Pro Publica

The unfinished business of Flint's water crisis

When I first heard E. Yvonne Lewis tell the story, it was a hot July day in downtown Flint, Michigan. We and about 70 others had gathered in the high-ceilinged ballroom of the Northbank Center, just west of the river, where the Michigan Civil Rights Commission was conducting its 2016 hearings on how this Great Lakes city learned that its own water was a threat.

Lewis, a community health worker and mother of three, testified that she kept a Crock-Pot in her bathroom. To take a bath, she filled the cauldron with bottled water, waited for it to heat, poured it into her bathtub, then repeated this process until she had enough to wash.

The image of the slow cooker in her bathroom haunts me, one of many such stories I heard while writing a book about the crisis in Flint, where toxic water was delivered to a city of nearly 100,000 people for 18 months before the state acknowledged the problem. As I sat for hour after hour, trying to put words to these experiences, I struggled with the fact that there was no ending. My book couldn't conclude with a rousing sense of wrongs righted and justice served. Not only had no one been held accountable, but the true toll of the crisis for both the city and its inhabitants would not be known for years, maybe decades.

“People are dead," Lewis said when I spoke with her last weekend. “Children are ill. We still don't know the long-term implications of the exposure."

This ambiguity stands in contrast to recent news that suggests Flint's story is headed for resolution. On Thursday, a federal judge granted preliminary approval of a $641 million class-action settlement in the case, believed to be the largest in state history. It will provide for “every person exposed while a minor child; every adult exposed with a resultant injury; every residential property owner, renter, or person responsible for paying Flint water bills; and certain business owners," according to the decision. That ruling comes exactly a week after nine public officials, including former Gov. Rick Snyder, were indicted on 42 counts of wrongdoing involving their alleged roles in the water crisis. All nine have pleaded not guilty.

Criminal charges and a class-action settlement may seem like the last chapter in Flint's story, which has already begun to fade in public memory. But much of Flint's unfinished business lingers, including policies that lie at the root of the crisis.

The problem with Flint's water began when a state-appointed emergency manager decided to leave Detroit's water system. In 2014, while awaiting the construction of a new regional system, officials rebooted the city's old treatment plant and used the Flint River as a water source. But the plant did not get the resources to properly treat the water. Most seriously, the water did not receive corrosion control, as required by federal law, causing pipes to break down. Brown water coming out of taps: that was corroded iron, or rust.

Despite escalating concerns from residents, boil-water advisories and other red flags (the water so badly corroded machinery at a General Motors plant, the company switched to another city's water system), it took large-scale organizing for a year and a half before the city returned to Detroit's water system. By then, people had been exposed not only to high amounts of lead, a neurotoxin that is especially damaging to children, but a series of bacterial outbreaks. A Legionnaires' disease outbreak officially sickened 90 and killed 12. As FRONTLINE documented, the number of those harmed by the outbreak is likely more.

To address the heart of the crisis, though, you have to look beyond a courtroom. Nearly five years after Snyder's own investigative commissioncited Michigan's emergency manager law — which hands total political authority over a city or school district to state-appointed officials — as a contributing factor in the water crisis, the law remains on the books, unchanged. That is despite some unsuccessful legislative efforts to turn the position into a three-person board and to addsomelimits to its authority. Two of the four people who formerly held that post are among those charged in last week's indictments. While the state has not had an active emergency manager since 2018, ending an 18-year streak, the law's defenders argue that it is a necessary tool, pointing to the one who steered Detroit through America's largest municipal bankruptcy. But Peter Hammer, director of the Damon J. Keith Center for Civil Rights at Wayne State University Law School, disagrees.

“It is tragic and reprehensible that the EM law has not been repealed in Michigan," he said in an email, arguing that its provisions have disproportionately affected the democratic rights of Black communities. “It is not enough that the measure has not been used in the past few years, it must be removed. The dangers are even greater with looming crises in municipal finance in the wake of the Covid pandemic."

Michigan is also one of only two states that exempts both the governor and Legislature from open records requests, a fact that delayed or denied access to critical information on the decisions made about Flint's water. After years of effort, the most recent push forbipartisan legislation that would make Michigan's government more transparentdied after the Senate Oversight Committee failed to send it to the full Senate, even though its chair, Sen. Ed McBroom, R-Vulcan, was one of the bill's co-sponsors. Both he and Sen. Jeremy Moss, D-Southfield, the other co-sponsor, said the bill was scheduled for hearings in March, but it was delayed by the COVID-19 pandemic and then later ran out of time as other issues took the Senate's attention: McBroom pointed to criminal justice reform; Moss to allegations of perceived election fraud. Both also say they expect transparency legislation to be reintroduced in 2021. “I think the need is as clear as it's ever been," McBroom said.

Nationally, in the first update of the Lead and Copper Rule since it was adopted in 1991, the Environmental Protection Agency developed testing requirements for water at schools and child care centers, and requires public inventories of millions of lead service lines that remain in America's drinking water systems. But the new guidelines slow down the replacement of those lines, with the new standard calling for a 3% annual replacement rate for water systems that show especially high levels of lead, rather than the previous 7% rate. In a fact sheet, the EPA said the new rule is more effective because it closes loopholes that left the previous standard unmet. But many advocates are disappointed. The Natural Resources Defense Council, an environmental advocacy law firm, has sued the EPA, with a top official in the organization asking, “Have we learned nothing from Flint?"

More broadly, the chronic disinvestment in communities like Flint has deepened their precariousness. It even worsened the water crisis. People and businesses fled Flint, leaving the city with fewer than half the taxpayers it had in 1960, but the water system remained as massive as ever. This led to unaffordable rates and water sitting stagnant in corroding pipes, making it more vulnerable to contaminants.

Even the steps taken to address the wrongs done to the people of Flint aren't as clear-cut as they appear. The charges filed last week are the second attempt at prosecutions; the first effort was scrapped by new lead prosecutors who promised to build stronger cases. Several of the defense lawyers not only claim prosecutors have failed to make those cases, but they strongly decry the secretive one-judge grand jury process that led to the charges, a system unique to Michigan and rarely used in the state.

The pending $641 million class-action settlement may be the largest in the state's history, surpassing the $500 million allotted two years ago to gymnasts abused by Dr. Larry Nassar. But, given the huge size of the class (to say nothing of attorney fees), it may not result in much for any individual. For all that the city has lost, 95,538 people still called Flint home as of 2019; in comparison, the Nassar settlement involved 332 survivors. Some residents have protested the terms of the settlement, saying that compared with what they endured, it isn't enough. A number of other lawsuits, including a negligence suit against the EPA, are still pending.

Despite all that remains undone, Flint's legacy has inspired some promising change, with implications that go far beyond the city borders. Michigan has strengthened its water testing, setting a higher standard than the federal minimum. It also mandates that every community in the state replace its lead service lines. Because of a 2017 legal settlement with the state, Flint had a head start. Nearly 10,000 of the city's lead lines have been replaced as of late December (butnot yet all of them). The state also created the new Office of the Environmental Justice Public Advocate to better respond to concerns about inequitable treatment.

Many residents have drawn on lessons from the water crisis to build new models for democracy and public health. Their work includes an innovative program where community members help develop, vet and carry out research proposals from academics, bringing transparency along the way; a water lab in a refurbished school where residents, including young people, work with scientists to test their own drinking water; and an environmental justice movement, with teachings on using data and community organizing to rebuild crumbling infrastructure.

“One of the things I think we've learned in our work is that component is absolutely essential to doing things the right way — not just engagement but collaboration," said Benjamin Pauli, author of “Flint Fights Back: Environmental Justice and Democracy in the Flint Water Crisis." His family, including two young children, were exposed to the water.

The story of Flint goes on, and on. There are days I wish I could sneak into bookstores, find copies of my book, “The Poisoned City," and staple addendums to the back cover. But when I was writing the book and still today, it comes down to the same thing: learning to accept the reality of all that's uncertain and incomplete, without losing clarity on the truth, or the worth of Flint's people.

It's not just theory; it's personal. Lewis is talking with her adult daughter about how the water crisis might affect her ability to have a healthy pregnancy — and child. She is thinking about what her own life will be like as she ages. Every single physical or mental ailment in the decades to come, she said, will have her asking: What if...?

“In the back of my mind," she said, “there's always one question — the impact of that exposure."

In the most intimate of ways — in the bodies of those who experienced it — the water crisis goes ever on.

All a gig-economy pioneer had to do was 'politely Disagree' it was violating federal law and the Labor Department walked away

Ten years ago, the Department of Labor wrapped up a lengthy investigation of Arise Virtual Solutions, a company that recruited customer service agents to work from home fielding calls for big brand names like Disney and AAA. The so-called gig economy was in its infancy, with Uber launching and TaskRabbit starting to go national.

The question for the Obama administration's Labor Department: Did Arise employ those customer service agents? Arise trained the agents and exercised extraordinary control over their work. But it treated them as independent contractors rather than employees. That meant the agents weren't entitled to minimum wage, overtime or other employment protections. They paid for their own training and equipment, and even had fees deducted from each paycheck for use of Arise's technology platform.

The Labor Department investigator concluded that the company was violating federal law and cheating its workforce. The agents, no matter what Arise called them, were functioning as employees and should be paid and protected accordingly, the labor department found.

The investigator estimated that over two years, Arise had shortchanged its network of agents by $14.2 million.

In September 2010, the investigator and a higher-up met with two lawyers for Arise. One of the Arise lawyers, three years before, had been in charge of the very division that conducted the Labor Department investigation, appointed to that position by George W. Bush.

The Arise lawyers “politely disagreed" with the department's findings, according to a report written by the investigator and obtained by ProPublica through a public records request. Arise refused to change its practices. It also refused to pay any back wages.

“They said no to both," one person familiar with the investigation told ProPublica.

The Labor Department, faced with Arise's refusal, responded with what amounted to a shoulder shrug. The department didn't take Arise to court to collect back wages and enforce compliance with federal law. Instead, it walked away without collecting a single dollar for the agents. The investigator submitted his file to the Labor Department's regional office in Atlanta as “RTP / RTC," which stands for Refusal to Pay, Refusal to Comply.

The department's Arise investigation, built on scores of interviews and an extensive review of the company's business model, had the potential to help check what has become a defining feature of the 21st century economy. An additional 6 million workers joined the gig economy in the past 10 years, according to an analysis of payroll data by the ADP Research Institute. Companies like Lyft, Grubhub, Instacart and others shed labor costs by classifying many workers as independent contractors rather than employees.

“It's absolutely a missed opportunity for the Labor Department," said Erin Hatton, a sociology professor at the University of Buffalo who specializes in labor policy and the gig economy. “It tells companies, almost explicitly, that they can flout the law."

In the years after the Labor Department investigation, Arise expanded from the 20,000 agents it had at the time of the investigation. Last spring, it had 70,000. Its list of corporate clients, past and present, has included Carnival Cruise Line, Comcast, Airbnb, Peloton and Intuit, the maker of TurboTax. The company, one former CEO told a trade publication, helps its corporate clients “squeeze wastage out of a typical workday" by not having to pay these customer service representatives for “lunch, breaks and training" because the agents are treated as independent contractors.

Those agents have included people like Krystin Davenport, a Las Vegas woman who took a $12-per-hour job to help Intuit customers only to see her pay, after fees, chopped to $2.52 an hour.

ProPublica wrote about Arise in October, drawing on transcripts of arbitration hearings, financial slides, corporate contracts and other records.

Arise executives declined to be interviewed for this story. The company provided ProPublica with a written statement, saying, in part, that Arise “complies with all applicable laws. … We strongly believe, and communicated to the DOL at the time, that its determination in connection with the 2010 audit was incorrect."

