Isaac Arnsdorf

Court records take us inside Trump and Barr's last-minute killing spree

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive stories like this one in your inbox.

In its hurry to use its final days in power to execute federal prisoners, the administration of President Donald Trump has trampled over an array of barriers, both legal and practical, according to court records that have not been previously reported.

Officials gave public explanations for their choice of which prisoners should die that misstated key facts from the cases. They moved ahead with executions in the middle of the night. They left one prisoner strapped to the gurney while lawyers worked to remove a court order. They executed a second prisoner while an appeal was still pending, leaving the court to then dismiss the appeal as “moot" because the man was already dead. They bought drugs from a secret pharmacy that failed a quality test. They hired private executioners and paid them in cash.

The unprecedented string of executions is often attributed to Attorney General William P. Barr, and his role was instrumental: It was Barr's signature that authorized the use of a new lethal injection drug, his quotes that trumpeted the execution announcements and his position as attorney general that holds the ultimate authority in capital cases. (Barr is resigning effective Wednesday.)

But a ProPublica review of internal government records shows that Barr did not act alone. The push to resume federal executions for the first time since 2003 long predates Barr, with groundwork beginning as far back as 2011 and accelerating after Trump took office in 2017. It could not have happened without the help of Justice Department lawyers; officials at the Bureau of Prisons; two professors who endorsed the government's injection method; conservative Supreme Court justices who dismissed final appeals; and Trump himself, who encouraged the executions and declined to commute them.

Trump and his surrogates don't shy away from this. Throughout the campaign they highlighted the executions as a contrast to Joe Biden's opposition to the death penalty, reinforcing Trump's “law and order" message. White House Press Secretary Kayleigh McEnany even invoked the execution of Daniel Lee, who fell in with skinhead groups as a teenager and renounced those beliefs decades ago, to defend Trump after he declined to disavow white supremacists in the first debate.

“The activation of the death penalty and appearance of being tough on crime played into the administration's political strategy — the same political strategy that pushed for separating children and parents and using force against peaceful demonstrators," said Robert Dunham, executive director of the Death Penalty Information Center, a nonprofit that tracks executions. “An administration which is concerned about the rule of law and which respects the Constitution would have allowed court challenges to proceed and would not have attempted to carry out executions under a procedure that could be declared unlawful."

The Justice Department has killed 10 people since July, with three more executions scheduled before Biden's inauguration. Most every federal agency is rushing to wrap up unfinished business, cementing policy objectives in ways that will make them harder for the incoming president to unwind. But the Justice Department's pressing forward with executions, even after the election of a new president who opposes them, is uniquely irreversible.

The White House and BOP declined to comment. In a statement, the Justice Department said: “Seeking the death penalty and carrying out capital sentences is not a political issue, nor have political considerations influenced the department's decisions. The death penalty is a law enforcement and public safety issue, and the department is obligated to carry forward these sentences regardless of who is the president or the attorney general."

“Death Penalty All the Way"

A slim and shrinking majority of Americans support capital punishment, according to public polling. But it remains popular with Republicans, especially white evangelicals. That coincides with the strongest base of support for Trump, who, in 1989, famously bought full-page ads in New York newspapers demanding the death penalty for five young Black and Latino men who were wrongly accused of attacking a white female jogger in Central Park.

“Death penalty all the way," Trump said at a February 2016 campaign event in New Hampshire. “I've always supported the death penalty. I don't even understand people that don't."

Until this year, the Justice Department hadn't executed anyone since 2003. This long interruption was as much practical as legal. A drug that most states and the federal government used in lethal injections, a sedative called sodium pentothal, became unavailable because the sole American manufacturer stopped making it. The drug shortage thwarted the Obama administration's plan to execute convicted murderer Jeffery Paul. States began using a similar drug called pentobarbital, and in 2011 federal prison officials observed several state executions, according to court records.

Shortly after Trump's presidency began, his first attorney general, Jeff Sessions, wanted to resolve these issues so that BOP could resume executions. Associate Deputy Attorney General Brad Weinsheimer said in a January 2020 deposition that Sessions began “conversations with staff and BOP to move forward on that."

One of the staffers involved was Matthew Whitaker, according to Weinsheimer. Whitaker, who briefly led the Justice Department between Sessions and Barr, didn't respond to requests for comment.

BOP made plans to use pentobarbital. But it had also become scarce as manufacturers shunned its use in executions. States resorted to using “compounding pharmacies," which mix ingredients for custom-made drugs.

BOP planned to import powdered pentobarbital from a “foreign FDA-registered facility" but later turned to a domestic bulk manufacturer. It also hired a compounding pharmacy to create an injectable solution. The government has guarded vendor identities, since public scrutiny could pressure them to back out.

A sample of the compounding pharmacy's solution failed a quality test by an outside lab. But according to Weinsheimer, BOP said the problem was the lab, not the compound itself, and sent a new batch to a different lab.

BOP also explored using a different drug: the opioid fentanyl. In a March 2018 memo, then-BOP Director Mark S. Inch said BOP found a fentanyl supplier but warned “there may be negative publicity associated with using a drug to which so many Americans are addicted."

For unclear reasons, BOP planned to have the executions carried out by two private contractors, rather than government employees. The government won't disclose the contractors' names or profession, and it pays them in cash. “If we didn't pay them in cash," a BOP lawyer said in a deposition, “they probably wouldn't participate."

“Killing Is Not a Treatment"

BOP officials knew their new drug choice would face resistance in court; lawyers have argued that pentobarbital would flood prisoners' lungs with froth and foam, inflicting pain and terror akin to a death by drowning. BOP worked to fend off those concerns with expert witnesses who would say the drug was humane.

