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John Roberts’ Sordid Legacy: 14 Pages of Mean Tweets

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“One of the ways Trump” disseminated false claims of election fraud, Jack Smith’s immunity briefing describes, “was by Tweet, day in and day out.”

I’m still wading through Jack Smith’s immunity briefing. Later today, I plan to explain how we got here and how Trump’s lawyers will try to bury it. Then I’ll show the substance of their argument, how prosecutors plan to convict Donald Trump for attempting to steal an election without using any evidence that Chief Justice John Roberts has deemed official and therefore immune.

But first I want to talk about an utterly remarkable passage in the filing: 14 pages examining Trump’s mean tweets.

As I’ll explain in more detail later, the filing first lays out, in Part I, what evidence prosecutors plan to rely on, then sets up a legal framework to conduct this analysis, and then explains, in Part III, why the evidence laid out in the first part is not immune.

In Part III, prosecutors go both by type of evidence (for example, conversations with Republican state officials and politicians) to explain why such conduct is not immune. The section looks like this:

  • Trump’s interactions with Pence
    • Trump’s interactions with Pence were official, but presumption of immunity is overcome
    • Trump’s interactions with Pence as a running mate were unofficial
  • Trump’s interactions with officials from swing states
    • The interactions were unofficial (followed by five instances)
    • Even if they were official, the government can rebut the presumption of immunity
  • Trump’s efforts to organize fake electors
    • The effort was unofficial
    • Even if it was official, the government can rebut the presumption of immunity
  • Trump’s public speeches and tweets as a candidate
    • The statements were unofficial
      • Speeches (with analysis of the two prosecutors want to use, one in Georgia and the January 6 one)
      • Tweets
      • Other public statements
    • Parts of Trump’s statements that are official can be excised
  • Trump’s interactions with White House staff (including Eric Herschmann, Dan Scavino, Molly Michaels, and two others)
    • The interactions were unofficial
    • The government could rebut any presumption of immunity
  • Other evidence of knowledge and intent
    • The evidence was unofficial
      • Federal officials (including Bill Barr and Chris Krebs)
      • Evidence about Trump’s use of Twitter
      • Trump’s post-Administration statements
    • Even if it were official, the government could rebut any presumption of immunity

This section takes up 75 pages of the brief.

Of that, 18 pages are dedicated to analysis about Trump’s Tweets (not including the additional pages describing how they plan to explain Trump’s Twitter habits). Fourteen of those pages go through Trump’s manic Tweets from the period, each time explaining why such Tweets should not be viewed as the official acts of the President of the United States.

The section describes six ways Trump’s Twitter habit served his coup attempt:

  • Casting doubt on election integrity
  • Making false claims of election fraud
  • Attacking Republicans who speak the truth about the election
    • Al Schmidt
    • Chris Krebs
    • Rusty Bowers and four Pennsylvania State GOP legislators
    • Wisconsin Supreme Court Justice Brian Hagedorn
    • Chris Carr
    • Governor Doug Ducey, Governor Brian Kemp, and Secretary of State Brad Raffensperger
  • Exhorting people to come to January 6
  • Pressuring Mike Pence
  • Almost getting Mike Pence killed

Prosecutors don’t include all the attacks Trump made on Twitter — for example, while Section I describes his attacks on Shaye Moss and Ruby Freeman, prosecutors don’t include them in the immunity analysis. The immunity analysis instead focuses only on the people with whom, Trump might argue, he was engaged in official business by ginning up death threats against them.

John Roberts not only rewrote the Constitution to protect Donald Trump. He forced prosecutors to spend 14 pages arguing that it is not among the job duties of the President of the United States to attack Republicans who’ve crossed him on Twitter.

This is what the Chief Justice wants to protect. This is the all-powerful President John Roberts wants to have. Someone who can sit in his dining room siccing mobs on fellow Republicans.

Who knows whether it will work? Who knows whether these right wing Justices will go that far — to argue that even the President’s mean Tweets targeting members of his own party must be protected from any accountability?

But prosecutors personalized it.

As noted above, the 14 pages analyzing mean Tweets follows the analysis of two rally speeches, in which prosecutors first show the January 4 Georgia speech was a campaign event, and then (among other things) lay out the similarity between that speech and Trump’s January 6 one.