“The Larger the Case, the More Reluctant the Attorneys"

Unlike many Labor Department cases, the Arise investigation went deep.

The DOL investigator, whose name is redacted in the released records, interviewed at least 56 people in a probe that lasted over a year. The investigator determined the customer service agents were Arise employees. Arise “exerts an extraordinary degree of control" over the agents by dictating their training and charging them fees, among other measures, the investigator wrote. The agents' work is also integral to Arise's business, the investigator found: “In fact it is the principle, primary, and primordial part of the employer's business."

Arise owed $14.2 million in back wages, the investigator estimated. That was a huge number by Labor Department standards. In previous years, the average unpaid back wages per department investigation had been about $16,000, according to a 2010 report. Plus, the Labor Department had authority to seek double damages, potentially putting Arise on the hook for $28.4 million, all of which would have gone to the workers.

But in March 2011, the investigator received a memorandum from John Bates, then director of enforcement for the Labor Department's southeast region, instructing the office to seek back wages only for those specific agents who had been interviewed about unpaid overtime or minimum-wage violations. That dropped the figure dramatically, from $14.2 million to $40,502.69.

While Arise says it doesn't “have any correspondence" about the exact amount of back wages the Labor Department was seeking, the company refused to pay any money at all. In a written statement to ProPublica, the company said it “strongly" disagrees that it shortchanged workers.

One of Arise's two lawyers in the case was Paul DeCamp, who had been hired as outside counsel, according to Labor Department records. DeCamp had served as administrator of the Wage and Hour Division in 2006 and 2007. (He didn't reply to interview requests from ProPublica.)

A Labor Department official declined to comment to ProPublica on the details of the Arise case but said that the agency is constrained by limited staff in deciding which cases to pursue in court. “We can't be everywhere," the official said. “Ultimately we have to make some tough choices based on the resources of our agency and the resources of our solicitor's office."

Bates, who is now retired, told ProPublica in a recent interview that the case “didn't go very far because there was little cooperation from the employees."

“It was determined there was insufficient proof to go forward with litigation. You can say there is a violation, but if they refuse to accept it, the only way to enforce it is to go to court," he said.

But another person familiar with the investigation said that “many, many" agents were interviewed for the investigation. This person added, “It seemed the larger the case, the more reluctant the attorneys were to get involved."

A 2010 report to the Labor Department's Wage and Hour Division, which is responsible for enforcing federal laws governing minimum wage, overtime, family medical leave and child labor, expounded on the need for expanded litigation, saying it “can have broad impacts on employer behavior."

Shannon Liss-Riordan, a Boston attorney who has litigated worker misclassification claims against not only Arise, but also Uber, FedEx, Amazon and others, told ProPublica that it is “shocking" the Labor Department didn't take action against Arise based upon its findings. “If companies know that they can just refuse to comply and there will be no repercussions, what message does that send?" she said.

After the Labor Department investigation, Arise lost two separate claims brought by agents who, represented by Liss-Riordan, alleged the company had misclassified them as independent contractors. The company was ordered in 2015 to pay one agent $11,683.64 and another $13,052. But the agents, who as a condition of signing on for this work had waived their right to join any class action litigation against Arise, won those awards in individual arbitration proceedings held in private. Arise paid the relatively small amounts and thereafter continued to classify its network of agents as independent contractors.

An Investigation of the Investigators

The Labor Department's 2010 investigation of Arise took place a year after the Government Accountability Office published two reports on the department's sluggishness and ineptitude in these very kinds of cases.

To test the Wage and Hour Division's competence, the GAO set up a sort of undercover sting. The GAO filed 10 fictitious complaints, complete with pretend employees and employers.

Wage and Hour employees failed to so much as enter five of the 10 complaints in the department's database, producing no trace that a complaint was ever filed.

The GAO found that employees discouraged complaints (“You're sure you don't want to just have a nice conversation with him [employer] yourself?" one Wage and Hour Division representative asked a complainant); pleaded to being powerless (“Once the employer tells me that they're not going to pay and they can't, my ability to, you know, force payment has ended," another representative said); lied about what investigative steps the division had taken; and, in one instance, failed to investigate when informed of children working at a meat-packing plant, operating circular saws.

(The Labor Department, in its response to the report, said it had determined the child-labor complaint was bogus, but did not provide any supporting documentation that would allow the GAO to confirm its account, according to GAO records.)

The GAO provided a three-minute excerpt of these audiotaped calls, available here: Here are some screen grabs from those excerpts:

In one of the 10 cases, the fictitious employer of a fictitious receptionist in Virginia admitted to not paying minimum wage as required. But the employer refused to pay back wages. When informed of this, the “investigator accepted the refusal without question," according to GAO records. When the employee asked why the Wage and Hour Division couldn't do more to help, the investigator told the employee to take it up with his congressman.

A second GAO report published in 2009 focused on the Labor Department's handling of claims about worker misclassification, the issue at the heart of the subsequent Arise investigation. The report described how treating employees as independent contractors can harm not only vulnerable workers, but also law-abiding companies: “[E]mployers with responsible business practices may be undercut by competitors who misclassify employees to reduce their costs, for example, by not paying payroll taxes or providing benefits to workers."

The report found a “lack of targeted investigations" focusing on misclassification; a failure by WHD investigators to “consistently review documents" that could indicate misclassification; and, in those instances when the Labor Department did find misclassification, a lack of follow-up to ensure that back wages were paid and the law thereafter followed.

Will the Department of Labor under President Joe Biden be different than it was under the early years of the Obama-Biden administration? A renewed focus on worker classification offers a test.

Earlier this month, as the Trump administration neared its end, the department finalized a rule that would make it easier for businesses to classify workers as independent contractors. But Biden, who has named Boston Mayor Marty Walsh, a former union worker, as his choice to be labor secretary, could freeze the rule before it takes effect.

Another issue will be staffing, which has suffered in recent years from stagnant funding and a hiring freeze. A just-released GAO report says that from fiscal year 2010 to 2019, the number of Wage and Hour investigators dropped from 1,035 to 780, a 25% decline.

Stanford front-line residents excluded from COVID vaccine after 'algorithm' prioritizes leadership, high-ranking doctors

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Stanford Medicine residents who work in close contact with COVID-19 patients were left out of the first wave of staff members for the new Pfizer vaccine. In their place were higher-ranking doctors who carry a lower risk of patient transmission, according to interviews with six residents and two other staff members and e-mail communications obtained by ProPublica.

“Residents are patient-facing, we're the ones who have been asked to intubate, yet some attendings who have been face-timing us from home are being vaccinated before us," said Dr. Sarah Johnson, a third-year OB-GYN resident who has delivered babies from COVID-positive patients during the pandemic. “This is the final straw to say, 'We don't actually care about you.'"

Another resident, who asked not to be named, said a nurse who works in an operating room for elective surgeries has been notified she'll get the vaccine in the first wave. “We test people for COVID before elective surgeries, so by definition, we will know if those patients have COVID," he said, so to him, it didn't make sense that that nurse would be prioritized.

“We take complete responsibility for the errors in the execution of our vaccine distribution plan," said Lisa Kim, a Stanford Medicine spokesperson. “Our intent was to develop an ethical and equitable process for distribution of the vaccine. We apologize to our entire community, including our residents, fellows and other frontline care providers, who have performed heroically during our pandemic response. We are immediately revising our plan to better sequence the distribution of the vaccine."

An algorithm chose who would be the first 5,000 in line. The residents said they were told they were at a disadvantage because they did not have an assigned “location" to plug into the calculation and because they are young, according to an email sent by a chief resident to his peers. Residents are the lowest-ranking doctors in a hospital. Stanford Medicine has about 1,300 across all disciplines.

Only seven made the priority vaccination list, despite the fact that this week, residents were asked to volunteer for ICU coverage in anticipation of a surge in COVID-19 cases.

Stanford Medicine didn't respond to a request for comment on how the vaccines were allocated and whether there was a flaw in the algorithm. The tumult reflects the difficulties of ethically parceling out a limited supply of vaccine and weighing competing factors, such as age, risk of contracting the disease and comorbidities. Adding to the challenge is the angst that comes when such decisions are made without all stakeholders involved.

In a letter to Stanford leadership sent on Thursday, the chief resident council wrote, “While leadership is pointing to an error in an algorithm meant to ensure equity and justice, our understanding is this error was identified on Tuesday and a decision was made not to revise the vaccine allocation scheme before its release today." The council asked for a timeline for vaccination of the residents and transparency regarding the algorithm.

In response to the residents' protests, Dr. Niraj Sehgal, chief medical officer, sent an email saying, “Please know that the perceived lack of priority for residents and fellows was not the intent at all." He added that with the anticipated authorization of Moderna's vaccine, “we're increasingly confident in getting everyone vaccinated, including all of you." He signed off with “heartfelt apologies."

Some departments appear to be trying to fix the problem on their own. Dr. Mary Hawn, chair of the department of surgery, confessed to being “disturbed and puzzled" by the vaccination roster that “included many of the medical staff list that aren't our physicians on the front line." She emailed her department asking people slotted for the first wave to “bring a resident that is patient facing to get the vaccine in your place" and to ask the program director for their “buddy" assignment.

She added: “Let's get this right."

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Insiders at this Trump-favored charity are cashing in — and its financial reporting is questionable

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This election, one of President Donald Trump's most influential advocates is 26-year-old Charlie Kirk, who has developed a unique bond with the first family. The conservative star dines with the president at Mar-a-Lago and rang in the new year there. During each of the last two winters, he used the club to hold a formal fundraiser for his nonprofit, Turning Point USA, that featured Donald Trump Jr.

At a Turning Point event in June, the president, addressing the crowd, said, “Let us also show our appreciation to my good friend, Charlie. I'll tell you, Charlie is some piece of work who is mobilizing a new generation of pro-American student activists." On a Turning Point webpage soliciting donations, Trump Jr., a close friend of Kirk's, is quoted as saying, “I'm convinced that the work by Turning Point USA and Charlie Kirk will win back the future of America."

The tax-exempt charity says its mission is to educate “students about the importance of fiscal responsibility, free markets, and capitalism." As its profile has risen, its revenue has ballooned, reaching $28 million, a sevenfold increase in four years.

But behind the scenes, Turning Point USA has entered into questionable financial arrangements, particularly involving Kirk's mentor, William Montgomery, the lesser-known co-founder who is credited with discovering Kirk. Montgomery, 80, an Illinois entrepreneur and onetime Tea Party activist, is one of three Turning Point insiders who have won lucrative deals from the group to handle its printing, payroll processing and fundraising.

The nonprofit has also made misleading assertions about its finances to state and federal regulators, according to interviews and an examination of tax and business records.

Charities are required to conduct annual independent audits certifying their books are sound in order to fundraise in more than a dozen states. But the accounting firm Turning Point uses has engaged in multiple business relationships with Montgomery, who for years served as the nonprofit's treasurer. The dynamic, experts say, imperils independence and undermines the credibility of Turning Point's financial statements, including its federal tax returns — an issue of significance at a moment when more and more cash is flowing into the organization's coffers.

“This raises real questions about the legitimacy of the return," Philip Hackney, a University of Pittsburgh School of Law professor who formerly worked in the IRS' chief counsel's office, told ProPublica. “It makes it difficult to trust what is reported and begins to raise the possibility that it's a fraudulent statement."

The IRS requires, under the penalty of perjury, that charities attest whether they received an independent audit. Both Kirk and the co-founder have signed off on Turning Point's filings.

In response to questions from ProPublica, Sally Wagenmaker, an attorney for the nonprofit, said that payments to businesses belonging to organization officials “provided a compelling operational benefit in Turning Point's best and other interests," and that they were “in full compliance with TPUSA's IRS-compliant conflict of interest policy."

