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?

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.

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.

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.

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.

I have watched the first 12 seconds of this at least 100 times, its better than pornpic.twitter.com/j5SeLyeMyy

— Andrew Lawrence (@ndrew_lawrence) April 9, 2020

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.

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.

Stimulus packages around the world:

UK: 80% of workers’ salaries

Denmark: 75% of workers’ salaries

S Korea: 70% of workers’ salaries

Netherlands: 90% of workers’ salaries

Canada: $2k per month

Australia: $1k per month

US: One time $1200 check that may take months to arrive

— Nate Lerner (@NathanLerner) April 10, 2020

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:

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.

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.

Update: I’m republishing this and bumping it, because Trump just replaced Glenn Fine as Acting Inspector General — whom Michael Horowitz had named to head the Pandemic Response Accountability Committee — with the IG for EPA. This makes him ineligible to head PRAC. Fine will remain Principle Deputy IG. 

Late last night, President Trump fired the Intelligence Community Inspector General Michael Atkinson, the Inspector General who alerted Congress of the whistleblower complaint that led to Trump’s impeachment. Trump effectively put Atkinson on administrative leave for 30 days in a move that skirts the legal requirement that an inspector general be fired for cause and Congress be notified of it.

Trump has been accused of firing Atkinson late at night on a Friday under cover of the pandemic to retaliate for the role Atkinson had — which consisted of nothing more than doing his job as carefully laid out by law — in Trump’s impeachment. It no doubt is.

But it’s also likely about the pandemic and Trump’s proactive attempts to avoid any accountability for his failures in both the pandemic response and the reconstruction from it.

There were a lot of pandemic warnings Trump ignored that he wants to avoid becoming public

I say that, first of all, because of the likelihood that Trump will need to cover up what intelligence he received, alerting him to the severity of the coming pandemic. Trump’s administration was warned by the intelligence community no later than January 3, and a month later, that’s what a majority of Trump’s intelligence briefings consisted of. But Trump didn’t want to talk about it, in part because he didn’t believe the intelligence he was getting.

At a White House briefing Friday, Health and Human Services Secretary Alex Azar said officials had been alerted to the initial reports of the virus by discussions that the director of the Centers for Disease Control and Prevention had with Chinese colleagues on Jan. 3.

The warnings from U.S. intelligence agencies increased in volume toward the end of January and into early February, said officials familiar with the reports. By then, a majority of the intelligence reporting included in daily briefing papers and digests from the Office of the Director of National Intelligence and the CIA was about covid-19, said officials who have read the reports.

[snip]

Inside the White House, Trump’s advisers struggled to get him to take the virus seriously, according to multiple officials with knowledge of meetings among those advisers and with the president.

Azar couldn’t get through to Trump to speak with him about the virus until Jan. 18, according to two senior administration officials. When he reached Trump by phone, the president interjected to ask about vaping and when flavored vaping products would be back on the market, the senior administration officials said.

On Jan. 27, White House aides huddled with then-acting chief of staff Mick Mulvaney in his office, trying to get senior officials to pay more attention to the virus, according to people briefed on the meeting. Joe Grogan, the head of the White House Domestic Policy Council, argued that the administration needed to take the virus seriously or it could cost the president his reelection, and that dealing with the virus was likely to dominate life in the United States for many months.

Mulvaney then began convening more regular meetings. In early briefings, however, officials said Trump was dismissive because he did not believe that the virus had spread widely throughout the United States.

In that same period, Trump was demanding Department of Health and Human Service Secretary Alex Azar treat coronavirus briefings as classified.

The officials said that dozens of classified discussions about such topics as the scope of infections, quarantines and travel restrictions have been held since mid-January in a high-security meeting room at the Department of Health & Human Services (HHS), a key player in the fight against the coronavirus.

Staffers without security clearances, including government experts, were excluded from the interagency meetings, which included video conference calls, the sources said.

“We had some very critical people who did not have security clearances who could not go,” one official said. “These should not be classified meetings. It was unnecessary.”

The sources said the National Security Council (NSC), which advises the president on security issues, ordered the classification.”This came directly from the White House,” one official said.