Among the things Trump included in both speeches was an attack on the Supreme Court:

The defendant, who in his capacity as a candidate had suffered personal legal defeats in his private, election-related litigation at the Supreme Court, attacked it (Dalton at GA 1095; “I’m not happy with the Supreme Court. They are not stepping up to the plate. They’re not stepping up.” Ellipse at GA 1125: “I’m not happy with the Supreme Court. They love to rule against me.”).

Of course, the Justices can’t view that as an official act. It would be anathema to the very principles of separation of powers the Justices claim to be guarding. Plus (as noted here and elsewhere), Trump had specifically labeled his intervention in Ken Paxton’s lawsuit as done in his personal capacity. But building off how obviously unofficial this attack on John Roberts and his buddies is, it makes it all the more obvious that Donald Trump’s mean Tweets aren’t official acts either.

Though the inclusion of Trump’s attacks on them also might get these partisan hacks to think more seriously about the nearly identical exhortations Trump made on Truth Social before they decided to rewrite the Constitution in his favor.

Update: Fixed where I said that Trump intervened in Ken Paxton’s lawsuit in his official capacity–he specifically said he did so in his personal capacity as a candidate.

Live and Let Die: The Data Manipulation Begins

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From the beginning of the coronavirus crisis, various entities in the United States were always engaged in the kind of dishonesty we accuse China of to hide the extent of the virus. Trump tried to keep a cruise ship off shore so it wouldn’t count against “his” numbers. States everywhere didn’t reveal the crises in nursing homes by hiding where they were occurring. Other states refused to track known COVID-19 deaths because they didn’t occur in a hospital.

But now that Trump has fully committed to reopening the economy before the shut down has its desired effect, he and allied governors are engaged in more aggressive data manipulation to hide the stupidity of what they’re doing.

Georgia had long manipulated its data, by rigging cut-off numbers to make it look like the only outbreaks were around Atlanta and in the Black Belt outbreak around Albany. But as Brian Kemp moved to reopen Georgia in the stupidest possible way, the state shifted its reporting to show confirmed cases.

That means it can always show a trend of declining cases that would match White House guidelines for reopening, rather than the plateau the state actually has, because the trend reflects known cases that aren’t counted yet.

Interestingly, Georgia may also be hiding the extent to which this virus has moved beyond predominantly African-American areas, thereby hiding that Kemp’s stupid decision is actually killing white people, too.

Meanwhile, Arizona’s Doug Ducey, who already lost the state’s experienced emergency manager, just ordered some  epidemiologists at the state’s public universities to stop work on a COVID model that used the states internal data, because their model showed the only way to avoid exponential growth would be to stay closed until the end of May.

The universities’ model had shown that reopening at the end of May was the only scenario that didn’t dramatically increase cases.

In late April, Tim Lant, a mathematical epidemiologist at ASU, said the model showed five different scenarios for how the disease could progress in Arizona, depending on how social distancing efforts were relaxed.

The slowest curve, based on if the state reopens at the end of May, is “the only one that doesn’t put me immediately back on an exponential growth curve,” Lant said in April. That’s because transmission rates would be lowest at that time, he said.

“I can say, scientifically, no, it’s not safe to reopen unless you’re planning on, you know, shutting down again after a couple of weeks, and we can help figure out what the appropriate amount of time is to stay open before we shut down,” he said.

Bailey wrote that health department leadership asked the team to “pause” all work on projections and modeling. The department would also be ending access to special data sets the modeling team had been using for their efforts, Bailey said.

Finally, yesterday the White House tweeted out the model that is has embraced in lieu of models by epidemiologists.

This release is an effort to rebut WaPo reporting on how this model — by the guy behind the Dow 36,000 book, Kevin Hassett — continues to be pulled out of Hassett’s ass whenever Trump needs to be told something he wants to hear.

The epidemiological models under review in the White House Situation Room in late March were bracing. In a best-case scenario, they showed the novel coronavirus was likely to kill between 100,000 and 240,000 Americans. President Trump was apprehensive about so much carnage on his watch, yet also impatient to reopen the economy — and he wanted data to justify doing so.

So the White House considered its own analysis. A small team led by Kevin Hassett — a former chairman of Trump’s Council of Economic Advisers with no background in infectious diseases — quietly built an econometric model to guide response operations.