Andrew Kolvet, a Turning Point spokesman, said the business relationship between the group's auditor and its former treasurer is not significant and maintained the accounting firm is indeed an independent company. Another potential issue, ProPublica found, is that the license of the firm expired in late 2018, though the one that personally belongs to the firm's managing partner has not.

Turning Point was founded in 2012 by Kirk, then 18, and Montgomery, who invested in the young activist after hearing him speak at a small college in the state. At the 2016 Republican National Convention, Kirk met Trump Jr. and would soon accompany him on the road as an assistant. As Turning Point has thrived, Kirk's salary has grown from $27,000 to nearly $300,000, and he no longer lives with his parents — last May he bought a $855,000 two-bedroom, two-bathroom oceanfront condo in Longboat Key, Florida, county property records show.

Over the last year, the president has delivered remarks at the organization's conferences threeseparatetimes. At the group's December 2018 Mar-a-Lago affair, the president's eldest son helped it haul in nearly $5 million, tax records show. Recently, Kirk published a book called “The MAGA Doctrine," which Trump and his son promoted on Twitter.

For his part, Montgomery, whose Facebook profile picture features him posing with Trump Jr., left Turning Point last April, when, Kolvet said, his term as a board member ended. Two months later, Kirk effusively praised Montgomery in a blog post, celebrating his unmatched contributions to the nonprofit. “To anyone who has been impacted by my videos, podcast, TPUSA, our chapters, literature, events, conferences, field programs, or any speeches I have given," Kirk wrote, “you have Bill Montgomery to thank for investing in an 18-year-old with a vision — when everyone else thought it was impossible, foolish, and deemed for failure."

Montgomery, Kolvet told ProPublica, “remains a friend of the organization."

Turning Point amplifies White House messaging by regularly tweeting memes and one-liners supportive of Trump administration policies or politics to hundreds of thousands of Twitter followers, and it retweets similar messages sent by Kirk, who is followed by nearly 2 million people. Meanwhile, Kirk's and the group's tweets are often retweeted by the president, promoting the young leader's incendiary statements to more than 82 million followers, including his description of COVID-19 as the “China virus."

Kirk cultivates the image of a young, serious executive, favoring button-down shirts and sport coats in public. He revels in provoking left-leaning activists and students on everything from the Israeli-Palestinian conflict to the effects of “white privilege," which he calls a “racist lie." Turning Point promotes clips of his campus confrontations on social media, typically boasting that Kirk has “destroyed" an unworthy adversary.

Turning Point says it now has "a presence" on more than 2,000 campuses, 272 employees and an affiliated nonprofit largely focused on supporting Trump. Yet as the organization has expanded, it has on occasion been the center of controversy. Politico found that Turning Point has fabricated its influence on college elections. And in 2017, The New Yorker drew attention to an organizational culture that appeared plagued with racism and indifferent to laws that prohibit charities from engaging in express political advocacy. The magazine obtained text messages written by the group's former field director that said, “I HATE BLACK PEOPLE. Like fuck them all...I hate blacks. End of story." (The sender of the text resigned and Kirk told the magazine, “Turning Point assessed the situation and took decisive action within 72 hours of being made aware of the issue.")

ProPublica's examination of Turning Point's finances raises additional questions about the way the group is run, the reliability of its public disclosures and its approach to regulations governing nonprofits.

Turning Point is registered to fundraise in dozens of states across the country. Because of the group's size, attorneys general and secretaries of state in 15 states — including New York, Pennsylvania, New Mexico and Kansas — require it to file audits to remain in good standing. The work, each state's statute invariably specifies, must be carried out by “an independent certified public accountant."

The IRS does not require such an audit, but it asks about the audit's status. On Turning Point's last four federal tax returns, consistent with its state filings and spanning a period that covers July 2015 through June 2019, the group asserts that its financial statements are “audited by an independent accountant."

But Turning Point's accounting firm, the Stapleton Group, based in Orland Park, Illinois, has a significant tie to the charity. Montgomery, the charity's co-founder, has served as a “business development advisor" for Stapleton, helping to bring clients to the firm. The company's managing partner, Robert Stapleton, who handles Turning Point's returns, has worked as Montgomery's personal tax preparer, according to Stapleton. The firm, which employs a handful of people, was incorporated by the same suburban Chicago lawyer who, records show, formed a business entity Montgomery used to collect rent and make political contributions.

Robert Stapleton and the Stapleton Group did not respond directly to ProPublica. Instead, the firm provided comments through Kolvet.

Stapleton became Turning Point's auditor after Montgomery introduced the firm to the organization, a referral for which Montgomery wasn't compensated, Stapleton said through the spokesman. On his LinkedIn page and in a biography that once lived on Turning Point's website, Montgomery identifies his connection to Stapleton's firm; on the former, it states the affiliation began in 2010 and has continued to the present.

Montgomery received “no remuneration" from the firm and “acted in a business development capacity in his spare time and on commission only" in 2011, according to Stapleton. Turning Point, Kolvet said, “is confident in the independence of any services provided by The Stapleton Group."

In a statement, the firm said, “The Stapleton Group upholds the highest levels of integrity and independence while conducting audits and reviews for many businesses and organizations of all sizes."

Until the spring of last year, records show, Montgomery served on Turning Point's board and as its secretary and treasurer, giving him oversight of Turning Point's financial books and custody over its corporate records, according to the group's bylaws. At one point, he was solely responsible for fundraising and the spending of Turning Point's cash, according to charity records filed in New Mexico.

“If Montgomery has a strong relationship with the auditor, then there is a clear conflict there," said Tzachi Zach, an Ohio State University accounting professor. “Other than the auditor being hired, there should be no other relationship between the auditor and the nonprofit."

James Fishman, a former assistant attorney general in the New York attorney general's office, said that, on the question of independence, Turning Point's audit arrangement “does not pass the smell test. If an attorney general looked closely, they would find it wasn't independent."

In a letter dated July 7, and provided by Kolvet, Robert Stapleton wrote to Montgomery on company letterhead asking him to “immediately correct" his LinkedIn profile that claimed he is “associated with the Stapleton Group." The letter was dated two weeks after ProPublica first inquired about Montgomery's ties to the accounting firm; Montgomery's LinkedIn profile still identifies him as a “business development advisor" for Stapleton.

The nonprofit's most recent publicly available audit, signed by the “The Stapleton Group" in May 2019, presents an additional issue. The firm's license to practice expired in late 2018, according to the Illinois Department of Financial and Professional Regulation, the state agency that regulates occupational licenses. In Illinois, state law prohibits certified public accounting firms with an expired license from conducting audits.

Stapleton said his firm “is aware and is in the process of rectifying the issue," and through Kolvet provided a copy of his personal CPA license to ProPublica. Wagenmaker, the Turning Point attorney, wouldn't provide a copy of the group's most recent audit, which is not yet public and captures the nonprofit's finances through last July. She also wouldn't confirm whether it was carried out by the Stapleton Group.

Montgomery hasn't responded to calls and emails seeking comment.

During Montgomery's time at Turning Point, he personally benefited from several of the group's business arrangements. Between July 2017 and June 2019, tax records show, Turning Point paid more than $430,000 to a printing shop owned by Montgomery, and gave him an additional $25,000 for the rental of a small office space. The compensation was on top of the direct income he received from Turning Point, which earned him close to $200,000 during the same period.

Doug De Groote, the organization's board secretary, said the vendor payments to Montgomery “represent fair market value or lower for the trade services received." He added, “These decisions were made with Mr. Montgomery recused and with the organization's best interest paramount."

Turning Point similarly said it was getting a better deal by using the payroll processing firm owned by the organization's current treasurer, Tom Sodeika. In late 2018, the nonprofit tapped the services of his small, Illinois-based company, Precision Payroll of America. Turning Point paid Precision $51,072 for its services from late 2018 through last July, according to tax records. The amount, Kolvet said, was “at a significant discount below market rates and in full compliance with Turning Point conflict-of-interest policy."

In January, Sodeika sold the company and relinquished all executive positions there. Turning Point would not say how much Sodeika sold Precision for or to whom he sold it, but Kolvet told ProPublica that “prior to the sale of the company" it provided services to Turning Point “at discounted market rates."

Turning Point's treasurers are not the only insiders who have reaped financial rewards from the nonprofit. It also appears to have steered extra cash to a highly paid employee through limited liability companies, business records show.

Stacy Sheridan, Turning Point's “senior advancement director," receives a salary of more than $180,000, according to the group's latest tax filings, which also show over $200,000 flowing to two business entities — GSM Strategy LLC and Lionrock Ventures LLC — that were paid for fundraising. The return does not disclose who is behind both companies, neither of which has a website. But corporate records for GSM and Lionrock include Sheridan's name and addresses associated with her.

When asked about the LLC payments, neither Kolvet nor Sheridan provided a comment. On their own, the veiled arrangements may pass legal muster, but Hackney, the former IRS official, said they could be part of a larger, troubling pattern.

“As the number of self-interested transactions go up," he said, “the potential goes up for the possibility that the organization is being operated for the private interests of those who control the organization."

Georgia Sen. Perdue sold his home to a finance industry official whose organization was lobbying the Senate

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Sen. David Perdue, R-Ga., sold his Washington, D.C., home last year to a brokerage industry official whose organization is under the purview of a committee Perdue sits on.

The deal was made off market, without the home being listed for sale publicly.

Though an appraisal provided to ProPublica by the buyer found that Perdue sold for slightly under market value, four local real estate experts disagreed, telling ProPublica that the almost $1.8 million sale price Perdue garnered seemed high. Their estimates of the premium ranged from a few thousand dollars to as much as about $140,000. A fifth expert said the price was squarely fair market value.

Ultimately, congressional ethics experts said, their concern was that Perdue sold privately and to someone whose organization that he oversaw as a senator.

“Determining fair market value is always a gray area, unless the sales are done in a competitive open market," said Craig Holman with the watchdog group Public Citizen. “Since the purchase and sale of this property by Sen. Perdue was not done on the open market, it raises serious suspicions as to whether the sale was in fact at fair market value."

If the price was above fair market value, Holman said, “this would be a violation of his ethical obligations and an opportunity for those with business pending before Perdue's committee to curry favor."

A Perdue spokesperson said that the senator and his wife sold the townhouse at fair market price, and that the lender appraisal confirmed that.

“None of this had anything to do with the senator's official role," the spokesperson said. “The Perdues did not know any of the individuals, and they used the same realtor during the purchase and sale of the property."

Perdue's office provided a statement from the couple's real estate agent, Justin Paulhamus: “Since inventory was so limited at the time of the sale, we priced it at market value and were fortunate to get an offer."

Perdue's spokesperson said the senator's real estate agent “floated it off market first, and they would have put it on market, but got an offer at their asking price which was fair market value."

Perdue is locked in a runoff campaign against Democratic challenger Jon Ossoff. Along with fellow Georgia Republican Kelly Loeffler's race against Raphael Warnock, his contest could determine which party controls the Senate and with it, whether President-elect Joe Biden can implement much of his agenda.

Perdue has faced multiple allegations that he has mixed his private financial interests with his official work. The most prolific stock trader in the Senate, he bought and sold shares in companies that the committees he sits on have jurisdiction over. Some of his trades came at fortunate times. Earlier this year, the Justice Department investigated him and other lawmakers for possible insider trading. Perdue denied the allegations. Prosecutors ultimately decided not to bring charges against him.

Perdue's home buyer in October 2019 was Hillary Sale, a board governor for the Financial Industry Regulatory Authority, a privately funded self-regulatory body for the securities industry. The organization falls under the purview of the Senate Banking Committee, which Perdue sits on. Earlier in 2019, FINRA was lobbying on a bill out of the banking committee that would have required the organization to establish a fund to pay investors bilked by brokers.

