ProPublica

King of debt: Trump promised to slash the deficit — instead it skyrocketed

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One of President Donald Trump's lesser known but profoundly damaging legacies will be the explosive rise in the national debt that occurred on his watch. The financial burden that he's inflicted on our government will wreak havoc for decades, saddling our kids and grandkids with debt.

The national debt has risen by almost $7.8 trillion during Trump's time in office. That's nearly twice as much as what Americans owe on student loans, car loans, credit cards and every other type of debt other than mortgages, combined, according to data from the Federal Reserve Bank of New York. It amounts to about $23,500 in new federal debt for every person in the country.

The growth in the annual deficit under Trump ranks as the third-biggest increase, relative to the size of the economy, of any U.S. presidential administration, according to a calculation by a leading Washington budget maven, Eugene Steuerle, co-founder of the Urban-Brookings Tax Policy Center. And unlike George W. Bush and Abraham Lincoln, who oversaw the larger relative increases in deficits, Trump did not launch two foreign conflicts or have to pay for a civil war.

Economists agree that we needed massive deficit spending during the COVID-19 crisis to ward off an economic cataclysm, but federal finances under Trump had become dire even before the pandemic. That happened even though the economy was booming and unemployment was at historically low levels. By the Trump administration's own description, the pre-pandemic national debt level was already a “crisis" and a “grave threat."

The combination of Trump's 2017 tax cut and the lack of any serious spending restraint helped both the deficit and the debt soar. So when the once-in-a-lifetime viral disaster slammed our country and we threw more than $3 trillion into COVID-19-related stimulus, there was no longer any margin for error.

Our national debt has reached immense levels relative to our economy, nearly as high as it was at the end of World War II. But unlike 75 years ago, the massive financial overhang from Medicare and Social Security will make it dramatically more difficult to dig ourselves out of the debt ditch.

Falling deeper into the red is the opposite of what Trump, the self-styled “King of Debt," said would happen if he became president. In a March 31, 2016, interview with Bob Woodward and Robert Costa of The Washington Post, Trump said he could pay down the national debt, then about $19 trillion, “over a period of eight years" by renegotiating trade deals and spurring economic growth.

After he took office, Trump predicted that economic growth created by the 2017 tax cut, combined with the proceeds from the tariffs he imposed on a wide range of goods from numerous countries, would help eliminate the budget deficit and let the U.S. begin to pay down its debt. On July 27, 2018, he told Sean Hannityof Fox News: “We have $21 trillion in debt. When this [the 2017 tax cut] really kicks in, we'll start paying off that debt like it's water."

Nine days later, he tweeted, “Because of Tariffs we will be able to start paying down large amounts of the $21 trillion in debt that has been accumulated, much by the Obama Administration."

That's not how it played out. When Trump took office in January 2017, the nonpartisan Congressional Budget Office was projecting that federal budget deficits would be 2% to 3% of our gross domestic product during Trump's term. Instead, the deficit reached nearly 4% of gross domestic product in 2018 and 4.6% in 2019.

There were multiple culprits. Trump's tax cuts, especially the sharp reduction in the corporate tax rate to 21% from 35%, took a big bite out of federal revenue. The CBO estimated in 2018 that the tax cut would increase deficits by about $1.9 trillion over 11 years.

Meanwhile, Trump's claim that increased revenue from the tariffs would help eliminate (or at least reduce) our national debt hasn't panned out. In 2018, Trump's administration began hiking tariffs on aluminum, steel and many other products, launching what became a global trade war with China, the European Union and other countries.

The tariffs did bring in additional revenue. In fiscal 2019, they netted about $71 billion, up about $36 billion from President Barack Obama's last year in office. But although $36 billion is a lot of money, it's less than 1/750th of the national debt. That $36 billion could have covered a bit more than three weeks of interest on the national debt — that is, had Trump not unilaterally decided to send a chunk of the tariff revenue to farmers affected by his trade wars. Businesses that struggled as a result of the tariffs also paid fewer taxes, offsetting some of the increased tariff revenue.

By early 2019, the national debt had climbed to $22 trillion. Trump's budget proposal for 2020 called it a “grave threat to our economic and societal prosperity" and asserted that the U.S. was experiencing a “national debt crisis." However, that same budget proposal included substantial growth in the national debt.

