Why Is The Battelle N95 Mask Sterilization Contract So Expensive?

Jim here.

Long time readers of the blog know that whenever I hear something about Battelle, my spidey senses go on full alert. Suffice it to say that the Battelle facility in West Jefferson, Ohio  is one of only a few facilities on the planet that has both the expertise and the equipment to produce something like, say, a fully weaponized anthrax powder. So I’ve been going on alert the last few days as word has come out on Battelle’s process for sterilizing used N95 masks for re-use. West Jefferson is just outside Columbus, so I had a false alarm on Marcy’s post earlier today about the Washington Post needing to go to Columbus, but she wasn’t discussing Battelle.

Don’t get me wrong. I am fully in favor of anything that can be done to provide safe PPE to those on the front lines of the COVID-19 pandemic response. Finding safe ways to re-use these masks has to be one of the many approaches we must rely on while the masks are in such short supply. But when I finally started digging deeper into what is going on with the contract that the Defense Logistics Agency awarded to Battelle for this process, I was staggered by the total cost compared to what looks, on the surface, to be a straightforward, inexpensive already proven approach.

On April 13, the Department of Defense announced a $415 million contract to Battelle for N95 mask sterilization:

The Department of Defense’s Defense Logistics Agency, on behalf of the Department of Health & Human Services (HHS), has awarded a $415 million contract for 60 Battelle Memorial Institute Critical Care Decontamination Systems (CCDS), that can decontaminate up to 80,000 used N95 respirators per system per day, enabling mask reuse up to 20 times.

Spearheaded by the Department’s Joint Acquisition Task Force, six units have already been delivered to locations including two to New York, and one each to Columbus, Ohio, Boston, Chicago and Tacoma, providing the ability to sterilize 3.4 million masks a week, reducing the need for new masks by the same number.

All 60 systems will be available by early May for prioritization and distribution by FEMA and HHS. Once all are delivered, these 60 units will allow 4.8 million masks to be sterilized per day, almost 34 million per week.

‘I remain extremely proud of the selfless efforts of Department of Defense personnel who continue to do everything they can to help provide medical masks, test kits, medicine and meals to support America’s military, medical, emergency services and law enforcement professionals who are on the front lines and need them most,’ said Under Secretary of Defense Ellen Lord.

This procurement includes a service contract to cover operations and maintenance.

A couple of days earlier, on April 11, the New York Times visited Battelle and provided a photoessay on the Battelle process for sterilization. Here is a Times photo of masks hanging in one of the decontamination units. This photo is also the featured image for the post:

One thing that jumps out immediately is to notice that standard food/medical grade shelving is used in the unit. So at least that part isn’t very expensive. I am disturbed, though, by the “extra” rods between shelves that have masks hanging in a way that we can see multiple pairs of them closely nested, raising concern about circulation of the vapor used in the sterilization process. Just below the photo, the Times notes that workers take “care to avoid overlapping”. Okay, then, but I’m still nervous about those that look nested.

The sterilization process itself is carried out by hydrogen peroxide vapor (HPV). Of course, safety dictates that the chamber in which the masks are exposed to the vapor is perfectly sealed as vapors escaping would be toxic to the staff working around the chamber. Technology to inactivate the peroxide in the exhaust stream from the chamber is known, off the shelf technology and would be a part of the air handling for the chamber. Hydrogen peroxide itself is very inexpensive and is produced in bulk by the chemical industry.

Battelle already validated the process under a contract from FDA, with the final report issued in July of 2016 (thanks, Obama!). Here’s a partial screengrab from the report with a photo of the simple machine used to generate the HPV (gratuitous anthrax mention included for grins):

Sure enough, the Times found a very similar machine when they were at Battelle:

This is not a very complicated piece of machinery. I’m not sure of the full retail price, but I found a used “as is” listing for $4500. I’d be surprised if these are costing Battelle more than $20,000 per unit.

And the “chambers”? They’re shipping containers. Again, from the Times photos:

Also visible in this photo is very standard-looking air handling equipment.

So, making 60 units out of shipping containers, outfitting them with an HPV generator and air handling equipment doesn’t look very expensive to me at all when compared to the total value of the contract. It’s very hard to estimate more than $10-15 million in materials costs for 60 units.

The Times article provides an accessible description of the sterilization process. Here’s what happens in the chamber:

A contraption known as a vapor phase hydrogen peroxide generator, which looks like a washing machine with two hoses, is then used to circulate the colorless gas into and out of the room. During the first four hours, workers increase the humidity inside the chamber, causing the hydrogen peroxide to collect as condensation on the masks, neutralizing the coronavirus and other contaminants.

Over the next four hours, the gas is flushed out of the room. The teams then re-enter the chamber to inspect the masks and conduct spot tests for harmful levels of residual hydrogen peroxide. They then confirm that chemical indicator cards placed throughout the chamber have changed color — the sign of a successful decontamination.

The process itself is very labor intensive, although the masks are inside the chamber for what looks like 8 hours in between bouts of activity. The masks have to be handled and inspected both before and after the sterilization procedure.

Is the labor the reason the contract costs so much? A key missing piece of information is just how long the contract lasts. Recall that the DOD press release indicates that Battelle is providing the labor for the process along with maintenance of the chambers.

After a bit of digging, I found a few more details. Here is information from a Defense News post that is dated April 13 in its URL:

Battelle has already set up two machines in the New York City area, as well as one each in Chicago, Illinois; Tacoma, Washington; Columbus, Ohio; and in the suburbs of Boston, Massachusetts. A solicitation on the organization’s website, found by the Boston Globe, says the group anticipates a need of at least 2,300 workers for 100 sites — or 23 staff per site, which is expected to run 24 hours a day. The $20 per hour job is expected to last at least four weeks.

“We are anticipating a surge over the next two months,” the solicitation read.

Let’s be generous here and extend that two month surge to a full year. If there are 2300 workers each making $20 an hour for a year, I calculate a little under $96 million in direct costs. Being generous again, travel expenses (Battelle in their solicitation mentioned the employees may need to move among sites), benefits, and overtime may bring total personnel costs close to $200 million.

My gut feeling here is that Battelle stands to make quite a bit of money off this contract, even if they run full-out with these chambers for a full year.

But rest easy, citizens.  Battelle plans to provide the sterilization service free of charge for those submitting masks and other equipment for processing.

Research Misinfo/Disinfo: Off-Label COVID-19 Therapy Has No Proof

[Check the byline, thanks! /~Rayne]

Funny enough, this COVID-19 post originally came about because of one of my family members.

They sent me a link to an op-ed from the Detroit News — the more conservative of the two major Detroit-based papers in this state — in which the author took Michigan’s Gov. Gretchen Whitmer to task because the state’s Department of Licensing and Regulatory Affairs clamped down on off-label prescriptions of an antimalarial drug.

“Any thoughts on the mandate against hydroxychloroquine?” they asked along with the link.

“Oh no,” I replied, “the author is going to regret writing that op-ed.”

They really had no idea what they were writing about. But then Trump doesn’t either.

~ ~ ~

We’re desperate. Trump and his minions don’t want to admit it, carrying on with Trump’s daily self-fluffing at the podium in front of his narcissistic supply, I mean, select White House press pool as if everything is under control.

We the public know it’s not. On Wednesday March 25, actor and activist George Takei pointed out a person died of COVID-19 in New York City every six minutes the previous day. The numbers have only grown worse.

We are that measurably desperate.

We’re grabbing at any kind of research, peer-reviewed and not, to find a way to shut down this fire hose of death because the other realistic alternative is at least 18 months of alternating levels of social distancing until a vaccine for COVID-19 has made it through multiple trials.

In a previous post I did homework and laid out some of the off-label approaches which have been taken in other equally desperate countries — like the antiviral remdesivir and the rheumatoid arthritis medication tocilizumab. These are in studies and haven’t been approved for use against COVID-19. We can only hope that other countries’ desperate, compassionate use of drugs off-label will add to the body of knowledge we have about effective treatments between now and the vaccine to come.

Our desperation makes us sloppy. We forget that what looks too good to be true often is just that.

Like the combined drug cocktail hydroxychloroquine and azithromycin.

~ ~ ~

Back on March 13 while writing about drug therapies in research, I wrote:

A number of existing drugs have been revisited for repurposing against COVID-19 instead of their original intended purpose. Antiviral remdesivir and antimalarial chloroquine are among them.

Chinese researchers posted a paper about in vitro results, not peer reviewed (at least I didn’t see that it was).

There’s a paper about chloroquine alone; in vitro studies suggest it may work against COVID-19. Chinese researchers have a number of in vivo studies in progress, but no data has been released.

Chloroquine by itself as an effective therapy would be a miracle in that it’s an old drug now off patent and available as a generic, super cheap to produce. Can’t imagine Big Pharma would like this. But we won’t even face this conflict if we don’t get data from in vivo studies.

Data. We needed data from peer-reviewed in vivo studies before any pronouncement could be made about the antimalarial medication as a therapy for COVID-19.

Published March 2 in Science Direct, a commentary by researchers at Aix Marseille University said essentially the same thing after examining an announcement by Chinese researchers that chloroquine phosphate was better than a control in treating SARS-CoV-2 (COVID-19) pneumonia — an announcement which had no supporting data:

In conclusion, the option of using chloroquine in the treatment of SARS-CoV-2 should be examined with attention in light of the recent promising announcements, but also of the potential detrimental effect of the drug observed in previous attempts to treat acute viral diseases. We urge Chinese scientists to report the interim trial results currently running in China as soon as they are available. This should be preferentially done in a peer-reviewed publication with detailed information to allow the international scientific community to analyse the results, to confirm in prospective trials the efficacy of the proposed treatment and to guide future clinical practice.

(Emphasis mine.)

These researchers are literally begging the Chinese researchers to provide data as soon as possible, after noting that while hydroxychloroquine’s precursor chloroquine appeared effective as an antiviral in vitro against different viruses, it has shown no benefit in animal models. (They also noted in a study of its efficacy against chikungunya virus, chloroquine actual “enhanced” viral replication in animal models. Not good.)

A study was published around the March 24 but reports said it was unfavorable for the antimalarial. (I haven’t been able to get my hands on the study; the link from each news source citing it has failed.) The size of the group studied was very small — only 30 patients with a control group of 15.

And yet sandwiched in time between the first Chinese study and this most recent one was another one submitted for publication on March 17:

Gautret et al. (2020) Hydroxychloroquine and azithromycin as a treatment of
COVID‐19: results of an open‐label non‐randomized clinical trial. International Journal of
Antimicrobial Agents – In Press 17 March 2020 – DOI : 10.1016/j.ijantimicag.2020.105949
https://www.mediterranee-infection.com/wp content/uploads/2020/03/Hydroxychloroquine_final_DOI_IJAA.pdf

The researchers from Aix Marseille University made no mention of this study though it must have been underway in their own backyard, so to speak.

No one noticed this — the dog that didn’t bark.

Meanwhile, on March 19, Trump talked about hydroxychloroquine from the podium during a briefing before a White House press pool. He not only mentioned it in glowing terms but he tweeted about it. Mike Pence also promoted the antimalarial two days later.

On March 24 an Arizona man died and his wife was hospitalized after taking hydroxychloroquine’s precursor, chloroquine — used to maintain their fish tank — having heard Trump talk about it so positively. The couple poisoned themselves; Trump scored two casualties with his misinformation.

~ ~ ~

A critical threat to U.S. health security is its monoculture — specifically, its complete investment in English excluding other languages. Back when we worried about Zika virus posing a threat to Americans traveling to South America and when Zika arrived in Florida, we were combing through research from other countries. The Chinese fortunately published much of their work in both Mandarin and English, but Brazil had a considerable amount in Portuguese. Their work was ignored in favor of less credible work which appeared in English.