Now, it could be that this information was legitimately classified. But if so, it means Trump had even more — and higher quality — warning of the impending pandemic than we know. If not, then it was an abuse of the classification process in an attempt to avoid having to deal with it. Either one of those possibilities further condemns Trump’s response.

Also in this same period, then Director of National Intelligence Joseph Maguire was asking not to hold a public Worldwide Threats hearing because doing so would amount to publicly reporting on facts that the President was in denial about.

The U.S. intelligence community is trying to persuade House and Senate lawmakers to drop the public portion of an annual briefing on the globe’s greatest security threats — a move compelled by last year’s session that provoked an angry outburst from President Donald Trump, multiple sources told POLITICO.

Officials from the Office of the Director of National Intelligence, on behalf of the larger clandestine community, don’t want agency chiefs to be seen on-camera as disagreeing with the president on big issues such as Iran, Russia or North Korea, according to three people familiar with preliminary negotiations over what’s known as the Worldwide Threats hearing.

The request, which is unlikely to be approved, has been made through initial, informal conversations at the staff level between Capitol Hill and the clandestine community, the people said.

Not only did that hearing never happened, but neither has a report been released.

Among the things then Director of National Intelligence Dan Coats warned of in last year’s hearing was the threat of a pandemic.

We assess that the United States and the world will remain vulnerable to the next flu pandemic or large-scale outbreak of a contagious disease that could lead to massive rates of death and disability, severely affect the world economy, strain international resources, and increase calls on the United States for support. Although the international community has made tenuous improvements to global health security, these gains may be inadequate to address the challenge of what we anticipate will be more frequent outbreaks of infectious diseases because of rapid unplanned urbanization, prolonged humanitarian crises, human incursion into previously unsettled land, expansion of international travel and trade, and regional climate change.

So to some degree, Trump has to make sure there’s no accountability in the intelligence community because if there is, his failure to prepare for the pandemic will become all the more obvious.

Richard Burr is incapable of defending the Intelligence Community right now

But it’s also the case that the pandemic — and the treatment of early warnings about it — may have created an opportunity to retaliate against Atkinson when he might not have otherwise been able to. Even beyond offering cover under the distraction of thousands of preventable deaths, the pandemic, and Senate Intelligence Committee Chair Richard Burr’s success at profiting off it, means that the only Republican who might have pushed back against this action is stymied.

On Sunday, multiple outlets reported that DOJ is investigating a series of stock trades before most people understood how bad the pandemic would be. Burr is represented by former Criminal Division head Alice Fisher — certainly the kind of lawyer whose connections and past white collar work would come in handy for someone trying to get away with corruption.

The Justice Department has started to probe a series of stock transactions made by lawmakers ahead of the sharp market downturn stemming from the spread of coronavirus, according to two people familiar with the matter.

The inquiry, which is still in its early stages and being done in coordination with the Securities and Exchange Commission, has so far included outreach from the FBI to at least one lawmaker, Sen. Richard Burr, seeking information about the trades, according to one of the sources.

[snip]

Burr, the North Carolina Republican who heads the Senate Intelligence Committee, has previously said that he relied only on public news reports as he decided to sell between $628,000 and $1.7 million in stocks on February 13. Earlier this month, he asked the Senate Ethics Committee to review the trades given “the assumption many could make in hindsight,” he said at the time.

There’s no indication that any of the sales, including Burr’s, broke any laws or ran afoul of Senate rules. But the sales have come under fire after senators received closed-door briefings about the virus over the past several weeks — before the market began trending downward. It is routine for the FBI and SEC to review stock trades when there is public question about their propriety.

In a statement Sunday to CNN, Alice Fisher, a lawyer for Burr, said that the senator “welcomes a thorough review of the facts in this matter, which will establish that his actions were appropriate.”

“The law is clear that any American — including a Senator — may participate in the stock market based on public information, as Senator Burr did. When this issue arose, Senator Burr immediately asked the Senate Ethics Committee to conduct a complete review, and he will cooperate with that review as well as any other appropriate inquiry,” said Fisher, who led the Justice Department’s criminal division under former President George W. Bush.