By the end of 2019, the debt had risen to $23.2 trillion and more federal officials were sounding the alarm. “Not since World War II has the country seen deficits during times of low unemployment that are as large as those that we project — nor, in the past century, has it experienced large deficits for as long as we project," Phillip Swagel, director of the CBO, said in January 2020.

Weeks later, COVID-19 erupted and made the financial situation far worse. As of Dec. 31, 2020, the national debt had jumped to $27.75 trillion, up 39% from $19.95 trillion when Trump was sworn in. The government ended its 2020 fiscal year with the portion of the national debt owed to investors, the metric favored by the CBO, at around 100% of GDP. The CBO had predicted less than a year earlier that it would take until 2030 to reach that approximate level of debt. Including the trillions owed to various governmental trust funds, the total debt is now about 130% of GDP.

Normally, this is where we'd give you Trump's version of events. But we couldn't get anyone to give us Trump's side. Judd Deere, a White House spokesman, referred us to the Office of Management and Budget, which is a branch of the White House.

OMB didn't respond to our requests. The Treasury directed us to comments made by OMB director Russell Vought in October, in which he predicted that as the pandemic eases and economic growth rebounds, the “fiscal picture" will improve. The OMB blamed legislators for deficits when Trump submitted his proposed 2021 budget: “Unfortunately, the Congress continues to reject any efforts to restrain spending. Instead, they have greatly contributed to the continued ballooning of Federal debt and deficits, putting the Nation's fiscal future at risk."

Still, the deficit growth under Trump has been historic. Steuerle, of the Tax Policy Center, has done a comparison of every American president using a metric called the “primary deficit." It's defined as the deficit minus interest costs, because interest is the only budget expense that presidents and Congress can't control unless they want to do the unthinkable and default on the debt. Steuerle examined the records of 45 presidents to see how the primary deficit had shrunk or grown relative to the size of the economy between the first and final years of each president's administration.

Trump had the third-biggest primary deficit growth, 5.2% of GDP, behind only George W. Bush (11.7%) and Abraham Lincoln (9.4%). Bush, of course, not only passed a big tax cut, as Trump has, but also launched two wars, which greatly inflated the defense budget. Lincoln had to pay for the Civil War. By contrast, Trump's wars have been almost entirely of the political variety.

Our national debt is now at its highest level relative to our economy since the end of World War II. After the war ended, the extraordinary military expenses disappeared, a postwar recovery began and the debt began to fall rapidly relative to the size of the economy.

But that's not going to happen this time. When World War II ended 75 years ago, Social Security was in its infancy and Medicare didn't exist. Today, many of our biggest and most rapidly growing expenses, especially Social Security and Medicare, are baked into the budget because of our nation's aging population. These outlays are slated to rise sharply. Steuerle recently calculated that Social Security, health care and interest costs are projected to absorb 122% of the total growth in federal revenues from 2019 to 2030.

What's more, our investment in the future — things like research and development, education, infrastructure, workforce training and such — is declining as a proportion of the budget. OMB data shows that in 1970, mandatory spending (such as Social Security and Medicare, but not including interest on the debt) and investment each made up around 30% of total federal spending. But as of 2019, the most recent available year, mandatory spending had doubled to around 61% of total federal spending while investment fell by more than half, to around 12.5%.

Spending more and more on past promises and shrinking the proportion of spending for the future doesn't bode well for our kids and grandkids. Had Trump done what he said he'd do and paid off part of the national debt before COVID-19 struck rather than adding significantly to the debt, the situation would be considerably less dire. And had Trump done a better job of coping with COVID-19, the economic and human costs would've been greatly reduced.

In addition to forcing us to reduce the proportion of the budget spent on the future to help pay for the past, there's a second reason that huge and growing budget deficits matter: interest costs.

Bigger debt ultimately means bigger interest costs, even in an era when the Federal Reserve has forced down Treasury rates to ultralow levels. The government's interest cost (including interest paid to government trust funds) was around $523 billion in the 2020 fiscal year. That outstrips all spending on education, employment training, research and social services, Treasury data shows.

Interest costs are way below where they'd be if the Fed hadn't forced rates down to try to stimulate the economy and mitigate the impact of the pandemic. One-year Treasury securities cost taxpayers a minuscule 0.10% in interest at year-end, down from 1.59% at the end of 2019. The 10-year Treasury rate was 0.93%, down from 1.92%.