This same dynamic is at work with regard to potential drug therapies — hydroxychloroquine in particular.

The study Gautret et al. (2020) was published in French and English, you’ll note. Many people picked up on it because it was so accessible.

What wasn’t picked up readily was the problems with an affiliated researcher. Many reported problems have been documented online where the world can read them, in of all places, Wikipedia.

But that’s Wikipedia France — a different address than we use in the U.S., published in French.

See: https://fr.wikipedia.org/wiki/Didier_Raoult

Use Google Translate and read the section on COVID-19. The translation isn’t entirely smooth but it does well enough for the average English speaker to figure out Raoult is a character.

He also has a history of sexual harassment and possible abuse according to a number of accusers, also documented in this Wikipedia entry.

(I’ve scraped that entry and translated it out of concerns it might change over time. You can read the portion of the French Wikipedia entry on Raoult and COVID-19 at this link. You can compare it against the Wikipedia page’s editing history though you’ll need to reverse translate it.)

It could be said in the MeToo age that many accused abusers are competent at their professions and are simply jerks when it comes to managing their attitude toward co-workers. But in Raoult’s case the accusations are smoke and where there’s smoke there’s an ethical fire.

It seems Raoult’s research has had a problem with data which looks artificial in at least two other studies, noted during peer review.

He’d previously been banned from publishing in microbiology journals.

Complaints about a hostile work environment in his lab do not offer reassurance about the credibility of his work. Were subordinates pressured for results?

It also seems odd this one study from France has been relied on so heavily by others, when the underlying drug is manufactured by a French manufacturer (though not the only company which does).

None of this passes the smell test.

Gautret et al. also didn’t pass the sniff test with the journal in which it was published though it did not retract the study:

The April 3, 2020, notice, from the International Journal of Antimicrobial Agents, states that the March 20 article, “Hydroxychloroquine and azithromycin as a treatment of Covid-19: results of an open-label non-randomized clinical trial”

does not meet the [International Society of Antimicrobial Chemotherapy’s] expected standard, especially relating to the lack of better explanations of the inclusion criteria and the triage of patients to ensure patient safety.

The notice, which is from the ISAC and not the journal itself, is a bit ambiguous. The society says it “shares the concerns” about the paper, but it doesn’t appear to be taking additional action.

It’s unclear what took the journal nearly a month to make this statement of doubt. Because it hasn’t been retracted references are still made to Gautret et al. (2020).

~ ~ ~

Studies to date on hydroxychloroquine or its precursor chloroquine have been small or flawed; the merits of these antimalarials were thin to begin with.

Zumla, A., Chan, J., Azhar, E. et al. Coronaviruses — drug discovery and therapeutic options. Nat Rev Drug Discov 15, 327–347 (2016).
Published: 12 February 2016
https://doi.org/10.1038/nrd.2015.37
https://rdcu.be/b3uhd

An excerpt from this review of drug therapies notes chloroquine had limited promise against SARS-CoV-1:

…Chloroquine is an anti-malarial drug that sequesters protons into lysosomes to increase the intracellular pH. It has broad-spectrum antiviral activities against numerous CoVs (SARS-CoV, MERS-CoV, HCoV-229E and HCoV-OC43) and other RNA viruses in vitro 123, 210, 211, 212, 213, 214. However, it did not substantially reduce viral replication in SARS-CoV-infected mice, possibly because the cell surface pathway was not simultaneously blocked. …

This study of antiviral remdesivir with antimalarial chloroquine was in vitro, not in vivo:

Wang, M., Cao, R., Zhang, L. et al. Remdesivir and chloroquine effectively inhibit the recently emerged novel coronavirus (2019-nCoV) in vitro. Cell Res 30, 269–271 (2020).
Published: 04 February 2020
https://doi.org/10.1038/s41422-020-0282-0

Remdesivir may act alone as antiviral. Conclusion is that these two drugs “should be assessed in human patients suffering from the novel coronavirus disease.” The drugs were assessed but not employed as a protocol.

This next study is again in vitro, not in vivo:

Liu, J., Cao, R., Xu, M. et al. Hydroxychloroquine, a less toxic derivative of chloroquine, is effective in inhibiting SARS-CoV-2 infection in vitro. Cell Discov 6, 16 (2020).
Published: 18 March 2020
https://doi.org/10.1038/s41421-020-0156-0
https://www.nature.com/articles/s41421-020-0156-0

Its conclusion calls for more testing, while implying hydroxychloroquine’s use would be better as an anti-inflammatory during cytokine storm though this study didn’t examine its anti-inflammatory effects:

…HCQ is a safe and successful anti-inflammatory agent that has been used extensively in autoimmune diseases and can significantly decrease the production of cytokines and, in particular, pro-inflammatory factors. … In combination with its anti-inflammatory function, we predict that the drug has a good potential to combat the disease. This possibility awaits confirmation by clinical trials. We need to point out, although HCQ is less toxic than CQ, prolonged and overdose usage can still cause poisoning. And the relatively low SI of HCQ requires careful designing and conducting of clinical trials to achieve efficient and safe control of the SARS-CoV-2 infection.

Hydroxychloroquine is toxic and it needs carefully designed clinical trials — this prediction of its “good potential” is happy talk until there’s data to prove its effectiveness for its intended purpose.

A pre-proof study about the two-drug hydroxychloroquine and azithromycin cocktail published on March 30 is small but makes a more declarative statement right in its title:

Molina JM, Delaugerre C, Goff JL, Mela-Lima B, Ponscarme D,
Goldwirt L, de Castro N, No Evidence of Rapid Antiviral Clearance or Clinical Benefit with the
Combination of Hydroxychloroquine and Azithromycin in Patients with Severe COVID-19
Infection
, Medecine et Maladies Infectieuses (2020),
doi: https://doi.org/10.1016/j.medmal.2020.03.006
https://www.sciencedirect.com/science/article/pii/S0399077X20300858

The summary:

In summary, despite a reported antiviral activity of chloroquine against COVID-19 in vitro, we found no evidence of a strong antiviral activity or clinical benefit of the combination of hydroxychloroquine and azithromycin for the treatment of our hospitalized patients with severe COVID-19. Ongoing randomized clinical trials with hydroxychloroquine should provide a definitive answer regarding the alleged efficacy of this combination and will assess its safety.

This study was in vivo, using the same dosing regimen reported by Gautret et
al
. study on a cohort of patients similar to the same study. The results were unsatisfactory:

At the time of treatment initiation, 10/11 had fever and received nasal oxygen therapy. Within 5 days, one patient died, two were transferred to the ICU. In one patient, hydroxychloroquine and azithromycin were discontinued after 4 days because of a prolongation of the QT interval from 405 ms before treatment to 460 and 470 ms under the combination. Mean through blood concentration of hydroxychloroquine was 678 ng/mL (range: 381-891) at days 3-7 after treatment initiation.

Nor had the virus been cleared 5-6 days after treatment began in 8 of 10 surviving patients. The study’s authors made a point to compare their findings against the Gautret et al. study:

These virologic results stand in contrast with those reported by Gautret et al. and cast doubts about the strong antiviral efficacy of this combination. Furthermore, in their report Gautret et al also reported one death and three transfers to the ICU among the 26 patients who received hydroxychloroquine, also underlining the poor clinical outcome with this combination.

Hydroxychloroquine doesn’t work against SARS-CoV-19 even when paired with the antibiotic azithromycin, but a larger, randomized clinical trial with appropriate controls is still necessary to beat it through the heads of people pushing this therapy.

~ ~ ~

But out of desperation, hospitals have been using hydroxychloroquine anyhow, only to discover it doesn’t work against COVID-19 — it may even make patients sick.

That last French study above squelched further use of hydroxychloroquine at the St. Louis Hospital in Paris.

Hospitals in Sweden stopped using it after negative effects (open link in Chrome and use Google Translate to read in English) including impaired vision.

On Sunday, Dr. Sanjum S. Sethi, Vascular Medicine and Interventional Cardiology Columbia University Irving Medical Center, shared that ALL patients treated in the ICU for COVID-19 have received hydroxychloroquine:

Dr. Sethi doesn’t say how many patients have been treated with the drug so far — there could be as many as 1,000 patients in ICU at one time based on a newsletter by Surgeon-in-Chief Craig R. Smith, MD for NYP/CUIMC — but it didn’t work for severe-to-critical patients in ICU.

Which means the Chinese researchers’ suggestion that hydroxychloroquine’s anti-inflammatory qualities may help with cytokine storms didn’t pan out.

~ ~ ~

Meanwhile, Trump continues to tout hydroxychloroquine, as does his best buddy in Brazil, Jair Bolsonaro.

Brazil, like other tropical countries has ongoing incidence of malaria. It’s endemic along the Amazon River and treated with chloroquine or hydroxychloroquine. The drug has also been used prophylatically.

And yet Brazil is experiencing a growth in COVID-19 cases even along the Amazon River, suggesting hydroxychloroquine or its precursor are not effective in the early stages of the disease, failing to fend off infection and contagious pre-symptomatic progression to mild, severe, and critical cases.

Further assessment is difficult because like Trump, Bolsonaro has undermined reporting and efforts to limit contagion.

Brazil’s Minister of Health Luiz Henrique Mandetta nearly lost his job late last week when he refused to authorize a protocol prescribing hydroxychloroquine for COVID-19 patients. A few doctors continued to press him on this after he survived a heated cabinet meeting in which this pharmaceutical was discussed.

Two days later a small study was published; chloroquine as therapy for COVID-19 patients had been halted early after more than 25% of the subjects died:

Borba M, Almeida Val F, Sousa Sampaio Vanderson, CloroCovid-19 Team, et al. Chloroquine diphosphate in two different dosages as adjunctive therapy of hospitalized patients with severe respiratory syndrome in the context of coronavirus (SARS-CoV-2) infection: Preliminary safety results of a randomized, double-blinded, phase IIb clinical trial (CloroCovid-19 Study)
Published: April 11, 2020
medRxiv 2020.04.07.20056424; doi: https://doi.org/10.1101/2020.04.07.20056424
https://www.medrxiv.org/content/10.1101/2020.04.07.20056424v1

~ ~ ~

The bottom line is that we are still without an effective pharmaceutical antiviral therapy, no matter what Trump says.

What he’s said from the podium has only encouraged risk-taking pushing past the limits of ethics guiding the practice of medicine and human experimentation. The Texas City nursing home administration who has dispensed hydroxychloroquine without advanced informed consent is a perfect example of ethics collapsing under Trump’s equally unethical practice of medicine and pharmaceutical lobbying from the presidential podium.

Though we know more now than we did at the beginning of March about hydrochloroquine as a tool for treating COVID-19 — and we know that no study to date has suggested the drug will be effective for a majority of COVID-19 patients — we still do not know why Trump is so invested in this generic medication.

Who told Trump this drug was an effective treatment for COVID-19?

Has someone continued to reinforce this fallacy though Dr. Fauci has yet to reverse his own professional opinion about hydroxychloroquine?

Who likewise sold Bolsonaro on this drug? It likely wasn’t Fox News though the network may have irresponsibly reinforced Trump’s lobbying for hydroxychloroquine.

Why are talking heads on Fox News still promoting this drug with impunity — like Laura Ingraham who is not a medical professional?

Why are other right-leaning pundits continuing to press for this drug though they do not have medical background, and while other experts continue to express doubts about hydroxychloroquine?

None of this makes sense; we lack information. As I said before, we need data from peer-reviewed in vivo studies before any pronouncement can be made about the antimalarial medication as a therapy for COVID-19.