Finding these experts was challenging because most doctors consider it unethical to have anything to do with executions. The American Medical Association and other professional groups prohibit any participation, including the “rendering of technical advice."

“Doctors are experts in unkilling, we are not experts in killing," said Dr. Joel Zivot, an anesthesiologist at Emory University who has testified that lethal injection of pentobarbital simulates death by drowning. “This is why lethal injection is so problematic. It impersonates a medical act, but it's not about medicine at all. Killing is not a treatment. An execution chamber is not an operating room."

The Justice Department would later claim that “BOP consulted with medical professionals" (plural). That is not exactly true. BOP engaged two expert witnesses. The first, Craig W. Lindsley, is a professor of chemistry and pharmacology at Vanderbilt University. He is not a physician or licensed care provider; he has a Ph.D., not an M.D. In May 2017, Lindsley wrote a two-page report for BOP stating that pentobarbital will take effect so rapidly the prisoner wouldn't feel a thing. He concluded, “Of all the available options and protocols in use today, I believe this protocol to be the most humane."

Lindsley declined to be interviewed, citing Justice Department instructions. He did not disclose his compensation, but he was hired through a contract with a consulting firm called Elite Medical Experts that the Justice Department paid $22,000 in the same month as Lindsley's report. The company's CEO, Dr. Burton Bentley II, did not respond to requests for comment.

BOP's second expert witness was a medical doctor: retired California anesthesiologist Joseph F. Antognini. Antognini has said he personally opposes the death penalty as a Catholic. But he also said he believes states have a right to his advice, comparing it to criminal defendants' right to a lawyer.

Antognini has not addressed how he squares his testimony supporting executions with his Hippocratic oath. He did raise ethical considerations when he was asked to compare lethal injection to poison gas (a comparison between methods, like the one Lindsley made). “Recommending one method of execution over another, I guess that's an ethical issue for me," he said in a deposition.

Antognini's rare position as a doctor vouching for lethal injection has made him a valuable witness in capital cases, including a Missouri case that later reached the Supreme Court. Antognini charges $400 an hour, $2,000 for a deposition, $4,000 per day in court and $2,000 per travel day.

In a deposition in the Missouri case, which involved the same lethal injection drug, Antognini testified that pentobarbital would make the prisoner unconscious within 30 seconds and people can't suffer while they're unconscious. “Can you explain to me how you would have suffering in somebody who is unconscious?" Antognini said. “I don't see how that can happen based on my understanding of how all this works."

Yet just a few minutes earlier Antognini had acknowledged, “We don't know how anesthetics work." Scientists understand how the drugs act in the brain on a cellular level, he explained, but not how they produce unconsciousness.

The Supreme Court accepted Antognini's pentobarbital testimony. Other courts have been skeptical, ascribing his views “little or no weight."

Reached by phone, Antognini said he was busy and agreed to talk at a later time. When that time came, Antognini declined to comment. “I wish you all a very merry Christmas," he said, and hung up.

“Some Objective Factor"

By the summer of 2019, BOP determined that its drug supply was secure and it was ready to schedule executions. The agency gave Barr a list of 14 prisoners, out of about 60 on death row, who had exhausted their appeals. The Justice Department has refused to disclose this list. (Court records include a list from 2017 with 10 names, but they must not overlap entirely because two of the prisoners who Barr chose in 2019 were not on the earlier list.)

Barr decided whom to execute with the help of the then-deputy attorney general, Jeffrey Rosen (set to become the acting attorney general), and aides including Paul Perkins and Timothy Shea (who later became acting U.S. attorney in Washington and now leads the Drug Enforcement Administration). The officials mulled executing all 14 but decided to start with five.

They chose the five, according to Weinsheimer's deposition, for the same reason that Barr would publicly announce on July 25, 2019: They were “convicted of murdering, and in some cases torturing and raping, the most vulnerable in our society — children and the elderly."

“There was an effort to find some objective factor in looking at the 14," Weinsheimer said. “This was an aggravating factor that seemed to apply."

In fact, that wasn't true. Barr's summary of the case of Daniel Lee incorrectly said he “murdered a family of three, including an 8-year-old girl." The undisputed evidence was that Lee refused to kill the girl, so his co-defendant did. The co-defendant was sentenced to life in prison, while Lee was sentenced to death.

Weinsheimer said he didn't know if there were other death row inmates who murdered children or the elderly. There were, according to a review by ProPublica.

Barr's announcement also justified the executions on the basis that “we owe it to the victims and their families." This also was not true in Lee's case: Family members of Lee's victims have publicly come out against executing him (as have the prosecutor and judge). The families of the four other prisoners' victims supported the executions. In any event, the Justice Department didn't consult victims' family members when deciding who to kill, Weinsheimer said in his deposition.

The Justice Department also didn't review the prisoners' physical or mental health as part of its selection, according to Weinsheimer. One of the five, Alfred Bourgeois, had an IQ between 70 and 75, and his lawyers argued he is intellectually disabled. Another, Wesley Purkey, suffered from schizophrenia, dementia and Alzheimer's disease, which his lawyers said made him unable to understand the reason for his execution.

Weinsheimer said the Justice Department decided to schedule the executions in the order that the prisoners were convicted, with the oldest first. However, they were not the oldest capital convictions, according to ProPublica's review.