In spite of Fisher’s bravado, Burr is by far the most legally vulnerable of the senators who dumped a lot of stock in the period. That’s partly because he had access to two streams of non-public reporting on the crisis, the most classified on SSCI (which Senator Feinstein also would have had), but also on the Health, Education, Labor, and Pensions committee. And unlike the other senators, Burr admitted that he made these trades himself.

Again, in spite of Fisher’s claims, Burr will be forced to affirmatively show that he didn’t rely on this non-public information when dumping an inordinate amount of stock.

All of which is to say that Burr may be hoping that Fisher can talk him out of any legal exposure, which will require placating the thoroughly corrupt Bill Barr.

I had already thought that Trump might use this leverage to influence the findings or timing of the remaining parts of SSCI’s Russian investigation. That’s all the more true of Atkinson’s firing. Thus far, Burr has remained silent on what is obviously a legally inappropriate firing.

Even as he fired Atkinson, Trump undermined any oversight of his pandemic recovery efforts

A week before firing Atkinson, Trump made it clear he had no intention of being bound by Inspectors General in his signing statement for the “CARES Act” recovery bill. In addition to stating that Steve Mnuchin could reallocate spending without prior notice to Congress (as required by the bill and the Constitution), Trump also undercut both oversight mechanisms in the law. He did so by suggesting that the Chairperson of Council of the Inspectors General on Integrity and Efficiency (who is DOJ’s Inspector General Michael Horowitz) should not be required to consult with Congress about who he should make Director and Deputy Director of the Pandemic Response Accountability Committee.

Section 15010(c)(3)(B) of Division B of the Act purports to require the Chairperson of the Council of the Inspectors General on Integrity and Efficiency to consult with members of the Congress regarding the selection of the Executive Director and Deputy Executive Director for the newly formed Pandemic Response Accountability Committee. The Committee is an executive branch entity charged with conducting and coordinating oversight of the Federal Government’s response to the coronavirus outbreak. I anticipate that the Chairperson will be able to consult with members of the Congress with respect to these hiring decisions and will welcome their input. But a requirement to consult with the Congress regarding executive decision-making, including with respect to the President’s Article II authority to oversee executive branch operations, violates the separation of powers by intruding upon the President’s power and duty to supervise the staffing of the executive branch under Article II, section 1 (vesting the President with the “executive Power”) and Article II, section 3 (instructing the President to “take Care” that the laws are faithfully executed). Accordingly, my Administration will treat this provision as hortatory but not mandatory.

On Monday, Horowitz named DOD Acting Inspector General Glenn Fine Director of PRAC.

In appointing Mr. Fine to Chair the PRAC, Mr. Horowitz stated, “Mr. Fine is uniquely qualified to lead the Pandemic Response Accountability Committee, given his more than 15 years of experience as an Inspector General overseeing large organizations — 11 years as the Department of Justice Inspector General and the last 4 years performing the duties of the Department of Defense Inspector General. The Inspector General Community recognizes the need for transparency surrounding, and strong and effective independent oversight of, the federal government’s spending in response to this public health crisis. Through our individual offices, as well as through CIGIE and the Committee led by Mr. Fine, the Inspectors General will carry out this critical mission on behalf of American taxpayers, families, businesses, patients, and health care providers.”

Last night, however, after years of leaving DOD’s IG position vacant, Trump nominated someone who has never managed the an office like DOD’s Inspector General, which oversees a budget larger than that of many nation-states, and who is currently at the hyper-politicized Customs and Border Patrol.

Jason Abend of Virginia, to be Inspector General, Department of Defense.

Mr. Abend currently serves as Senior Policy Advisor, United States Customs and Border Protection.

Prior to his current role, Mr. Abend served in the Federal Housing Finance Agency’s Office of Inspector General as a Special Agent. Before that, he served as a Special Agent in the Department of Housing and Urban Development’s Office of Inspector General, where he led a team investigating complex Federal Housing Administration mortgage and reverse mortgage fraud, civil fraud, public housing assistance fraud, and internal agency personnel cases.

Mr. Abend was also the Founder and CEO of the Public Safety Media Group, LLC, a professional services firm that provided strategic and operational human resources consulting, training, and advertising to Federal, State, and local public safety agencies, the United States Military, and Intelligence agencies.