And we need to know more about Trump’s reasons for promoting this drug while ignoring the risks hydroxychloroquine poses.

WaPo Should Go to Columbus To Find Out How Economy Will Reopen, Not Perpetuate Trump’s Myths about It

I complained last Friday about a long WaPo story describing how Trump thinks he’ll reopen the economy next month that, in its ninth paragraph, undermines the entire premise of the story by noting that, “The White House cannot unilaterally reopen the country.” The same paragraph falsely claims that states are following CDC guidelines, when the official social distancing guidelines fall far short of what most governors have now imposed.

In spite of all the focus this week on the fact that Trump doesn’t have that authority, WaPo continues to write stories like that.

This story, naming a rogue’s gallery of discredited economists (Hank Paulson, Stephen Moore, and Arthur Laffer) who are indulging Trump’s delusions about reopening immediately, admits in paragraph 8 that, “governors and mayors have the authority to impose or lift stay-at-home orders and to permit businesses and schools in their localities to reopen.” And this story, talking about a CDC/FEMA “plan” to start opening parts of the economy by geography (which is obviously just a slide show written to meet someone’s demand for a May 1 date, one that is not temporally possible), never actually informs readers that Trump has no authority to implement this plan. Instead, it just repeats Trump false claims to have that authority from yesterday’s presser unchallenged.

“The plans to reopen the country are close to being finalized,” Trump said at a White House briefing Tuesday.

He said he planned to speak with all 50 governors “very shortly” and would then begin authorizing individual governors to implement “a very powerful reopening plan” at a specific time and date for each state.

He said roughly 20 states have avoided the crippling outbreaks that have affected others, and he hinted that some could begin restarting their economies even before May 1.

“We think we’re going to be able to get them open very quickly,” Trump said.

He added: “We will hold the governors accountable. But again, we’re going to be working with them to make sure it works very well.”

WaPo did publish this story yesterday in which they admitted in the very first paragraph that Trump can’t reopen the economy.

President Trump’s inaccurate assertion that he has “total” authority to reopen a nation shuttered by the coronavirus is igniting a fresh challenge from governors scrambling to manage their states and highlighting a Republican Party reluctant to defy a president who has relished pushing the boundaries of executive power.

But it’s a horse race story that attempts to force Republicans to criticize Trump’s ridiculous comments, not a story claiming to report on how the economy will reopen. If the WaPo, in its stories purporting to describe how Trump will reopen the economy, only report that he can’t do so in asides buried deep in those stories, why would we expect Republicans to note how ridiculous the claim is?

My working theory is that WaPo continues to get suckered into reporting extensively on Trump efforts that are a sidelight to the story of how the economy will reopen because they have so many journalists with good sources in DC, but far fewer in the capitals of the states that actually matter. Gavin Newsom, Andrew Cuomo, John Bel Edwards, and Gretchen Whitmer have some of the hardest decisions to make (and Republicans’ aggressive efforts to put Whitmer on the defensive here in Michigan is an interesting political story). The possibility that Gregg Abbott, Ron DeSantis, and (to a lesser degree) Tate Reeves will undercut the efforts of mayors in their states by overriding their city-wide shut-down orders in an attempt to reopen their states is a possibility worth anticipating, especially since that’s one point of leverage Trump already appears to be working (I think Brian Kemp would normally be included here but suspect he has realized he has a real problem on his hands).

But the real story about how the country will reopen can likely be found in Columbus, OH, Annapolis, MD, and Boston, MA, where Republican governors who’ve been working closely with — and to a large extent, leading — their Democratic neighbors are pursuing their own path.

Because Ohio’s Mike DeWine was quoted in several of yesterday’s stories saying something that was far less substantive than he manages on Twitter, I went back to see what WaPo has reported on him. On Monday, they published this interview between WaPo’s superb horse race politics reporter, Bob Costa, and DeWine. It offers key lessons, not just about what DeWine is thinking, but also about why Costa (who, again, is a superb reporter) didn’t elicit the key policy questions that elsewhere WaPo seems to believe is the key story.

DeWine made six key policy points:

States and localities need direct payments

Three times, DeWine emphasized the importance of direct payments to states and localities so they can deal with their budgetary shortfalls. After that, Costa asked DeWine specifically about Nancy Pelosi’s fight with Republicans to do just that (which seemed like an unnecessary attempt to get DeWine to contradict Republicans). DeWine pretended not to know what was in Pelosi’s bill, but repeated, a fourth time, that states and localities need direct payments.

MR. COSTA: Final question, Governor. Really appreciate your time. I know you’re busy. There is a big issue here in Washington. Speaker Pelosi wants 250 billion on top of the 250 billion wanted by Senate Republicans for small business expansion of that loan program that was part of phase three legislation. Where do you come down on how urgent it is to get a deal done in Washington? What specifically would you like to see in that agreement if it does come to be this week in Washington?

MR. DEWINE: Well, look, I’ve not looked at everything that’s in those respective bills. What I mentioned earlier on is important. It’s important that local government have the money that they can actually run local government. It’s important that the state be able to supply money for education. I mean, if you ask me what I’m worried about at the state level, I’m worried about that we’re not going to have enough money to provide K-12, our local schools, 630-some schools district in the state of Ohio with money. So, you know, I’m concerned about that. And so the federal government being able to help in that area would certainly be very, very, very helpful and very important to us.

In the interview as a whole, DeWine avoided antagonizing Trump and other Republicans. But on this issue, he clearly backs the policy that Democrats are pushing.

States — and corporations — need testing

Unsurprisingly, DeWine emphasized the import of testing to reopening the economy. But he also suggested that corporations are also thinking along these lines:

The other thing that we have not talked about here but I know is on the minds of governors, and certainly on my mind, is testing, how extensive can we have testing, how extensive are we going to be able to do tracing, and do that maybe more–in a more sophisticated way. So, those are things that private employers are looking at. I talked to a person who has a large retail business today, a nationwide company, and these were the things that he was talking to me about that they’re already looking at. Irrespective of what the state does, they’re looking at these things: how are they going to protect their workers, how are they going to protect their customers, how are they going to assure their customers that when they enter their store, you know, they’re going to be in a safe situation.

The nationwide retailer here may be Kroger, which is headquartered in Cincinnati and plays a critical role in the country’s food supply chain. But this is a key insight (and one that accords with what I’m hearing in Michigan). Corporations are going to play a key role in the public health process here, testing their employees and contact tracing in an effort to avoid having to shut down stores. This is one reason this won’t work regionally, because if (say) Kroger can solve this, then it will have an impact across the country.

Of course, the testing isn’t there yet, which is why Trump’s claims to be reopening the economy should be reported as pure fantasy and an attempt to dodge the federal role in testing.

There won’t be a Midwestern task force but there will be cooperation

Because the West Coast states and some Northeastern ones set up task forces this week, Costa asked DeWine whether there would be a Midwestern one. DeWine suggested it won’t be formal, but there will be cooperation.

MR. COSTA: Is it Ohio alone? You saw the news a few hours ago. The governors in the Northeast have formed a taskforce to try to figure out decisions in a collective way. Do you envision Ohio making decisions about Ohio, and Ohio only, or could you see a Midwestern collection of governors in a taskforce in the coming days?

MR. DEWINE: Well, I don’t know if it’s going to be a formal task force or not, but I can tell you that I talk to the governors that surround Ohio quite frequently. I was on the phone, I guess it was Saturday night, or Friday night with the governors of Kentucky and Indiana. I talked to the Michigan governor quite a bit, and so West Virginia. So, we certainly share ideas, and we collaborate in that sense because our states are generally in pretty much the same shape. Michigan certainly has been harder hit with–in Detroit, but we’re all kind of going through it in real time at about the same time period. So that consultation and sharing of ideas is going to continue and is very important.

This cooperation has been clear for some time (and because of the way traffic works, it is necessary). If Midwesterners do anything, especially Michiganders, they’re going to drive through another states, often as not on Interstates 70, 71, 75, 80, and 90 through Ohio. The auto industry, with a supply chain that links the region with factories in Mexico and Asia, sprawls across the region (although also some key southern states, notably Alabama). Plus, the states demographically blend into one another, with the same kind of challenges tied to Appalachia or Rust Belt health issues.

It is unsurprising (and, in fact, public) that this cooperation exists. But it’s also a far more important story to how the country will reopen than what Trump says in a presser.

In the DeWine’s Midwest, COVID-19 is a bipartisan issue

DeWine refused Costa’s invitation to antagonize Trump and acknowledged his cooperation with his neighbors, including Democrats Gretchen Whitmer and Andy Beshear. In addition, he made several other nods to bipartisanship.

As he always does, he emphasized the import of his Health Direct Amy Acton, who worked with Obama.

MR. COSTA: Your health director, Amy Acton, she’s been at your side since day one, was part of your decision to have an early response to the coronavirus pandemic. You’ve seen the retweet by President Trump. You’ve seen the news conferences. Dr. Fauci has been there. There’s now this chatter among some of the President’s allies, fire Fauci. Would you advise the President against considering that idea?

MR. DEWINE: Well, I don’t give the President advice?

MR. COSTA: Why not? You’re a governor in a major state.

MR. DEWINE: Look, I think the doctor’s done a good job, and I think he has a relationship with the American people. You know, Dr. Acton in Ohio has established really a relationship with the people of the state. And when I picked her, you know, she was the last member of my cabinet to pick, and I was going to be very, very careful of who I picked for that position. I wanted someone who had a background in public health, who was a medical doctor, but I also wanted someone with a passion to do it and someone who had an ability really to communicate with the people. And I made that decision having absolutely no idea that we were going to be dealing with this horrible coronavirus.

But that is important, the ability to communicate and talk to people. And I kind of jokingly tell people that, you know, I figured since Dr. Acton could explain it to me, if she could explain it to me, then she will have no trouble explaining it to the people of the state. So, but she has been by my side, and I’ve relied on her and other medical advice, you know, as we’ve gone through this. As we look to come out, we’ve put together a business group also to go along with our medical advice to help us as we move forward.

And he applauded the work of both Rob Portman and Sherrod Brown (and, not by name, the entire Congressional delegation).

You know, our two senators in our congressional delegation have done a very, very good job, Rob Portman, Sherrod Brown and the members of the House of Representatives, both Democrat and Republican. So, we work with them very closely just like we work with our local mayors. So that collaboration is important. We appreciate what they’ve done.

This is not a very sexy story in today’s DC, and it totally contrasts with Trump’s efforts to make COVID response into a series of transactions that benefit him, personally, but unlike the West Coast and Northeast coalitions of blue states, COVID in the Midwest is necessarily bipartisan, even if Republicans in KY, OH, and MI are focusing their efforts on challenging such bipartisanship in these states.

That doesn’t mean DeWine is conceding the election — he dodged a question about mail-in voting (though in part by repeatedly pointing out that no-excuse absentee voting makes that possible without more legislation). But DeWine is doing a lot to retain the ability to work in bipartisan fashion on COVID response.

DeWine doesn’t see reopening working like Trump wants it to

DeWine stated that “I don’t know that [Ohio’s reopening is] going to be geographical phases.” Trump’s entire “plan” is premised on such a geographical approach (and Stephen Moore, who’s not an epidemiologist, anticipates it rolling out by zip code). It seems to me an alternative approach — especially at the state level (though even at the national level if we had someone competent who believed in government) — would be to first shore up essential services like health care and food supply chain, and then slowly roll out each less essential part of the economy after we can prove the ability to do the former safely. In any case, I’d love to know more about what DeWine has in mind.

DeWine also said it’s not going to work the way “some people” think, with everything reopening all the way.