In late December, the Fed reported boosting its Treasury holdings by more than $2 trillion from a year earlier. The increase is primarily in longer-term securities. That has kept the federal government from having to raise trillions of dollars in the capital markets, and therefore has kept longer-term interest rates way below where they would otherwise be.

But unless something changes, even the Fed's promise to keep interest rates near current levels for several years won't fend off future problems. Most of the government's borrowing to fund pandemic relief has been shorter-term borrowing that will have to be refinanced in the coming years. If rates rise, so will the government's interest expense.

Even with rates where they are, interest on the debt is already going to be the fastest-growing budget category this decade, according to the Peter G. Peterson Foundation, which tracks the issue. Annual net interest costs are projected to double in 10 years and grow so large beyond 2030 that interest will become a driving factor in annual deficit growth, according to Peterson estimates.

Listen to what CBO Director Swagel had to say on the subject in a report to congressional Republicans in December: “Although the current low interest rates indicate that the debt is manageable for now and that the United States is not facing an immediate fiscal crisis, in which interest rates abruptly escalated or other disruptions occurred, the risk and potential budgetary consequences of such a crisis become greater over time."

Trump was asked about this risk during a virtual discussion with the Economic Club of New York last October. “If we have another stimulus bill out of Congress, are you worried that the entire amount of federal debt will be too large for us to pay off in a sensible way?" asked David Rubenstein, a private equity executive.

Trump answered by falsely claiming that the U.S. was starting to pay off the national debt before the pandemic, and he claimed that future economic growth would let it do so. “I think you're going to see tremendous growth, David, and the growth is going to get it done," Trump said.

Two months later, when Congress finally approved $900 billion of economic stimulus that is being financed with debt, Trump challenged Congress to spend — and borrow — even more. Then he went golfing.

Here are the members of several well-known hate groups that were identified at the Capitol

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Members of the ultranationalist street gang known as the Proud Boys were easy to spot at the protests that flared across the United States throughout 2020, often in the middle of a brawl, typically clad in black and yellow outfits.

But in December, as the group's leaders planned to flood Washington to oppose the certification of the Electoral College vote this week for President-elect Joe Biden, they decided to do something different.

“The ProudBoys will turn out in record numbers on Jan 6th but this time with a twist...," Henry “Enrique" Tarrio, the group's president, wrote in a late-December post on Parler, a social media platform that has become popular with right-wing activists and conservatives. “We will not be wearing our traditional Black and Yellow. We will be incognito and we will spread across downtown DC in smaller teams. And who knows....we might dress in all BLACK for the occasion."

The precise composition of the mob that forced its way into the Capitol on Wednesday, disrupting sessions of both houses of Congress and leaving a police officer and four others dead, remains unknown. But a review by a ProPublica-FRONTLINE team that has been tracking far-right movements for the past three years shows that the crowd included members of the Proud Boys and other groups with violent ideologies. Videos reveal the presence of several noted hardcore nativists and white nationalists who participated in the 2017 white power rally in Charlottesville, Virginia, that President Donald Trump infamously refused to condemn.

Tarrio does not appear to have been present during the insurrection. Two days before members of the House and Senate gathered to certify the Electoral College results, Washington's Metropolitan Police Department arrested Tarrio and charged him with possessing high-capacity firearm magazines and destruction of property over the burning of a Black Lives Matter banner last month. A judge barred him from entering the city while he awaits trial.

But it appears that Tarrio's followers heeded his advice. A journalist working with ProPublica and FRONTLINE encountered members of the Proud Boys in dark clothes walking through Washington on the night before the attack. The four men posed for a photo and confirmed their membership in the group. Few participants involved in the Capitol siege were seen wearing Proud Boys colors or logos.

But since the incident, Proud Boys social media channels have flaunted their direct role in the attack and looting of the Capitol.

One prominent Proud Boys account encouraged rioters as the chaos was unfolding: “Hold your ground!!!... DO NOT GO HOME. WE ARE ON THE CUSP OF SAVING THE CONSTITUTION."

