Quality Transport, Low turned a $120,000 final settlement offer into a $3.3 million verdict – all for pain and suffering. Proving medical expenses is easy compared to the hard work of quantifying pain and suffering. In this case, Low was able to win pain and suffering on 100% liability and 100% on causation.
In Utah v. Stirling, Low not only delivered an opening argument a veteran defense counsel described as “the best I’ve ever heard,” he convinced the defendant’s insurer to cover costs in the seven figures and delivered the first not-guilty verdict in a Medicaid fraud case in Utah’s history.
Last fall, in Romero v. Fullerton Surgical Center, Low won a California Court of Appeal reversal of a lower court’s nonsuit. The defendant argued for lack of “medical evidence or testimony that to a reasonable degree of probability anything happened …” The Court of Appeal reversed, agreeing with Low’s assertion of negligence under the doctrine of res ipsa loquitur. “[The plaintiff’s] evidence followed the classic pattern for res ipsa loquitur established by the leading California authority in cases involving medical procedures: an injury to the part of the body not involved in the procedure while the patient is unconscious,” the court held.
JOSEPH H. LOW IV
Joseph H. Low IV is a personal injury lawyer, representing plaintiffs in high-dollar, high-profile litigation involving severe physical injury, traumatic brain injury, post-traumatic stress disorder and wrongful death or in cases of insurance or corporate abuse. Low specializes as a trial lawyer who will try cases in criminal courts as well, including representing defendants being prosecuted in cases of clear government overreach or members of the military unjustly charged with war crimes.
Low has tried and consulted for hundreds of criminal and civil jury trials, winning settlements that total in the hundreds of millions of dollars. He won at the U.S. Supreme Court in a case that ensured the accused has the right to the lawyer of his or her choice. U.S. v. Gonzales-Lopez, 548 U.S. 140 (2006).
So far this year, Low was named to the Daily Journal’s Top 10 Verdict list in California and the legal newspaper’s Top Plaintiff Lawyers’ list for three of his 2019 winning verdicts that made a number of national Top 100 Verdicts for 2019 lists for the following wins:
In December 2019, a $70.5 million jury verdict for a mother and two children who suffered traumatic injuries when a big rig ran a red light and T-boned her SUV. Cuevas et al v. Rai Transport, Inc. et al.
An $11 million jury trial verdict in late 2019 for a client injured in a traffic collision at an intersection, resulting in a rollover and severe injuries. Norma McPhoy v. Luis Antonio Mendez Ramirez.
A $3.3 million verdict in 2019 against a freight shipping and trucking company’s negligence for a traffic collision that caused significant cervical spine injury to Low’s client. Bibbie v. Postulka.
Low has received several national awards for his excellence in the courtroom, including the American Board of Trial Attorneys and Order of the Barristers. In addition, Low is a recipient of the Lewis F. Powell, Jr. Medallion for Excellence in Trial Advocacy from the American College of Trial Lawyers. He is a member of the prestigious Association of Trial Lawyers of America, American Civil Liberties Union, and the National Association of Criminal Defense Lawyers. He is often called upon to speak at law lectures around the country. Low is a member of the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, and the American Board of Trial Advocates.
Low is a graduate of Gerry Spence’s Trial Lawyers College at Thunderhead Ranch, Wyo. where he has taught for 22 years.
A former U.S. Marine, Low became known nationally for his mostly pro bono work representing servicemembers, most notably Army Rangers, Navy Seals, and Marines accused of combat crimes. In the history of military war crime trials, Low is credited with being the first to introduce post-traumatic stress disorder and traumatic brain injury as defenses for capital murder.
Low’s career highlights include the following:
In Utah v. Stirling (2019), Low not only delivered an opening argument a veteran defense counsel described as “the best I’ve ever heard,” he convinced the defendant’s insurer to cover costs in the seven-figures and delivered the first not-guilty verdict in a Medicaid fraud case in Utah’s history.
In Romero v. Fullerton Surgical Center (2019), Low won a California Court of Appeal reversal of a lower court’s nonsuit. The defendant argued lack of “medical evidence or testimony that to a reasonable degree of probability anything happened …” The Court of Appeal reversed, agreeing with Low’s assertion of negligence under the doctrine of res ipsa loquitur. “[The plaintiff’s] evidence followed the classic pattern for res ipsa loquitur established by the leading California authority in cases involving medical procedures: an injury to the part of the body not involved in the procedure while the patient is unconscious,” the court held.
In the 2007 internationally televised trial “The Pendleton 8,” a jury found Low’s client Cpl. Marshall Magincalda not guilty of taking part in the plot to kill an Iraqi citizen. At Magincalda’s court martial hearing, Low successfully advocated that his client be released from prison to be in good physical and mental shape for trial. Low convinced the jury to acquit Magincalda of premeditated murder, for which he would have received a life sentence, and a kidnapping charge.
In U.S. v. Nelson, part of the Fallujah murder cases, the government charged Marine Sargeant Jemaine Nelson with a combat murder, including 1st-degree murder, 2nd-degree murder, manslaughter and negligent homicide for his alleged killing of unarmed insurgents in Iraq. Before Low took the case, the government had already recorded five “confessions.” Nelson’s case marked the third time a civilian jury would try a former service member for actions in combat. The first two cases were against the two Marines with Nelson, who were both acquitted by juries who declined to second-guess actions during combat. Despite the acquittals, the government would not agree to dismiss the case against Nelson until Low’s strategic representation won a dismissal.
In U.S. v. Sgt Acevedo, combat crimes for murder were dismissed in 2015 after Low’s devastating cross-examination of witnesses at the Article 32 hearing. When the government stripped Acevedo of his silver star, Low got it back.
In a 2015 trial of a road design case against CALtrans, after Low deposed the defense’s road design expert, the state settled for $12 million.
In Mongtale v. Nadeau, Low achieved a $4.5 million dollar settlement over the $100,000 policy limit for a car accident victim in 2011, using techniques he developed and teaches at the Gerry Spence Trial Institute.
In Shelby v. Seariver Maritime Inc., Low recovered $10.2 million in the 2008 benzene poisoning case after deposing the defense’s expert.
As violent crime continued to climb in Chicago and other cities across the country, Attorney General William P. Barr announced that the U.S. Department of Justice was mobilizing to help: Dozens of federal agents would be sent to work with local police to combat gangs and illegal guns.
“Our message to gangs, gang leaders and gang members is this: When we throw the federal book at you, it will be a knockout blow,” Barr said.
That was in 1992, during Barr’s first stint leading the Justice Department under former President George H.W. Bush.
If it sounds too recent or familiar to have happened nearly three decades ago, that’s because Barr, now attorney general under President Donald Trump, made a strikingly similar announcement on July 22.
Some of the details were different, of course. In 1992, Barr said the FBI was shifting about 300 agents from monitoring spies from the recently collapsed Soviet Union to taking on gangs and violent crime in American cities. Eighteen of the agents would be redeployed to Chicago.
In late July, Barr stood next to Trump as he announced a Chicago “surge” of more than 100 agents from the FBI, Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives, and other agencies, along with staffing increases in other cities where gun casualties were making headlines.
Residents of Chicago could be forgiven for concluding that they’ve heard this before, since, of course, they essentially have. Barr even acknowledged that federal law enforcement agencies have carried out such operations “for decades.” Every presidential administration in the last 30 years has announced it was sending more federal agents to Chicago to try to stem violent crime.
But this time, the circumstances are different — the politics are shifting. After 3 ½ years of Trump’s inflammatory comments and tweets, some thinly coded and others overtly racist, his administration’s announcement is widely seen in Chicago as a political move to use the troubles of a majority-nonwhite city to fire up his supporters.
And it is happening as a growing number of people are demanding that their governments send something into their communities other than more guys with guns.