I think it’s not going to be coming back like some people think. And part of my job, I think, is to explain to the people of Ohio that we’re really not going to be all the way back–I said this today at our press conference–we’re not going to be all the way back until we have a vaccine that is available to everyone in the state.

[snip]

[I]t’s particularly dangerous to people with medical conditions, people over 60, over 65, 70, and people are going to have to be exceedingly careful. And some people are going to have to be more careful, frankly, than other people are.

This is consistent with what Anthony Fauci has said: we’re going to stop shaking hands, possibly forever. And, for seniors and those with pre-existing conditions, it will take a lot longer to get back to normal.

Prisons and nursing homes present key challenges

During the interview, Costa passed on a question about prisons from an Ohioan. DeWine responded by discussing prisons and nursing homes in the same way, as populations in which you can’t social distance.

MR. DEWINE: Well, we are releasing people and we are going to continue to look and see who we frankly feel safe in releasing. You know, these are not easy calls. They’re not easy calls because, you know, we don’t want to really turn back the sex offenders and murderers and others. But there are other people there.

For example, we just made a decision to–there’s an Ohio law provision which says that the director of prisons, if there is overcrowding, can release people within 120 days of their sentence ending. In other words, people who would have gotten out anyway within the next 120 days. We came with a whole group that we have recommended to be released. The legislative committee will look at that tomorrow, and I expect that, you know, they will be released. But we are continuing to look at that. We’re doing very significant testing in the prisons that have COVID-19, Marion Prison and our Circleville Prison. So, we are very, very focused on it.

And, you know, if you ask me of the things we worry about, at this stage of this epidemic, it’s any kind of congregation. Our nursing homes, we have put together a strike force to work with our nursing homes. But we’re very concerned about them. We’re concerned about our prisons. And any time that we’ve got people, a lot of people–a lot of people together where distancing is difficult, we have to worry about and should.

This has been an important point that — while Bill Barr has been making at times stumbling efforts to decarcerate (Josh Gerstein has been covering this closely) — hasn’t gotten sustained focus federally. Indeed, the federal government is not tracking nursing home outbreaks, at least not publicly.

You can have essential workers (including prison guards and nursing home workers) get back to work all you want, but each of these facilities has the ability to seed a new cluster of cases, not just within a prison or nursing home, but in the surrounding communities. And any head of government that is thinking seriously about how to reopen the economy needs to have a plan in place for that. Donald Trump doesn’t have one. Mike DeWine is at least working on it.

The Washington Post either thinks it’s really important to tell their readers how the country will reopen or they’ve been snookered by Trump’s aides into perpetuating a myth that that process will be led by the White House. If it’s the latter, that strand of reporting (which is separate from a great deal of good WaPo journalism on how Trump fucked up) is just as negligent as Trump’s own actions are, because such stories misinform about how this will work. If it’s the former, then WaPo would do well to send some journalists to work full time in Columbus, Annapolis, and Boston, or better yet, bring on some laid off reporters who know how those state houses really work. Because a handful of key Republican governors are the ones who’ll be making some of the most important decisions about how the country will reopen.

Update: As noted above, I named Larry Hogan as another of the GOP Governors where journalists should look to understand how the economy will really reopen. Hogan has just rolled out his plan. Unlike Trump’s plan, Hogan’s includes testing and means to limit transmission. It also does not yet include a date (not least, because as Hogan admits, the DC-Maryland-Virginia region still has a growing caseload.

Update: In spite of what DeWine said earlier this week, the Midwest just formed a pact. Maybe yesterday’s stupid protests in KY, OH, and MI forced this issue?

Mark Meadows and the Potemkin Shut-Downs: Welcome to the April’s Fool White House

I know the White House has been running on Trump’s fumes for so long we’ve forgotten that Chiefs of Staff can exercise real power.

I’d like to suggest two things we’ve seen in the last week may reflect the hand of Mark Meadows.

The first is Monday’s campaign video played in the middle of Trump’s briefing, something Trump said Dan Scavino made inside the White House — a violation of the Hatch Act.

In a mash up of clips and audio that amounted to campaign ad, Trump lashed out at critics and returned to his favorite past time of going after reporters. The video began with a white screen saying “the media minimized the risk from the start.” At one point, it showed news clips of different governors giving kind remarks about the president’s response to the pandemic.

[snip]

When a reporter pressed him about the video resembling a campaign ad, Trump said it was done in the office. “We’re getting fake news and I’d like to have it corrected,” he declared.

The president also claimed that White House Director of Social Media Dan Scavino created the video, prompting reporters to question the fact that he had government employees put together what was essentially a campaign advertisement.

There’s nothing that suggests Meadows determined the content of it, but several of the decisions made in the almost two weeks since Meadows has been in place involve merging the White House and the campaign — most notably, the replacement of Stephanie Grisham with his campaign press secretary Kayleigh McEnany.

But I also suspect Meadows is behind a far more important strategy on shut-downs, in which Trump allies carry out a Potemkin shut-down, only to reopen quickly, probably in the context of graft as payoff. For this one, there’s explicit evidence in the Bloomberg coverage of his first week: Meadows convinced a number of hold-outs to enact stay-at-home orders.

Meadows has also gotten involved in the administration’s coronavirus response, calling Republican governors who have held out against issuing stay-at-home orders in their states to ask them to implement the policies immediately, according to two people familiar with the calls. The president has said such decisions are up to state leaders and has not publicly criticized those who decline, who are all Republicans.

[snip]

Meadows has also tried to persuade a group of holdout Republican governors that they should issue shelter-in-place orders to help curb the coronavirus outbreak. It isn’t clear if the new chief of staff has Trump’s blessing for the calls. The president has publicly said it is up to governors and local leaders to decide whether stay-at-home orders are appropriate and has declined to criticize the holdouts, all of whom are his political allies.

The governor of one of the holdout states, Kristi Noem of South Dakota, tweeted Wednesday that she’d spoken with Anthony Fauci, the director of the National Institute of Allergy and Infectious Diseases, who is a top medical adviser to the president. “Thankfully, he AGREES that a one-size-fits-all approach isn’t the answer in our state,” Noem wrote.

The tweet, according to one person familiar with the matter, was read by some as a signal to Meadows.

The week that Meadows started, a bunch of Trump flunkies issued stay-at-home orders: Arizona’s Doug Ducey (which was issued before Meadows officially started on April 1 and which extends through April 30), Florida’s Ron DeSantis (issued on April 1 and effective through April 30), Georgia’s Brian Kemp (which he has already extended through April 30), Mississippi’s Tate Reeves (imposed April 1, effective April 3, effective through April 20), Missouri’s Mike Parsons (imposed April 3, effective April 6, effective through April 24), South Carolina’s Governor Henry McMaster (imposed April 6, effective April 7, effective until rescinded). On March 31, Texas’ Governor Gregg Abbott issued an order that has been taken as a stay at home order which stops short of that; it remains in effect through April 30.

At least some of these governors, given the timing and the Bloomberg report, were cajoled by incoming Chief of Staff Mark Meadows to do so.

Last Thursday, days after his stay-at-home order, Ron DeSantis started talking about reopening schools in May (to be clear: this shut-down is having the greatest impact on children, especially those who don’t have WiFi at home and rely on schools for other services, like hot lunches). Yesterday, Gregg Abbott told Hannity most states don’t need to wait until May 1 to reopen (even though his own order goes through May 1). And of course, Mississippi and Missouri’s shutdowns don’t even last that long (indeed, they were never long enough to do any good).

So it seems likely that the same governors whom Meadows convinced to impose stay-at-home orders will shortly rescind them, giving Trump the story that he wants, that some of the nation’s biggest states have come through the COVID crisis. In Texas and Florida, in particular, a governor’s recision of a stay-at-home order might supersede those in badly affected cities (and both states are artificially limiting the number of official positive cases, in Texas by not testing likely cases in Houston, and in Florida by playing games with snowbirds.

I also suspect that one reason Mitch McConnell is refusing to negotiate with Nancy Pelosi over the other things she’d like to include in the next COVID relief package — which would include, among other things, $150 billion for state and local governments. McConnell wants to deal with such aid in a fourth aid bill and simply expand the funds available for the Paycheck Protection Program relief for small businesses, which is predictably already running out of money. The obvious reason to do that would be to withhold something that Trump can use as leverage over states and cities to do what he wants, rather than to give funds to them now without strings attached.

Trump believes, the Constitution notwithstanding, that he has either the authority or power to make states reopen. And given that Meadows was involved in getting a handful of states to impose what will amount to shut-downs that don’t appear to be good faith efforts to achieve the goal of shut-downs (though Kemp may have realized he has a bigger problem on his hands than he originally claimed), my suspicion is that those shut-downs were part of a plan to achieve some kind of leverage over reopening the economy.

Lev Parnas’ Co-Defendant David Correia Tests the Send-Your-Phone Border Exception Work-Around

As much of a splash as Lev Parnas made during the Trump impeachment, his co-defendants are each mounting more intriguing defenses.

In the case of David Correia — who was charged in the marijuana side of the indictment — that includes an attempt to bypass the border exception (which allows authorities to search anything carried on your person through customs) by sending his attorney an iPhone, a Microsoft Surface Pro, a hard drive, and two notebooks he had with him before he returned to the United States to be arrested in October.

Are devices sent from overseas to an attorney covered by attorney-client privilege?

The issue first became public in March, when the government asked Judge Paul Oetken to order Correia’s lawyers, William Harrington and Jeff Marcus, to file a privilege claim over the package by March 23 (the government has been holding off accessing the evidence from the devices awaiting such claims). In a letter claiming that March 23 deadline was unrealistic given the COVID crisis, Correia’s lawyers claimed the government had totally misrepresented the attorney-client claim (and complained that the government had neither informed Correia right away about the seizure in October nor raised this issue at a status conference in February). With the government’s consent, Oetken gave Correia an extension.

Ultimately, Correia argued that he had sent the materials, “for the purpose of seeking legal advice,” The filing argued that because the FBI had ample notice that Marcus represented Correia (Correia lawyered up by August), and because Marcus negotiated a self-surrender upon Correia’s return from abroad, the government had to recognize that the DHL package was privileged when they obtained it. Correia further argued that because the notebooks include information that was clearly intended to solicit advice, the entire package must be privileged (that argument, however, was utterly silent about the devices). The lawyers also note that Correia did not send all the papers he had with him, which they point to as proof that the documents — to include the devices — that he did send were a selection specifically intended to get advice.

The government just submitted its response (note that one of the lawyers on this case, Nicholas Roos, also took part in the privilege fight over Michael Cohen’s devices). In it, they reveal that a privilege team reviewed the notebooks, after which prosecutors sent scanned copies of the notebooks and asked Correia’s lawyers to assert any privilege claims by January 20.

In the course of reviewing these materials for privileged information, the Government’s filter team identified items that potentially could be privileged. Accordingly, those items were withheld from the prosecution team and were redacted from the materials that are being produced in discovery. Since the filter team identified those items as only potentially privileged because the records do not contain adequate information to make a definitive assessment, the filter team will be providing the unredacted materials to you. If you believe any of the items that were redacted, or any other items, are privileged, please so indicate by January 20, 2020, and provide the factual basis for such a privilege assertion to the filter team. After that date, the materials in their unredacted form will be released to the prosecution team and produced in discovery.

After receiving that, Correia first claimed that everything in the package, including the devices, was privileged.

The government, however, cites Second Circuit and SDNY precedent holding that materials pre-existing attorney-client communications are not privileged.