As for the executions' timing, Barr's announcement did not explain why, after a 17-year hiatus, the first three executions were scheduled within one week of each other. BOP officials voiced concern that these back-to-back executions would put more stress on their staff, the agency's lawyer said in a deposition. (After a 2014 lethal injection in Oklahoma went gruesomely awry, the state's investigation concluded that one contributing factor was having two executions scheduled that day.) Nevertheless, BOP's lawyer said the agency booked three executions in one week because of “guidance from the attorney general." Weinsheimer denied that Barr gave a “direction" on how to schedule the executions.

“Moot"

Even prisoners who have exhausted their post-conviction appeals can go back to court to try to stop their execution once a date is set. A federal judge in Washington put the executions on hold in November 2019. The appeals court disagreed in April. Barr swiftly rescheduled the executions for Lee, Purkey and Dustin Honken, in a span of four days in July. In this announcement, Barr cut two from the original five (Bourgeois and Lezmond Mitchell), and added a new prisoner, Keith Nelson. The unifying theme, he said, was “murdering children," repeating his inaccurate summary of Lee's crime.

On the day Lee was supposed to be executed, the judge in Washington ordered a new injunction. The appeals court declined to intervene, so the Justice Department went to the Supreme Court.

The Supreme Court's conservative majority has been consistently hostile to last-ditch reprieves in capital cases. “Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay," Justice Neil Gorsuch wrote in a 2019 case (the Missouri execution that featured Antognini's testimony).

The conservatives have been equally unsympathetic to objections to lethal injection, considering that the court never found a constitutional problem with “traditionally accepted methods" such as hanging, electrocution and firing squad. “The Eighth Amendment does not guarantee a prisoner a painless death," Gorsuch wrote in the Missouri case, “something that, of course, isn't guaranteed to many people, including most victims of capital crimes."

Early on July 14, five justices ruled that Lee's execution could go ahead, saying that he had “not made the showing required to justify last-minute intervention." Technically, Lee's death warrant had expired at midnight, but the government issued a new same-day notice and went ahead with the execution around 4 a.m. Lee's lawyers protested that there was still a separate court order that the Supreme Court hadn't addressed, so officers left Lee on the gurney while government lawyers worked to wipe out that last obstacle. “That cautious step, taken to ensure undoubted compliance with court orders, is irreconcilable with the suggestion that the department 'rushed' the execution or disregarded any law," Rosen, the deputy attorney general, wrote in a July op-ed. Less than an hour after a federal appeals court granted the government's request, Lee was dead.

“Today, Lee finally faced the justice he deserved," Barr said in a statement.

Later that day, at a White House press conference, Trump referred to Lee's execution as part of his attack on the Democratic Party platform. “Abolish completely the death penalty," he said. “You know what happened today with regard to the death penalty."

Trump's campaign was more explicit in an email blast the next day. “President Trump ensured total justice for the victims of an evil killer," the campaign told supporters. “With the Trump administration slated to administer total justice to three more child murderers and rapists in the coming weeks, Biden should explain why they should be protected from paying the ultimate price for their evil, horrific crimes."

That same day, July 15, Purkey was scheduled to die. Again after 2 a.m., a sharply divided Supreme Court lifted the outstanding court orders. Purkey's lawyers rushed to federal district court for a new emergency stay on the basis that his Alzheimer's and schizophrenia left Purkey unable to understand his sentence. But the Justice Department made clear that it would not wait to let that petition play out.

In a “courtesy notice" emailed to one of Purkey's lawyers at 2:03 a.m. on July 16, a senior Justice Department official said the execution would go forward at 4 a.m., despite the new court filing. “Your colleague asked me whether the govt would delay the execution to allow the judge … to consider the stay application," Hashim Mooppan, counselor to the solicitor general, said in the email. “In light of the Supreme Court's orders today and on Tuesday morning, the government will not delay the execution further. Absent a court order barring the execution, the govt intends to proceed."

The judge, in fact, did say the execution should halt while he considered the motion, but he swiftly denied it, and chastised Purkey's lawyers for “procedural gamesmanship."

“Despite the risk of irreparable harm to Mr. Purkey, the balance of equities do not weigh in his favor," wrote the judge, James R. Sweeney II, who was appointed by Trump in 2017. Sweeney's brief order did not specify what equities he weighed, but the government had argued that Purkey's sentence had already been upheld multiple times.

As Purkey's lawyers rushed to appeal, BOP went ahead with placing an IV in Purkey's arm. He was dead before the appeals court made its ruling. The court later dismissed Purkey's appeal as “moot" because he was already dead.

Honken died the next day, the third that week.

“A Personal Interest"

As prisoners desperately fought the government's execution plans in court, they argued that overdosing on pentobarbital would be so excruciating that even death by firing squad would be less painful. Justice Department lawyers chafed at the suggestion. In response, they said firing squads were “more primitive" than lethal injection, and reintroducing them would be a “regressive change."

Two weeks later, however, the agency took steps to do just that. The Justice Department proposed a regulatory change to authorize execution methods besides lethal injection, including firing squads, which remain legal in three states. “This proposed rule would provide the federal government with greater flexibility to conduct executions in any manner allowed by federal law," the agency said. “The proposed rule would therefore forestall potential future arguments by prisoners in litigation."

The proposal made other tweaks to the department's regulations to address issues raised in litigation — not exactly admitting error, but tacitly acknowledging cracks in the government's legal foundation.

While the proposal was formally signed by Barr, its point person was Laurence E. Rothenberg, a deputy assistant attorney general in the Office of Legal Policy. Though he is a career employee, Rothenberg's LinkedIn profile picture shows him standing proudly with Barr, and he has staked out a public position supporting the death penalty.

In a 2004 law journal article (also published by the conservative Federalist Society), Rothenberg described the death penalty as “intrinsically just." He also defended executing juvenile offenders against claims that doing so violates international law.