So far, police have arrested more than 80 people in connection with the attack, including at least one Proud Boy, Nick Ochs. They have seized pipe bombs and Molotov cocktails and arrested at least six people on illegal firearms charges, including one Maryland man who was captured in the visitors' center of the Capitol. More arrests are expected.

As the crowds ringing the Capitol swelled on Wednesday, a small group of men clad in body armor shuffled toward the doors at the center of the building's east-facing facade.

The eight men, whose movements were captured on video, were identified by ProPublica and FRONTLINE as members of the Oath Keepers, a long-standing militia group that has pledged to ignite a civil war on behalf of Trump. Members of the group joined the protesters and insurrectionists flooding into the Capitol. Footage from later in the day shows Oath Keepers dragging a wounded comrade out of the building.

Stewart Rhodes, a former soldier and Yale law school graduate, who founded the Oath Keepers in 2009 and built it into a nationwide network, was seen on video standing outside the Capitol building. While he was not seen entering the Capitol, he could be seen talking with his militia followers throughout the day.

Several other of the participants ProPublica and FRONTLINE identified from video have direct links to the white nationalist movement, which has seen a resurgence of activity during the Trump era.

One was Nick Fuentes, an internet personality who streams a daily talk show on DLive, an alternative social media platform. Fuentes, who marched in Charlottesville during the 2017 white power rally there, speaks frequently in anti-Semitic terms and pontificates on the need to protect America's white heritage from the ongoing shift in the nation's demographics. He has publicly denied believing in white nationalism but has said that he considers himself a “white majoritarian."

Fuentes, who spoke at pro-Trump rallies late last year in Michigan and Washington, D.C., said he was at the rally on Wednesday but didn't follow the mob into the Capitol. One group of Fuentes' supporters, who call themselves the Groyper Army, was filmed running through the Capitol carrying a large blue flag with the America First logo.

Days before the Capitol was stormed, Fuentes seemed to encourage his followers to kill state legislators in a bid to overturn Biden's electoral victory, as Megan Squire, a computer science professor at Elon University who follows online extremist communities, noted on Twitter.

“What can you and I do to a state legislator — besides kill him?" he said with a smirk. “We should not do that. I'm not advising that, but I mean, what else can you do, right?"

Squire fears that Fuentes' incendiary rhetoric will inspire his followers to engage in more drastic — even lethal — acts of political violence. “Instead of trying to appear democratic he's making an argument for fascism, for monarchism," she said. “He's criticizing democracy at every turn. He doesn't believe in democracy and it's scary because his fans find him fascinating."

DLive recently announced that it has booted Fuentes from its platform.

Another figure inside the Capitol with ties to white nationalists was Tim Gionet, a livestreamer who uses the handle Baked Alaska and who participated in the Charlottesville rally, which left one woman dead. Gionet was photographed within the Capitol and apparently used DLive to stream from within the building as events unfolded. Part of his video appeared to show him in Nancy Pelosi's office, according to the Southern Poverty Law Center, which tracks hate groups.

Other extremist figures present either at the rally or within the Capitol included Vincent James Foxx, an online propagandist for the Rise Above Movement, a now-defunct Southern California white supremacist group.

Also on scene: Gabe Brown, a New Englander who helped create Anticom, a now-defunct organization devoted to physically combating leftists. In 2017, Anticom members posted a vast trove of bomb-making manuals to a private online chatroom.

The militant group members joined with scores of others who rampaged inside the Capitol.

Rep. André Carson, a Democrat from Indiana, said the scene reminded him of a Ku Klux Klan rally. Photos from within the Capitol showed one unidentified man carrying a Confederate battle flag and another wearing a sweatshirt emblazoned with a skull and the words “Camp Auschwitz," a reference to the infamous Nazi death camp.

Carson and other House members who spoke to ProPublica and FRONTLINE said the body would be launching an extensive investigation of the Capitol Police force and its mishandling of Wednesday's events.

The rioters, said Carson, who is Black, “were hostile. They were venomous. And I think there was a sense of entitlement that they carried that somehow their country was being taken away from them."

After the siege, a Boogaloo Bois group called the Last Sons of Liberty, which includes militants from Virginia, posted a video to Parler purporting to document their role in the incident — a clip that shows members inside the Capitol. A loose-knit confederation of anti-government militants, the Boogaloo Bois have been tied to a plot to kidnap Michigan Gov. Gretchen Whitmer and to the murder of two law enforcement officers in California. ProPublica and FRONTLINE have been unable to independently confirm their involvement.