Chicago has a long, ugly history of violence. As in other cities, violent crime surged in Chicago in the 1960s and ’70s, dropped and leveled off, then spiked again during the 1990s. But since then, as murder and shooting totals plummeted in New York, Los Angeles and elsewhere, Chicago’s numbers didn’t fall as far or as fast, and they’ve climbed again during several devastating stretches in the last ten years.
The reasons have long been debated and are probably more complex than most would acknowledge. But politicians, law enforcement leaders and many residents have repeatedly blamed Chicago’s gang culture and open-air drug markets, then called for policing strategies to attack them.
The fact that most of the hardest-hit neighborhoods have also been shelled out by segregation, business closures and job losses — including thousands of layoffs from government agencies and shuttered schools — is well known. Yet the need for immediate responses to the bloodshed, rather than those that tackle the deeper problems, always seems to consume political and financial capital in Chicago.
In 1992, the city banned loitering by people deemed to be gang members until the measure was ruled unconstitutional. Former Mayor Richard M. Daley led an effort to sue gun manufacturers for creating a public nuisance in Chicago and other cities; the case was tossed out of court. Speed bumps and cul-de-sacs were built on dozens of side streets to thwart drive-by shootings, though as police and paramedics discovered, such obstacles also made it harder for them to respond to emergencies.
Far more common have been announcements that more police will be deployed in high-crime areas, often under the banner of a new task force, program or initiative. That’s where the feds often come in — literally.
Soon after Trump took office in 2017, he called Chicago a “war zone” and blamed local leaders for being “politically correct.” He also threatened, via Twitter, “I will send in the Feds!”
Rahm Emanuel, then Chicago’s mayor and a frequent Trump sparring partner, rejected the idea of troops in the city. “I’m against it, straight up,” he told reporters. But Emanuel added that he welcomed additional resources to fight gun crimes. Within two weeks, CNN reported that 20 more ATF agents were being sent to Chicago.
Since Lori Lightfoot was elected mayor last year, she has repeatedly blasted Trump for racism and disrespect for civil rights — even as she’s been attacked in Chicago for not yet delivering on promises to reform the Police Department and drive up investment in underserved neighborhoods.
On July 20, after another weekend of appalling violence in Chicago — dozens of people were reportedly wounded in shootings and at least 12 people killed — Trump suggested at a press conference that he was again ready to send in federal agents. Lightfoot responded with a letter that criticized his administration’s “incendiary rhetoric” as well as the tactics of Department of Homeland Security agents who had seized people off the street in Portland, Oregon.
Yet Lightfoot also said the city could use other kinds of federal help, including “more federal prosecution or investigatory resources” to pursue violent crime and gun cases. She added that the government could help Chicago invest in underserved neighborhoods. “The violence our city is confronting is symptomatic of a larger public health and economic crisis.”
Trump and Barr announced the latest “surge” of federal agents to Chicago that week, describing it as part of a national crime-reduction initiative called Operation Legend. The FBI, ATF, DEA, U.S. Marshals Service, and Homeland Security would together send dozens of investigators and agents to the city, with the U.S. attorney in Chicago, John Lausch Jr., overseeing the operation.
Underneath the politics and symbolism, the announcement signaled that federal and local officials were returning to their old strategy: send in more cops.
Shifting federal agents to cities under fire is “commonly done, and as a matter of fact, when I was the special agent-in-charge there, I asked for it,” said Jack Riley, who formerly served as the top agent in the DEA’s Chicago office. “It’s been called 20 different things in the past. [Operation Legend] is just the newest version of it.”
This federal surge may involve more agents than previous efforts, and Riley believes it could help tamp down violence in Chicago if it is carefully coordinated and sustained. Operations on the street should be carried out by agents who know the city, with those from out of town used in support roles. And as agents are conducting investigations and making arrests, the U.S. attorney’s office needs enough staff to prosecute the increased caseload, said Riley, who went on to serve as the No. 2 official in the DEA, overseeing global operations, before retiring.
“Are there going to be additional prosecutors?” he said. “That’s been an issue before.”
The U.S. attorney’s office in Chicago received a staffing boost in 2018, but no additional prosecutors are included in the latest operation. A spokesman for the office declined to comment.
Plus, the agent surge is only likely to last until fall, when the city’s usual spike in violence typically recedes along with the warm weather. So, like previous efforts, the surge is temporary.
If those earlier short-term operations worked to reduce gun violence, it’s hard for city residents to see as shootings spike again.
Over the last three years, the U.S. attorney’s office here has prosecuted more than 500 defendants on weapons charges, records show. Some of the defendants are traffickers or leaders of other criminal enterprises. But many tend to be lower-level players caught with illegal guns that have traded hands multiple times. Law enforcement officials argue that prosecutions for illegal possession help deter others. Still, the approach hasn’t shut down the gun marketplace, as firearms continue to flow into the city from suburbs and neighboring states.
So far, Operation Legend appears to be following the playbook of those earlier initiatives. The first three arrests made as part of the Chicago surge were all for illegal gun possession, according to court filings.
On July 23, the day after the latest federal deployments were announced, Black Lives Matter Chicago and ten other organizations sued Barr and other administration officials. The groups, seeing no reason to trust the Trump administration, asked for a federal court order to protect their right to protest in the event of any Portland-style tactics. In addition, they made what amounted to a defund-the-federal-police argument, claiming federal resources would be better spent on investing in their communities than flooding them with more law enforcement officers.
“We should take their money and use it to help people facing eviction, use those resources for people who need access to food,” Amika Tendaji, an organizer with Black Lives Matter, said in an interview. “The police haven’t been able to do anything [about the violence]. We need to actually address the root causes.”
More and more leaders are signing on to this approach. Over the last week, advocacy groups, churches and more than 30 state and local elected officials added their names to a letter urging Lightfoot and Cook County Sheriff Tom Dart not to cooperate with the federal operation.
“Donald Trump has repeatedly demonstrated both his callous disregard for Black, indigenous, and immigrant lives, and his increasing inclination towards fascism and authoritarianism,” the letter said. “We grieve deeply the lives lost to gun violence in Chicago. … At the same time, we are clear that we cannot police ourselves out of this terrible situation.”
Chicago is now on a pace to record one of its highest annual murder totals in two decades. It’s hard to argue that the old strategies have worked.
This article was produced by ProPublica, and an earlier version appears on their website.
Under the guise of protecting federal property and public safety, a militarized secret federal police force, deployed by President Trump to Portland, Oregon, has unleashed a totalitarian assault on democracy and the rule of law. The brutal assault has trampled the civil liberties of peaceful protesters, journalists, legal observers, and bystanders.
The astonishing offensive has extended well beyond the boundaries of federal enclaves. It also entailed a great deal more than the arbitrary application of police violence. Wearing military fatigues with patches bearing only the word “POLICE”, previously unidentified, armed federal stormtroopers roamed city streets and sidewalks, arbitrarily snatching-up terrified citizens, who they whisked away in unmarked vehicles.
In a federal lawsuit filed in late July, Oregon Attorney General Ellen Rosenbaum challenged these wholesale violations of civil liberties and alleges that the arbitrary snatch and grab operation also creates a “risk” that law-abiding, peaceful protesters could be kidnapped by armed and unaccountable, civilian right-wing “militias”.
Separately, the ACLU, seeking to rein in what its staff attorney, Vera Eidelman, aptly described as an “unconstitutional nightmare”, filed a 2nd amended complaint, which added the U.S. Department of Homeland Security (DHS) and the U.S. Marshals Service (USMS) as party Defendants to the ACLU’s already successful federal lawsuit. That lawsuit was initially filed previously against the City of Portland.
Earlier in July, U.S. District Court Judge Michael H. Simon issued a Temporary Restraining Order (TRO) and, later, a Preliminary Injunction, that blocked the Portland Police Bureau “from arresting, threatening to arrest, or using physical force…against any person they know or reasonably should know is a Journalist or Legal Observer…unless the Police have probable cause to believe such individual has committed a crime.” The injunction also prevents police from seizing photographic, audio and video-recording equipment. (To its credit, the City of Portland agreed to the issuance of the preliminary injunction.)