A FINRA spokesman said the organization has not lobbied Perdue specifically. In a statement, Sale said she learned of the home though her real estate agent and never interacted with Perdue. She provided ProPublica with an appraisal from her lender showing the home was valued at $1.8 million, $11,000 over the amount she paid. Samer Kuraishi, who leads a real estate agency in Washington, said appraisals are done after a price is agreed to, and that they typically are engineered to match the sales price.

Perdue may have saved thousands by not putting his house on the open market.

Kuraishi and other experts said that when doing off-market deals, sellers can negotiate to pay their agents a smaller commission.

“In that scenario, an agent spends less on staging, less on marketing, less on open houses, less on virtual tours," he said. “It's typically an easier sale."

Perdue's spokesperson said the senator paid broker fees, but did not respond to questions about whether the fees were discounted.

Perdue's Capitol Hill home and many of those around it were built in the early 2000s by EYA, a developer that specializes in luxury townhomes that maintain the look and feel of historic buildings but come with amenities typically reserved for more suburban locales. They have individual garages and private courtyards. Perdue's home featured a rentable separate unit, connected to the main house through interior stairs.

At the time of the sale, FINRA was lobbying the Senate, according to its disclosure forms, and earlier that year its lobbyists were specifically focused on a bill that would have required the organization to establish a relief fund to provide investors with arbitration awards that went unpaid by FINRA's brokerage firms and brokers. The bill was authored by Sen. Elizabeth Warren, D-Mass., and fell under the jurisdiction of the Senate Banking Committee.

The committee had also held hearings that included harsh assessments of how well FINRA was policing its own. In 2018, an AFL-CIO official charged that FINRA was failing as a regulator because it was not forcing its members to pay the arbitration settlements.

Perdue's office declined to answer questions about where the senator stood on the bill, which did not pass, or whether he took any actions on it.

Ethics experts are generally troubled when politicians enter into transactions with people who have business before them. The legality of this sale hinges on whether the home was purchased at fair market value. If it was Apurchased for more than that, it would be considered a gift. Gifts of significant value to senators are required to be publicly disclosed. Perdue did not disclose any such gifts.

Earlier this year, ProPublica reported that Sen. Richard Burr, R-N.C., sold his Washington townhouse to a donor and powerful lobbyist who had business before him. Burr's office said the lawmaker notified the Senate Ethics Committee before the sale. Perdue's office declined to say if he took similar steps. The committee does not typically make such guidance public, and it did not respond to questions about whether Perdue sought advice in this case.

In order to avoid the appearance of a conflict, members of Congress who are buying or selling properties should do so on the open market to help ensure the price paid is fair and to avoid deals with people who have business before them, ethics experts say.

The five local real estate agents who reviewed the transaction for ProPublica had somewhat differing opinions about whether Perdue got an inflated price and, if so, how inflated. All cautioned that valuing a property is not an exact science.

One agent, assuming Perdue did not make significant improvements to the property while living there, priced the home at around $1,650,000. That would mean Perdue sold for about 8% over market. His office declined to say whether he had made those kinds of upgrades, but photos, the agent said, suggest he did not.

A second agent said the price also seemed high, but only about 2% over market value. The agent said prominent officials selling homes in private deals will often get a premium. “Buyers don't haggle at that point. If it's a senator, you're not going to go back and say, 'Actually, I'll give you 1.7.' They either pay the price or don't buy it."

A third agent said it seemed slightly above market. A fourth said the expected range for that property at the time would have been between $1.75 million and $1.785 million, a shade under Perdue's $1.789 million sale price. A fifth agent said the price Perdue got was squarely at fair market value. All of the agents asked that their names not be used so as not to affect their ability to continue buying and selling homes in the neighborhood.

The agents said that the price Perdue purchased the home for in 2015, $1.6 million, was about market rate at the time. That sale was made on the open market.

In that case, Perdue bought from Bill Cheney, the outgoing president of the trade group lobbying for credit unions; Cheney is currently president of a California-based credit union. Perdue has received donations from the trade group and, as a senator, has helped loosen regulations on credit unions.

One of the real estate agents who spoke with ProPublica noted the short time the home spent on the market before Perdue bought it. The home was put on the market on a Wednesday and Perdue agreed to a deal to buy it that Friday before there could be a weekend open house. The agent said it was atypical for a seller to commit to Perdue without holding an open house to find backup options.

Cheney and his wife told ProPublica they had an open house for brokers only before the home was put on the market. Perdue got no special treatment, they said, and they had no direct contact with him.

Perdue's spokesperson said the senator bought the townhouse above asking price.

“Absolutely nothing about the purchase or sale of the property had anything to do with the senator's official role, since they did not know the buyers or sellers, there could be no conflict of interest whatsoever," the spokesperson said.

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Arkansas state prosecutor was fired for speaking out against jail time for people who fall behind on rent

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An Arkansas prosecutor has been fired after speaking out against the state's criminal eviction statute in an October ProPublica story. Garland County deputy prosecutor Josh Drake was let go from his position on Oct. 31 by Michelle Lawrence, the prosecuting attorney.

Arkansas is the only state where landlords can file criminal charges rather than civil complaints against tenants for falling behind on rent. Drake told ProPublica, “I hate that law. It's unconstitutional." It constitutes cruel and unusual punishment, he said, echoing other Arkansas legal experts and advocates across the political spectrum.

Under the law, which dates to 1901, if a tenant's rent is a day overdue, they forfeit their right to be in the property. If they don't leave their homes within 10 days of getting a notice from their landlords, they can be charged with a misdemeanor and fined for each day they overstay.

Evictions in the state can snowball from charges to warrants to arrests to jail time, leaving people with criminal records that hinder their ability to find a new home or get a job. In civil evictions, by contrast, landlords can pursue unpaid rent and other additional fees from tenants, but the process doesn't include daily fines for staying in the property without paying or put tenants at risk of jail time.

ProPublica found that since 2018, more than 1,000 cases have been filed under the criminal eviction statute. During that time, judges have sentenced at least 37 renters to jail after charges stemming from the law, which is officially known as “failure to pay rent, failure to vacate." Women and people of color have disproportionately been charged.

Even the U.S. Centers for Disease Control and Prevention's national moratorium on evictions did not stop the criminal filings. Since the Sept. 4 order, at least 49 people have been charged, with more than two dozen cases filed in the last month. Meanwhile, the number of new cases of the coronavirus in Arkansas has risen dramatically since mid-September. The state will soon have over 1,000 hospitalized because of the virus, according to Gov. Asa Hutchinson.

Landlords told ProPublica they preferred the criminal statute to civil evictions because the criminal process is cheaper. Taxpayers shoulder the cost when county attorneys like Lawrence and Drake pursue tenants. In civil eviction hearings, landlords have to cover their attorney fees.

Drake had been prosecuting cases on behalf of Garland County, in central Arkansas, since March 2018 on a part-time basis. Lawrence called Drake into her office the day after ProPublica's story ran and said she was firing him because his remarks drew media and statewide attention to her office, Drake said.

Lawrence, who began working in Garland County's prosecuting attorney's office in 1994 and was elected as the prosecuting attorney in 2016, declined to comment, citing an office prohibition on speaking about personnel matters.

During Drake's tenure, he handled at least a dozen criminal eviction cases. Like many landlords, state legislators and prosecutors, he had the impression that the statute never led to arrests or jail time. That's not true, however. Since 2018, 45 people have been arrested exclusively for failing to pay rent and not leaving, according to state records.

Despite his misimpression, Drake nevertheless disliked the statute because he said it effectively transformed county attorneys and law enforcement officers into collection agents for landlords. But he said he felt he had no choice but to prosecute the cases because it was his job. He never voiced his objections until the ProPublica story.

“I stand by what I said. I still feel the same way," he said. “It's one of those things that I've always been ashamed of, but I've never been in a situation where I could do anything about it." Now, he said, “I can at least call more attention to it."

If Lawrence “wants to be the one that sticks up for the landlord and continues using tax money to evict people, then there is nothing I can do about it other than point it out to people," he said.

Other elected prosecuting attorneys in the state have declined to prosecute the eviction cases. Prosecutors in the state's most populous county, Pulaski, have stopped accepting the filings altogether. In other jurisdictions, judges have stopped hearing cases under the statute. Of the 21 largest counties in the state, ProPublica and the Arkansas Nonprofit News Network found only five contained district courts that processed any criminal eviction filings in 2020.

After the CDC moratorium this September, a judge and attorney in the state's western Polk County chose to stop pursuing the cases until further notice. Judge Danny Thrailkill told ProPublica he has long approached the law with unease. “You hate to enforce it because a lot of people don't have anywhere to go," he said. “It's really a civil matter."

Andy Riner, a prosecuting attorney who was just elected into a circuit judge position that will begin in January, said he had found the statute ineffective to begin with. “If you're fining someone who is already broke, that doesn't get their attention, that doesn't improve their conduct," Riner said. “It just doesn't make any sense."

Five years ago, a circuit court judge ruled the statute violated the Eighth Amendment's clause banning cruel and unusual punishment, as well as federal and state bans on debtors prisons, but his ruling did not cover the entire state. Other judges have upheld the statute.

Advocates are planning to try to get the law repealed in the next session of the state legislature.

“Like I hoped from the first time I stepped foot in the state and learned about the law, I hope that the legislature will repeal it," Drake said.

Do you have access to information about evictions that should be public? Email and Here's how to send tips and documents to ProPublica securely.

For more coverage, read ProPublica's previous reporting on evictions and debt collection.

Junior staffer says top Alaska officials told her to keep allegations of misconduct secret

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Officials in the office of Alaska Gov. Mike Dunleavy, including his chief of staff, knew for months that his appointed attorney general had sent unwelcome personal text messages to a low-level staffer but told the woman to keep it quiet, the staffer told the Anchorage Daily News and ProPublica.

In her first media interview, the woman said that Tara Fradley, the office manager in the governor's Anchorage office, helped her compose a text to then-Attorney General Kevin Clarkson on April 4 asking him to stop inviting her to his home at night, something he had done at least 18 times. The woman also said that Dunleavy's chief of staff, Ben Stevens, became aware of the texts by early April but that no human resources investigators contacted her until two months later, after a whistleblower wrote an anonymous letter that was obtained by the news organizations and by an attorney working on an effort to recall Dunleavy from office.

“I was like: 'The chief of staff knew about this for months. For months. And now you expect me to believe you care about me?'" the woman said, recalling her first meeting with a human resources manager in the state Division of Personnel and Labor Relations in mid-June.

“I said, 'I'll be honest with you, I think you're only doing this because you've been exposed,'" said the woman, who asked not to be named because she was the target of workplace misconduct and does not want to become a public figure.

The woman said she spoke directly with Stevens, a former state senator and Republican Party leader, to discuss the attorney general's overtures multiple times and met with the governor in June.

In the meeting with Dunleavy, the woman said, she was tearful and the governor seemed sympathetic, telling her she had done nothing wrong.

Clarkson resigned on Aug. 25, two hours after the Daily News and ProPublica reported that he sent hundreds of text messages to the junior state employee and had quietly been placed on unpaid leave for the month of August. In a statement at the time, Clarkson apologized for what he called “an error in judgement, which I recognize as wholly and only mine."

Clarkson did not respond to interview requests or specific questions for this story. Fradley declined to be interviewed.

Stevens, in a phone interview, said he worked to protect the junior employee but could not talk in detail about how he and the governor's office responded after the woman first reported to her supervisor that Clarkson's invitations were making her uncomfortable. He said he considers any claim that he would act against the woman's best interests in order to protect the attorney general to be a “personal insult."