In another article, from 2006, Rothenberg and a Justice Department colleague attacked common critiques of the death penalty. “The extent of racial disparities in capital cases in the United States has been vastly exaggerated," they wrote.

Rothenberg has said that his criminal justice views are shaped by a family tragedy. “I also have a personal interest in, and commitment to, this work, as the son of a murder victim," he said in 2009 congressional testimony about a victims rights law. In 1974, Rothenberg's parents were shot, his father fatally, on a trip to the Virgin Islands. The shooter was convicted of murder and sentenced to life in prison.

The regulation became final the day after Thanksgiving.

“It Didn't Go Well"

For the next round of executions, Barr's announcement simply said that the two prisoners, William LeCroy and Christopher Vialva, were “convicted of murder." He gave no other reason or explanation for their selection.

Earlier this month, the Justice Department executed Vialva's co-defendant, Brandon Bernard. Bernard was 18 at the time and did not pull the trigger. The prosecutor and five of the nine all-white jurors who convicted Bernard, who is Black, have since said his life should be spared. The reality star Kim Kardashian tried unsuccessfully to convince Trump to commute his sentence.

At the federal death row facility in Terre Haute, Indiana, the inmates are allowed to leave each other bequests, according to The New York Times. Alfred Bourgeois received his friend Bernard's wrist watch for the single day before it was his turn to die.

Bourgeois was strapped to a gurney in the middle of a green-tiled room, an IV in his arm. As the pentobarbital flowed, Bourgeois' stomach heaved and popped, according to George Hale, a public radio reporter who witnessed the execution. The apparent gasping for breath was consistent with how lawyers have described the drowning sensation that the injection could cause.

Bourgeois' death took 28 minutes, almost twice as long as Bernard's. Hale said, “If Alfred Bourgeois was suffering that night, he suffered for a long time."

There are three more federal executions scheduled in January — eight, six and five days before Biden's inauguration.

Trump races to implement last-minute policies Before Jan. 20

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive stories like this one in your inbox.

Six days after President Donald Trump lost his bid for reelection, the U.S. Department of Agriculture notified food safety groups that it was proposing a regulatory change to speed up chicken factory processing lines, a change that would allow companies to sell more birds. An earlier USDA effort had broken down on concerns that it could lead to more worker injuries and make it harder to stop germs like salmonella.

Ordinarily, a change like this would take about two years to go through the cumbersome legal process of making new federal regulations. But the timing has alarmed food and worker safety advocates, who suspect the Trump administration wants to rush through this rule in its waning days.

Even as Trump and his allies officially refuse to concede the Nov. 3 election, the White House and federal agencies are hurrying to finish dozens of regulatory changes before Joe Biden is inaugurated on Jan. 20. The rules range from long-simmering administration priorities to last-minute scrambles and affect everything from creature comforts like showerheads and clothes washers to life-or-death issues like federal executions and international refugees. They impact everyone from the most powerful, such as oil drillers, drugmakers and tech startups, to the most vulnerable, such as families on food stamps, transgender people in homeless shelters, migrant workers and endangered species. ProPublica is tracking those regulations as they move through the rule-making process.

Every administration does some version of last-minute rule-making, known as midnight regulations, especially with a change in parties. It's too soon to say how the Trump administration's tally will stack up against predecessors. But these final weeks are solidifying conservative policy objectives that will make it harder for the Biden administration to advance its own agenda, according to people who track rules developed by federal agencies.

“The bottom line is the Trump administration is trying to get things published in the Federal Register, leaving the next administration to sort out the mess," said Matthew Kent, who tracks regulatory policy for left-leaning advocacy group Public Citizen. “There are some real roadblocks to Biden being able to wave a magic wand on these."

In some instances the Trump administration is using shortcuts to get more rules across the finish line, such as taking less time to accept and review public feedback. It's a risky move. On the one hand, officials want to finalize rules so that the next administration won't be able to change them without going through the process all over again. On the other, slapdash rules may contain errors, making them more vulnerable to getting struck down in court.

The Trump administration is on pace to finalize 36 major rules in its final three months, similar to the 35 to 40 notched by the previous four presidents, according to Daniel Perez, a policy analyst at the George Washington University Regulatory Studies Center. In 2017, Republican lawmakers struck down more than a dozen Obama-era rules using a fast-track mechanism called the Congressional Review Act. That weapon may be less available for Democrats to overturn Trump's midnight regulations if Republicans keep control of the Senate, which will be determined by two Georgia runoffs. Still, a few GOP defections could be enough to kill a rule with a simple majority.

“This White House is not likely to be stopping things and saying on principle elections have consequences, let's respect the voters' decision and not rush things through to tie the next guys' hands," said Susan Dudley, who led the Office of Information and Regulatory Affairs in the Office of Management and Budget at the end of the George W. Bush administration. “One concern is the rules are rushed so they didn't have adequate analysis or public comment, and that's what we're seeing."

The Trump White House didn't respond to requests for comment on which regulations it's aiming to finish before Biden's inauguration. The Biden transition team also didn't respond to questions about which of Trump's parting salvos the new president would prioritize undoing.

Many of the last-minute changes would add to the heap of changes throughout the Trump administration to pare back Obama-era rules and loosen environmental and consumer protections, all in the name of shrinking the government's role in the economy. “Our proposal today greatly furthers the Trump administration's regulatory reform efforts, which together have already amounted to the most aggressive effort to reform federal regulations of any administration," Brian Harrison, the chief of staff for the Department of Health and Human Services, said on a conference call with reporters the day after the election. Harrison was unveiling a new proposal to automatically purge regulations that are more than 10 years old unless the agency decides to keep them.