By way of a newly filed Motion for a TRO [Temporary Restraining Order] and Preliminary Injunction, the ACLU now seeks a ruling from Judge Simon that would provide the same injunctive relief against the DHS and the USMS. In their motion, the ACLU described Trump’s secret police as “shock troops” who “were successfully subjugating protesters and carrying out [the President’s] longstanding vendetta against the press.”
DHS and USMS were not the only federal agencies that have taken part in the trampling of civil liberties in Portland. In its federal complaint, Oregon also named the Federal Protection Service (FPS) and U.S. Customs and Border Protection (CBP) as party Defendants.
Where both the ACLU and Oregon complaints lay out facts that support the assessment offered by Kelly Simon, ACLU Oregon’s interim legal director, that Trump’s stormtroopers have been “terrorizing the community, risking lives, and brutally attacking protesters,” Oregon’s complaint, unlike the ACLU’s, seeks declaratory and injunctive relief designed to remedy the violations of the 1st, 4th and 5th Amendment rights of all affected citizens, including protesters and bystanders. Oregon also alleges that these agencies, especially the CBP, have violated Oregon’s sovereign right to protect its own citizens.
Despite this disturbing, uninvited and unwelcome federal deployment — as well as the now very serious legal challenges — on Sunday, White House Chief of Staff Mark Meadows told Fox “News” to expect a “roll out” of similar deployments to “Chicago or Portland or Milwaukee or someplace across the heartland of the country”…
Protecting a Free Press
The ACLU alleges, in its 2nd amended complaint, that “police have repeatedly and intentionally shot, gassed, and beaten journalists covering the George Floyd protests”; that police not only knew they were attacking credentialed journalists but did so to retaliate against press coverage.
The ACLU’s new motion to protect journalists from Trump’s military-garbed troopers was supported, in part, by a declaration submitted by plaintiff Mathieu Lewis-Rolland, identified as “a freelance photographer and photojournalist”. Lewis-Roland filmed protests in downtown Portland on the night of July 11 and into the early morning of July 12.
Relying upon the TRO Judge Simon previously issued to protect the press from illegal assaults by Portland police, the photojournalist mistakenly believed that he could avoid being assaulted because his bulky camera equipment and the word “PRESS”, which appeared in large block letters on both sides of his t-shirt, made his status as a journalist patently obvious.
Lewis-Roland was quickly dissuaded of that belief shortly after Trump’s enforcers emerged from the federal courthouse and began firing “tear gas and impact projectiles at protesters in Lownsdale Square”.
Within minutes, Lewis-Roland found himself surrounded by an estimated 50 to 100 federal agents. One of them shoved him with a gun, shouting, “GET BACK, GET BACK!”
The photojournalist’s declaration includes an unsettling picture of a black-clad stormtrooper who pointed a weapon directly at him. After Lewis-Roland retreated well beyond the limits of federal property, he turned slightly, seeking to film the events. He was then struck ten times on his right side and back by hard plastic bullets even though he posed no threat to the federal agents.
In their TRO/Preliminary Injunction Motion, the ACLU alleged that the feds by no means confined their assault to Lewis-Roland: They also chased away legal observers associated with the National Lawyers Guild by threatening to beat them with batons. The next day, the President announced, “We very much quelled it. If it starts again, we’ll quell it again very easily. It’s not hard to do.” In the days that followed, federal agents have continued attacking journalists and legal observers and using indiscriminate military violence to chill Plaintiffs’ protected activities.
Citing case law describing a “free press as the guardians of the public interest”, the ACLU attorneys, who represent the Portland Mercury newspaper and a number of professional journalists, argued: Plaintiffs have a right to witness important public events and recount them to the world. Their newsgathering, observing and recording activities are at the core of what the First Amendment protects…Federal agents’ efforts to intimidate and suppress reporting on their own misconduct violate clearly established First Amendment law and are causing irreparable harm to Plaintiffs and the public. Federal agents are not above the law. They cannot attack media and legal observers for trying to document and observe law enforcement activities — that is the hallmark of a totalitarian regime.
Other civil liberties?
The ACLU lawsuit represents a vital tool for defending the newsgathering function of a free press. It is unfortunate, however, that an organization, which describes itself as our nation’s “guardians of civil liberties”, failed to step forward to seek adequate relief for the manner in which the federal agents trampled on the Constitutional rights of peaceful protestors and bystanders. That, despite the fact that, in its own pleadings, the ACLU listed not only multiple occasions in which journalists and legal observers were victimized by police violence, but also acknowledged unprovoked assaults on peaceful protestors and bystanders.
In its TRO/Preliminary injunction motion, for example, the ACLU alleged that at 1:54 a.m., on July 12: “Federal agents began rushing out of the federal courthouse to eject protesters and neutrals alike from the area with tear-gas, impact projectiles, and physical force.”
Those “protesters” included 26-year old Donovan La Bella, who, as reported by The Oregonian, had been peacefully standing alone, across the street from the courthouse, holding a speaker above his head. According to his sister, La Bella was broadcasting the lyrics of a hip hop tune that ironically included the words, “let’s all come together, join hands.”
After a tear-gas canister landed at his feet, La Bella picked it up, tossed it into the middle of the street, and again raised the speaker above his head. Without La Bella having shown “any sign of aggressive provocation,” The Oregonian asserted on the basis of contemporaneous video, one of the federal stormtroopers fired an impact projectile at his face, striking La Bella at the center of his forehead, between his eyebrows and just above the bridge of his nose. La Bella was then hospitalized for skull and facial fractures. He underwent reconstructive surgery.
The problem isn’t simply that the ACLU did not step forward to protect the First Amendment right of people like La Bella to engage in peaceful protests without being shot, injured or killed by federal police. The injunction it obtained protects only legal observers and those who the police know or should know are journalists.
The ACLU’s narrowly crafted injunction ignores a 21st-century reality. Many individuals, often bystanders, are not readily identifiable “journalists”. Yet, they perform the same important First Amendment function of baring witness and gathering news via cell phones and livestream videos. Indeed, it was a “bystander”, (aka a “citizen journalist”), who provided a vital and damning video that has already led to the handing down of criminal indictments against four police officers in relation to the alleged police murder of George Floyd in Minneapolis.
Is there a valid reason why a bystander’s First Amendment right to gather the news via cell phone video should be considered less deserving of First Amendment protection than the exercise of the same freedom of the press rights by easily identifiable, professional journalists?
Oregon to the rescue
Where the ACLU legal action was narrowly limited to protecting the press and legal observers, Oregon broadly sought to protect civil liberties guaranteed to all of its citizens by the 1st, 4th and 5th Amendments to the U.S. Constitution.
Oregon specifically addressed what Sam Seder of the Majority Report described as a “harrowing” incident, in which then unidentified stormtroopers snatched a man, Mark Pettibone, off a public sidewalk. Ignoring demands from legal observers to either identify themselves or the reasons why they grabbed him, the troopers then whisked Pettibone away in an unmarked van.
As Pettibone later explained to Oregon Public Broadcasting (OPB), he and a friend, Connor O’Shea, were returning home after attending a peaceful protest near the federal courthouse when they received a warning from others about people being grabbed off the street by guys in camouflage driving unmarked vans — something that Pettibone regarded as “terrifying” because he and his friend had no way of knowing whether people were being picked up by federal agents or by right-wing vigilantes.
“You have laws regarding probable cause that can lead to arrests,” attorney Juan Chavez, Director of the Oregon Justice Research Center, Civil Rights Project told OPB. “It sounds more like an abduction. It sounds like they’re kidnapping people off the streets.”