Indeed, as the Second Circuit held nearly sixty years ago—rejecting a claim that the attorney-client privilege applied to various documents provided by a client to his counsel—“the attorney-client privilege protects only those papers prepared by the client for the purpose of confidential communication to the attorney or by the attorney to record confidential communications,” but “pre-existing documents and . . . records not prepared by the [client] for the purpose of communicating with their lawyers in confidence . . . acquired no special protection from the simple fact of being turned over to an attorney.” Colton v. United States, 306 F.2d 633, 639 (2d Cir. 1962); see also United States v. Walker, 243 F. App’x 261, 623-24 (2d Cir. 2007) (“putting otherwise non-privileged business records . . . in the hands of an attorney . . . does not render the documents privileged or work product (citing Ratliff v. Davis Polk & Wardwell, 354 F.3d 165, 170-71 (2d Cir. 2004))).

And it argues that they should be able to access anything pre-existing that is not privileged (the filter team continues to review the content of the devices).

The FBI’s preliminary analysis indicates that Correia’s hard drive contains tens of thousands of documents, images, and audio and video files; his iPhone contains tens of thousands of documents, images, and audio and video files, as well as other data such as internet browsing history and location information; and his Suface Pro computer contains hundreds of thousands of documents, images, and audio and video files. It is undisputed that these materials, as well as his notebooks, existed prior to Correia’s communications with counsel on this case. They were not, in toto, created at the direction or advice of counsel, and did not become privileged merely because Correia sought to send them to his counsel.

The government rejects Correia’s argument that by accessing the files, the government learned about what selection of materials Correia was seeking counsel. It argues that nothing in the package reflected instructions from Marcus to Correia (there was no note included at all), and the  government first learned that the selection of items in the package ended up there based on Marcus’ advice from Correia’s own filing.

Correia erroneously claims that by intercepting the DHL package, the Government learned what materials counsel had advised Correia to collect. On the contrary, the DHL package contained no such communication. The Government “learned” that fact—assuming it is true— only through counsel’s briefing on this motion. In any event, it is simply false to suggest that the DHL package contained a carefully curated selection of relevant documents. It contained the opposite: the entirety of Correia’s multiple devices and notebooks, with no indication as to what particular documents or portions of documents may be relevant. The seizure of those materials revealed nothing about counsel’s “defense planning” (Mot. 13)

[snip]

As counsel is well aware, the Government’s assumption had been that Correia simply sent his devices and notebooks to counsel so that they would not be in his possession and subject to seizure when he was arrested.

While the government doesn’t address the documents Correia had on his person on his arrest, they describe that he had no devices at all, just the charging cords for them.

Although Correia still had a phone case, multiple phone chargers, and charging cords with him, he did not have a single electronic device on his person.

Given how often InfoSec people have argued that this method — sending your lawyer sensitive devices before crossing a border — is the best way to protect them, the resolution of this issue has some wider legal interest.

But in this case, the resolution likely comes down to the fact that prosecutors told Judge Oetken, when getting a warrant for the DHL package, that it was sent from Correia to his lawyer.

This Court, based upon an affidavit that made clear the DHL package was sent by Correia to his counsel, found probable cause to believe that the package and its contents contained evidence, fruits, and instrumentalities of federal crimes.

[snip]

On or about October 21, 2019, the Court signed a search warrant authorizing the Government to search a package sent via DHL from Correia to his counsel (the “DHL Package Warrant”). The supporting affidavit explained the following, among other things: On October 9, 2019—the same day that Lev Parnas and Igor Fruman were arrested—agents with the Federal Bureau of Investigation (“FBI”) attempted to arrest Correia at his home, but learned from his wife that Correia was out of the country. Shortly thereafter, Jeff Marcus, Esq., contacted the FBI, identifying himself as Correia’s counsel. Counsel arranged for Correia to fly into New York on October 14, 2019, arriving on October 15, 2019, in order to surrender. Counsel confirmed that Correia was aware that he would be arrested by the FBI upon landing in the United States.1 On October 14, 2019, however, counsel advised the FBI that Correia had left his passport at a DHL store, where he was mailing something before flying back to the United States, and could not board the plane without his passport.

[snip]

The affidavit in support of the DHL Package Warrant further stated that “materials obtained from DHL” reflected that Correia had mailed the DHL package to his counsel. The affidavit noted that the package’s listed contents—provided by the sender, Correia—apparently included a phone, tablet, and hard drive, which “do not appear to be items that were created for the purpose of legal advice but rather appear to have been sent by mail so that they would not be on Correia’s person when he arrived in the United States to be arrested.” The affidavit stated that the Government would nonetheless “utilize a filter review process, including through the use of a filter team comprised of agents and prosecutors who are not part of the prosecution team, for review of the [DHL package and its contents].”

That is, Oetken has already weighed in on this matter, and the government has provided a good deal of Second Circuit and SDNY precedent far more on point than a single Fifth Circuit case, United States v. Hankins, that Correia relies on. One key detail seems to distinguish this seizure and search from any garden variety attempt to bypass the border exception: Correia knew he was going to be arrested when he landed, meaning he knew he was trying to defeat not just the border exception, but a search warrant for anything on his person.

Where did the seizure happen and under what legal authority?

All that said, there’s a detail that, while it probably doesn’t affect the legal argument, raises questions about how and when the government seized the package. As noted, Correia sent the package from a DHL office in whatever country he was in (he was somewhere in the Middle East, and wherever it is, flights to JFK all seem to involve red eyes). He left his passport at that office, so he was unable to board his scheduled flight on October 14. In explaining the one day delay in Correia’s self-surrender, Marcus unwisely told prosecutors that DHL was involved and only in later communications revised his explanation to say Correia had left his passport in a “local” store. It’s unclear whether the government seized the package in that foreign country or as it entered the US. Nor is it clear — from the scant details of the affidavit included in the government filing — whether the government had, or needed, a warrant to make that seizure. However they seized it, Correia is not challenging the legal sufficiency of the seizure itself on any but privilege grounds (though he may file suppression motions in May).

As Correia described it, when the package never arrived at Marcus’ office, they asked DHL where it had gone, and DHL ultimately claimed to have lost it.

In the following days, Mr. Marcus’s law firm never received the communication sent by Mr. Correia via DHL. Id., at ¶ 20. Mr. Correia made repeated inquiries to DHL about its status but was told several times that it was “lost” in transit and DHL was taking steps to locate the sent package. Id. Finally, on October 29, 2019, DHL informed Mr. Correia that “[a]fter conducting extensive searches of our Service Centers, including warehouses, docks, vehicles and lost and found facilities, we have not been able to locate your shipment.” Id. They also said they were ending their search.

DHL was either obeying a gag, or seem not to have received process from the government that would show up in their files.

So unbeknownst to Correia, the government somehow seized the package, and on October 21 (a week after Correia sent it), got Judge Oetken to approve a warrant to search the package and the devices in it.

Correia only learned details of what happened, serially, between December and January.

After a December 2019 court conference, the defense team learned that the Government said it was in possession of the telephone that Mr. Correia had sent to his lawyers via DHL. Id., at ¶ 21. The defense team also subsequently received a search warrant which indicated that the Government had intercepted and searched Mr. Correia’s communication to Mr. Marcus. Id., at ¶ 22. In a production letter dated January 10, 2020, the Government produced an agent’s inventory of Mr. Correia’s communication to Mr. Marcus which included two notebooks, a hard drive, a computer and a telephone.

The most likely answer, however, is that the government obtained the package with DHL’s assistance, which is not legally surprising, but something worth noting for those attempting to use this method to bypass border exceptions.

The pending superseding indictment

The government has said in past hearings that it plans to obtain a superseding indictment before May. Given how COVID has affected all legal proceedings, including grand juries, that likely will be delayed. But it seems clear that the government wants to obtain this information before that happens.

Rikers and Roosevelt: The Uncontrolled Human Experiment Occurring with Essential Workers (and Their Wards)

In the several weeks since much (though not all) of the country has been shut down, an uncontrolled human experiment with the country’s essential workers has been occurring.

I say that because those people still required to work — especially medical care workers, nursing home workers (and their clients), prison guards (and prisoners), cops, meatpackers, grocery store workers, warehouse workers, public transit workers, and sailors and other service members — have all been asked to work with a very limited test and tracking regime in place to limit spread among co-workers, wards, and their communities.

There’s inconsistent public data about how closely the federal government is tracking these communities (they’re obviously tracking the military, and after an initial attempt to hide the numbers, have provided skeleton baseline numbers; they’re reportedly not tracking nursing homes). So what has happened in these populations cannot be described with precision yet. But there is public reporting on how seriously affected each of these groups are — and whether, and when, their employers took appropriate protective measures. Thus far, the anecdotal reports show that some individual institutions have been more successful than others at preventing mass infection, whereas certain kinds of worksites — prisons and ships — will have much less success controlling an outbreak given existing tools.

These professions are where spread is happening even with shutdowns (though some, like meatpackers, are often located in areas more likely to have shut down late or not at all). Thus, amid the debate about when we can reopen the economy, what happened to workers and their wards in these professions provide lessons about what protections have to be in place before any place can open up, how widespread COVID might get amid populations that social distance but don’t stay home, and what pitfalls are likely once we do open up.

Along the way, a lot of people have died.

Update: Elizabeth Warren and Ro Khanna have called for a Workers Bill of Rights that includes–but then adds to–a lot of the protections included in this discussion.

Medical care workers

In a recent presser, Trump claimed that the federal government eventually will figure out how many medical workers have contracted COVID-19 (though I suspect that number won’t be made public until after the election). But it hasn’t done so yet. Buzzfeed collected what was publicly available and found that key states, including New York, Louisiana, and Michigan, are not tracking this number either yet.

Buzzfeed tallied 5,400 cases in those states that are counting it, which would work out to be 1% of the cases on the day of the story (though because some of the most important states aren’t counting this, it must be a higher percentage of national cases).

At least 5,400 nurses, doctors, and other health care workers responding to the coronavirus outbreak in the United States have been infected by the disease, and dozens have died, according to a BuzzFeed News review of data reported by every state and Washington, DC. However, the true number is undoubtedly much higher, due to inconsistent testing and tracking.

[snip]

As of Thursday afternoon, 12 states reported health care worker infections: Alabama (393), Arkansas (158), California (1,651), Idaho (143), Maine (97), New Hampshire (241), Ohio (1,137), Oklahoma (229), Oregon (153), Pennsylvania (850), Rhode Island (257), and West Virginia (76). Additionally, Washington, DC (29) and Hawaii (15) reported infections at a specific hospital, not state or territory-wide. On Friday afternoon, Kentucky reported 129 health care worker infections.

In Ohio and New Hampshire, health care worker infections represented more than 20% of total confirmed cases in the state. It’s unclear if this is due to health care workers having greater access to testing there compared to other states, or something else, but it highlights the dangers these workers face. In the other states that broke out data on health care workers, rates ranged from a low of nearly 5% in Pennsylvania up to 17% in Maine and Rhode Island.

Some other states are trying to collect this information but not yet sharing it publicly, with officials citing reporting holes in their data.

[snip]

And in at least nine states, infection rates among health care workers are not being tracked at all. That includes New York and Louisiana, two of the worst-hit states by the outbreak, where officials said they aren’t specifically collecting this information. In Michigan, another hard-hit state, 2,200 health care workers have reportedly been infected, yet the state itself is not tracking infections. (Because the reporting on these cases did not come from the state itself, BuzzFeed News is not including them in its total.) Fourteen states do not make these statistics publicly available and did not respond to questions from BuzzFeed News as to its collection.

As that story noted, these numbers are unreliable both because health care workers may have better access to tests, but are, in many cases, being discouraged from taking them. And workers are so overwhelmed right now it may undermine record-keeping.

Plus, there are significant discrepancies from hospital to hospital regarding how much PPE is available to workers, not to mention how overwhelmed the individual hospitals are. Hospitals that succeed at keeping infection rates low will have lessons to offer on what might successfully limit transmission among workers who are highly trained in doing so, lessons that would be of use in professions not normally trained to prevent contagion.