For that proposal to become finalized before Jan. 20 would be an exceptionally fast turnaround. But Harrison left no doubt about that goal. “The reason we're doing this now is because," he said, “we at the department are trying to go as fast as we can in hopes of finalizing the rule before the end of the first term."

Easier to Pollute, Harder to Immigrate

One proposal has raced through the process with little notice but unusual speed — and deadly consequences. This rule could reintroduce firing squads and electrocutions for federal executions, giving the government more options for administering capital punishment as drugs used in lethal injections become unavailable. The Justice Department surfaced the proposal in August and accepted public comments for only 30 days, instead of the usual 60. The rule cleared White House review on Nov. 6, meaning it could be finalized any day. The Justice Department didn't respond to a request for comment.

Once finalized, this rule might never be put into practice. The Trump administration executed a federal prisoner in Indiana on Nov. 19 and plans five more executions before Jan. 20, all with lethal injections. After that, Biden has signaled he won't allow any federal executions and will push to eliminate capital punishment for federal crimes.

Other less dramatic-sounding rules could prove harder to unravel and have broader consequences. In particular, the Environmental Protection Agency is on the cusp of finalizing several rules that would make it harder to justify pollution restrictions or lock in soot levels for at least five years. The agency wants to keep the soot standard unchanged over the objections of independent scientific advisers and despite emerging evidence that links particulate pollution to additional coronavirus deaths.

An EPA spokesman declined to comment on the timing of these rules. “EPA continues to advance this administration's commitment to meaningful environmental progress while moving forward with our regulatory reform agenda," the spokesman, James Hewitt, said.

While those rules have developed over years, others were launched later and officials are taking shortcuts to finish in time. Reviews by the White House's Office of Information and Regulatory Affairs that normally take 90 days or more are now wrapping up in as few as five days.

The White House is close to completing severalrules that would extend Trump's record of restricting immigration and make the changes harder for the Biden administration to reverse. The pending rules would make it more difficult to claim asylum by excluding people with criminal convictions (even those that have been expunged), drastically shortening the application time and giving immigration judges more latitude to pick and choose what evidence to consider. The departments of Justice and Homeland Security didn't respond to requests for comment.

Some rules read like Trump's stump speeches translated into policy legalese. The Department of Energy is racing to loosen efficiency standards for showerheads and laundry machines, evoking Trump's recurringbits about bathroomwater pressure. “Do you ever get under a shower and no water comes out?" Trump said at an October rally in Nevada. “And me, I want that hair to be so beautiful."

Notably, the trade group representing washer manufacturers actually opposes the administration's proposal, saying it's unnecessary because many machines already have short-cycle options. The proposed rule is supported by small-government advocates such as the Competitive Enterprise Institute. Water and electric companies warn it could lead to higher consumption and waste. The Energy Department didn't respond to a request for comment.

The administration is also bucking business groups with proposals to restrict high-skilled immigration; in October, the departments of Homeland Security and Labor unveiled regulations to raise wage and education requirements for H-1B visas, which are often used in the information-technology industry. (The proposal drew opposition from theSmall Business Administration, saying the higher costs would stifle innovation and growth.) But while raising the wage scale for skilled immigrants, the administration is pushing a different new rule to lower wages for “low-skilled" immigrant farmworkers. A spokesperson for U.S. Citizenship and Immigration Services (part of DHS) told ProPublica that “Any delay in responding to an economic emergency and high unemployment in a way that protects American workers and ensures the H-1B program is administered consistent with statutory requirements could cause real harm to the U.S. economy." The Department of Labor didn't respond to requests for comment.

Other rules are more clearly accommodating powerful business interests. A rule completed on Nov. 13 would restrict pension managers from considering social and environmental impacts (known in the industry as ESG) when choosing investments. Another Labor Department rule would make it easier for companies like Uber to withhold benefits by classifying workers as independent contractors instead of full employees. Both proposals had a truncated public comment period of only 30 days. A spokesman said the agency considers all comments regardless of how long the period lasts and that the department is working to complete all regulations on its agenda.

Chicken Plants on the Fast Track

Such shortcuts still might not be enough to finish some new rules that are just starting out now. Still, these tactics have raised alarms about the USDA's proposal to speed up chicken factories, even though a regulatory change like that would ordinarily take two years or more. The USDA has not provided a timeline, and the proposal is not yet public while the White House reviews it. An agency spokesman said the department is following the standard process.

The rules change has the support of the National Chicken Council, an industry trade group, which argues that the timing is not political. Spokesman Tom Super called the proposal “the most deliberative and studied proposed rule that has ever been issued. It spans three decades, four administrations — Republican and Democrat — countless scientific studies and various court cases."

The USDA has been laying the groundwork for the rule change for years. Even though safety concerns scuttled the USDA's previous attempt to raise speeds from 140 birds per minute to 175, in 2018 the agency started granting one-off waivers to individual plants that sought permission to run faster.

The performance of those plants could equip the USDA to argue that the speed limit should go up in all of them. Although the agency has not yet released its formal justification for the new proposal, officials have referenced a new study in the journal Poultry Science that concluded that inspectors in plants with faster speeds did not detect higher average levels of salmonella contamination.

The USDA funded the study through a no-bid contract worth up to $500,000 awarded in 2018 to Louis Anthony “Tony" Cox Jr., a statistician who consults for business interests such as the American Petroleum Institute and the American Chemistry Council, according to the Center for Investigative Reporting.