Many White House aides interpreted the analysis as predicting that the daily death count would peak in mid-April before dropping off substantially, and that there would be far fewer fatalities than initially foreseen, according to six people briefed on it.

Although Hassett denied that he ever projected the number of dead, other senior administration officials said his presentations characterized the count as lower than commonly forecast — and that it was embraced inside the West Wing by the president’s son-in-law, Jared Kushner, and other powerful aides helping to oversee the government’s pandemic response. It affirmed their own skepticism about the severity of the virus and bolstered their case to shift the focus to the economy, which they firmly believed would determine whether Trump wins a second term.

[snip]

By the end of April — with more Americans dying in the month than in all of the Vietnam War — it became clear that the Hassett model was too good to be true. “A catastrophic miss,” as a former senior administration official briefed on the data described it. The president’s course would not be changed, however. Trump and Kushner began to declare a great victory against the virus, while urging America to start reopening businesses and schools.

The effort to prove the value of the epidemiological models done by people who are considered frauds within their actual profession of economics comes as the CDC’s own model showing an increase to 3,000 deaths a day was leaked. And the Council of Economic Advisors released this line-drawing exercise comes as the US has blown by Hassett’s original estimate of 60,000, one also adopted publicly by Trump.

Understand: This is not just an attempt to lie about the sanity of the decision to reopen the economy even as COVID cases continue to grow. It’s an attempt to lie about the stupidity of the economic decisions Trump made, too.

While other countries have had more cases per population, that has happened with economic relief focused on actual human beings rather than cruise lines and luxury hotels. Here, much of Trump’s economic policies have been just another attempt to loot the economy for his friends and campaign donors. That has made the economic impact of all this in the United States worse than it is in other countries, and it will only continue to get worse.

Some places that reopen prematurely will be forced to shut down again. And as more people are out spreading the virus, more bottle necks in critical infrastructure will be exposed.

Trump has pursued the worst of all policy options. After his initial dawdling let the virus spread in some cities, he endorsed shutting down the economy in an attempt to mitigate the pandemic. That had a predictable catastrophic impact on the economy (and more unemployment numbers will be out today). But because Republicans refused to adopt policies that would actually cushion that crash, the impact was much worse than it might have been.

Now, after taking the full hit of shutting down, Republicans are insisting on reopening — bolstered by their fraudulent charts and graphs — before the shutdown has any lasting epidemiological value. We’ll have the medical impact of a herd immunity approach, with the economic impact of a badly executed mitigation strategy. The worst of both options.

And to pretend that this is not all knowable and known now, Trump has swapped briefings by medical experts for photo ops set to campaign music, to the apt Live and Let Die.

Update: Meanwhile, Florida just removed details of possible positive COVID cases in January and February from a public website.

Brian Kemp Suggests Workers at Nail Salons Don’t Own Their Own Lives

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Fox News’ Martha MacCallum did a good job last night pushing Georgia Governor Brian Kemp to justify his order to reopen non-essential businesses like hair and nail salons and gyms. The order supersedes any city-wide orders, meaning even devastated cities like Albany must comply.

The entire thing is worth watching. The same guy who claimed neither he nor his health commissioner understood that COVID-19 can be spread by asymptomatic people three weeks ago — and in this clip suggests temperature screening could be effective to stop the spread — now claims that, “our people in our state have learned a lot … we’ve all been, learned how to do” social distancing and that’ll be enough to open businesses that require close proximity for extended periods.

He also suggested that the data on Georgia cases and fatalities are dated by as much as six days, meaning he’s claiming that Georgia passed its peak already.

But the real tell came when he explained that,

We’re talking about a few businesses that I closed down to help flatten the curve which we have done in our state. But for us to continue to ask them to do that while they lose everything, quite honestly, there are a lot of civil repercussions of that … When you close somebody’s business down, and take the livelihood of that individual and those employees, and they are literally at the face of losing everything, I’m willing to give them the benefit of the doubt.

Kemp treats small businesses — not life itself — as “everything.” And he doesn’t consider that, for people who work in these small businesses, their health and their life is what they own. Effectively, he’s stripping them of their ability to work in safety.

And, as many people have suggested, he’s also stripping people who choose not to work in unsafe conditions of unemployment benefits.