Pettibone informed OPB that he was driven to a building, which he later learned was the federal courthouse. The agents patted him down, “rummaged” through his belongings, took his picture, and placed him in a cell. Two agents returned to question him. After they provided a Miranda warning, the agents asked Pettibone if he was willing to waive his constitutional rights. Pettibone wisely asked for an attorney. The interview abruptly ended. Pettibone returned to his cell. Approximately 90 minutes later, Pettibone was released, sans any explanation as to why he’d been arrested or even being given the name of the agency that had abducted and detained him. Pettibone didn’t even receive a record of his arrest.
In her legal filing, Oregon’s AG notes that this abduction of a U.S. citizen had been carried out on the streets of Portland — approximately 284 miles south of the U.S./Canada border — by agents employed by the U.S. Customs and Border Patrol — an agency whose mission is supposed to entail the prevention of “illegal trafficking of people and contraband” across U.S. borders.
Oregon’s AG asserts that CBP’s abductions and detentions, without probable cause, not only violated the civil rights guaranteed to its citizens by the 1st, 4th and 5th Amendments but also violate “the state’s sovereign interests in enforcing its own laws and in protecting people within its own borders from kidnap and false arrest.”
After Republicans took control of the U.S. Senate in early 2015, they set out to pack the federal courts with radical right-wing judges. Mitch McConnell said, “My goal is to do everything we can for as long as we can to transform the federal judiciary, because everything else we do is transitory.” Under Article III of the Constitution, federal judges serve for life, so a 50-year-old appointed today could serve 30 years or even longer.
McConnell and his sidekick, Sen. Lindsey Graham, started by refusing to confirm President Obama’s judicial appointments. Most notably, they wouldn’t even consider Obama’s appointment of moderate Merrick Garland to the U.S. Supreme Court. When President Trump took office, there were more than 100 empty federal judgeships waiting to be filled with Trumpian favorites.
In today’s hardball politics, the federal courts are especially important. Even if progressives were to win the House, the Senate and the White House, every law and regulation could still be challenged in court. Republicans have spent decades preparing to fill the federal courts with judges who will rule in favor of what the radical right espouses — the idea that government is the enemy of freedom, corporations need more freedom from regulation, and both corporations and billionaires should exercise their freedom to use their money to determine who can run for office and who can win.
In Civics 101, we all learned that courts and judges are nonpartisan, impartial and independent. However, that view of the judiciary began to change radically, along with the rest of the nation’s politics, after Newt Gingrich was elected to the House of Representatives in 1979. As Princeton historian Julian Zelizer has written, “Gingrich promoted a style of smashmouth combat aimed at delegitimizing his opponents by whatever means possible. Politics, as he saw it, was like warfare. The only way to win a battle, he decided, was to unleash the full fury of one’s firepower on the foe.” Zelizer credits Gingrich with creating the “unorthodox, nativist populist campaign” that Donald Trump mounted in 2016, “which aimed to tear down the political leaders of both parties and to destabilize the entire U.S. political system.”
In this new political environment, federal courts (especially the U.S. Supreme Court) are not impartial — they have become partisans in ideological warfare. The change did not happen by accident. In 1982, a small group of lawyers formed the Federalist Society as an idea factory where libertarians and ultraconservatives could meet to strategize ways to transform the courts from impartial and nonpartisan to conservative and libertarian.
The Federalist Society promotes a conservative view of the Constitution, called “originalism.” Originalists want the Constitution interpreted exactly as they imagine the framers would have interpreted it in 1787 as if the world has not changed since then. Because the Constitution was written by wealthy white property-owning men who saw women as inferior, Black people as less than human and democracy as dangerous, an “originalist” interpretation of the Constitution thus tends toward a society dominated by wealthy white property-owning men who adhere to racist and sexist ideas and view democracy as dangerous.
A few years after it was founded, the Federalist Society started receiving funds from the Koch brothers and other radical-right billionaires who envisioned a feeder system to identify right-thinking law students and groom them for eventual positions on the federal lower courts, then on to the Supreme Court. “The funders all got the idea right away — that you can win elections, you can have mass mobilizations, but unless you can change élites and the institutions that are by and large controlled by the élites, like the courts, there are limits to what you can do,” says Amanda Hollis-Brusky, a professor of politics at Pomona College and the author of Ideas with Consequences, a study of the Federalist Society. “The idea was to train, credential, and socialize a generation of alternative élites,” she says.
It’s working. Today, five of the nine justices on the Supreme Court have close ties to the Federalist Society — Roberts, Thomas and Kavanaugh as members or former members, and Gorsuch and Alito as frequent speakers at Society gatherings.
One of the best-known members of the Federalist Society is its executive vice president, Leonard Leo. Periodically, Leo takes time off from his Society duties to orchestrate campaigns to persuade the Senate to confirm judges appointed by the president. Leo says modern confirmation campaigns are very similar to election campaigns. He should know; between 2014 and 2017, he raised $250 million for campaigns to get federal judges confirmed. He personally led confirmation campaigns for Justices Roberts, Alito, Gorsuch, and Kavanaugh.
So far, President Trump has appointed 53 judges to the federal appeals courts, many of them recommended by the Federalist Society. Orrin Hatch, the former Republican senator from Utah, said in 2018, “Some have accused President Trump of outsourcing his judicial selection process to the Federalist Society. I say, ‘Damn right!’” The appeals courts are especially important because that’s “where policy is made,” as Supreme Court Justice Sonia Sotomayor once said.
U.S. Sen. Sheldon Whitehouse (D-Rhode Island) charges that the courts are supposed to referee disputes, but now the referees have been captured by corporate money. In an op-ed titled, “The Supreme Court has become just another branch of the GOP,” Whitehouse writes, “From 2005 through the fall term of 2018, the Roberts court issued 73 5-to-4 partisan decisions benefiting big Republican donor interests: allowing corporations to spend unlimited money in elections; hobbling pollution regulations; enabling attacks on minority voting rights; curtailing labor’s right to organize; denying workers the ability to challenge employers in court; and, of course, expanding the NRA’s gun rights ‘project.’ It’s a pattern.”
In August 2019, Whitehouse and four other U.S. senators filed a brief with the Supreme Court warning the justices that, “The Supreme Court is not well. And the people know it.” The federal courts are facing a crisis of legitimacy. For example, Trump lost the popular election by 2.8 million votes, yet he has installed 201 federal judges who he appointed to serve for their remaining lifetimes, in accordance with Article III of the Constitution. In a very real sense, those 201 judges are serving without the consent of the governed.
Radical-right Supreme Court Justice Neil Gorsuch, appointed by Trump, was confirmed by 54 senators who represented 19.8 million fewer people than the 45 senators who opposed his confirmation. Brett Kavanaugh’s tenure on the court is even less legitimate than Gorsuch’s. Appointed by Trump, Kavanaugh was confirmed by 50 senators representing only 143 million people, versus the 48 senators opposing him, who represented 181 million people.
Likewise, Clarence Thomas was confirmed by 52 senators who represented 2.9 million fewer votes than the 48 senators who opposed his confirmation. Samuel Alito was also confirmed by 58 senators who represented 1.8 million fewer voters than the 42 senators who opposed his confirmation.
In sum, whenever the present Court delivers a 5-4 majority vote in favor of some radical-right legal proposition, the U.S. populace has not given its consent.
For almost two decades, many liberals and progressives tended to ignore the legal earthquakes being engineered by Federalist Society members. After the Supreme Court put George W. Bush in the White House even though he had received 547,000 fewer votes than Al Gore, progressives and liberals realized they’d been snookered by the right. They then created the American Constitution Society for Law and Policy (ACS) to identify and groom progressive lawyers who might one day become federal judges. Measured by its annual budget of $6 million, ACS is still only one-third the size of the Federalist Society, which has 70,000 members and a budget of $20 million.
Caroline Fredrickson, who served as president of ACS from 2009 to 2019, told a reporter in 2019, “We still struggle to get people to recognize that the courts are one of the most important battlegrounds for public policy.”