Earlier in his career, Mr. Abend worked as a Special Agent at the United States Secret Service and as an Intelligence Research Specialist at the Federal Bureau of Investigation.

Mr. Abend received his bachelor’s degree from American University and has received master’s degrees from both American University and George Washington University.

Abend seems totally unqualified for the DOD job alone, but if he is confirmed, he would also make Fine ineligible to head PRAC.

Horowitz issued a statement on Atkinson’s firing today that emphasized that Atkinson had acted appropriately with the Ukraine investigation, as well as his intent to conduct rigorous oversight, including — perhaps especially — PRAC.

Inspector General Atkinson is known throughout the Inspector General community for his integrity, professionalism, and commitment to the rule of law and independent oversight. That includes his actions in handling the Ukraine whistleblower complaint, which the then Acting Director of National Intelligence stated in congressional testimony was done “by the book” and consistent with the law. The Inspector General Community will continue to conduct aggressive, independent oversight of the agencies that we oversee. This includes CIGIE’s Pandemic Response Accountability Committee and its efforts on behalf of American taxpayers, families, businesses, patients, and health care providers to ensure that over $2 trillion dollars in emergency federal spending is being used consistently with the law’s mandate.

Also in last week’s signing statement, Trump said he would not permit an Inspector General appointed to oversee the financial side of the recovery to report to Congress when Treasury refuses to share information.

Section 4018 of Division A of the Act establishes a new Special Inspector General for Pandemic Recovery (SIGPR) within the Department of the Treasury to manage audits and investigations of loans and investments made by the Secretary of the Treasury under the Act. Section 4018(e)(4)(B) of the Act authorizes the SIGPR to request information from other government agencies and requires the SIGPR to report to the Congress “without delay” any refusal of such a request that “in the judgment of the Special Inspector General” is unreasonable. I do not understand, and my Administration will not treat, this provision as permitting the SIGPR to issue reports to the Congress without the presidential supervision required by the Take Care Clause, Article II, section 3.

That may not matter now, because Trump just nominated one of the lawyers who just helped him navigate impeachment for that SIGPR role.

Brian D. Miller of Virginia, to be Special Inspector General for Pandemic Recovery, Department of the Treasury.

Mr. Miller currently serves as Special Assistant to the President and Senior Associate Counsel in the Office of White House Counsel. Prior to his current role, Mr. Miller served as an independent corporate monitor and an expert witness. He also practiced law in the areas of ethics and compliance, government contracts, internal investigations, white collar, and suspension and debarment. Mr. Miller has successfully represented clients in government investigations and audits, suspension and debarment proceedings, False Claims Act, and criminal cases.

Mr. Miller served as the Senate-confirmed Inspector General for the General Services Administration for nearly a decade, where he led more than 300 auditors, special agents, attorneys, and support staff in conducting nationwide audits and investigations. As Inspector General, Mr. Miller reported on fraud, waste, and abuse, most notably with respect to excesses at a GSA conference in Las Vegas.

Mr. Miller also served in high-level positions within the Department of Justice, including as Senior Counsel to the Deputy Attorney General and as Special Counsel on Healthcare Fraud. He also served as an Assistant United States Attorney in the Eastern District of Virginia, where he handled civil fraud, False Claims Act, criminal, and appellate cases.

Mr. Miller received his bachelor’s degree from Temple University, his juris doctorate from the University of Texas, and his Master of Arts from Westminster Theological Seminary.

To be fair, unlike Abend, Miller is absolutely qualified for the SIGPR position (which means he’ll be harder to block in the Senate). But by picking someone who has already demonstrated his willingness to put loyalty ahead of the Constitution, Trump has provided Mnuchin one more assurance that he can loot the bailout with almost no oversight.

Back on March 13, in the same press conference where he first declared an emergency, the Administration made several claims about their plan to roll out testing.

First, the White House said the White House was intimately involved in the effort to increase testing. The effort to expand testing was a public-private initiative, as Mike Pence explained.

Mr. President, I know I join you in saying that every American should be proud of this incredible public-private partnership that’s going to speeding access of testing to millions of Americans in the weeks ahead.