Kemp went on to suggest that “if you take Albany out of the situation right now our state is a much different place,” correctly noting that it has more deaths (but not more cases) than Atlanta but, in making the suggestion, imagining he could take Georgia’s rural black population out of the state’s general condition.

Kemp cited Trump repeatedly in this interview, even claiming that this move complies with his guidelines on reopening (it is being done before cases decline adequately and in businesses not included even in Trump’s irresponsible list, which includes gyms). He didn’t, however, say that if the Trump Administration hadn’t botched the PPP, then these small businesses wouldn’t have to choose between reopening or their lives.

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

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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

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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.

Trump’s Promise of Only 100,000 Deaths Assumes We Ignore Him

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Court transcribers like Peter Baker and Mike Allen were very impressed with what they deemed a very somber new Donald Trump in yesterday’s COVID rally. At it, Trump warned that we’re going to have a hard two weeks ahead of us (and then, over an hour later, admitted in an offhand comment it might actually be three). He warned there were going to be a lot of deaths — then stepped aside so someone not up for election could explain that means upwards of 100,000 deaths. And so, Trump implored while promising everything would get better in two weeks (or maybe three), we need to follow White House 30 Days to Slow the Spread guidelines to ensure we can limit deaths to 100,000.

There are a couple of major problems with that.

First, those guidelines ask for 30 days, but Trump is just asking for two more weeks (or three, if you manage to watch over an hour of this stuff).

Then, as Dr. Deborah Birx noted repeatedly, that 100,000 best case scenario is based off the IHME projections. But the IMHE projections are based off adopting a more stringent level of social distancing than White House 30 Days to Slow the Spread guidelines — basically, stay at home orders — and they assume those orders will remain in place until the end of May, not April.

To be fair, starting before the time Trump was pushing to reopen the economy, a bunch of governors (most of them Democrats, including people like Jay Inslee, whom Trump has repeatedly attacked) decided to impose more stringent requirements than Trump was recommending. As of yesterday, 29 Governors had stay-at-home measures in place to match the IMHE projections. Republican die-hards Doug Ducey of Arizona and Greg Abbott of Texas even capitulated yesterday and imposed state-wide orders (though on second review Abbott’s is just a non-essential business closure).

But even as this presser was going on, Trump’s closest ally among the governors, Ron DeSantis, was digging in, claiming that the White House task force had never suggested to him that they should impose a stay-at-home.

“I’m in contact with (the White House task force) and I’ve said, are you recommending this?” DeSantis said. “The task force has not recommended that to me. If they do, obviously that would be something that carries a lot of weight with me. If any of those task force folks tell me that we should do X, Y or Z, of course we’re going to consider it. But nobody has said that to me thus far.”

Trump was even asked about this. In a presser where Trump and Birx suggested that New York had been really late in adopting social distancing (that’s not true: Andrew Cuomo imposed an order more stringent than Trump’s current guidelines on March 18, just two days after Trump first called for social distancing, and imposed a full stay-at-home on March 20, effective March 22, which was among the earliest full state shut-downs), Trump and Mike Pence also had nice things to say about DeSantis, with Georgia’s Brian Kemp, the last of the major state governors not have one.

Reporter: I wanted to ask you about individual states issuing stay at home or what do you think, for instance, in Florida, Ron DeSantis has resisted urges to issue one of those, but he said moments ago that if you and the rest of the task force recommended one, that would weigh on him heavily. What sort of circumstances need to be in place for you to make that call and say this is something you should consider?

Trump: Different kind of a state, also great Governor, knows exactly what he’s doing, has a very strong view on it, and we have spoken to Ron. Mike, you want to just to tell him a little bit about that.

Pence: Well, let me echo our appreciation for Governor DeSantis’ leadership in Florida. He’s been taking decisive steps from early on and working closely with our team at the federal level. But let me be very clear on this. The recommendation of our health experts was to take the 15 days to slow the spread, and have the President extend that to 30 days for every American. Now, that being said, we recognize that when you’re dealing with a health crisis in the country, it is locally executed by healthcare workers, but it’s state managed. And so we continue to flow information to state governors. We continue to hear about the data that they’re analyzing and consult with them. But at the President’s direction, the White House Coronavirus Task Force will continue to take the posture that we will defer to state and local health authorities on any measures that they deem appropriate. But for the next 30 days, this is what we believe every American and every state should be doing at a minimum to slow the spread.