“I will say this right now. For what reason would I do anything to prevent the truth from coming out for anybody, other than the fact to follow the law?" Stevens said. “The law says not to discuss what's going on inside an investigation."

He said Dunleavy opponents, chiefly those working on the recall drive, are fueling efforts to criticize the administration's response to Clarkson's text messages. A spokesman for Dunleavy, a Republican, noted that one of the attorneys who worked on the recall now represents the junior state employee in settlement negotiations with the state.

With Clarkson gone, Dunleavy and his administration refused for months to answer questions about what they knew about the attorney general's behavior and when they knew it, citing the privacy of personnel matters.

Dunleavy's office and the Department of Law have denied certain public records requests as burdensome “fishing expeditions," tried to stop reporters from asking questions about the attorney general at news conferences and, as Stevens most recently asserted Monday, said that Alaska law prevents Dunleavy from speaking about the matter.

On Tuesday, after the Daily News and ProPublica presented the governor's office with a timeline of events related to Clarkson, based on interviews and a proposed settlement agreement between the junior employee and the state, spokesman Jeff Turner provided a statement that described elements of certain meetings and discussions.

The woman and the governor's office disagree on the timing of some events and Stevens declined to discuss what was said in the meetings, but they generally agreed on the sequence of events: That the woman notified her supervisor of Clarkson's advances by early April, that the supervisor helped her compose a text that the woman sent to the attorney general on April 4 and that Stevens was made aware of that text soon after.

A series of meetings began in June after word of the misconduct leaked outside the governor's office.

“My Final Straw"

The woman was working in the governor's Anchorage office in March when Clarkson began to send her an average of 20 texts per day. The 558 notes included invitations to come have dinner or sip wine at his house at night. He peppered the messages with kiss emoji, workplace selfies and comments on the woman's beauty.

Clarkson occasionally visited her at Dunleavy's office, the woman said, stroking her hair or kissing her on the top of the head. She said she regrets not telling the married attorney general to stop the behavior earlier but feared for her job.

His advances began just six weeks after Dunleavy made headlines by seeking President Donald Trump's help in clearing immigration hurdles facing Clarkson's wife and stepson. The governor praised Clarkson's commitment to conservative values and marital devotion in a letter to the president.

The junior staffer said she felt she needed to turn Clarkson down tactfully.

“I was so incredibly uncomfortable with the calls at night," she said in an interview. “My final straw came when I blocked him for a few days."

The woman said that at one point, Clarkson visited the office looking for her, causing her to have a panic attack.

The woman said her supervisor, Fradley, whom she had already told about Clarkson's overtures, could see she was bothered by the attorney general's arrival.

“Her desk overlooks mine, and she could see him staring at me," the woman said.

Finally, on April 4, the woman sent Clarkson a carefully worded text that she said had been ghostwritten by Fradley. It read:

“I apologize for not responding to your calls or texts in the past few days. I've had a lot on my mind and needed to give myself some time to navigate my thoughts. First and foremost, I have the utmost respect for you as the AG. We both work in the highest level of state serving the Governor and our constituents. That being said, I think it's time I set clear boundaries in order to maintain the best work relationship & professionalism. You are no doubt gifted in the kitchen! And while I thank you for inviting me to your home for dinner, I don't think it's appropriate, nor do I feel comfortable going to your home. Please remember that this is my personal phone."

She added that if Clarkson had any work-related questions, he could call her at her office number or her state of Alaska email address.

“I don't accept evening or late night calls on my personal cell phone," she wrote.

It's unclear if Clarkson tried to reply, because the woman said she blocked his number. In a statement accompanying his resignation, Clarkson said he ceased his messages to her at that time.

Around the time the text was sent, Fradley told Stevens, the chief of staff, about Clarkson's behavior, according to interviews with the woman who received the texts and the proposed settlement agreement with her that was written by the state.

The governor's office says that Stevens did not meet with the woman directly to talk about Clarkson at any point in March or April and that Stevens “never discussed the text communications with the complainant."

“The complainant's supervisor informed Stevens that a message 'setting boundaries' was sent to Clarkson and no other issues about the complainant were brought to Mr. Stevens' attention until June 1," Turner wrote on Tuesday.

In the following weeks, throughout April and May, the woman said, she tried to avoid being in the governor's office whenever Clarkson visited, finding excuses to leave the room. The woman said that Fradley, in the meantime, told her she would need to deal with these occasional, continued visits from the attorney general.

Fradley “clearly could see I was trying to avoid him," she said.

“He Wanted Me to Just Deny It"

In early June, the Daily News and ProPublica obtained a copy of an anonymous whistleblower letter describing Clarkson's interactions with the state employee. It said Dunleavy and Stevens were aware the attorney general had been sending inappropriate messages and inviting the woman to his home but had refused to sanction him.

On June 5, the newsrooms filed a public records request to the governor's office and the Department of Law asking for all text messages between Clarkson and the woman.

The woman who had received the messages said she began to get the cold shoulder in the governor's office. People were polite but wouldn't look her in the eye, she said.

She said she approached Fradley and asked her if anything was wrong.

Fradley “pulled me into an empty office. She just said: 'Look, there is an anonymous letter that went out.'" (Stevens never actually saw the letter, he said. “I heard people talk about it, but I never saw it.")

The woman said she did not write the whistleblower letter and told Fradley so.

“I have two kids to provide for and a mortgage. Like, why would I put myself in a situation to potentially lose my job? I have too much to lose," she said.

The woman said she met with Stevens to talk about Clarkson in June. She asked the chief of staff how she should respond to a reporter's questions about the Clarkson situation.

Stevens shrugged his shoulders, she said. “He said, 'Just say, “What situation?"'"

“I was like, 'Excuse me?' And he just said, 'Say, “What situation?"'" she said.

“He wanted me to just deny it. And I said 'OK,' but I didn't do what he said. ... I just stayed quiet."

When a reporter described that conversation to Stevens, Stevens said he would not discuss what exactly he said to the woman in June, citing the human resources investigation.

“It makes no sense that we would, that this office would do anything to protect the attorney general," Stevens said. “And to say that we suppressed, and that there was an effort to suppress it on anything, is an insult."

The governor's office says Stevens first met with the woman to talk about Clarkson on June 7. At that meeting, “Stevens mentioned she needed 'thick skin' in response to several inquiries from the press and Scott Kendall," head of the Dunleavy recall effort, a spokesman for the governor wrote..

At a later meeting, the woman asked Stevens to place her in a job paying $80,000 a year, a significant pay raise, according to the governor's office. Stevens said he would help her get in contact with potential employers, Turner wrote.

Like Clarkson, Stevens is one of Alaska's most powerful unelected public officials. The heads of each state department report to him, and he wields the power of the governor to run day-to-day state operations.

Stevens had served as the majority leader and Senate president and is the son of the late U.S. Sen. Ted Stevens. Dunleavy named him chief of staff in July 2019, replacing former Alaska Republican Party Chairman Tuckerman Babcock. Clarkson at the time oversaw state civil litigation and criminal prosecutions. He served as the governor's ethics supervisor, and as chief legal counsel he worked to defend Dunleavy from the ongoing recall effort.

Opponents of the governor launched a recall petition in July 2019 in response to Dunleavy's cuts to the state budget. The Division of Elections rejected the recall petition, based on Clarkson's legal advice, but Alaska courts have ruled the effort could proceed. It has not yet qualified for the ballot.

“He Just Didn't Take the Hint"

A flurry of meetings followed the appearance of the anonymous letter in June. At Fradley's suggestion, the woman said, she met directly with Dunleavy about Clarkson. One of Dunleavy's special assistants was also present.

Dunleavy “asked me, 'What was going on?' And I said: 'I've been feeling really uncomfortable around the attorney general. He's made many, many invitations for me to come over to his home. I told him, I thought if I kept making enough excuses, he would probably get the clue. But it never happened. He just didn't take the hint.'"

Dunleavy told the woman she hadn't done anything wrong and told her he'd think about what to do next.

Before leaving the meeting with the governor, the woman said, she played a voicemail that she had received from Kendall, who had worked as chief of staff for Dunleavy's predecessor Bill Walker. Kendall had received a copy of the anonymous letter.

Kendall said he left the voicemail on June 1 telling the woman that while they didn't know each other, he had read a letter describing harassment by the attorney general and offered to put her in touch with a lawyer if she needed one. She never responded, he said.

According to a timeline of the events written by the Department of Law and included in the proposed settlement agreement with the woman, the governor's office did not request a human resources investigation until June 11, at least 68 days after the woman's supervisor in the governor's office became aware of the misconduct and informed Stevens.

A human resources manager within the state Division of Personnel and Labor Relations, Camille Brill, asked the woman to meet. The woman did not know the exact date of the meeting but said it was in early to mid-June, based on her correspondence with Brill. (The proposed settlement agreement, written by state officials, lists a June 12 meeting between the woman and a human resources investigator.)

The woman said Brill told her that she was reaching out at the request of Stevens, the chief of staff, and that Stevens was concerned about her. The woman said she was guarded and skeptical. “I said: 'Why is he doing it now? Is it because the press has a hold of this?'"

It was Brill whom the woman said she told, “I think you're only doing this because you've been exposed."

The woman said she refused to give Brill copies of her text exchanges with Clarkson. The attorney general, in the meantime, had also declined to hand over any text messages to his colleagues at the Department of Law.

Brill said she could not comment on her conversations with the woman or any other personnel matter.

On June 19, months after Fradley told Stevens about the April 4 text message the junior employee sent to Clarkson about setting boundaries, the Department of Law responded to the Daily News and ProPublica request for any text messages between Clarkson and the woman with a blanket denial.

“The Department has no records," the denial letter said.

“Sincerely, Kevin Clarkson, Attorney General," it concluded.

The state made no attempt to determine if Clarkson was telling the truth. Alaska public records law works on a kind of honor system.

If the attorney general had work-related public records on his phone, including those that might demonstrate misconduct, he was expected to hand them over, said Chief Assistant Attorney General Alan Birnbaum, who handled the request. When Clarkson claimed no such records existed, no further effort was made to obtain the texts.

“The attorney general does not have and did not have, and therefore did not delete, public records that he sent to or received from (the employee) on his state-owned or personal devices," Birnbaum wrote.

Asked what steps the Department of Law took to avoid a conflict of interest, given that Clarkson was the head of the department and the records request denials were issued in his name, Birnbaum wrote on June 26 that “no reason exists to question the accuracy of the attorney general's response."

According to the governor's office, Stevens and the junior employee met again in mid-July. Stevens told the woman the administration was at that time “willing to financially assist her with counseling expenses or legal expenses to help her with press inquiries," Turner wrote.

“Oddly, the complainant did not inform Stevens that she had already engaged Susan Orlansky, an attorney that is also involved with the Recall Dunleavy effort," the Dunleavy statement said.

Orlansky, who was one of the lead attorneys on the recall, said in a phone interview that she began representing the state employee when her original attorney, who worked at the same firm, became unavailable.

An “Unprecedented Lack of Transparency"

Clarkson was placed on unpaid leave in August, an action that the state intended to keep private. The governor and his communications staff initially claimed they could not reveal information about Clarkson's misconduct because of personnel privacy laws or regulations.

The Daily News and ProPublica published a report on Clarkson's text messages and his suspension on Aug. 25. Dunleavy soon issued a statement saying Clarkson had resigned. Dunleavy said he was deeply disappointed by Clarkson's conduct and would “continue to insist upon professional conduct from all our employees, regardless of their position in state government."

He also said he couldn't comment on the matter.

“State law provides guidelines and protections for all state employees including confidentiality on personnel matters. The governor's office is bound by and conforms to those laws," the statement said.