Some far-right activists are already calling for retribution over the death of Ashli Babbitt, a 35-year-old Air Force veteran from California who was shot and killed by a security officer. “We've got a girl that's dead. She's shot, laying on the ground in there," said Damon Beckley, leader of a group called DC Under Siege, in an interview just outside the Capitol while the riot was ongoing. “We're not putting up with this tyrannical rule. ... If we gotta come back here and start a revolution and take all these traitors out — which is what should happen — then we will."

Another person took to Parler to say that they were planning to show up, armed, in Washington for Inauguration Day. “Many of us will return on January 19, 2021 carrying Our weapons," wrote the Parler user, who goes by the handle Colonel007. “We will come in numbers that no standing army or police agency can match."

The Proud Boys also celebrated on social media. On Parler, one Proud Boys leader posted a photo of members of Congress cowering in fear and captioned it with a menacing statement: “Today you found out. The power of the people will not be denied."

Pentagon memo offers one version of events: Days of security planning involved Cabinet officials and President Trump

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President Donald Trump met with top military officials and gave his approval to activate the D.C. National Guard three days before he encouraged a mob of angry protesters to take their grievances to the U.S. Capitol.

A Pentagon memo released Friday offers these insights, as well as the first detailed timeline of the bungled law enforcement response to Wednesday's insurrection.

The timeline shows that the planning started at least as far back as Dec. 31 and included discussion with select Cabinet members of the potential need for Pentagon reinforcements.

But it also leaves many questions unanswered, including why the U.S. Capitol Police declined repeated offers of assistance from military officials and the full extent of how much Trump knew about the security planning or was involved in decision-making.

The memo, first reported on by NBC News on Friday evening, presents a limited account of the days before the insurrection, and reportshave questioned the completeness of the Pentagon's version of events and the effectiveness of its planning and response. But the memo may well provide a partial roadmap as legislators call for an investigation into how pro-Trump protesters breached the Capitol in a riot that left five people dead, including one Capitol Hill police officer. Three officials who supervise the force have already submitted resignations.

Here's what we know so far, and what we don't.

There was nearly a week of preparation

The Pentagon's timeline begins on the last day of 2020, when Washington Mayor Muriel Bowser and another city official delivered a written request for D.C. National Guard support on Wednesday. For weeks, Trump supporters had shared plans on social media for descending on Washington that day to protest the election results as Congress certified the Electoral College votes that sealed President-elect Joe Biden's victory. In the days after, Acting Secretary of Defense Chris Miller met with “select Cabinet Members," the memo says without specifying which, to discuss Defense Department involvement and “potential requirements" for DOD support.

The Pentagon says Trump authorized the National Guard deployment days before the protest, but the timeline does not say what that entailed

On Sunday, Jan. 3, Miller and the chairman of the Joint Chiefs of Staff, Gen. Mark Milley, met with Trump. According to the memo, the president “concurs in activation" of the National Guard to “support law enforcement." Miller approved the activation of 340 Guard members the following day.

The details of Trump's conversation with Miller and Milley are not known.

The Pentagon participated in a planning exercise — after the protests were already underway

Swarms of pro-Trump protesters assembled in Washington on Wednesday morning, starting at the Ellipse to hear Trump speak and heeding his suggestion that they take their complaints to the Capitol, where Congress was meeting in joint session to certify Biden's election. Trump ended his remarks just after 1 p.m.

Around 11:30 that morning, Miller participated in a tabletop planning exercise regarding DOD's “contingency response options," the memo says. While Miller participated in numerous preparatory conversations with local and federal officials in the week leading up to Wednesday, the timeline gives no indication that any formal planning exercises took place before the day of the attack. The Pentagon did not immediately provide an explanation for the eleventh-hour exercise.

The U.S. Capitol Police declined the Pentagon's offer of support — twice

Three days before the mob overtook the Capitol, DOD contacted the U.S. Capitol Police to confirm that the force was not requesting backup in advance of the scheduled protests, according to the timeline. The next day, the memo says, USCP officials participated in a phone call with Army Secretary Ryan McCarthy and once again confirmed they did not need the Pentagon's support.