As Dr. Deborah Birx explained, Donald Trump was at the center of this public-private initiative.

DR. BIRX:  Thank you, Mr. President.  It’s a pleasure to be here with all of you.

I think you know — at the beginning of this epidemic, HHS, through CDC, proactively developed an assay built on the existing flu surveillance system.  That surveillance system was then converted to diagnostic system.

But last Tuesday, seeing the spread of the virus around the globe, the President realized that our current approach to testing was inadequate to need — to meet the needs of the American public.  He asked for an entire overhaul of the testing approach.  He immediately called the private sector laboratories to the White House, as noted, and charged them with developing a high-throughput quality platform that can meet the needs of the American public.

We are grateful to LabCorp and Quest for taking up the charge immediately after the meeting and within 72 hours bringing additional testing access, particularly to the outbreak areas of Washington State and California, and now across the country.

We are also very grateful to the universities and large hospital systems that took up the charge to develop their own quality tests made available by new FDA guidance.  This has resulted in expanded testing across New York, California, Washington, Colorado, and you see sometimes those drive-thru options that have been made available through these high-throughput options.

Following the meeting last week, major commercial laboratory equipment and diagnostic companies took immediate action to adopt and develop new testing systems.  Last night, the initial company, Roche, received FDA approval, moving from request to development to approval in record time.

This innovative approach centered fully on unleashing the power of the private sector, focusing on providing convenient testing to hundreds of thousands of Americans within short turnaround times.  In less than two weeks together, we have developed a solution that we believe will meet the future needs — testing needs of Americans.

Both Pence …

But today, I trust that people around the country that are looking on at this extraordinary public and private partnership to address the issue of testing with particular inspiration.  After you tapped me to lead the White House Corona Task Force, Mr. President, you said this is all hands on deck, and you directed us to immediately reach out to the American business sector commercial labs to meet what we knew then would be the need for testing across the spectrum.  And today, with this historic public-private partnership, we have laid the foundation to meet that need.

And for Americans looking on, by this Sunday evening, we’ll be able to give specific guidance on a — on when the website will be available.  You can go to the website, as the President said.  You’ll type in your symptoms and be given direction whether or not a test is indicated.

And then, at the same website, you’ll be directed to one of these incredible companies that are going to give a little bit of their parking lot so that people can come by and do a drive-by test.

[snip]

But what the President charged us with, when I was tasked to take over the White House Coronavirus Task Force, was: Open up tests all across the country.  And the President said, a few days ago, that we made it clear that any American that wanted to get a test would be able, clinically, to get a test.  Because I literally heard from the Governor of Washington State, who said the doctors in Washington State were saying that if you were only mildly symptomatic, they would not order a test.  And fortunately, the President directed CDC to clarify that.

Now anyone in consultation with their physician, regardless of their symptoms can request a test and their doctors will contact those agencies, those labs in their state.  But very soon, Americans will be able to go to these — these drive-in sites and be able to obtain and participate in a test.

Dr. Birx…

So we want to also announce this new approach to testing, which will start in the screening website up here, facilitated by Google, where clients and patients and people that have interest can go, fill out a screening questionnaire — move down for symptoms or risk factors, yes.  They would move down this and be told where the drive-thru options would be for them to receive this test.  The labs will then move to the high-throughput automated machines to be able to provide results in 24 to 36 hours.

That is the intent of this approach.

And Trump himself  promised drive-thru testing.

At the same time, we’ve been in discussions with pharmacies and retailers to make drive-thru tests available in the critical locations identified by public health professionals.  The goal is for individuals to be able to drive up and be swabbed without having to leave your car.

The CEO of WalMart, Doug McMillon, even got into the act of claiming to be working towards drive-thru testing.

THE PRESIDENT:  Thank you very much, Tony.

If I could, some of these folks we know; they’re celebrities in their own right.  They’re the biggest business people, the greatest retailers anywhere in the world.  And one of them is Doug McMillon from Walmart.  And I’d like to have Doug, if you would, say a few words, wherever you may be.

Doug, please.

MR. MCMILLON:  When we got the call yesterday from the White House, we were eager to do our part to help serve the country.  And given what we’re facing, that’s certainly important to do.  We should all be doing that.