Cox declined to share data he secured exclusively from the USDA or to be interviewed for this article. In emailed answers to written questions, he defended his methodology but acknowledged there's room for further study.

Other evidence, however, suggests faster speeds could make chicken less safe to eat. In a September article in the journal Frontiers in Veterinary Science, USDA researcher Jeremy Marchant-Forde and a co-author found that USDA inspectors threw out record-low amounts of chicken when the agency let more plants speed up since May. The authors called this “a major threat to public health" to the extent it suggests inspectors were failing to find contaminated carcasses (rather than the birds having suddenly become much cleaner). But the authors cautioned they're not food safety experts and declined to comment further.

While the food safety issues are debated, there's already clearevidence that running faster lines poses higher worker risks, both repetitive strain injuries like carpal tunnel and traumatic injuries like cuts and amputations. But the USDA maintains that it is responsible only for food safety; worker safety is the job of the Occupational Safety and Health Administration.

That's exactly the kind of interagency dialogue that the White House is supposed to coordinate when planning new regulations — and the kind of process that could be shortchanged in the final months of an administration, according to the American Public Health Association's Occupational Health and Safety Section. An OSHA spokeswoman declined to say whether the agency has weighed in on the USDA's proposal. The National Institute for Occupational Safety and Health, part of the Centers for Disease Control and Prevention, has not yet commented on the proposal but plans to, a spokeswoman said.

“This last-minute push for an ill-advised rule change could be deadly for essential workers in slaughterhouses," said Jessica Martinez, co-executive director of the National Council for Occupational Safety and Health, an advocacy group for safer working conditions.

Leasing Against the Clock

Since many finalized Trump rules are currently under court challenges, the Biden administration might be able to let some of them wither or die in litigation — especially where judges have blocked or struck down the regulations and the new Justice Department could decide not to appeal.

It will also have to wrestle with other changes the Trump administration is rushing to implement, using tactics other than rule-making.

The Trump administration is also pressing ahead with opening up more federal lands to oil and gas development, despite low prices, sluggish demand and complaints from environmental groups that drilling would encroach on wildlife habitats and national parks. Bids are starting at just $2 an acre for more than 445,000 acres of public land with leases for sale to energy companies through the Bureau of Land Management, according to data from EnergyNet.com.

The leases could expand dramatically as the BLM finalizes a plan to allow oil and gas drilling on an additional 6.8 million acres of the National Petroleum Reserve in Alaska, a habitat for bears, musk oxen, caribou and birds. Spokespeople for the BLM didn't respond to a request for comment.

Separately, the Interior Department will open up drilling in the Arctic National Wildlife Refuge. The agency is spending 30 days asking companies for bids, and then sales need another 30 days to take effect — just enough time to beat the clock before the inauguration.

An Interior Department spokesman said the agency is taking “a significant step" to implement Congress' direction in the 2017 Republican tax bill to start drilling in ANWR. “The department will continue to implement President Trump's agenda to create more American jobs, protect the safety of American workers, support domestic energy production and conserve our environment," the spokesman, Conner Swanson, said. He didn't say whether the leases would be done by Jan. 20.

Leases that have not yet been issued would be easier for the Biden administration to drop, but even finalized leases could be withdrawn if officials decide they were improperly issued or too environmentally dangerous, according to Erik Grafe, an attorney with Earthjustice in Anchorage. (Leaseholders might argue they deserve to be compensated.)

In addition, even once leases are issued, companies need permits and authorizations before actually taking action on the ground, Grafe said. Those steps would take more time and face legal challenges. Earthjustice and other groups are already suing to block the Arctic drilling program as a whole.

“We have been protecting this place forever," said Bernadette Demientieff, executive director of the Gwich'in steering committee representing indigenous hunting communities in northeast Alaska. “This fight is far from over, and we will do whatever it takes to defend our sacred homelands."

Veterans Affairs secretary headlines GOP fundraiser as COVID c​ases surge

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive stories like this one in your inbox.

Veterans Affairs Secretary Robert Wilkie headlined a fundraiser for the North Carolina Republican Party last week, taking time away from his job leading the government's second-largest agency at a moment when COVID-19 cases are surging in VA hospitals.

Though legal, campaigning by cabinet secretaries is a departure from historical norms. Nevertheless, it's become standard practice in the administration of President Donald Trump. Secretary of State Mike Pompeo has hit the campaign trail for Trump, and several other cabinet members recently visited Iowa. Seema Verma, the administrator of the Centers for Medicare & Medicaid Services, is also campaigning in North Carolina. Trump himself has routinely blurred politics with official functions, most prominently by hosting the Republican convention on the White House lawn, and he's brushed off more than a dozen staff violations of the federal Hatch Act, which limits political activity by government employees.

Wilkie, in particular, was already under fire for frequent trips that appear to have partisan agendas. In a letter last week, the top Democrats on the House and Senate veterans committees accused Wilkie of using taxpayer-funded travel to boost Trump and other Republican candidates.

“Leaders at VA have historically risen above partisan politics," Senate veterans committee ranking member Jon Tester of Montana and House committee chairman Mark Takano of California said in their letter to Wilkie. “Furthermore, efforts to engage in overtly political activity may have come at the expense of legitimate functions of the department's mission."

The letter highlighted Wilkie's previous official trips to North Carolina, Maine and Montana for appearances with GOP senators in tough reelection races. The partisan tilt of the Montana trip was especially pronounced because it included no events with Tester despite his key post on the Senate panel that oversees the VA.