Now, however, progressives have developed new energy around judicial appointments. Brian Fallon and Christopher Kang, founders of the judicial advocacy group Demand Justice, have organized a campaign calling on Democrats to stop appointing corporate lawyers to the federal bench. They say Democrats appoint the most progressive lawyers they can without provoking a fight. But, they argue, Republicans have shown they will oppose all progressive nominees; therefore, Democrats should just engage in battle, selecting lawyers who have worked for ordinary people — public interest lawyers, public defenders and plaintiffs’ lawyers.
The brazen politicization of the federal courts has spurred a deep and persistent backlash against the Supreme Court itself. Even mainstream groups like the Brookings Institution are now discussing ways to reform the Court, such as adding more justices or setting time limits on their tenure. Still, reform will be difficult, if not impossible, until Democrats win a large majority in the Senate, where filibuster rules allow just 41 Republican Senators to block any regulatory legislation.
This article originally appeared online at Truthout.org and is reprinted here with permission.
We have now reached peak Libertarianism, and this bizarre experiment that has been promoted by the billionaire class for over 40 years is literally killing us.
Back in the years before Reagan, a real estate lobbying group called the Foundation for Economic Education (FEE) came up with the idea of creating a political party to justify deregulating the real estate and finance industries so they could make more money. The party would give them ideological and political cover, and they developed an elaborate theology around it.
It was called the Libertarian Party, and their principal argument was that if everybody acted separately and independently, in all cases with maximum selfishness, that that would benefit society. There would be no government needed beyond an army and a police force, and a court system to defend the rights of property owners.
In 1980, billionaire David Koch ran for vice president on the newly formed Libertarian Party ticket. His platform was to privatize the Post Office, shut down all public schools, privatize Medicare and Medicaid, end food stamps and all other forms of “welfare,” deregulate all corporate oversight, and sell off much of the federal government’s land and other assets to billionaires and big corporations.
Since then, Libertarian billionaires and right-wing media have been working hard to get Americans to agree with Ronald Reagan’s statement from his first inaugural address that, “[G]overnment is not the solution to our problem; government is the problem.”
And Trump is getting us there now.
Every federal agency of any consequence is now run by a lobbyist or former industry insider.
The Labor Department is trying to destroy organized labor; the Interior Department is selling off our public lands; the EPA is promoting deadly pesticides and allowing more and more pollution; the FCC is dancing to the tune of giant telecom companies; the Education Department is actively working to shut down and privatize our public school systems; the USDA is shutting down food inspections; the Defense Department is run by a former weapons lobbyist; even the IRS and Social Security agencies have been gutted, with tens of thousands of their employees offered early retirement or laid off so that very, very wealthy people are no longer being audited and the wait time for a Social Security disability claim is now over two years.
The guy Trump put in charge of the Post Office is actively destroying the Post Office, and the bonus for Trump might be that this will throw a huge monkey wrench in any effort to vote by mail in November.
Trump has removed the United States from the Paris Climate Agreement, and fossil fuel lobbyists now control America’s response to global warming.
Our nation’s response to the coronavirus has been turned over to private testing and drug companies, and the Trump administration refuses to implement any official government policy, with Health and Human Services Secretary Alex Azar saying that it’s all up to “individual responsibility.”
The result is more than 140,000 dead Americans and 3 million infected, with many fearing for their lives.
While the Libertarian ideas and policies promoted by that real estate lobbying group that invented the Libertarian Party have made CEOs and billionaire investors very, very rich, it’s killing the rest of us.
In the 1930s and 1940s, Franklin Delano Roosevelt put America back together after the Republican Great Depression and built the largest and wealthiest middle class in the history of the world at the time.
Now, 40 years of libertarian Reaganomics have gutted the middle class, made a handful of oligarchs wealthier than anybody in the history of the world, and brought an entire generation of hustlers and grifters into public office via the GOP.
When America was still coasting on FDR’s success in rebuilding our government and institutions, nobody took very seriously the crackpot efforts to tear it all down.
Now that they’ve had 40 years to make their project work, we’re hitting peak Libertarianism and it’s tearing our country apart, pitting Americans against each other, and literally killing hundreds of people every day.
If America is to survive as a functioning democratic republic, we must repudiate the “greed is good” ideology of Libertarianism, get billionaires and their money out of politics, and rebuild our civil institutions.
That starts with waking Americans up to the incredible damage that 40 years of libertarian Reaganism has done to this country.
When President Donald Trump was challenged by Axios national political correspondent, Jonathan Swan, to respond to the fact that, “a thousand Americans are dying a day” due to COVID-19, the president responded as though the grim tally was perfectly acceptable, saying, “They are dying, that’s true. And it is what it is.” While observers were aghast at the callousness of his statement, it should not have surprised us. Trump had warned that the death toll would be high, and he had asked us months ago to get used to the idea. In late March, the White House Coronavirus Task Force had projected that 100,000 to 240,000 Americans would die from the virus. Rather than unveil an aggressive plan to tackle the spread and prevent the projected mortality figures, the president had said, “I want every American to be prepared for the hard days that lie ahead.”
The New York Times saw this warning as a contradiction to Trump’s stance in February and early March when he had said that “we have it totally under control” and “it’s going to be just fine.” The paper seemed to heave a sigh of relief that a few weeks later, “the president appeared to understand the severity of the potentially grave threat to the country.” But the report’s authors failed to grasp that Trump is willing to accept anything—including mass deaths—in service of his political career.
In fact, mass death appears to be part of Trump’s reelection strategy as per a July 30 Vanity Fair report on the administration’s strategy to contain the pandemic. The investigative piece explained that Trump’s adviser and son-in-law, Jared Kushner, was part of a group of White House staffers that frequently corresponded to discuss the rapidly spreading virus. According to a public health expert who was described as being “in frequent contact with the White House’s official coronavirus task force,” one of the members of Kushner’s team had concluded that, “because the virus had hit blue states hardest, a national plan was unnecessary and would not make sense politically.” The unnamed expert told Vanity Fair, “The political folks believed that because it was going to be relegated to Democratic states, that they could blame those governors, and that would be an effective political strategy.”
If it is true that Kushner embraced the idea of COVID-19 deaths as part of a political strategy for Trump’s reelection, there can be no clearer evidence that the Trump presidency fits the definition of a “death cult.”
But Trump’s team is also deeply inept, and its macabre tactics appear to have backfired. If Kushner expected a highly contagious virus to follow his political rules and relegate itself to Democratic-run states, he was proven very wrong, very quickly with Republican-run states like Florida, Texas, Alabama, Georgia, and Arizona being among the hardest hit.
For years, the Republican Party has cast itself as a self-righteous force for morality, embraced the “pro-life” movement, and claimed to align with “Christian values.” But just as Trump—arguably the most criminal of all U.S. presidents—has adopted a mantle of “law and order” with no hint of irony, the GOP as a whole has also shown time and again that its embrace of morality and law is a purely political tool. Now, as the nation grapples with mass deaths from a disease that a Republican president spectacularly and willfully failed to contain, conservative politicians appear willing to simply accept it. Their silence is deafening compared to the angry denunciations many Republican lawmakers hurled at President Barack Obama over his response to the Ebola epidemic—a crisis that resulted in a nationwide total of 11 infections and two deaths.
Ultimately it may be Trump’s own base that suffers as it internalizes the president’s mixed and confused messaging on ignoring social distancing guidelines, eschewing protective masks, swallowing hydroxychloroquine preventatively, and even accepting the inevitability of their own death (because “it is what it is” according to Trump). Even after more than 150,000 Americans have died from the virus, a majority of Republicans trust Trump’s coronavirus comments.
When Trump loyalist and former presidential candidate Herman Cain died of COVID-19, testing positive 11 days after attending Trump’s Tulsa, Oklahoma, rally without a mask on, his death did not change minds. The 74-year-old was reportedly on a ventilator during his last days, but conservatives are vehemently opposed to “politicizing” Cain’s death. Right-wing commentator and talk show host Ben Shapiro slammed those who made a connection between Cain’s refusal to take the virus seriously and his own infection and death. Shapiro said, “The kind of dunking on people after they die of COVID is pretty gross.” Certainly, Cain did not deserve to be vilified for his own sad fate. But his death offers a cautionary tale about the dangers of the Trump death cult—a point Shapiro, of course, refused to acknowledge.