On Sept. 1, at the governor's first news conference following the resignation, Dunleavy spokesman Turner prevented a Daily News reporter from participating when the reporter would not tell him, ahead of time, what questions would be asked.

The governor did not hold subsequent weekly press conferences for seven weeks after reporters made it clear they would continue asking basic questions about Clarkson's actions and the state's response over the past eight months. (A spokesman said Dunleavy was out of the office for part of September on two hunting trips and granted one-on-one interviews unrelated to Clarkson during the press conference blackout.)

The Daily News and ProPublica have requested interviews with Dunleavy, to talk about Clarkson's conduct, numerous times since learning of the text messages in June. All requests have been denied. Anchorage's NBC affiliate, Alaska's News Source, reported that Dunleavy declined the station's requests to interview him on Sept. 7, 8 and 14.

On Oct. 9, the Alaska Press Club, a nonprofit that serves reporters and newsrooms statewide, wrote an open letter to the governor describing an “unprecedented lack of transparency" from the administration.

In response to a Daily News and ProPublica request for text communications among governor's office employees, the state refused to fulfill the request.

“Searching for, collecting and duplicating public record text messages, if any, would not benefit the public enough, if at all, to justify the diversion of state resources to provide the records," wrote Birnbaum, the chief assistant attorney general.

An Oct. 30 analysis by the state's nonpartisan Legislative Research Services division concluded that claim appears to violate the state public records act. The records act makes no exception for cases in which searching for a public record “would require the state to work hard," the analysis found.

“The Alaska Supreme Court has never held that a record requested under the (Alaska Public Records Act) can be withheld merely because producing it would be an administrative burden on the state, and nothing in the APRA authorizes withholding a public record for that reason," legislative counsel Daniel Wayne wrote.

A separate analysis by the same agency concluded that as the head of his department within the executive branch, Clarkson is “exempt from confidentiality provision of the State Personnel Act." In other words, the governor is free to discuss the matter, the analysis found.

“Of course that begs the question, why won't they talk about it?" said Adam Marshall, a staff attorney for the Reporters Committee for Freedom of the Press who reviewed the state's claims. “And why were they citing this bogus legal provision as purported justification for refusing to talk about it?"

The woman to whom Clarkson sent all those texts, in the meantime, changed jobs Sept. 30 after a series of negotiations between her lawyer, Orlansky, and Acting Attorney General Ed Sniffen, email records show.

As of Tuesday, she was considering a proposed settlement offer from the state. The proposed agreement indicates that the state determined she was not qualified for the higher-paying position she asked Stevens about in June.

She eventually accepted an offer in a different department at the same salary she was making in the governor's office.

When she first complained about Clarkson's behavior, she didn't necessarily want it to become public, she said, only for the invitations and messages and visits to stop. She said she is no longer directly supervised by Dunleavy, Stevens or the governor's office staff but worries she will be fired or see her job defunded now for speaking out.

“Had it not been for this anonymous letter, it would have most likely just been swept under the rug," she said.

Trump won Florida after running this false ad tying Biden to Venezuelan socialists

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In Florida, where President Donald Trump gained crucial support among Latino voters, his campaign ran a YouTube ad in Spanish making the explosive — and false — claim that Venezuela's ruling clique was backing Democratic nominee Joe Biden.

YouTube showed the ad more than 100,000 times in Florida in the eight days leading up to the election, even after The Associated Press published a fact-check debunking the Trump campaign's claim. Actually, Venezuelan President Nicolás Maduro expressed opposition to both presidential candidates.

The video was part of a broader Trump campaign strategy in heavily Latino South Florida that sought to tie Biden to Socialist leaders like Maduro and the late Cuban President Fidel Castro. Trump won Florida by about 375,000 votes, the largest margin in a presidential election there since 1988. He carried about 55% of the Cuban American vote, according to exit polls by NBC News.

“Latinos who live here in the U.S. have left socialist or communist regimes," said Diego Scharifker, a Venezuelan American lawyer, former city councilor in Caracas and co-founder of the pro-Biden group Venezolanos Con Biden. “There is of course a big impact or fear or scarring in the Latino community in the U.S. from communism. Trump with his false accusations and false information was fearmongering and playing on the pain to promote his agenda."

The ad illustrates gaps in the policing of misinformation by Google, which owns YouTube. While Google nominally prohibits all false claims in advertising, it rarely takes down political ads. In addition, shortcomings in its transparency tools make it harder for watchdogs and fact-checkers to scrutinize ads.

Google's political ad rules are “trying to have it both ways" with respect to fact-checking, said Bridget Barrett, a political communication researcher at the University of North Carolina. “In reality, basically everything stands." Google sees claims like the one about Maduro as being “within the public arena that should be contested by Biden's campaign or fact-checked by journalists," Barrett added.

YouTube approves ads by both human and machine review. Its policies prohibit any advertiser from making “a false claim — whether it's a claim about the price of a chair or a claim that you can vote by text message, that election day is postponed, or that a candidate has died."

Charlotte Smith, a company spokeswoman, told ProPublica in an email that “we don't make any special exceptions for politicians." Nevertheless, YouTube takes down only a “very limited" number of political ads making “demonstrably false claims that could significantly undermine trust in democratic or electoral processes," she said.

The Trump campaign ad “doesn't meet that bar," she said. “This video does not violate our policies. ... Political ads are known for being hyperbolic, and we're not going to attempt to adjudicate every claim or counterclaim."

Other platforms are at least somewhat more restrictive. While Facebook doesn't fact-check campaign ads, it banned new ones within a week of the election. (The Trump ad does not appear to have run on Facebook, according to its ad library. If it had, the ban may not have applied to it, because it began running on YouTube on Oct. 26, eight days before the Nov. 3 election.) Facebook's fact-checking partners do vet ads by political action committees and other third-party groups, some of which get removed. Twitter banned all political advertising. Although broadcast television stations aren't allowed to choose candidate ads by content, cable networks can, and sometimes do, reject ads. The Trump ad didn't appear on TV, according to Advertising Analytics, an ad-tracking firm.

The Trump campaign saw YouTube as a key to its strategy, according to a Politico report in September. It ran more than 18,000 video ads on YouTube this year. The campaign spent $106 million, including $37.2 million in the last month of the campaign, on Google's platform, including both YouTube ads and Google search ads.

The questionable video begins by describing Biden as “the candidate of Chavismo," referring to the brand of socialism associated with Hugo Chávez, the late leader of Venezuela, and Maduro's government. It then shows Diosdado Cabello, a Maduro ally and Venezuela's second-most powerful politician, saying on his television program that the “brisa Bolivariana," or the “Bolivarian breeze" of Latin American socialism, “is blowing, blowing, blowing, blowing. ... Let's see what happens. Maybe the Bolivarian breeze will reach the United States. In how much time? In 13 days until the elections." The term “Bolivarian" is an allusion to Simón Bolívar, the 19th-century revolutionary, claimed as an inspiration for many Latin American socialist movements.

Then the text on the screen reiterates that “the Chavistas" — the political party that controls Venezuela — “want Joe Biden to win." The video concludes with a statement that it was paid by the Trump campaign and Trump saying that he approved the message.

There's little doubt that the relationship between the Trump administration and the Maduro government is tense. Trump has imposed sanctions on Venezuela and on Maduro and Cabello personally. The U.S. government indicted both Maduro and Cabello on narco-terrorism and drug trafficking charges in March. Venezuelan state-run television has struck a “completely anti-Trump" tone, said Daniel Acosta-Ramos, an investigative researcher at First Draft, a nonprofit that tracks misinformation and an Electionland partner.

Yet Maduro said in late September that he didn't care who was elected. “If Trump wins the elections, we will confront him and defeat him, and if Biden wins, we'll confront him and defeat him too," he said. An AP fact-check of a video that resembles the one in the Trump campaign ad concluded that neither Biden nor Maduro “has declared that there is any kind of affinity between them or between their national projects."

In the television segment from which Cabello's “Bolivarian breeze" remark was clipped, he didn't explicitly mention Trump, Biden or the Democratic or Republican parties. While the remark could be interpreted as hoping that Biden would be elected and promote the agenda of his party's progressive wing, Cabello has a reputation for being a provocateur and saying unclear things on purpose, according to Acosta-Ramos. “That ambiguity creates an environment ripe for misinfo," he said.

The ad, Acosta-Ramos said, was “micro-targeted for people who know what the 'brisa Bolivariana' means. Not just Venezuelans, but also Cubans and Colombians."

Other YouTube ads from the Trump campaign reinforced the false message. They showed clips of Maduro referring to Biden as “Comrade Biden" in a 2015 speech. Although it was only a passing reference, and Maduro accused Biden shortly afterward of plotting to overthrow him, Donald Trump Jr. framed it as evidence that Biden was weak on socialism.

The Trump campaign's official bilingual Twitter account also claimed that Maduro's regime supported Biden. A tweet from President Trump called Biden a “PUPPET of CASTRO-CHAVISTAS." Trump ads on Facebook called Biden a “socialist" and pictured him with Rep. Alexandria Ocasio-Cortez and Sen. Bernie Sanders, both of whom refer to themselves as democratic socialists.

“There was a concerted effort by the Trump campaign and their allies to misrepresent Joe Biden and his values because they knew they couldn't win on Trump's disastrous record," a Biden campaign official told ProPublica.

Florida's Venezuelan population has grown to about 200,000, of whom an estimated 50,000 are registered to vote. In Doral, a city in Miami-Dade County that's home to many Americans of Venezuelan, Cuban and Colombian descent, Trump pulled in roughly 49% of voters in 2020, up from 29% in 2016. Overall, in Miami-Dade, Trump garnered nearly 200,000 more votes than he had in 2016, shaving the Democratic margin from 29% to 7%.

The Trump campaign, the White House and the Venezuelan Embassy did not respond to requests for comment.

The Trump ad may have attracted relatively little notice during the campaign because of inadequacies in the political ad report that Google established in 2018 to improve transparency. Unlike Facebook's political ad archive, Google's doesn't group identical ads together if, for instance, they were shown over different time periods. Google's transparency tools showed three different copies of the “brisa Bolivariana" ad, giving separate data for each. Google also doesn't make videos searchable or any ad content downloadable in bulk.

The design doesn't allow opponents, journalists or watchdogs to meaningfully analyze the 263,000 political video ads (and 361,000 other ads) that Google sold in 2020, Barrett said.

“You're just drowning in content and overwhelmed by these individual pieces of advertising content, and really many of them are the same, you're stuck trying to swim through this overwhelming sea of ads," Barrett said. Ads “can disappear into the depths of the ad library."

Google has said that it only allows advertisers to target political ads by users' location, age and gender, and that it discloses these targeting choices on its transparency website. The three copies of the “Bolivarian breeze" ad were targeted by location to Florida users.

Although it's not disclosed in Google's transparency tools, YouTube ads also may be targeted by language, for example to Spanish speakers, Smith said.

It's unclear exactly how much the Trump campaign spent on the ad and how many times it was shown. Google's data show that the Trump campaign spent between $1,000 and $5,000 on one copy of the ad; between $100 and $1,000 on another; and less than $100 on the third. Two of the copies were shown fewer than 10,000 times, and the third was shown between 100,000 and 1 million times. Facebook publishes more precise information.

Trump supporters amplified the campaign's message, professing to connect Biden and other Democrats to “Castro-Chavismo," a term linking Venezuelan socialism to Cuba's. False posts on social media, of undetermined origin, purported to show Jill Biden, Joe's wife, standing next to Fidel Castro. It was actually Jacqueline Beer, the wife of a Norwegian explorer.