Nursing homes

Nursing homes are another obvious cluster — so much so that they may make up a huge proportion of what we’re seeing in non-crisis localities (as is the case in my own county). Like medical care workers, there’s not an official count; indeed, some states (especially Florida) are affirmatively hiding how badly nursing homes are being affected and ending efforts to count clusters among seniors. Nevertheless, NBC found over 2,200 deaths in the states that do count such things, representing a huge spike since March 30 (which would suggest nursing homes are where the virus has continued to spread since states and localities that have shut down).

Nearly 2,500 long-term care facilities in 36 states are battling coronavirus cases, according to data gathered by NBC News from state agencies, an explosive increase of 522 percent compared to a federal tally just 10 days ago.

The total dwarfs the last federal estimate on March 30 — based on “informal outreach” to state health departments — that more than 400 nursing homes had at least one case of the virus.

[snip]

Thirty-six states reported a total 2,489 long-term care facilities with COVID-19 cases.

The toll of these outbreaks is growing. NBC News tallied 2,246 deaths associated with long-term care facilities, based on responses from 24 states. This, too, is an undercount; about half of all states said they could not provide data on nursing home deaths, or declined to do so. Some states said they do not track these deaths at all.

As with the county of medical workers, key states like Michigan and Florida are tracking neither which facilities have clusters nor how many deaths there are. New York is tracking this statistic.

Nearly 60 percent of the deaths tallied by NBC News occurred in New York, where more than 1,300 residents of nursing homes and assisted living facilities have died, according to the state health department.

That would represent around 18% of the deaths New York had recorded by April 9, the day before NBC published.

And these data generally only count residents affected, not the workers who might spread the virus outside of the facilities.

As Andy Slavitt explained in his Rachel Maddow appearance to discuss this data, one of the key lessons in the outbreaks at nursing homes and other assisted living facilities (though the lesson applies to all these “essential” professions) is the differential impact. Some facilities have succeeded in containing the virus, others have failed to contain known outbreaks. Those that have succeeded have lessons to offer about how to deal with this virus effectively.

The way this will get fixed — this is not to embarrass anybody — but the way this will get fixed is there are nursing homes that are doing it right. And the nursing homes that are doing it right can give guidance to the nursing homes that are doing it wrong. We don’t have enough time to go back to the drawing board and create new regulations — I wish we did. But in the middle of a crisis, I’d get them all on the phone, we’d be sharing best practices, we’d be publishing them, and we’d be slowly and slowly taking down infection rates. And for those that couldn’t do it, we would be moving people into facilities that could.

Nursing homes are, along with prisons, probably the hardest population to keep safe from COVID and there are aspects of both (the underlying health problems and the immobility and close quarters of the facilities) that are impossible to eliminate. But that means the lessons learned here — particularly the lessons learned about how to keep the workers safe (and therefore to prevent intra- and extra-facility spread through them), would be critical to share not just within the nursing home industry, but more generally with businesses as they think about reopening down the road.

Update: According to the AP, Louisiana has now stopped providing details on infections in nursing homes.

Prisons

Immediately after the impact of COVID became clear, prisoner advocates started calling for decarceration to alleviate crowding and remove the most vulnerable prisoners, where appropriate, from prison. Ohio’s Republican Governor Mike DeWine has even laid out the epidemiological reason to take such measures (that is, the obvious conservative case to release as many prisoners as possible), and Oklahoma’s Republican Governor Kevin Stitt (who was otherwise tardy in taking measures to stop the spread), is preparing to commute the sentences of 452 people to empty the prisons. Even Bill Barr has pushed for prisoner releases. His efforts risked disproportionately help white prisoners, but because BOP is now prioritizing those facilities already affected by an outbreak — meaning they’re acting reactively, not proactively — that has not yet been the practice. That said, Federal policies on releases are changing day-to-day, with some prisoners cleared for release but then continued to be held.

BOP has an official tracking number — though they’re not testing everyone. So in the prisons where there’s a real cluster, the numbers are likely far higher. For example, at Elkton, OH which BOP says has 13 inmates infected, 37 prisoners have been hospitalized with symptoms and another 71 are in isolation. At Oakdale, LA — where the first BOP death occurred and one of the hardest hit — BOP claims 40 inmates have tested positive, but at least another 56 have been hospitalized with severe symptoms and 575 are quarantined.

With regards to state and county prisons and jails, however, those counts are often still spottier — and potentially far more urgent given greater overcrowding. UCLA Law has put together a database that tries to track all the known cases (though, as one example of its limits, it only shows New York’s case statewide).

Nowhere is the spread of COVID in prison more concerning than in urban jails. NY City’s Rikers, which as of Wednesday had over 700 infections. 440 of those are staff, meaning the 287 count for inmates testing positive is surely a significant undercount. Nevertheless, that undercount shows that 6.6 percent of Rikers prisoners have tested positive, a rate seven times higher than New York as a whole. Unfortunately, this all happened at a time when Andrew Cuomo and others were trying to reverse recent measures to decarcerate New York, and Cuomo has lagged some of his Republican counterparts in his efforts to cut prison populations and so limit the spread there. Cook County, IL’s jail has 304 positive detainees and 174 correctional officers who tested positive, similar or slightly higher rates than Rikers. This week a judge ordered the Cook County Sheriff to provide soap and sanitizer to prisoners, test those exhibiting symptoms, and provide PPE to those quarantining because of exposure, but stopped short of ordering the jail to release prisoners.

Thus far, that’s what the emphasis has been: emptying the jails. That’s a welcome approach, as a number people who shouldn’t be in jail or prison (or immigration detention) have been released. It’s not clear that prisons have solved the problem of COVID and efforts to do so often end up being inhumane, leaving sick prisoners in solitary and the general population with far less ability to contact their lawyers, to say nothing of family members, which only adds to the panic and confusion for all involved.

One thing that is unclear is whether COVID has spread through guards to the surrounding population, something that — because so many of our prisons are located in rural areas — might be a vector for COVID to spread to the surrounding communities.

These badly affected prisons, however, are going to have an interesting dynamic between guards and prisoners. In Oakdale, for example, there has already been a clash between guards and prisoners. But in other places, the situation has put guards and prisoners on the same side of legal challenges to push for more releases, something that rarely happens in prisons.

No one is going to solve the problem of how to go back to work at prisons. But if you want to see the kind of societal upheaval that might happen if this effort fails, prisons may be your first measure.

Update: Florida has now tasked inmates to make cloth masks for guards, but not for themselves.

Update: Lansing Correctional Facility, in Kansas, also had a riot believed to be COVID-related last week. There are 16 staff and 12 inmates confirmed to have COVID-19.

Cops

Cops interact less directly with COVID patients and often in less enclosed environments than medical care, nursing home, and prison workers, which may make them a better read of what kind of exposure will happen among those who have to interact with a range of the public, but not necessarily a population particularly exposed.

Nevertheless, COVID had spread broadly among the police departments of the bigger cities with COVID spikes, including New York, Detroit (exacerbated by a pancake breakfast attended by a bunch of cops that was an early transmission vector), and Chicago, and known exposure has led significant numbers of cops and other first responders into quarantine, illness, and death (there are other major metros for which reports of exposure among cops is more dated and in smaller numbers). As CNN described it, the toll at the NYPD rivals (though, because of the lasting after-effects of 9/11, could never be counted in the same way) 9/11:

In a department of about 36,000 sworn officers, 7,096 — or 19.6% of the uniformed workforce — were out sick on Friday, according to data issued by the NYPD. Some 2,314 uniformed members and 453 civilian employees have tested positive for Covid-19, and 19 employees have lost their lives as a result of the virus.

The NYPD suffered an incomprehensible 23 losses on 9/11 (hundreds more died in subsequent years from 9/11-related illnesses). It’s devastating to think that the casualties from Covid-19 may soon eclipse this.

IACP and CDC guidance for first responders currently only recommend using PPE when interacting with known or suspected COVID carriers. And this week, the CDC issued new guidance for critical workers (especially including but not limited to first responders) who’ve been exposed that permits returning to work while wearing a mask rather than a full quarantine.  This effort was explicitly rolled out in an effort to address staff shortages like those in police departments.

That guidance — which relies on temperature checks rather than testing — hints at where the Trump administration intends to go as it pushes people to return to work. Which is to say, its first effort to get people back to work falls far short of the testing regime most experts say we need to control the spread.

Military

The military initially tried — in the name of national security — to prevent the release of any granular data showing where its cases are. But then William Arkin published a map showing where the 3,000 cases (of which 2,031 were uniformed military on Friday) were. That same Friday report showed 13 total deaths.

I’m particularly interested in the clusters at bases in Anchorage and Honolulu in states not otherwise heavily impacted by the virus. It suggests that the military may be a vector to spread to unaffected places.

That is a rate of infection that is higher than the US as a whole (which likely stems, at least in part, to greater access to testing), but with a mortality rate significantly lower than the overall rate.

The new count puts the department’s death rate at 0.4 percent, versus the overall U.S. mortality rate of 3 percent.

[snip]

The military’s infection rate now stands at 971-per-million, compared with the latest Centers for Disease Control and Prevention numbers, which shows 1,307-per-million U.S. residents having contracted coronavirus, or about 0.1 percent of U.S. residents.

Nowhere has the challenge of COVID been more dramatic, however, than on the USS Theodore Roosevelt. As the scandal over Captain Theodore Crozier’s removal and the ouster of Navy Secretary Thomas Modly has continued, the Navy has continued to test the entire crew of around 4,800. With 92% tested yesterday, 550 tested positive, meaning 12% of those tested, tested positive. That’s a lower rate than the Diamond Princess’ 19% positive rate, but of a younger and presumably far healthier population, during a period with a higher level of awareness of the virus, and among a population more likely to maintain the discipline of social distancing.

Keeping sailors on a ship from infecting each other is a daunting task, but the military has more resources to conduct evacuation and to conduct contract tracing than any private employer this side of Amazon. As other ships and bases face the challenge in the wake of the Roosevelt fiasco, it will be a measure of whether even the military can catch the virus and contact trace before other big clusters arise.

If the military can’t do it, your average small business isn’t going to be able to pull it off.

Update: The sailor who had been moved to the ICU has now passed away from COVID-19.

Transit workers

One reason New York has been so badly hit is so many people rely on public transportation. Even NY’s suburbs are among the hardest hit area of the country (with 34,392 cases on Long Island, or 21% of the state’s total), and the outer boroughs, where poverty and continued exposure via “essential” jobs, are hardest impacted by the virus within the city.

That’s why the outbreak on the MTA offers important warnings about the possibility that New York could reopen anytime soon. That’s true not just because of the high levels of infection and death — around 14% of MTA 50,000 employees have either tested positive or are quarantining with symptoms, but also because COVID has led to a shortage of workers which has in turn badly hurt service.

At least 41 transit workers have died, and more than 6,000 more have fallen sick or self-quarantined. Crew shortages have caused over 800 subway delays and forced 40 percent of train trips to be canceled in a single day. On one line the average wait time, usually a few minutes, ballooned to as high as 40 minutes.

[snip]

Still, around 1,500 transit workers have tested positive for the coronavirus, and 5,604 others have self-quarantined because they are showing symptoms of the infection. Absenteeism is up fourfold since the pandemic began, officials say.

If more people were working, this shortag would make it harder for passengers to engage in social distancing themselves (though usage is down 70% for buses and 92% on subways).

While MTA dawdled in imposing protective measures for employees, it now surpasses CDC guidelines, in part by providing masks to all its employees.