Trump: So, unless we see something obviously wrong, we’re going to let these governors good. Now, it’s obviously wrong, I mean, people can make things, they can make a decision that we think is so far out that it’s wrong, we will stop that. But in the case of DeSantis, there’s two thoughts to it, and two very good thoughts to it, and he’s been doing a great job in every respect, so we’ll see what happens. But we only would exercise if we thought somebody was very obviously wrong.

Aside from some rural states and Georgia, just about the only entity in the country not telling DeSantis to shut his state full of especially vulnerable seniors down is the President.

According to the IHME projections (and assuming those aren’t hopelessly optimistic because of a known lag of test results in places like California), we might still make that 100,000 projection if DeSantis imposes a true lockdown within seven days. But he says he’ll only do that if President Trump gives him political cover to do so.

Effectively, then, the allegedly sober President yesterday said we might only have 100,000 deaths if people ignore him and one of his closest political allies, Ron DeSantis.

Update: DeSantis is announcing a stay-at-home order within the hour.

Trump’s Blame the Governors Strategy and Rural Roulette

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The other day, I laid out how, even if Trump wants to open the country back up by Easter, at least fifteen governors may prevent him, including OH’s Republican governor Mike DeWine, who in the wake of Trump’s comments tweeted out defending his approach again. The WaPo did a similar piece this morning, confirming that the governors aren’t on board with Trump’s hopes.

That said, it’s clear that Trump plans to pressure governors, not just to do his bidding, but also to demand fealty before he heeds their pleas for help. Ultimately, it may be a bid to blame the upcoming crisis on the governors — disproportionately Democrats — struggling most directly with the crisis.

And that could work.

Though I doubt it, for a number of reasons. As US numbers continue to spike, it’s likely the governors who’ve taken more aggressive stances (with the possible but very notable exception of Andrew Cuomo, largely because of NYC’s density) will be able to show significantly better outcomes than those states that have adopted a hybrid approach, shutting down affected cities but not the entire state, to say nothing of those who were doing nothing (this Politico piece shows what each state has done or, in the case of OK and MS, not done at all).

Right now, almost all the identifiable clusters are in big cities, with both the international travel and density that would lead to early exposure. But some (not all — Detroit is an exception) of those cities actually have relatively low levels of the preexisting conditions that make the population more susceptible to the virus and more likely to have an extreme case if they get it. By contrast, much of America’s more rural areas have a higher instance of those pre-existing conditions. And those rural areas don’t have the hospital beds, much less ICU rooms, to treat seriously ill patients. This map, from an MIT project, shows where current outbreaks are and where particularly vulnerable populations are for the country as a whole.

That means in states where governors have not imposed state-wide stay at home orders, there’s a significant risk that clusters will arise in areas that are less prepared to deal with an outbreak. Effectively, the governors who’ve adopted such an approach are playing “rural roulette,” assuming that a focus on the cities will mitigate the biggest risks, even though the rural areas would be easily overwhelmed even with a smaller number of infections.

And that may have an important dynamic given the election. A number of the key swing states — MN, WI, MI, OH — have instituted full state stay-at-home orders. But many of the rest — PA, FL, NC, CO, GA, TX — have not. And in some of the states where that decision is riskiest — GA, FL, and AZ — there’s a Republican governor adopting those strategies in part to adhere to Trump’s views.

Take Georgia. It has had an outbreak in the more rural southwest part of the state, and municipalities are trying to force Governor Brian Kemp to impose a state-wide shutdown.

But the rest of the state has high incidences of some of the preconditions that make the population particularly susceptible to infection. In other words, while Atlanta has the medical resources (including CDC) to respond to the medical crisis, Georgia is already exhibiting an atypical pattern of rural spread in ways that might make Kemp’s refusal to do a state-wide order particularly costly. (As I was writing this, Kemp announced that schools will remain closed through April 24, which suggests he may be budging on a state-wide approach.)

Then there’s Florida.

Jim here.

As the New York Times notes, the municipalities of Miami and Miami Beach have stay home or shelter in place orders that went into effect this week. Also, Alachua, Leon, Orange and Pinellas Counties have stay home orders. Note that while Orange County holds most of the Orlando metro area, Pinellas is only the St. Petersburg portion of the Tampa Bay region. Tampa is in Hillsborough and the population stays fairly high going north into Pasco and south into Manatee and Sarasota Counties.