“We saw a huge number of WhatsApp messages being shared in Venezuelan, Cuban groups, saying the governments of these countries that we escaped, [they] want Biden — so we should vote Trump," Acosta-Ramos said.

What a Biden staffer described as a flood of information put the Democrat's campaign on the defensive. The Biden campaign mounted its own fact-checking effort to push back against the claims about Biden and socialism. It invested heavily in outreach to Florida Latinos, including six-figure media buys in the last two weeks of the campaign targeting the community, a staffer said. At an early October rally in Miami, Biden said, “Maduro, who I've met, is a dictator, plain and simple, and he's causing incredible suffering among the Venezuelan people."

Ronny Rojas of Telemundo, Derek Willis and Ivette Leyva contributed reporting.

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The FBI is now investigating ‘Trump train’ that surrounded Biden campaign bus

"Biden camp cancels multiple Texas events after a "Trump Train" surrounded a campaign bus" was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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The Federal Bureau of Investigation is looking into a Friday incident in which a group of Trump supporters, driving trucks and waving Trump flags, surrounded and followed a Biden campaign bus as it drove up I-35 in Hays County, a law enforcement official confirmed to The Texas Tribune Saturday.

The confrontation, captured on video, featured at least one minor collision and led to Texas Democrats canceling three scheduled campaign events on Friday. The campaign officials cited “safety concerns" for the cancellations.

The highway skirmish came as Democrats close ground in a state that is polling like a potential battleground in the race for president. Recent polls indicate the presidential race in Texas between President Donald Trump and Joe Biden is tight, with some national prognosticators calling it a “toss-up."

“Rather than engage in productive conversation about the drastically different visions that Joe Biden and Donald Trump have for our country, Trump supporters in Texas [Friday] instead decided to put our staff, surrogates, supporters, and others in harm's way," said Tariq Thowfeek, Texas communications director for the Biden campaign.

On Saturday night, Trump tweeted a video of the Trump supporters following the Biden bus saying, “I LOVE TEXAS!"

When reached for comment, the Texas GOP Chairman Allen West dismissed questions regarding the incident. “It is more fake news and propaganda. Prepare to lose ... stop bothering me," West said in a statement.

The bus tour was separate from vice presidential nominee Kamala Harris' visit to the state Friday.

Texas Congressional candidate and former state senator Wendy Davis was on the Biden bus at the time, according to multiple sources, including U.S. Rep. Lloyd Doggett and Travis County Democratic Party Chair Katie Naranjo, and a now-deleted tweet from the Biden Operations Director for Texas, David Gins. A spokesperson for Davis declined to comment.

The tour, which started on Wednesday in Amarillo and went through East Texas, the Gulf Coast, along the Texas-Mexico border, and Central Texas faced protests of varying sizes along the way.

Friday's campaign events started with a small gathering in Laredo that was met with few protesters. From there, staffers drove to San Antonio. Around 12:30 p.m. on Friday, a social media user using the hashtag #TrumpTrainTexas posted on Twitter, “Trolling is FUN." The user called for other Trump supporters to “escort the Biden [bus] coming through San Antonio."

Screenshot via Twitter

Eric Cervini, a volunteer for the Biden campaign who grew up in Round Rock and flew in from Los Angeles, said he was driving on I-35 from San Antonio to the next event when he saw a long line of 40-50 vehicles along the side of the highway with Trump and American flags.

Screenshot via Twitter

Cervini told the Tribune that when he arrived in San Marcos, he started to hear from people on the bus that the Trump supporters had started following them closely, honking their horns and shouting. According to the Biden campaign, multiple trucks pulled in front of the bus and appeared to try to slow it down. The campaign canceled the event in San Marcos and proceeded directly to Austin where another event was scheduled at the AFL-CIO in downtown Austin.

A person with knowledge of the events who spoke to the Tribune on the condition of anonymity said New Braunfels police responded to requests for assistance and provided an escort throughout their jurisdiction. During that time, the person said, the group of Trump supporters fell back behind the police.

In a statement, New Braunfels City Manager Robert Camareno said the police department received calls, “of the Trump Train following the Biden/Harris campaign bus ... NBPD responded and did not observe any traffic violations."

Naomi Narvaiz, a Texas Republican Party official in San Marcos, said Trump supporters formed the convoy after learning of the bus's movements up the interstate on Facebook from fellow supporters in San Antonio.

“We decided we would jump on 35 to show support for our president," she said. “I didn't see anyone being overly aggressive."

On Twitter, Narvaiz wrote: “We sent the @JoeBiden @KamalaHarris bus out of Hays! Your kind aren't welcome here!"

“We don't want any of the values or policies that the Democratic Party is embracing," she told the Tribune on Saturday. “We don't want any of those in Texas."

Screenshot via Twitter

U.S. Rep. Lloyd Doggett disagreed, accusing President Trump of inciting “aggressive, abusive conduct".

“Those who fear their party is about to lose Texas resort to such desperate tactics. We have to stand up to these bullies just as we seek to protect the right of every last Texan to vote out the Bully-in-Chief," Doggett said in a statement to the Tribune.

Naranjo, chair of the Travis County Democratic Party, said she was on the phone with a staffer on the bus who alerted her that they were being closely followed by a group of Trump supporters.

According to Naranjo, the staffer on the bus told her a truck collided with one of the staff member vehicles. Neither of the vehicles stopped. The collision was partially caught on video and posted on Twitter. The video does not show how the collision began.

Screenshot via Twitter

As the bus continued to pass through multiple jurisdictions in Hays County, different police departments received reports about the caravan.

In a statement, the city of Kyle said police received a report that two or more vehicles may have made contact on Friday around 4 p.m. Officers responded to the area but no vehicles stopped to share information with law enforcement.

“From videos of the event that have now surfaced on social media, it appears that the vehicle contact actually occurred within San Marcos, Texas, prior to the campaign bus arriving in Kyle," a statement from the Kyle Police Department read. “All involved parties are being referred to the San Marcos Police Department should they desire to file any type of report with law enforcement.

A San Marcos spokesperson said police received a call from the Biden campaign bus requesting a police escort but weren't able to catch up to the bus before it exited the city due to traffic. The police have not spoken to either driver about the collision and said they weren't able to determine who was at fault.

According to Hays County Sheriff Gary Cutler, the Biden campaign did not notify his office that it would be passing through the county to allow law enforcement to prepare for any possible confrontations. “The planning of this was questionable," said Cutler, a Republican running for reelection on Tuesday.

Democratic officials say Trump supporters created a dangerous situation on Interstate 35 and continued following the bus into Austin.

Travis County Precinct 4 Constable George Morales was at the AFL-CIO parking lot at 11th and Lavaca streets for a planned press conference and said the group initially tried to step on the property, but law enforcement asked them to stay on the sidewalk. He said the group was aggressively shouting but did not get physical.

The press conference was canceled as well as a subsequent campaign event in Pflugerville with the Austin Young Dems due to safety concerns.

State Rep. Sheryl Cole, D-Austin, shared the cancellation on Twitter, calling it a “first for her."

“Unfortunately, Pro-Trump Protestors have escalated well beyond safe limits. Sorry to all who looked forward to this fun event."

Miguel Gutierrez Jr. and Emily Goldstein contributed to this report

This article originally appeared in The Texas Tribune at

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Here's why Bush v. Gore still matters in 2020

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Twenty years after the Supreme Court decision known as Bush v. Gore effectively decided a presidential election, it's back on the country's mind. President Donald Trump, who is lagging in polls amid a surge in COVID-19 cases and refuses to commit to leaving office quietly should his bid for reelection fail, has said he believes the Supreme Court will intervene in the upcoming election to hand him a second term. He cited that role to justify rushing the confirmation of Amy Coney Barrett, who was sworn in as a justice on Monday and could potentially break a 4-4 tie. Lawyers representing the president's campaign and the Republican Party have taken to citing Bush v. Gore frequently in preelection court filings. And the case's echoes are only underscored by the presence of three current justices — Chief Justice John Roberts, Barrett and Brett Kavanaugh — each of whom worked for the Republicans in the 2000 ballot recount battles in Florida that culminated in the historic Supreme Court decision.

Democrats got agitated this week when Kavanaugh, appointed by Trump in 2018, included a nearly page-long disquisition on Bush v. Gore in an opinion explaining his vote not to reinstate a six-day buffer after Election Day for mail-in ballots, which are expected to lean heavily Democratic, to arrive at election offices in Wisconsin. Then, only two days later, Democrats were cheered by the news that the court had let stand, at least for now, post-Election Day buffer periods in two other key swing states, Pennsylvania and North Carolina. The notion of a conservative court handing the presidency to Trump seemed that much more distant a prospect.

However, opinions by Justices Samuel Alito and Neil Gorsuch appended to Wednesday's decisions, when read together with Kavanaugh's opinion, suggest more is afoot. Bush v. Gore is poised for a revival at the high court. That will probably occur in a different scenario than what happened in 2000. The election forecaster FiveThirtyEight projects only a 4% chance of the election being decided by a recount.

But Bush v. Gore has never been the dead letter it's popularly perceived to be, and it could be a factor in a number of election battles this year. Before 2020, the Supreme Court had mentioned the case only once in two decades. But in the state courts and lower federal courts, it's quietly but repeatedly taken on new roles over the years, serving to resolve everything from how ballot signatures are reviewed to the deadline for mail-in ballots to reach election officials. This election cycle, with the help of Kavanaugh, Alito and Gorsuch, as well as a welter of GOP lawyers pushing to take Bush v. Gore in a new direction, the case is undergoing a radical transformation. If completed, legal scholars believe, that transformation will have far-reaching and deleterious consequences for efforts to expand voting rights.

What Was Bush v. Gore?

By the early morning hours after Election Day 2000, it was clear that the election contest between the Republican candidate, George W. Bush, and the Democrat, Al Gore, would come down to Florida's 25 electoral votes. With Bush up in the state by a very thin margin, Gore moved to have machine-tabulated ballots manually recounted. Weeks of legal wrangling ensued, with litigation pingponging around various Florida state courts, twice reaching the U.S. Supreme Court. Eventually, the Florida Supreme Court ordered a statewide manual recount but offered little guidance to ballot counters other than that they had to discern the “clear intent of the voter." Many Florida counties used punch card ballots at the time, and some Floridians failed to fully punch out the paper tab, called a “chad," leaving their votes unclear. New phrases entered the American lexicon: “hanging chads" (partially detached), “dimpled chads" (indented but not detached) and so on.

With an important mid-December deadline approaching, Bush's lawyers asked the Supreme Court to intervene. Late on a Tuesday, just hours ahead of the deadline, the court, by a 5-4 vote, put a stop to the Florida recount, all but declaring Bush the next president. In an unsigned opinion, five of the court's more conservative justices found that the Florida Supreme Court's recount rules were vague and inconsistent, resulting in “arbitrary and disparate treatment" of ballots. So, for example, counters in Miami-Dade County might deem a particular hanging chad a vote for president while counters in Palm Beach County might not.

The Constitution gives broad discretion to state legislatures to decide how to appoint the electors it sends to the electoral college. The Bush v. Gore majority held that the Florida recount procedures violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, which requires that the state not “value one person's vote over that of another." On this point there was broad agreement; two justices from the court's liberal wing, Stephen Breyer and David Souter, largely agreed with the five conservatives.

The question remained: what to do about it? Souter and Breyer thought the U.S. Supreme Court should do what it would usually do and send the case back to the Florida Supreme Court with instructions for how to cure the problem. The five conservatives, however, decided that there wasn't enough time left to fix the recount process and complete it. Two decades later, their reasoning remains the subject of widespread criticism. (The late Justice Antonin Scalia joined the majority opinion but privately called the equal protection rationale, “as we say in Brooklyn, a piece of shit," according to “First," a well regarded 2019 biography of retired Justice Sandra Day O'Connor.) In essence, the majority read into an earlier Florida Supreme Court ruling the suggestion that the Florida Legislature wanted the vote count finalized before the mid-December deadline.