We should hardly be surprised at this acceptance of death as inevitable. For years, conservatives have responded to gun violence with angry renunciations of any links to gun proliferation or lax gun control laws, offering instead “thoughts and prayers.” The one exception where Republicans express outrage is over the “death” of fetal cells inside women’s bodies—indicating that the fight is less about “murder,” as the anti-abortionists like to call it, than it is about controlling women’s bodies. By and large, the nation’s right-wing factions have, for years, wanted us to accept mass deaths and preventable mortality as a price for our “freedom.” They expect the same during a pandemic.
But we do not have to all be members of the death cult. According to a new study, states where people live the longest also have the strictest environmental laws, stronger gun control and stronger protections for minorities. These are also states that tend to be run by Democrats. California, for example, which has among the most stringent protections for minorities and the environment, also has one of the highest average life expectancy rates in the United States.
COVID-19 infections and deaths are hardly inevitable, and Americans are starting to see it. A Texas woman named Stacey Nagy penned an obituary for her late husband David that has garnered widespread attention. She wrote in her local paper that, “Family members believe David’s death was needless. They blame his death and the deaths of all the other innocent people, on Trump, [Gov. Greg] Abbott and all the politicians who did not take this pandemic seriously and were more concerned with their popularity and votes than lives.” Nagy also blamed “the many ignorant, self-centered and selfish people who refused to follow the advice of the medical professionals, believing their ‘right’ not to wear a mask was more important than killing innocent people.”
Perhaps the only way out of Trump’s death cult is to speak out as Nagy has done.
The Washington Post, which interviewed Nagy, explained, “Feeling helpless, Stacey approached her husband’s obituary as a chance to speak out about how she felt her country had failed her family.” While Trump’s most loyal supporters might choose death in his service, the rest of us need not be bound by their blind, cultish and suicidal ideology.
In 2000, Ion Sancho had a front-row seat to the partisan mayhem and legal posturing surrounding Florida’s presidential recount. The Florida Supreme Court asked Sancho, then supervisor of elections in Florida’s capital, to be its technical adviser—second in charge—of overseeing the recount, which the U.S. Supreme Court abruptly halted in its Bush v. Gore decision, elevating George W. Bush to the presidency.
As the U.S. heads toward 2020’s general election amid a pandemic and President Trump’s continued attacks on voting from home, Sancho has been reviewing trends from the resumed primaries and sees both how Trump and the GOP are positioning the party for another court-decided electoral outcome—and the single remedy that would frustrate those plans.
“The plan that Trump is doing is to denigrate mail ballot voting and force people to show up at the polls on Election Day—and overwhelm the polls so it looks like massive chaos and fraud,” said Sancho, who recalled the “Brooks Brothers riot” by GOP operatives that disrupted Miami’s recount. “But it’s all dependent on overwhelming the polls on Election Day; having people wait in line for five, six, seven hours, and then adding to the cacophony of ‘vote fraud, vote fraud.’ If it’s done smoothly on Election Day, that whole strategy really melts away.”
Since 2020’s primaries and runoffs resumed in April, there has been a historic shift to voting from home with mail-in ballots in many states. The pandemic has also prompted a poll worker exodus and steep reductions in in-person voting sites, especially in swing states. Many voters have waited for hours to cast a ballot, especially in urban centers and communities of color, disenfranchising unknown numbers of voters.
“The reason we are not getting people working the polls is that poll workers, traditionally, are in the center of the target range for COVID-19: 65-to-75-year-old individuals,” said Sancho, who added that the younger people now demonstrating against racist policing should not just be urged to register and vote this fall, but should also enlist as poll workers—especially in cities.
“These young people who are demonstrating in the streets, understanding for the first time that institutional racism is America, these people, if they work the polls, could save the entire elections process,” said Sancho, who ran Leon County’s elections for 28 years. “What if all of the African American students at the historically Black colleges [and universities (HBCUs)]—I know Atlanta has a couple—what if they staffed the polls in Fulton County? Here in Tallahassee, what if FAMU [Florida A&M University] ensured that the African American polls are completely covered on November 3? And you get paid for it.”
“If you do it, you frustrate the plan that Trump has set up to call that there was massive fraud and chaos and try to send this to the courts—to the SCOTUS [Supreme Court of the United States] where they will try to pull off the same thing they did in 2000 on a 5-to-4 vote.”
Staffing America’s Polls
Sancho, a law school graduate, is thinking more widely about 2020’s general election than many election administrators, who tend to see their jobs as implementing the rules issued by the state. But he is not the only election veteran thinking about staffing the polls this fall. There has been talk in political circles in recent months about the need to recruit a new cadre of poll workers. In recent weeks, a handful of these efforts surfaced.
Washington’s Fair Elections Center released an online poll worker sign-up tool that it hopes will help facilitate a national recruitment campaign. On June 30, a mix of businesses, corporate alliances, entertainment networks, and nonprofits announced the “Power the Polls” coalition, whose goal is to recruit “250,000 new workers” using the WorkElections.com portal.
Other efforts include those by the Massachusetts-based Voter Protection Corps, a new advocacy group, working with We The Action, a nonprofit that enlists lawyers in civic projects and has been recruiting poll workers for Texas’s July 14 primary runoff.
“Despite the challenges in recruiting poll workers presented by COVID, we’ve been pleasantly surprised by the interest from Texas lawyers serving as poll workers,” said Paydon Miller, We The Action spokesman. “Dozens of lawyers have signed up to volunteer, and many others have indicated interest in helping in November.”
“I do want to emphasize the big takeaway from this effort: states need to be planning now,” he said. “Our experience is that lawyers stand prepared to help how they can, but if states and localities aren’t thinking this through now, we may face the same challenges we’ve seen during the primaries: long lines, unclear voting laws, and voters turned away.”
Staffing America’s polls is a monumental task akin to deploying a civilian army one small squad at a time. In 2016’s presidential election, nearly 110 million Americans voted in person at nearly 117,000 locations, according to a report from the Voter Protection Corps, “Keep the Polls Open: An Action Plan to Protect In-Person Voting and Voting Rights in the Era of COVID-19.”
“More than 917,000 poll workers—sometimes known as election judges, booth workers, wardens, or commissioners—operated these sites. The EAC [U.S. Election Assistance Commission] has reported an average of between seven and eight poll workers per voting site consistently since 2012,” the report said. “Urban areas have fewer polling locations per capita and are at greater risk of long lines and overcrowding in the event of poll closures and consolidation.”
“If you think of the scope of the poll worker recruitment problem, it’s almost as big as the decennial [U.S.] Census,” said Quentin Palfrey, Voter Protection Corps chair. “In ordinary years, a lot of places have trouble recruiting poll workers. But during the pandemic, I think we are going to have massive shortfalls. And part of that is because more than 50 percent of poll workers, historically, have been over the age of 60. That population is going to be very reticent.”
According to Sancho, the states that ran the smoothest recent elections (including the historic shift to voting from home) saw roughly three-quarters of their electorate vote by mail and one-quarter vote in person. He cited Iowa and Kentucky as examples. Should that ratio hold for the fall’s general election, it means that hundreds of thousands of poll workers would be needed.
Historically, county-level officials—not political campaigns, political parties or activist groups—recruit poll workers, said Mike Firestone, co-author of the Corps’ report. Those officials can be a county election supervisor, appointed election official, judge, or municipal clerk who hires poll workers and is responsible for their training. Individuals must apply to be poll workers, which isn’t the same as being assigned by a political campaign or party to be a poll observer.