So we’ve been asked to make portions of our parking lot available in select locations in the beginning, and scaling over time as supply increases, so that people can experience the drive-thru experience that the President described.

We’ll stay involved and do everything we can from a supply-chain point of view to be of assistance.

Thank you, sir.

Within days, it became clear that the President’s son-in-law was behind the promises for both the website and the drive-thru testing in the parking lots of Big Box stores.

Following the news conference, it quickly became evident that the announcement, engineered by the office of Jared Kushner, Trump’s son-in-law and senior adviser, far exceeded the actual preparations.

Asked about the specific plans afterward, representatives of the four companies — Target, Walgreens, Walmart and CVS — said they had few details on how the tests would be administered or where or when they would begin.

And an hour after the president and his aides left the Rose Garden, a Google communications account tweeted a comment from Verily, the life sciences division of Google parent company Alphabet, that suggested the idea of building a broadly available website is preliminary.

Almost a month  and over 10,000 deaths later, the Big Box stores that got the free advertising associated with these planned parking lot drive-thru test sites still have fewer than two dozen sites open.

Walgreens said Tuesday that it plans to open 15 drive-thru testing locations for the coronavirus across seven states, starting later this week.

The sites will be in Arizona, Florida, Illinois, Kentucky, Louisiana, Tennessee and Texas, the drugstore chain said in a news release. They will use Abbott Laboratories’ rapid COVID-19 test.

Walgreen’s expansion of drive-thru testing marks the acceleration of an effort that the White House announced more than three weeks ago. President Donald Trump met with leaders of major U.S. retailers and health-care companies March 13 and announced in the Rose Garden that four companies — Walmart, Target, CVS Health and Walgreens — would host drive-thru testing in their parking lots. The U.S. has lagged behind other countries in the availability of coronavirus testing.

Since then, only about a handful of sites have opened in the retailers’ parking lots. Most are staffed by government health-care workers. Walmart has two drive-thrus and Walgreens has one drive-thru in the Chicago area, but they restrict tests to first responders. CVS has a drive-thru in Massachusetts and said Monday that it would open two new drive-thru locations: one in Atlanta and one near Providence, Rhode Island. These latest sites are not in CVS parking lots, but at larger locations that can support multiple lanes of cars.

Last night, when Trump got asked about the inadequate state of testing in the country, he got snippy.

Kristen Fisher: I know you don’t want to talk about the Inspector General Report, but testing is still a big issue in this country. [Trump sighs audibly.] When can hospitals expect–

Trump [speaking over her]: Can you put that slide up again please

Fisher: When can hospitals expect to receive a quick test of the test results?

Trump [again speaking over her]: Are you ready? Are you ready? Hospitals can do their own testing also. States can do their own testing. [points at her] States are supposed to be doing testing. Hospitals are supposed to be doing testing. You understand that? We’re the Federal government — [reporter tries to restate] Listen [points at her] We’re the Federal government. We’re not supposed to stand on street corners doing testing. They go to doctors. They go to hospitals. They go to the state. The state is a more localized government. You have fifty of them. And they can go — fifty — within — you also have territories, as you know. And they do the testing. And if you look at the chart, if you take a look, have you put it up? Yeah. Just take a look. And these are testing, and the results are now coming in very quickly. Initially speaking, the tests were old, obsolete, and not really prepared. We have a brand new testing system that we developed very quickly and that’s your result. And you should say Congratulations, great job, instead of being so horrid in the way you asked a question.

There’s a lot that’s bullshit in this comment. There were no “old, obsolete” tests when this started (though it is true that Trump’s Administration was, “not really prepared.” It’s not clear anyone has a definitive count of tests, as claimed in Trump’s chart.

But his key claim here — that the Federal government is “not supposed to stand on street corners doing testing” — is unresponsive to Fisher’s question (which was about turnaround), but was a defense against the observation that Trump and the totally unqualified family member he brought in to this process have utterly failed to deliver something promised 25 days ago, drive-thru testing, the closest thing America could get to standing on the street corner testing people.

It may or may not be the Federal government’s job to stand on street corners testing, but that is what he promised, and that is what Jared Kushner has utterly failed to deliver.