Patrick J. Foye, the M.T.A. chairman, who himself tested positive for coronavirus, said the agency initially followed guidance from the World Health Organization and the Centers for Disease Control and Prevention that healthy people did not need to wear face masks.

Mr. Foye said the M.T.A. then decided to go farther than that, before the C.D.C. changed its advice on masks. He said it had already provided 460,000 masks to workers, in addition to thousands of face shields and 2.5 million pairs of gloves.

So long as the stay-at-home order remains in place, this crunch on transit won’t prevent people from working, which if it happens would hit those who can’t afford Uber the hardest. But until NY can find a way to limit the illnesses on transit, there’s no way the city can reopen.

Meatpackers

This week a lot of attention has focused on meatpacking plant. The numbers of people infected aren’t high, on a national level, but they’re shutting down factories that supply a significant percentage of the nation’s meat supply, and often in more rural places that until recently believed they were immune to the virus.

A Tyson-owned meat processing plant that churns out 2% of the US pork supply ground to a halt this week as workers became infected with Covid-19.

And that wasn’t the only meatpacking plant impacted by the spread of the novel coronavirus. JBS USA on March 31 said it hit pause on much of its work at a beef facility in Souderton, Pennsylvania and wouldn’t have it back online until mid-April. National Beef Packing on April 2 temporarily stopped slaughtering cattle at one of its plants in Tama, Iowa after a worker tested positive for the virus.

Perhaps the most notable of those cases is in South Dakota, where a Smithfield pork processing plant first closed for three days, after 80 employees had tested positive, and then today closed indefinitely after that count grew to 293, 8% of the plant’s workers (it’s unclear whether all the worker at the plant have been tested). The cluster is also significant given that those cases make up 40% of the cases in South Dakota, which has not imposed a stay-at-home order. As such, it’s an example of a workplace that, by not managing an outbreak, can significantly impact a community that may have assumed it was immune.

Guidance released by an industry organization dated April 3 noted that the industry wasn’t getting PPE because shortages mean what is available needs to be saved for medical workers, which suggests that even for an industry that recognizes the need (some of these companies also operate in China), they’re not able to provide masks for their workers because the shortage for medical workers hasn’t been solved.

Update: On April 8, the UFCW called for CDC to issue mandatory guidelines that would cover both the union’s grocery store and its food processing workers. It includes employer-provided PPE for the workers.

Businesses and services have had from two weeks to months to try to prepare their workplaces for this crisis — and for none of them has there been any doubt about their essential status. But they’re still not doing some of the basic things that experts say we’ll need more generally to reopen the economy. These workplaces — the ones for which there is some kind of real count — are facing up to 12 to 19% COVID positive rates, even in professions with a strong culture of hygiene (though none of these professions, not even medical workers, can get the testing to confirm those rates). The resulting staffing shortages are causing service shortfalls even beyond the hospital staffs we’ve been working to flatten the curve to accommodate. And for many of these communities, those numbers reflect weeks of stay-at-home orders that limit the sources of new infections.

Trump wants to reopen the economy. But it’s clear from the limited data and anecdotal reporting from essential workplaces that basic things — starting with masks — still aren’t in place to limit workplace exposure.

And again, because these men and women haven’t had the protective equipment or other workplace protections they need, many have needlessly died.

Capitalism fails the Covid-19 Crisis

We have shut down large parts of our economy and our social lives to cope with the Covid-19 crisis. This experience might teach us a lot about ourselves and about our economic system. Here are some things that seem important to me.

1. The point of capitalism is to protect capitalists. We see this fact after every financial crisis. The bailouts go to capitalists and their corporations, and therefore indirectly to the shareholders, who are largely in the top 10% in wealth. That was so after the Great Crash of 2008 when the financial institutions that caused the disaster were bailed out with massive help from Congress and the Fed. Other massive aid went to the automobile industry and airlines. There was next to nothing for any of the millions of us damaged by the cheats and frauds of the financial sector.

This time the money cannon was first aimed at the financial institutions. Fed programs to save the financial system include the following:
a. Cutting bank capital requirements.
b. A quantitative easing program, under which the Fed will purchase an unlimited amount of Treasuries and Agent debt, commercial real estate backed by Fannie and Freddie, and pretty much anything else as needed to preserve liquidity and insure orderly markets. Whatever that means.
c. A program, called a facility, to buy newly-issued long term corporate debt.
d. A similar facility to buy existing corporate debt.
e. A facility to buy asset-backed securities, like packages of student loans. and collateralized business loans.
f. Money Market Mutual Fund Liquidity Facility that we hope will stabilize the money market funds so many people use.
g. A facility to buy certain tax-free commercial paper, so states and localities an continue to fund certain public and private projects.
h. The Fed is also considering a plan to lend directly to small businesses.

Congress quickly got in on the act and fired its money cannon at the corporate sector. The bill enabled the Fed to make cheap loans totaling up to $4.5 trillion, as the lobbyists for the rich patted them on the wallet. Another truck-load of money is going to hospitals, including the hundreds owned by private equity and publicly-held corporations.

Oh, and a few extra dollars for the unemployed for a few weeks eventually unless the repulsive spawn of Antonin Scalia can stop it; and small checks to some families, distributed whenever Treasury Secretary Mnuchin gets around to it.

The details behind this are equally astounding, as you can see from Dave Dayen’s newsletter, Unsanitized, which you should read every day.

2. Capitalism doesn’t fix problems. If it wasn’t already obvious, this crisis proves that capitalism makes crises like the pandemic worse. Our supply chains broke down. We are unable to produce the needed medical supplies and equipment. We failed to produce tests for this virus.

Our hospital system was driven by the profit motive to minimize surge capacity in beds, supplies and equipment; it was easily overwhelmed. What we actually mean by “flattening the curve” is that we spread out the cases requiring medical intervention so we don’t exceed our capacity to provide care. After the Great Crash we called it “foaming the runway”.

Flattening the curve should have bought time to restock our medical supplies and equipment, and get a decent testing program up and running. That didn’t happen. Trump insisted that markets driven by the profit motive allocate half of the available supplies, and he distributed the rest following what looks like political logic for his own benefit. As Josh Marshall explains, it makes sense to use the existing distribution chains, but it makes no sense whatsoever to allow the private sector to set up auctions where states and the federal government bid against each other for the necessary equipment. The “market” didn’t supply the needed supplies and equipment. There aren’t enough test kits, and there is no testing program. Following neoliberal theory, government cannot or will not solve these problems.

Capitalism didn’t fix anything. Instead, capitalists demanded government bailouts.

3. What Rugged Individual? Our economy runs on the exploitation of millions of people whose work, according to the “market”, is worth little more income than necessary to keep them alive. Suddenly even the most aggressive neoliberals are forced to acknowledge that all of us depend on these people, who feed us, provide us with deliveries, pick up our garbage, clean our streets, cook for us, clean our houses, pick our produce, kill animals and cut them up for our dinners, haul the trailers that bring us our food, and tend to our elderly. Not to mention the RNs, the LPNs, the LPAs, the medical technicians who operate ventilators and testing equipment, the phlebotomists, the lab techs, the pharmacy assistants, the all-important janitors and cleaners, the EMTs; and the clerks who manage the insurance businesses that pay the medical people.

Suddenly we hear about these people. Suddenly they are our frontline troops, our new heroes. Suddenly we hear stories about medical workers being applauded on their way to work. We notice the people putting toilet paper on the shelves. We think about the people putting food on our tables, delivery people, Lyft drivers, UPS drivers. It suddenly seems perfectly obvious that we are dependent of these people in a way that we are not dependent on the financial thugs at Goldman Sachs and JPMorgan Chase and Private Equity firms.

And for a light touch, get a load of this short CNBC clip.

The crisis exposes the lie of the American myth of the rugged individual, amplified into the neoliberal foolishness of Homo Economicus. No one stands alone. The Don’t Tread On Me crowd insisting on making their semi-annual trip to church for Easter worship whinge on about liberty, ignoring the risk to others. They won’t all get Covid-19, but some will, and they contribute to the surge at hospitals, the depletion of medical supplies and equipment, and the exposure to health care workers.

In fact it’s the people who keep us going as a nation who follow the real American Dream: they cooperate to solve problems. In this case cooperative problem-solving is undermined by leaders put into office by allegedly Conservative Rugged Individuals; not just the elected officials, but Senators, Representatives, political appointees, and judges. If the sickening SCOTUS Chief Justice catches Covid-19 in Wisconsin, the health care workers there will work together to take care of him even though he made them choose between dangerous exposure at the polls and losing their right to vote.

All of us depend on each other for the things we cannot provide for ourselves. We also depend on each other for creating and enriching our humanity. We lose a critical piece of ourselves when we can’t hang out with other humans, chat with the check-out lady at the drug store, get advice on TVs from the guy at Best Buy, argue about the NBA championship series at work, discuss the meaning of the Parable of the Laborers In The Vineyard with our Bible Study groups, share a meal or a laugh or a hug.

I hope we remember this dependence when the lockdowns end.

US “Job Creators” Negate The Humanity Of Workers

Yesterday, I retweeted this list of stimulus packages from around the world and added a rant on how it means that when the US economy reopens (see Marcy here on why it’s not Trump’s call to make, despite his claims), the US will be left in the dust because so many workers who were laid off during the shutdown will have lost everything and likely will face a long delay in finding re-employment.

As you can see from the list, much of the world is taking care of workers to see that they are able to meet their basic needs of shelter and food until social distancing begins to be lifted. (I won’t even go into the fact that the rest of the world also assures universal health coverage as well, so as not to upset my blood pressure even further).

The sad reality of these numbers is that in the US, workers simply aren’t acknowledged as human. They are merely tools the “job creators” use to enrich themselves. This Washington Post article from yesterday drives that point home in disgusting detail. Here’s a screencap of the headline and subhead:

That subhead, coupled with the comparison of different countries’ approaches for stimulus packages, perfectly sums up the complete negation of humanity for US workers. In the civilized portions of the world, governments are stepping in directly to make sure workers continue getting paid at a rate that is fairly close to their usual wages. In the US, direct payments to the public at large are essentially taboo, so token $1200 payments have been approved and we can rest assured that the Trump administration will drag their feet and fuck this up enough to make sure most workers won’t see this money for a very long time if ever. So, enter the plan to funnel money to workers through the SBA and the “job creators” who are so sacred to the distorted US view of how to structure the economy. But even here, “job creators” just can’t grasp the idea that workers are humans who need food and shelter during the time that, through no fault of their own, they can’t work. The idea of paying workers to do nothing simply never can be entertained, even if it literally means life or death.

Here’s how the Post article opens:

Bob Giaimo, founder of the Silver Diner restaurant chain, is hoping to receive emergency funding in the coming days through a federal loan program. But he doesn’t want to spend the money right away.

Small-business owners are supposed to use the loans immediately to keep employees on their payrolls during the coronavirus crisis, but at the moment there is little for Giaimo’s workers to do. His restaurants in Virginia, Maryland and the District will be closed for sit-down service until local officials allow them to reopen.

“Getting the loan is hard enough. Using it is harder,” said Giaimo, who is lobbying his members of Congress for more flexible loan terms.

No, Bob, using those SBA funds is not hard. The whole fucking point of this program, right there as the Post says, is “to keep employees on their payrolls during the coronavirus crisis”. It doesn’t matter that they have nothing to do. What matters is that they need to buy groceries and pay rent.

Let’s get back to Bob, because he’s such a gem of a “job creator”.

For Giaimo, part owner of Silver Diner, which runs 19 restaurants, the mandated timing of the spending is a problem.