Wilkie's latest visit to North Carolina, his home state, was not part of an official trip, according to the VA's response to a Freedom of Information Act request. That indicates his fundraiser appearance wasn't paid for by taxpayers. Wilkie's spokeswoman declined to say who footed the bill for his travel or why he was in North Carolina on a weekday instead of at his job.

“He attended this event as a private citizen," spokeswoman Christina Noel said.

The party's financial disclosures, which might show donations and expenditures connected to the event, are not yet available for that time period. The North Carolina GOP's finance director, Amanda Parrish, didn't respond to messages seeking comment.

The event took steps to comply with the Hatch Act. The invitation, obtained by ProPublica, omitted Wilkie's official titles, referring to him as “honorable" (a general signifier for people who have been Senate confirmed). The invitation also said “his participation is not a solicitation for funds," but it listed suggested donations ranging from $250 to $2,500.

The email accompanying the fundraiser invitation said the organizers wanted “this event jam-packed (within CDC guidelines)." But a photo posted on Facebook by the state party chairman showed people indoors less than 6 feet apart and not wearing masks.

Noel declined to comment on what public health measures Wilkie observed to participate in the event.

Other political figures who attended, including state Rep. Holly Grange and Trump campaign organizer Matt Dula, didn't respond to requests for comment.

From North Carolina, Wilkie traveled to Arizona, Utah and Colorado for what appeared to be official functions, according to posts on his Twitter account.

A former aide to North Carolina's endangered incumbent senator, Thom Tillis, and former Sen. Jesse Helms, Wilkie is widely viewed as aspiring to elected office in the state. North Carolina's other senator, Richard Burr, is not seeking reelection in 2022. Noel didn't respond to a question about Wilkie's political ambitions.

Wilkie has faced criticism for appearing disengaged from the VA's critical programs. He's also under investigation by the department's inspector general for allegations, which Wilkie has denied, that he attempted to collect dirt on a congressional staffer who said she was sexually assaulted in a VA hospital. The results of the probe are expected soon.

The VA hospital system currently has almost 4,500 active cases of COVID-19 (including veterans and employees), a 70% increase from a month ago. More than 3,700 VA patients have died of the virus.

Veterans are a key constituency for Trump, a favorite topic in his tweets and at rallies. The VA is accommodating more political events this year by relaxing a long-standing policy that discourages site visits by political candidates close to an election. Noel didn't respond to a question about the change.

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Who decides when vaccine studies are done? These internal documents show Fauci plays a key role

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive stories like this one in your inbox.

Dr. Anthony Fauci, the nation's top infectious disease official, will oversee most of the ongoing COVID-19 vaccine trials in the U.S., but not that of the current front-runner made by Pfizer, documents obtained by ProPublica show.

According to a draft charter spelling out how most of the advanced COVID-19 vaccine trials will be monitored, Fauci is the “designated senior representative" of the U.S. government who will be part of the first look at the results. That puts Fauci in the room with the companies — including Moderna, Johnson & Johnson and AstraZeneca — in deciding whether the vaccines are ready to seek approval from the Food and Drug Administration.

Fauci's role, which has not been previously reported and was confirmed for ProPublica by the National Institutes of Health, could offer some reassurance in the face of widespread concerns that President Donald Trump wants to rush through an unproven vaccine. As Sen. Kamala Harris, the Democratic nominee for vice president, put it at last week's debate, “If the public health professionals, if Dr. Fauci, if the doctors tell us that we should take it, I'll be the first in line to take it."

But there's a big caveat. Fauci doesn't have the same hands-on role for the vaccine that seems poised to show results soonest: Pfizer's. That's because Pfizer opted not to accept government funding and participate in the federal program to develop a coronavirus vaccine, known as Operation Warp Speed. (The government did make an almost $2 billion deal with Pfizer to preorder up to 600 million doses of the company's vaccine, but it isn't contributing money to the vaccine's development like it is for other companies.)

“(We) offered opportunities for collaboration with Pfizer," said a spokesperson for the National Institutes of Allergy and Infectious Diseases, a branch of the NIH. “Pfizer chose to conduct their Phase 3 study without Operation Warp Speed or NIH support."

Pfizer's CEO, Albert Bourla, said Friday that the earliest his company would be ready to apply for authorization would be the third week of November. While Pfizer might know by the end of October if its vaccine is effective, it would need additional time to gather sufficient safety data to present to the FDA, Bourla said in an open letter on the company's website.

Fauci's role in overseeing the companies that are participating in Operation Warp Speed arises from a unique arrangement that the government set up to monitor the trials. Typically, clinical trials set up their own independent panels of scientists, known as a data safety monitoring board or DSMB, to watch out for safety concerns or early signs of success. But all of the vaccine trials in Operation Warp Speed are sharing a common DSMB whose members were selected by Fauci's agency, the NIAID. They're also sharing a network of clinical trial sites where some volunteers are recruited for the studies.

A DSMB is responsible for making recommendations such as halting the trial if there is a safety concern or letting the manufacturer know that there's enough evidence to submit an application to the FDA. Ordinarily, a DSMB's recommendation goes to the company running the trial. In this case, the U.S. government — which gets two representatives, one from the NIAID and one from the Biomedical Advanced Research and Development Authority — will also have a seat at the table in deciding what to do next.

“Once the DSMB makes a decision, the DSMB provides the recommendation to not only the study sponsor but also to the" U.S. government, whose “designated senior representative" is Fauci, the NIAID confirmed in an email. Fauci declined to be interviewed.

That's not the same as saying Fauci has the last word. The company and the government are supposed to reach a consensus, the agency said. But if they can't all agree, the ultimate decision belongs with the company.