“There’s a hodgepodge of rules that we only lightly touch on in the report that create a ton of different restrictions and criteria for who can serve,” Firestone said. “In many, many cases, you need to be registered to vote in the jurisdiction where you’re going to serve. There’s a residency requirement plus an active voter status requirement. In some cases, you’ll need to add onto that a party affiliation to fill a particular spot. So outside organizations, particularly political campaigns, have left this function to local government and really focused their own efforts to having observers at the polls to make sure people aren’t getting disenfranchised or knocking on doors to get out the vote.”
Filling Needed Ranks
Ryan Pierannunzi, Fair Elections Center’s project manager for WorkElections.com’s data and poll worker recruitment tool, said the portal seeks to help people sift through the application process. Individuals can find their state and county, view required local qualifications, access application forms (for students and non-students), and see their potential pay. The Work Elections portal also has contact information for local election officials.
“We’re trying to team up with everyone who’s interested,” he said. “We just launched Power the Polls on June 30. We have a plan to reach out to a lot of different groups. One member of Power the Polls is Civic Alliance, which is made up of leading companies across the country. The Time to Vote coalition is part of that as well; they’re committed to giving Election Day off for their employees… We have Comedy Central and MTV involved. Another big part of this is college students and young people. So we’re working with groups like Students Learn Students Vote and other nonprofits to get the word out.”
Some grassroots voting rights activists and organizers contacted by Voting Booth, who have formidable field operations aimed at contacting voters in swing states and communities of color, said they had heard some talk about potential poll worker campaigns, but not more than that.
“I have heard this as a strategy coming from several different corners. I haven’t really seen anybody who’s actually launched a detailed recruitment campaign other than occasional social media posts saying ‘let’s get more young people to apply’ or people posting a link on how people can get involved,” said Cliff Albright, co-founder and executive director of the Black Voters Matter Fund. “A real recruitment campaign—I haven’t seen that. I know it’s in the works from different groups… It’s a potential strategy to deal with a key problem and also get younger people engaged in a different way.”
The Black Voters Matter Fund is focusing on eight states, including mostly Southern states—like Florida, Georgia and North Carolina—as well as Pennsylvania. One of its partners is a voter contact operation targeting Southern states, including Texas run by Andrea Miller of People Demanding Action, which has been sending hundreds of thousands of texts and postcards weekly since early 2020. She, too, said that she had not heard about a serious recruitment campaign—but was fully supportive.
“We have got to have our people inside the polls. Not just outside. So this is great,” Miller said. “It would be interesting. How do we recruit poll workers? Where do they go? We are running phone banks and we are running text banks. We could easily work this in. What would we be asking people to do? How would we be telling them to go sign up?”
“There needs to be an activation process. Most people have no clue about this,” said Gabriela Lemus, treasurer of Mi Familia Vota, a Latino voting rights group. “They don’t even know what poll workers do. When they go vote, they think, ‘All these nice people. They must be volunteers.’ Which they are. But the fact is it is a very organized system.”
Sancho said he only heard about the Fair Elections Center’s poll worker campaign in early July. The WorkElections.com portal was a good start but didn’t go far enough, he said, based on years of experience recruiting registering voters and poll workers from Tallahassee’s HBCU, Florida A&M University. During his tenure, those Black students helped turn Leon County’s judiciary from a mostly all-white bench to having half of the elected judges be people of color.
The Work Elections portal will send voters to their state and county election websites, where they can access online applications and other information. But it doesn’t collect follow-up information to assist people trying to apply to be a poll worker, Sancho said. It also doesn’t walk students through the steps to update their voter registration information, so that they can be a poll worker in their county where they are attending school or now living—which may not be the same as their county of residence when they initially registered to vote. (Many states, like Georgia, require poll workers to be residents and registered voters in the county they will serve.)
Black Voters Matter’s Albright agreed that specifics like these needed to be laid out.
“If you’re just telling people to be a poll worker, but you are not laying out what that process is, then it’s not going to happen. It’s really that simple,” he said. “You can tell people to be a poll worker. You can post a link that makes it easier for them to be a poll worker. You can post a link and give a somewhat detailed description of what this is really going to require of you.”
Despite the constructive criticism, Sancho said the effort was achievable, especially in urban counties with large non-white populations that have seen some of the biggest poll closures in pandemic primaries. Leading examples include Milwaukee, Wisconsin, which went from 182 to five polling places in its April primary. Or Philadelphia, which closed 77 percent of its polls—600 locations. Or Las Vegas, which had only three in-person sites.
“Most of the urban supervisors have the training modules to be poll workers on the internet,” Sancho said. “In Leon County, we do. If you’re a first-time worker, they like to bring you into a training room. But after that, everything can be done online. You can review daily your tasks. And again, the people who are most likely to be able to use the internet on a regular basis are this target audience [younger people]. It’s the older ones who have difficulty going on the internet to do the reviews.”
“Training can be accomplished in a way that it couldn’t have been 20 years ago if this pandemic had hit back then,” he said. “They didn’t have information on the internet. There was nowhere to go to remotely access it. It exists today.”
Sancho reiterated that Trump’s and the Republican Party’s game plan for November appears to be attacking vote by mail now, while not discussing or planning to accommodate in-person voting—to sow Election Day chaos that would be used as pretext to file suits so that federal courts, or even the Supreme Court, would end up deciding winners. The GOP’s operatives likely won’t be as explicit as Trump, but instead, cite more mundane reasons to create those conditions. “A lot of what is happening is the poll worker shortage is becoming part of the rationale for polling place closures, particularly in communities of color,” said Palfrey. “Even when it happens for reasons that are not nefarious, it has the effect of making it harder for folks to vote, and often the people it affects the most are historically disenfranchised groups.”
At a Congressional hearing in late June, the mainstream media paid scant attention to the damning testimony provided to the House Judiciary Committee by John W. Elias, a career attorney at the Department of Justice (DOJ). Elias revealed astonishing details on the corrupt manner in which Attorney General William Barr and the “political leadership” of the DOJ’s Antitrust Division abused our antitrust laws; corruptly ordering career staff to open unwarranted but burdensome, politically-motivated antitrust investigations.
It’s not that Elias’ testimony was unimportant. His words were simply drowned out by the testimony provided by other witnesses about other Barr/DOJ misconduct, and by a separate, but related event. The combined effect of the other testimony provided to the Judiciary panel and the separate news event was nothing short of jaw-dropping.
Still, Elias’ previously unthinkable allegations were, in fact, no less so…
So much prosecutorial abuse, so little time…
At that very same Judiciary Committee hearing, Assistant U.S. Attorney-turned-whistleblower, Aaron Zelinsky, in a sworn opening statement, exposed the political pressure applied by the Barr-led DOJ on behalf of President Donald J. Trump, to significantly reduce the DOJ’s initial sentencing recommendations for Roger Stone, a convicted federal criminal and Trump crony.
Even as the hearing was underway, a three-judge D.C. Circuit Court of Appeal panel handed down a disastrous 2 – 1 decision relating to the DOJ’s motion to dismiss the long-running prosecution of former National Security Advisor (and Trump crony) Michael Flynn. That motion was filed by Barr’s DOJ despite Flynn’s sworn, in-court admissions of guilt and the acceptance of his formal guilty pleas by two different U.S District Court judges.
Earlier, in an erudite amicus curiae brief, a retired federal judge described the DOJ’s abrupt about face in the Flynn case and the DOJ’s motion to dismiss as “preposterous”, “corrupt” and “politically motivated”. The DOJ’s reversals in the Stone and Flynn cases so troubled U.C. Berkeley Law Professor Orrin Kerr that he expressed concern that Trump, with Barr as a willing accomplice, had engaged in “Banana Republic style interference” in DOJ prosecutions. That concern was shared by more than 2,000 former federal prosecutors who signed an open letter encouraging U.S. District Court Judge Emmett Sullivan to carefully scrutinize the reasons why the DOJ sought a dismissal.