Is Bush v. Gore Precedent?

The prevailing view has been no. In that interpretation, Bush v. Gore is a one-off that judges and lawyers are free to ignore. A binding precedent, by contrast, requires that lower courts (and the high court itself) abide by it.

Despite that view, the ruling's influence appears to be very much alive: It has been cited in hundreds of federal and state cases, dating from the years just after the 2000 election to this week. How can these dueling interpretations coexist? Consider the most often quoted sentence in Bush v. Gore: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." The not-precedent camp points to the first clause as dispositive. But others insist the second clause is every bit as important as the first, and if read in that way, the sentence sounds not so much like a disavowal of future relevance as a word of caution for other judges: Don't apply the court's analyses in rote fashion; be sensitive to the facts of the case.

Disagreements over whether Bush v. Gore should be considered a precedent are widespread, including in federal courts. For example, judges on the federal appellate court in Cincinnati decided in 2003 that Bush v. Gore was precedent “we are bound to adhere to." Thirteen years later, another set of judges on that same court dismissed the opinion as “non-precedential." Still other judges split the difference, like one on the appeals court in Richmond this year, who called Bush v. Gore “of limited precedential value."

Bush v. Gore Since Bush v. Gore

For a case that's widely regarded as an aberration, Bush v. Gore has done all right for itself outside the U.S. Supreme Court. Not only has it been cited well over a hundred times by state supreme courts and federal courts of appeals, that tally grows to about 500 when lower courts are included — from litigation over the 2003 vote to recall California Gov. Gray Davis to this year's court battle over felon reenfranchisement in Florida. That means there's a chance Bush v. Gore could reprise its role this year at the center of the resolution of the presidential race, should, say, Pennsylvania become to 2020 what Florida was for 2000. (Indeed, the case has already been raised as part of the ongoing litigation about how to handle mail-in ballots in the state.)

It could also help decide the outcome of other key races, a particularly consequential possibility given that control of the Senate is at stake this year. In 2008, for example, Norm Coleman, an incumbent Republican senator from Minnesota, tried to use Bush v. Gore to challenge the process by which election officials decided whether absentee ballots were valid. He was unsuccessful, and his Democratic opponent, the comedian Al Franken, ultimately won the seat.

Over the past two decades, Bush v. Gore has evolved beyond the partisan identity it maintains in the public imagination. An examination of judicial decisions and court filings in more than 150 cases suggests its invocation won't necessarily benefit one party or the other.

The ruling has continued to be invoked in its original context, guiding judicial oversight of ballot recounts. That makes it an inviting tool for a president who has repeatedly mused publicly about halting vote tabulations after Election Day. But the case could just as soon help speed along a recount, as the president has seen firsthand in November 2016, when Green Party presidential candidate Jill Stein petitioned for a recount of votes cast in Michigan, a state Trump then appeared to have won by only a few thousand votes. Stein's recount didn't change the outcome, but federal judges in that case relied in part on Bush v. Gore to ensure the recount got done on time, ruling in favor of Stein's request to waive a waiting period mandated by state law before beginning a recount. The delay, they reasoned, might prevent the state from completing the recount ahead of a key federal deadline. Once a state grants a right to a recount, a federal appeals judge wrote, “the State could not use arbitrary or unreasonable procedural rules to make that right a nullity."

Bush v. Gore has been applied in contradictory ways in different cases, both to disqualify large numbers of ballots or to ensure that ballots aren't arbitrarily rejected. Just after the 2018 election, for example, Florida Democratic Sen. Bill Nelson's reelection campaign and a state Democratic Party committee filed a federal lawsuit challenging the way Florida election officials verified signatures on vote-by-mail and provisional ballots. When a state lets residents vote by mail, the campaign's legal team argued in a filing that relied on Bush v. Gore, the Equal Protection Clause forbids the state from luring “its voters into a procedurally arbitrary vote-by-mail trap that results in their disenfranchisement." In response to Nelson's suit, the courts bemoaned “Florida's lack of any standards or formal training requirements" for those who assess ballot signatures, as well as the state's failure to notify some Floridians in time to fix improperly rejected ballots. A judge ordered the state to give those voters until 11 days after the election to submit affidavits and proof of identity so their votes would count. (Despite that interim victory, Nelson came up short and lost his seat.)

On the other side of the partisan divide, GOP lawyers this year are deploying Bush v. Gore aggressively. Attorneys for Republican legislators in North Carolina, for instance, recently argued that a state elections board plan to extend the period of time that officials could accept ballots postmarked by Election Day violated Bush v. Gore. In essence, they claimed that the case permitted their clients to use the Equal Protection Clause as a tool to reduce the number of eligible voters who got to cast a ballot. The full appeals court rejected the argument, with one of the judges in the majority calling the plaintiffs' argument “deeply troubling." The plaintiffs had suffered no harm, she wrote, and their sole aim was to reduce the number of eligible voters allowed to legally cast their ballot. (Three of the court's more conservative judges wrote a dissent agreeing with the plaintiffs. On Wednesday, the U.S. Supreme Court rejected a request to temporarily block the extension.)

There's more of this to come. On Oct. 23, a lawsuit filed in Nevada by the Trump campaign and the state Republican Party argues that the state runs afoul of Bush v. Gore because it offers a way to challenge in-person voters but fails to offer a mechanism for challenging voters who send their ballot through the mail, a potential opening salvo in an attack on mail-in voting in an important swing state.

Bush v. Gore and the Ghost of William Rehnquist

Until recently, Bush v. Gore's ongoing influence on federal elections has been fairly quiet, adapting to new issues of election administration in an incremental, case-by-case manner. It now seems on the verge of a metamorphosis. In recent years, Bush v. Gore — or, more precisely, a side note in it, a line of reasoning that indisputably is without precedential effect — has begun to gain currency among conservative jurists and election lawyers. In the past week, four members of the Supreme Court's conservative wing became advocates for the cause, seeking to transform a long-marginal idea into the law of the land. Should a majority of the high court embrace the thinking, the court's new right-leaning supermajority will have near-total power over courtroom efforts to shape federal elections — a set of circumstances that election law scholars and voting rights lawyers fear could seriously hinder efforts to expand the franchise in the United States.

Separate from the unsigned majority opinion in Bush v. Gore, the late Chief Justice William Rehnquist, joined by Scalia and Thomas, authored a concurring opinion offering “additional grounds" for putting an end to the Florida ballot recount. Ordinarily, when a state supreme court rules on an issue of state law, that state court decision can't be appealed to the U.S. Supreme Court, an outgrowth of the federal system in the United States. In his concurrence, however, Rehnquist claimed to have identified an exception to this rule in the context of state laws governing presidential elections. In that context, Rehnquist wrote, the U.S. Supreme Court, in fact, could second-guess a state supreme court's interpretation of its own state's election law.

Rehnquist's argument hinged on a narrow reading of the U.S. Constitution's Presidential Electors Clause, which says, “Each State shall appoint, in such Manner as the Legislature thereof may direct," the electors that vote for the president and vice president. In the chief justice's view, the Constitution gave state legislatures exclusive authority to run presidential elections, and when, as in Florida in 2000, a state court (or governor) interfered in the election laws passed by the legislature, that runs afoul of the U.S. Constitution, which means that the federal Supreme Court can intervene to help preserve the state legislature's power over how the state runs its presidential elections.

The dissenting justices expressed puzzlement and incredulity at Rehnquist's unusual reading of the Presidential Electors Clause. By his logic, they observed, a state legislature was unconstrained by its state constitution when prescribing laws related to presidential elections. The Supreme Court's own precedents, the late Justice John Paul Stevens wrote, rejected Rehnquist's interpretation. “Legislature" in the Presidential Electors Clause, he wrote, meant the state legislature acting in its ordinary lawmaking capacity, subject to a gubernatorial veto and the state constitution as interpreted by the courts, not as an all-powerful synod.

This week, Rehnquist's theory not only received the imprimatur of four sitting justices; it saw its scope expand. First, on Monday, came Kavanaugh's riff on Bush v. Gore in his concurrence in the Wisconsin vote-by-mail extension case. It excavated Rehnquist's theory and held it out as the correct reading of the Constitution. It was an odd place for Kavanaugh to articulate his pro-Rehnquist thesis, because, as Kavanaugh acknowledged, it was entirely irrelevant to the Wisconsin case. The Wisconsin case was appealed from a federal court, not a state court, and there's no question the U.S. Supreme Court has the power to review the decisions of lower federal courts. Kavanaugh's footnote suggested he was eager to convey his point of view out into the world, possibly to encourage future litigants to present the court with opportunities to elevate Rehnquist's concurrence to the level of precedent. That signal may not be necessary. Throughout the country, Republican election lawyers are already doing just that.

No other justice joined Kavanaugh's concurrence, but just two days later, three of them would join him in extolling the virtues of Rehnquist's theory. On Wednesday, the Supreme Court declined to roll back similar vote-by-mail buffer periods in two other swing states, North Carolina and Pennsylvania. Unlike in Wisconsin, the extensions of time were authorized by state courts relying on state law, the kind of decision over which the federal Supreme Court ordinarily has no authority. Given the partisan polarization around voting by mail this year, Democrats celebrated the outcome. The festivities, however, were muted. Accompanying each order was a lengthy statement signed by some or all of justices unhappy about the outcome — Alito, Gorsuch and Thomas — and warning that the cases might not be over yet.

Both statements declared their support for adopting Rehnquist's Bush v. Gore concurrence and went further still, indicating that, within state government, the legislature also has exclusive control over congressional elections. (The Constitution authorizes Congress to override the legislature.) The statement written by Alito, which was appended to the Pennsylvania order, suggested that the Supreme Court might yet intervene after the election, potentially rejecting some large number of ballots that were mailed by Election Day but that arrived at election offices within the three day buffer period.

The more realistic reason for Bush v. Gore to alarm Democrats is that the Supreme Court's four most conservative justices — Alito, Gorsuch, Kavanaugh and Thomas — seem to be champing at the bit to cut state courts out of federal elections altogether. “Conservative judges have increasingly shown hostility to expanded voting rights, even during a pandemic," said Rick Hasen, an election law expert at the University of California, Irvine School of Law. The approach embodied in the Rehnquist concurrence, known to lawyers as the independent state legislature doctrine, is one of many tools “that is making it harder for other actors to protect voting rights."

Can they get a fifth justice on their side? Barrett's views aren't yet known, but Roberts doesn't seem eager to embrace the Rehnquist theory. This Monday, in a brief opinion, the chief justice distinguished the situation in Wisconsin, where a federal court had modified election rules, and in Pennsylvania, where the state supreme court had done so, relying on “the authority of state courts to apply their own constitutions to election regulations."

Still, other courts are running with the interpretation favored by the four conservative justices. On Thursday, a federal appeals court voted 2-1 to order Minnesota to separate late-arriving mail-in ballots, finding that a state court-ordered buffer period was likely illegal. Their reasoning? Plucked more or less straight from Kavanaugh's Wisconsin concurrence.

Rehnquist's theory poses greater risks to Democrats than Republicans, at least in the near term. Over the past decade or so, Republicans have done an impressive job of taking over state legislatures. In the key swing states of North Carolina and Pennsylvania, there is a Democratic governor, a liberal majority on the state supreme court, and a Republican-controlled legislature. Biden's lawyers surely would prefer their odds in the supreme courts of those states than in a U.S. Supreme Court that's more conservative than it's been in decades.