Still, it would be an improbably brazen move for a company to move ahead over Fauci's objection, given his public stature, experts said. “These are the most important trials in medical history, this is the ultimate fishbowl," said Dr. Eric Topol, director of the Scripps Research Translational Institute. “I don't think any sponsor would dare defy the DSMB's recommendation."

While the mechanics of a DSMB may be unfamiliar to most members of the public, people probably know and trust Fauci, according to Amy Pisani, executive director of the national nonprofit organization Vaccinate Your Family. “(He's) the sweetheart of the nation right now," Pisani said. “I do think people have faith in Anthony Fauci."

“Having Fauci with oversight is terrific," Topol added. “The more people who are experts looking at it, the better. You can't be careful enough."

Other members of the DSMB for the COVID-19 vaccines, though not as well known as Fauci, are also widely respected in their fields. DSMB members are typically kept confidential to shield them from outside influence, but ProPublica has been able to identify a few members. The charter obtained by ProPublica described the group, which has about a dozen members, as having expertise in “biostatistics, clinical trials, infectious diseases, vaccine development and ethics."

The panel's chair is Dr. Richard Whitley, a professor of pediatrics, microbiology, medicine and neurosurgery at the University of Alabama at Birmingham. His role became public when the university announced it, though the webpage was later taken down.

His leadership provides another level of comfort in the trustworthiness of the trials to those who know him. “He is not only famously bright but he is famously independent and outspoken," said Dr. William Schaffner, professor of preventive medicine and infectious diseases at Vanderbilt Medicine. “He'll look at the data and tell you exactly what he thinks."

Whitley declined to comment.

Susan Ellenberg, professor of biostatistics at the University of Pennsylvania and a former director at the FDA, told ProPublica in an interview that many people, including herself, were worried the NIH might be “pushed by the political leadership at HHS to release data" from trials prematurely, which could undermine the integrity of a trial. HHS, the U.S. Department of Health and Human Services, is the NIH's parent agency. Her concern was that political leaders might not understand scientific arguments to not disrupt the trials when wanting to have data “to be able to move quickly in an urgent situation," she said.

At the time of the interview, Ellenberg had not identified herself as a member of the NIH's DSMB, but later acknowledged that she was a member.

Dr. Malegapuru William Makgoba, an immunologist based in South Africa, is one of a few international members of the DSMB. Makgoba is well known for his work on public health initiatives around HIV/AIDS, including the South African AIDS Vaccine Initiative. Makgoba confirmed his role on the DSMB but declined to comment further.

The common DSMB appears to be unprecedented, if only because there have not previously been multiple vaccines in development for the same disease at the same time. Experts said the arrangement offers benefits such as bolstering the evidence available to show that any one shot is safe and effective.

Standardizing trial measurements should make the vaccines easier to compare head to head, which may be useful for knowing whether one is better or worse than another in certain subgroups, such as the elderly or people with compromised immune systems, according to Vanderbilt's Schaffner.

“To me, it's better for public health to have a fairly common assessment," said Dr. Gregory Glenn, president of research and development at Novavax, which has received $1.6 billion from Operation Warp Speed and hopes to begin its Phase 3 trial in the U.S. this month as part of the NIH's clinical trial network.

There may also be some benefits from a safety perspective.

If a potential safety issue appears in one trial, having a common data safety monitoring board for multiple trials means that the board knows to look out for that same issue across all the trials, said Dr. Tal Zaks, chief medical officer of Moderna. “When AstraZeneca had an adverse side effect, we have a DSMB looking at our trial — the fact that it's the same DSMB means that there's not one DSMB that has to go educate another DSMB," Zaks said. (ProPublica's board chairman, Paul Sagan, is a member of Moderna's board and a company stockholder.)

AstraZeneca's trial has been put on hold in the U.S. while the company and the FDA investigates what happened with a participant who had a bad reaction. It's not yet clear whether the reaction was due to the vaccine or unrelated.

“AstraZeneca is committed to working with governments and key partners to ensure we develop and gain regulatory approval for an effective vaccine as quickly as possible," the company said in a statement.

AstraZeneca added that another benefit of joining the government's consortium was that its large network of trial sites can help reach minority communities that are historically less represented in clinical trials and also more vulnerable to COVID-19.

Pfizer's decision not to participate means that it and the other companies may miss out on some of these benefits of pooling resources. “It's at least unfortunate, and not very sporting, as the British would say," Schaffner said.

At the same time, there could be advantages to Pfizer's going solo. “One of the greatest risks to this process is the perception of political influence, and in that regard, having parallel efforts, especially efforts seen as independent of one another and/or independent of perceived sources of political influence, is a good thing," said Mani Foroohar, an analyst at the investment bank SVB Leerink.

Pfizer declined to comment on its decision not to join the government's shared DSMB and trial network.

Whether it's Pfizer or one of the companies participating in Operation Warp Speed, the final say on whether a vaccine is ready for public use belongs to the FDA.

The FDA has promised to present the data to an advisory committee of external experts in a public meeting. A preliminary meeting will be held on Oct. 22 to discuss, generally, the standards the FDA will seek to see before authorizing any vaccine. The agency has also committed to holding advisory committee meetings to review data from individual vaccine candidates.

Between the independent trial safety monitoring boards and the public advisory committee meetings, “any kind of hanky-panky there that people are worried about is going to (go through) multiple checkpoints," Fauci said in an interview with Dr. Howard Bachner on the JAMA Network podcast on Sept. 25. “The big elephant in the room is, is somebody going to try to make a political end run to interfere with the process? … If you look at the standard process of how these things work, I think you can feel comfortable that it is really unlikely that that is going to happen."

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