The appeals court majority opinion was authored by Judge Neomi Rao, a Trump appointee. Even though the Federal Rules of Court restrict a prosecutor’s ability to dismiss a pending case absent “leave of court”, the appellate panel majority refused to permit Sullivan to proceed with a scheduled July hearing on the motion to dismiss in the lower court, or to even question the DOJ’s reasons for its stunning reversal on the Flynn case. The appeals court ordered Judge Sullivan to immediately grant the dismissal motion. The dissenting jurist, Robert L. Wilkins, described the panel majority’s ruling as an unprecedented and “grievous” overstepping of the appellate court’s authority. The majority ruling, as this author previously observed, was “tantamount to an abandonment of the Judiciary’s constitutional function to act as a check against Executive Branch abuse.” (Under court rules, the full D.C. Court of Appeal has the authority to rehear the matter en banc, and is now believed likely to do so.)
Those two earth-shaking events — Zelinsky’s testimony and the Flynn appellate decision — were then topped off by the powerful assertion made by Republican former Deputy Attorney General Donald Ayer, in his opening statement to the House Judiciary Committee, that “Attorney General Barr is a major threat to our legal system and to the public trust in it.”
Small wonder that most of the air had been sucked out of mainstream media newsrooms. That said, the somewhat overshadowed Elias revelations about the DOJ’s antitrust abuse warrant meticulous coverage. His disturbing allegations are important, if only because they serve as a bookend for the prosecutorial abuse revealed by the Flynn and Stone cases.
The Flynn and Stone cases involve a “corrupt”, “politicized”, “gross abuse of prosecutorial power” in order to benefit the President’s allies. The cases described by Elias entail instances in which the Barr DOJ abused our nation’s antitrust laws to frivolously and maliciously (a) target Trump’s perceived “enemy” (the State of California) and to (b) harass an industry, whose product (marijuana), offends Barr’s extreme personal religious beliefs.
In both instances, per Elias, the DOJ’s Antitrust Division strayed far away from the purpose of our antitrust laws, which, according to the DOJ’s 2015 Mission Statement, are to promote “free and fair competition in the marketplace” by prohibiting “a variety of practices that restrain trade, such as price-fixing conspiracies, corporate mergers likely to reduce the competitive vigor of particular markets, and predatory acts designed to achieve or maintain monopoly power”.
When clean air offends the President
Elias alleged in his sworn testimony that, on August 20, 2019, shortly after California announced that four major automakers had agreed to comply with its air quality emissions standards — standards that were more stringent than the lax standards contemplated by the Trump administration’s less than environmentally conscious Environmental Protection Agency (EPA) — the “New York Times reported that President Trump was ‘enraged’ by the deal and wanted to retaliate.”
The career prosecutor laid out how, under established DOJ precedents and doctrine, the agreement to comply with California’s emission standards didn’t even come close to an antitrust violation. He also added, in a footnote, that if there had been a serious question of antitrust violations, since they entailed a commodity (automobiles), that “would normally be handled by the Federal Trade Commission rather than the [DOJ’s] Antitrust Division”. “The FTC”, Elias explained, “is an independent agency, and its Commissioners cannot be removed by the President over mere political differences.”
On August 22, one day after Trump took to Twitter to express displeasure with the automakers’ willingness to comply with CA emissions standards, and without any input from career staff, “Antitrust Division political leadership instructed staff to initiate an investigation that day,” Elias charged.
Despite criticism of the probe from many of Elias’ colleagues and sworn affirmations from the four automakers that “each company had independently entered into an agreement with California” — thereby undercutting any claim that the investigation could be justified on the basis of a “competitor-to-competitor” agreement — the Trump-appointed head of the DOJ’s Antitrust Division, Assistant Attorney General Makan Delrahim, “instructed staff to examine an announcement by California that it would purchase state vehicles only from automakers that comply with stricter fuel efficiency standards.” (Before being appointed to head the Antitrust Division, Delrahim had served as Trump’s Assistant White House Counsel.)
Elias laid out why this didn’t come close to a basis for continuing the investigation:
When operating as a market participant, states have a wide latitude to determine their own purchases. Moreover, California’s annual purchase of fewer than 2,700 vehicles in a state of nearly 40 million did not confer it with the market power that could lead to antitrust liability.
Nonetheless, the Division refrained from even notifying the automakers that it had closed its ill-considered investigation until February of 2020.
Unscientific hysteria gave rise to our costly, failed “war on drugs” — a war that is the shameful source of mass incarceration. The U.S. (aka “Land of the Free”) accounts for less than 5% of the world’s population, but 25% of its prisoners.
Marijuana is the least dangerous recreational drug — far less so than many “legal” substances, such as alcohol and tobacco. Multiple studies have also established marijuana’s medicinal benefits. Those benefits include a significant reduction in opioid dependence.
At the state level, huge strides have made to eliminate the harsh impact of marijuana prohibition. Forty-four states have legalized its use for medicinal purposes. Eleven of those 44 have legalized recreational use as well.
Marijuana is still classified as illegal on the “flawed, outdated and unscientific” federal drug schedule. However, as Elias observed, an “appropriations rider restricts the [DOJ] from prosecuting medical marijuana usage in states that have legalized it”.
Despite the science and the appropriations rider forbidding DOJ medical marijuana prosecutions, Elias reports that, as part of his personal bias against marijuana, Barr misused the DOJ’s Antitrust Division to harass marijuana companies, subjecting proposed mergers to onerous scrutiny even though career staff found no reasonable basis for doing so.
The first of those cases involved the merger of two marijuana dispensary companies, MedMen and PharmaCann. As a result of its initial investigation of the reported proposed merger, “career staff examined the transaction,” Elias detailed. “They determined that the cannabis industry appeared to be fragmented with many market participants in the states that had legalized the product.” There being no competitive concerns, there was no reason to next institute a rarely used “Second Request” investigation.
“Second Request investigations are infrequent”, Elias explained, “because they require the companies to respond to burdensome subpoenas…and produce hundreds of thousands or millions of documents.”
Instead of accepting seasoned career staff’s conclusions about the lack of antitrust concern, Barr “called the Antitrust Division leadership to his office for a meeting entitled ‘Marijuana Industry Merger Review’.” Ignoring the identical conclusions in a staff memo prepared for that meeting, “Barr ordered the Antitrust Division to issue Second Request subpoenas”.
As a result of a “negotiated subpoena compliance”, Elias testified, the Division obtained “1.3 million documents from the files of 40 companies. The investigation confirmed that the markets at issue were ‘unconcentrated’ and closed in September 2019 without any enforcement action.” Elias went on to explain that the “merger collapsed, nonetheless, with MedMen citing unexpected delays in obtaining regulatory approval.”
Under Barr’s “leadership”, in FY2019, the DOJ’s Antitrust Division went on to conduct nine additional marijuana merger investigations, eight of which entailed burdensome Second Requests. “In several instances, staff sought to make the investigation less burdensome…by narrowing the subpoenas,” alleged Elias. “Political leadership refused such requests”. That same “political leadership”, however, allowed cases to be closed even though they had reviewed only a few the millions of documents the beleaguered cannabis companies were forced to turnover. “In one case,” Elias alleged, “the Division records show that the closing process began before the documents had been uploaded and made available for viewing by Division staff.”
In Elias’ estimation, the marijuana merger probes were a colossal waste of Antitrust Division resources: At one point, cannabis investigations accounted for five of the eight active merger investigations in the office that is responsible for the transportation, energy, and agricultural sectors of the American economy. The investigations were so numerous that staff from other offices were pulled in to assist, including from the telecommunications, technology, and media offices.
During a September 17, 2019 all-staff meeting, any and all doubts as to the source of this colossal waste of Antitrust Division resources were eliminated, according to Elias’ sworn opening statement, when Delrahim “acknowledged that the investigations were motivated by the fact that the cannabis industry is unpopular ‘on the fifth floor’, a reference to Attorney General Barr’s offices in the DOJ’s headquarters building.”