That position only changed at 1:49 on Wednesday afternoon, when USCP Chief Steven Sund called requesting immediate assistance. By then, members of Congress were sheltering in place, with the mob minutes away from breaching the Capitol steps.

It remains unclear what intelligence the Capitol Police, which boasts more than 2,300 employees and a budget of over $400 million, gathered in anticipation of Wednesday's events or why Sund declined to bolster the Capitol's defenses. Sund's resignation was announced on Thursday, and he will leave his position on Jan. 16. Sund and the USCP did not immediately respond to a request for comment.

Washington's mayor and the Pentagon offer conflicting accounts of the lead-up to the protests

After Bowser sent her New Year's Eve request for help from the D.C. National Guard, the DOD memo says it approved sending 340 Guard members to support local officials. It further says that on Tuesday, Bowser delivered a letter confirming that Washington officials had all the support they needed.

But a spokesperson for Bowser's office told NBC News that it was McCarthy, not the mayor, who made the key decisions about the National Guard's response, including setting the number of personnel and establishing “that the guard members were not to move East of 9th Street NW," blocks away from the Capitol itself.

Once the mob was inside the Capitol, it took hours for the National Guard to arrive

At 1:26 p.m. Wednesday, with a mob of protesters about to push through police lines, the USCP ordered the Capitol evacuated. Eight minutes later, according to the DOD timeline, Bowser was on the phone with McCarthy requesting an “unspecified number of additional forces." Sund's call to Pentagon officials followed shortly thereafter.

At 3 p.m., more than an hour after the mayor's call, Miller determined that D.C. National Guard forces were needed to reestablish control of the Capitol, and minutes later, he formally approved the full activation of the D.C. National Guard. At 5:02 p.m., 154 guard members left the D.C. Armory to head to the Capitol, where they arrived roughly 40 minutes later.

By 6:14 p.m., law enforcement had successfully established a perimeter around the west side of the Capitol, according to the memo, and at 8 p.m., Capitol Police declared the building secure.

Capitol rioters planned for weeks in plain sight. The police still weren't ready

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The invasion of the U.S. Capitol on Wednesday was stoked in plain sight. For weeks, the far-right supporters of President Donald Trump railed on social media that the election had been stolen. They openly discussed the idea of violent protest on the day Congress met to certify the result.

“We came up with the idea to occupy just outside the CAPITOL on Jan 6th," leaders of the Stop the Steal movement wrote on Dec. 23. They called their Wednesday demonstration the Wild Protest, a name taken from a tweet by Trump that encouraged his supporters to take their grievances to the streets of Washington. “Will be wild," the president tweeted.

Ali Alexander, the founder of the movement, encouraged people to bring tents and sleeping bags and avoid wearing masks for the event. “If D.C. escalates… so do we," Alexander wrote on Parler last week — one of scores of social media posts welcoming violence that were reviewed by ProPublica in the weeks leading up to Wednesday's attack on the capitol.

Thousands of people heeded that call.

For reasons that remained unclear Wednesday night, the law enforcement authorities charged with protecting the nation's entire legislative branch — nearly all of the 535 members of Congress gathered in a joint session, along with Vice President Mike Pence — were ill-prepared to contain the forces massed against them.

On Wednesday afternoon, a thin line of U.S. Capitol Police, with only a few riot shields between them and a knot of angry protesters, engaged in hand-to-hand combat with rioters on the steps of the West Front. They struggled with a flimsy set of barricades as a mob in helmets and bulletproof vests pushed its way toward the Capitol entrance. Videos showed officers stepping aside, and sometimes taking selfies, as if to usher Trump's supporters into the building they were supposed to guard.

A former Capitol policeman well-versed in his agency's procedures was mystified by the scene he watched unfold on live television. Larry Schaefer, a 34-year Capitol Police veteran who retired in December 2019, said his former colleagues were experienced in dealing with aggressive crowds.

“It's not a spur-of-the-moment demonstration that just popped up," Schaefer said. “We have a planned, known demonstration that has a propensity for violence in the past and threats to carry weapons — why would you not prepare yourself as we have done in the past?"

A spokesperson for the Capitol Police did not respond to a request for comment.