A very interesting aspect of the Alachua County stay home order, which went into effect here at 12:01 am Tuesday, is that, as noted in the Gainesville Sun, “Non-medical businesses may only allow one customer inside per 1,000 covered square feet, per an Alachua County emergency order.” Here is the line outside a grocery store Tuesday morning in the Sun’s photo accompanying the article:

As the Tampa Bay Times notes, despite multiple public health authorities pleading for a statewide shutdown, DeSantis has instead been listening almost exclusively to business interests, and their message to him has been exactly the one Fox News and Trump have been flogging:

The Florida Chamber of Commerce have spoken frequently with the governor and his staff, urging him not to take drastic measures that might shut down the state’s economy. The Florida Restaurant and Lodging Association has been asking for ways to help their industries stay afloat.

Their message: don’t let the cure be worse than the disease.

But this is ignored:

Public health experts say that a three-week limit on public movement is required to stop the spread of the virus, and they point to a statistical model that shows that Florida may have only one week to act before hospitals become overwhelmed.

Instead, he hears a Republican telling him just how responsible he is to ignore the public health requests:

Sen. Tom Lee, R-Thonotosassa, said DeSantis was under “a tremendous amount of pressure,” but the idea he’s making decisions based on politics — and not public health — was “irresponsible.”

“He’s hearing from a lot of self-interested actors right now who are acting out of self-preservation,” Lee said. “With every executive order, there’s another industry being impacted. Those people are pretty aggressive and pretty vocal, and I think he’s done a pretty good job of ignoring all that.”

What could go wrong?

/Jim

In Florida, on top of the vacation traffic that DeSantis only belatedly shut down, it has significant numbers of seniors and its rural, more vulnerable communities do not have the beds to treat patients in if an outbreak happens (the gray circles here are senior facilities).

To make things worse, DeSantis is not sharing information about which senior facilities have had positive cases, which is likely to lead to clusters outside of locked down areas that lead to community infection. So on top of the rural/urban mix, DeSantis has the likelihood of a breakout at senior facilities.

It’s not just Republican governors who’ve adopted a hybrid strategy though: Pennsylvania Governor Tom Wolf  locked down PA’s major counties without imposing stay at home in their more rural areas. PA is going to experience the community spread of the Eastern Seaboard; it’s a real question what happens as the virus spreads west from the Philadelphia metro area. Plus, it also has a concentration of senior facilities (the family member I’m most worried about now is stuck in one until April 1 fighting several other preexisting conditions).

In bmaz’s Arizona, something that has the possibility of being worse is happening: Republican Governor Doug Ducey is using his authority to prevent cities from imposing more stringent stay at home orders. Thus far, this order strives only to impose a state-wide standard for what amounts to essential businesses (something that has led to confusion even in states with full state-wide orders). Most of his businesses match those adopted by state-wide orders. His order specifically includes golf courses (but not their restaurant facilities) as essential businesses, which I this is reasonable, in AZ, in the name of exercise; bmaz says that the crowds on urban hiking trails, which are also exempted, are far worse. Ducey’s order could override school closures.

Or, the order as a whole could suggest he’s being pushed closer to where other states are, full stay at home orders.

Arizona faces a particular rural challenge, but one Ducey can’t manage: the Native American reservations, which already have cases and which have a real dearth of health resources. But they’re sovereign.

North Carolina’s Democratic Governor Roy Cooper is another person who is having to be pressured to impose a more stringent state-wide stay at home order.

If states can access adequate testing, it’s still unproven whether state-wide or city-by-city orders will be most effective (though the testing is clearly not there yet).

What is clear, however, is that there will be at least as much political pressure on the states that have incomplete stay at home orders as those with statewide orders. And that just happens to include many of the states where November’s election will be decided.

Update: Trump has just sent a letter to governors suggesting the Feds are going to roll out new standards for identifying high and low risk counties, suggesting he wants to adopt the piecemeal shutdowns of the states discussed here. Such a regime will make orders like Doug Ducey and Mississippi Governor Tate Reeves’ orders standardizing shut-downs at the state level dangerous in a way they aren’t now, because both cite Trump’s guidelines for protective measures.