In his 30 years in business, he says he’s never laid off an employee, until now. After the coronavirus hit, local authorities ordered restaurants to close for sit-down service, forcing Giaimo to temporarily lay off 1,600 of 1,800 workers, he said. Most of them are now collecting unemployment, he said. (Some regional restaurant chains qualify for the loans even if they employ more than 500 people.)

/snip/

He applied through a local bank for a $9.5 million emergency loan and is awaiting approval. But rehiring his workers immediately would be impractical, he said.

“There’s no job for them,” he said. “We would use all the loan proceeds while we’re closed, and we’d be out of funds to reopen.”

But poor Bob. Even though his business doesn’t really fit the definition for small, he’s found a loophole to still apply for a $9.5 million forgivable loan that is specifically designed to keep employees of actual small businesses on the payroll. But, you see, he cut 89% of his employees off the payroll to join the flood of those seeking paltry state unemployment benefits. And Bob has needs now:

Giaimo wants the rules to change so that the companies can qualify for loan forgiveness if they wait to rehire workers until they are legally allowed to reopen. Meanwhile, he’d like to use part of the loan to pay the workers he has retained and to pay suppliers of food and other goods, but he says paying suppliers isn’t an allowed use of the funds under current regulations.

You see, Bob has bills. He needs to pay those bills, like the ones from his suppliers. As for all those workers he laid off? Fuck their bills.

It should be noted, although this point will be totally lost on Bob, that this loan program is already under discussion for expansion, presumably to extend the amount of time workers could continue to be paid as we await the chance to restart activities like dining in restaurants. But it just never enters Bob’s little mind that he could take these funds, which he wouldn’t have to repay, and use them to pay those workers he laid off, even if they can’t work right now.

What a “Reopening the Economy Story” Would Look Like

The WaPo has a remarkable 2,400-word story that purports to explain how the White House plans to reopen the economy.

Nine paragraphs into the story, it includes this factually erroneous paragraph that also points out that’s not what this story is doing.

The White House cannot unilaterally reopen the country. Though the Centers for Disease Control and Prevention has issued federal guidance advising people to avoid social gatherings, work from home and use pickup and delivery options for food, it is state officials who have put the force of law behind those suggestions.

The paragraph is factually erroneous because the guidelines released by the White House are not the basis for the state-by-state shutdown orders and in fact fall far short of what all but a handful of states have in place. The governors have put the force of law behind more stringent measures, that rightly treat the White House ones as inadequate.

But once you’ve acknowledged, as this paragraph does, that the governors — not Trump — will decide when to reopen the economy, then an editor should remove virtually all the rest of the paragraphs in the story as access journalism fluff that dangerously misrepresents the state of things.

Paragraph 16, though, is a keeper. It describes the things that Trump has some control over that still haven’t happened — most notably, far more testing.

Health experts say that ending the shutdown prematurely would be disastrous because the restrictions have barely had time to work, and because U.S. leaders have not built up the capacity for alternatives to stay-at-home orders — such as the mass testing, large-scale contact tracing and targeted quarantines that have been used in other countries to suppress the virus.

The story doesn’t describe that the Federal government just inexplicably ended, rather than expanded, testing. Nor does it reference a very good WaPo story from earlier this week, on which Josh Dawsey, who is bylined in this story, is also bylined. That story describes the utterly inconceivable fact that the White House was just this week beginning to debate what a national testing strategy would look like.

In recent days, the White House coronavirus task force has begun debating what a national testing strategy would look like, according to several senior administration officials. Leading that effort are Deborah Birx, White House coronavirus response coordinator, and Brett P. Giroir, the assistant secretary for health at the Department of Health and Human Services.

At a Monday task force meeting, according to a participant who spoke on the condition of anonymity to discuss internal deliberations, Birx and Giroir debated where to send the newest coronavirus tests — a version produced by Abbott Laboratories that can deliver results on-site in as little as five minutes, as opposed to tests that can take hours and must be processed by a laboratory.

Back on March 31, Dr. Birx suggested that states were just sitting on Abbott testing capacity that the government had already gotten to states, not using it.

DR. BIRX:  So, even today — which is, I have to say, coming out of laboratories and developed tests and worked on vaccines and then gone to the field to actually combat epidemic — it is disappointing to me right now that we have about 500,000 capacity of Abbott tests that are not being utilized.  So they are out.  They’re in the states.  They’re not being run and not utilized.

So now we have to figure out how do we create awareness, because sometimes when you put an early platform out — like our first platform out when the high speed was Roche — so you get that out, people get dependent on that, and then don’t see that there’s availability of other tests.

So right now, there’s over a half a million tests sitting — capacity — that are not being utilized.  So we’re trying to figure out: How do we inform states about where these all are?  How do we work through every laboratory association so they’re aware?  And how do we raise awareness so people know that there’s point of care, there’s Thermo Fisher, there’s Abbott testing, and there’s Roche?  And if you add those together, that’s millions of tests a week.

[snip]

Q    So why aren’t they being used?

Q    What’s the reason they’re being used?

DR. BIRX:  Because when people get used to a single platform, they keep sending it back to that lab.  So it’s getting in a queue to wait to get on a Roche machine, rather than being moved to this other lab that may have Abbott capacity.  Because they’re all in different laboratories.  And so —

Q    So how do you break that bottleneck?

DR. BIRX:  I think — well, actually, Admiral Giroir is figuring it out, to really create some kind of visual so that every governor and every health commissioner can see all of their capacity in their countries — I mean, in their states, county by county, so that they know where the tests are.

So we pushed a lot of tests out, but they’re not all being utilized.  And so —

But a week after that, per the WaPo article on testing, Birx was still just debating a plan on how to use the Abbott capacity?

A tenth of the work force has applied for unemployment benefits, millions more are not working right now, small businesses are going under, all to give the federal government (or barring that, our states) time to develop a plan to get people back to work, safely. And only two weeks after the stay-at-homes went into place was the White House trying to devise a national strategy? Are you fucking kidding me?!?!?!?!

And yet the failures of the White House to do the single most important thing it can do to get the country back to work doesn’t show up in this story until paragraph 16.

That failure is important background for another detail in this story: That Jared Kushner, after promising yet failing to get testing into Big Box parking lots, will now have a key role in getting the economy back together again.

Trump is preparing to announce this week the creation of a second, smaller coronavirus task force aimed specifically at combating the economic ramifications of the virus, according to people familiar with the plans.

The task force is expected to be led by Mark Meadows, the White House chief of staff, and include Larry Kudlow, the president’s chief economic adviser, and Mnuchin, the treasury secretary, along with outside business leaders. Others expected to play a role are Kevin Hassett, who has been advising Trump on economic models in recent weeks, and the president’s son-in-law, Jared Kushner, administration officials say.

You can’t combat the economic ramifications until you fix the problem that Kushner was put in charge of but then failed to fix — testing. Putting him a key role to fail yet again will do real damage to this country.

Ultimately, this story could — and should — look like this:

  1. Trump wants to get the country back to work
  2. But it’s not up to him, it’s up to the Governors
  3. Trump has failed, miserably, at the one thing he should be doing — rolling out widespread testing
  4. Trump now wants to put the guy who failed to fix the testing problem in charge of economic recovery

I don’t mean to be an asshole about this, but Trump uses national media stories about him as a mirror, to gauge his own performance. The last thing he needs to see is a mirror that utterly distorts the things he can control — testing — and instead allows him to focus on the things he can’t control — ending stay-at-home orders.

The Very Specific Details about the COVID Warnings from the “Deep State”

Last Friday, Trump fired Michael Atkinson, the Intelligence Community Inspector General who treated the Ukraine whistleblower complaint as mandated by law. Yesterday, Adam Schiff wrote a letter to Acting Director of National Intelligence Ric Grenell, warning him that the Committee was reviewing whether Trump fired Atkinson to undercut ongoing investigations and asking for assurances Grenell had not and would not tamper in anything the replacement Acting IG, Thomas Monheim, was investigating.

“The Committee is reviewing the circumstances of Mr. Atkinson’s dismissal, including whether his termination was intended to curb any ongoing investigations or reviews being undertaken by his office,” Schiff wrote.

Schiff asked Grenell to provide a written certification to his committee that he would not interfere with the work of future officials in that role and that he certify he has never interfered in the work of Thomas Monheim, now the acting inspector general of the intelligence community.

Grenell responded by acting like the online troll he is, falsely claiming that Schiff had “leaked” (AKA, released) the letter before he actually sent it to him.

Take all that as background to this ABC story. It describes both the source of intelligence behind a report on how aggressive the virus was in Wuhan, and the chain via which it ended up in Trump’s Presidential Daily Brief in early January.

Concerns about what is now known to be the novel coronavirus pandemic were detailed in a November intelligence report by the military’s National Center for Medical Intelligence (NCMI), according to two officials familiar with the document’s contents.

The report was the result of analysis of wire and computer intercepts, coupled with satellite images. It raised alarms because an out-of-control disease would pose a serious threat to U.S. forces in Asia — forces that depend on the NCMI’s work. And it paints a picture of an American government that could have ramped up mitigation and containment efforts far earlier to prepare for a crisis poised to come home.

“Analysts concluded it could be a cataclysmic event,” one of the sources said of the NCMI’s report. “It was then briefed multiple times to” the Defense Intelligence Agency, the Pentagon’s Joint Staff and the White House.

From that warning in November, the sources described repeated briefings through December for policy-makers and decision-makers across the federal government as well as the National Security Council at the White House. All of that culminated with a detailed explanation of the problem that appeared in the President’s Daily Brief of intelligence matters in early January, the sources said.

The intelligence came from wire and computer intercept and satellite images, both incredibly sensitive intelligence. And the report made its way from the National Center for Medical Intelligence in November to DIA, the Joint Staff, and the White House in December, to Trump in early January.

The report doesn’t actually push the time when Trump could be expected to know of this warning, it pushes the timeline back for others in the chain of command. But it does make it clear that people in that chain of command took it seriously enough to keep elevating it.

And then, Trump ignored it.

Yes, this is leaking to add to the political accountability on Trump’s refusal to listen. But it’s also a remarkably detailed report about the work of intelligence — the value that the Deep State brought to an issue that threatens to sink Trump’s presidency — that, partly because of his intellectual limits and partly because of his distrust of the “Deep State,” Trump ignored.

If this stuff can’t be shared via proper channels we may see more of it in the press in the coming months.

Update: On Twitter, Brian Beutler noted that George Stephanopoulos laid the groundwork for this story when hosting Mike Esper on Sunday.

STEPHANOPOULOS: You said at top of this interview that the Pentagon has been ahead of the curve every day, and you mentioned in January. But did the Pentagon receive an intelligence assessment on COVID in China last November from the National Center for Medical Intelligence of DIA?

ESPER: Oh, I can’t recall, George. But our — we have many people that watch this closely. We have the premier infectious disease research institute in America, within the United States Army. So, our people who work these issues directly watch this all the time.

As you know, the first patient in the United States was discovered in late January. We activated our global pandemic response plans on 1 February. I issued guidance to the force for force protection on 3 February. And we didn’t see our first casualty in the United States — and God rest their soul — until 29 February.

So, you can see, we were weeks ahead of this in terms of preparing our own force and opening up our stockpile to the rest of the government.

STEPHANOPOULOS: But that’s in January, because, reportedly, this assessment was done in November, and it was briefed to the NSC in early December to assess the impact on military readiness, which, of course, would make it important to you, and the possible spread in the United States.

So, you would have known if there were briefed to the National Security Council in December, wouldn’t you?

ESPER: Yes, I’m not aware of that. I will tell you, again, our folks work this all the time. That’s why we have a global pandemic response plan that I initiated on February 1st. That’s why we have stockpiles of strategic supplies, whether it’s masks, gowns, PPE, ventilators, all those things we need.