In recent years, federal law enforcement agencies have stepped up their focus on far-right groups, resulting in a spate of arrests. In October, the FBI arrested a group of Michigan extremists and charged them with plotting to kidnap the state's governor. On Monday, Washington police arrested Enrique Tarrio, the leader of the far-right group the Proud Boys, on charges of burning a Black Lives Matter banner.

Conversations on right-wing platforms are monitored closely by federal intelligence. In September, a draft report by the Department of Homeland Security surfaced, identifying white supremacists as the biggest threat to national security.

The warnings of Wednesday's assault on the Capitol were everywhere — perhaps not entirely specific about the planned time and exact location of an assault on the Capitol, but enough to clue in law enforcement about the potential for civil unrest.

On Dec. 12, a poster on the website MyMilitia.com urged violence if senators made official the victory of President-elect Joe Biden.

“If this does not change, then I advocate, Revolution and adherence to the rules of war," wrote someone identifying themselves as I3DI. “I say, take the hill or die trying."

Wrote another person: “It's already apparent that literally millions of Americans are on the verge of activating their Second Amendment duty to defeat tyranny and save the republic."

The easily overpowered police force guarding the Capitol on Wednesday posed a stark contrast to the tactics deployed by local police during this summer's Black Lives Matter protests. Then, the city felt besieged by law enforcement.

On June 1, following a few days of mostly peaceful protests, the National Guard, the Secret Service and the U.S. Park Police fired tear gas and rubber bullets to disperse a nonviolent crowd in Lafayette Square outside the White House to allow Trump to pose with a Bible in front of a nearby church.

“We need to dominate the battlespace," then-Secretary of Defense Mark Esper said on a call with dozens of governors, asking them to send their National Guard forces to the capital.

On June 2 — the day of the primary election in Washington — law enforcement officers appeared on every corner, heavily armed in fatigues and body armor. Humvees blocked intersections. Buses full of troops deployed into military columns and marshaled in front of the Lincoln Memorial in a raw show of force. Police kettled protesters in alleys. Choppers thudded overhead for days and sank low enough over protesters to generate gale-force winds.

Such dominance was nowhere in evidence Wednesday, despite a near-lockdown of the downtown area on Tuesday night. Trump supporters drove to the Capitol and parked in spaces normally reserved for congressional staff. Some vehicles stopped on the lawns near the Tidal Basin.

The contrast shook Washington's attorney general, Karl Racine, who seemed to be almost in disbelief on CNN Wednesday evening.

“There was zero intelligence that the Black Lives Matter protesters were going to 'storm the capitol,'" he remembered, after ticking down the many police forces present in June. “Juxtapose that with what we saw today, with hate groups, militia and other groups that have no respect for the rule of law go into the capitol. ... That dichotomy is shocking."

The question of how law enforcement and the national security establishment failed so spectacularly will likely be the subject of intense focus in coming days.

David Carter, director of the Intelligence Program at Michigan State University, said that sometimes, the best intelligence in the world doesn't translate into adequate preparedness. Perhaps the security officials responsible for protecting the Capitol simply could not envision that a crowd of Americans would charge through a police line and shatter the glass windows that stood as the only physical barrier to entering the building.

“I go back to the 9/11 commission report," Carter said. “It was a failure of imagination. They didn't imagine something like this. Would you imagine people were going to break into the Capitol and go into the chambers? That failure of imagination sometimes makes us drop the ball."

'Eye of the hurricane': Health care workers get strained to the breaking point as the virus surges

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Nurse Kristen Cline was working a 12-hour shift in October at the Royal C. Johnson Veterans Memorial Hospital in Sioux Falls, South Dakota, when a code blue rang through the halls. A patient in an isolation room was dying of a coronavirus that had raged for eight months across the country before it made the state the brightest red dot in a nation of hot spots.

Cline knew she needed to protect herself before entering the room, where a second COVID-19 patient was trembling under the covers, sobbing. She reached for the crinkled and dirty N95 mask she had reused for days.

In her post-death report, Cline described how the patient fell victim to a hospital in chaos. The crash cart and breathing bag that should have been in the room were missing. The patient wasn't tethered to monitors that could have alerted nurses sooner. He had cried out for help, but the duty nurse was busy with other patients, packed two to a room meant for one.

“He died scared and alone. It didn't have to be that way. We failed him — not the staff, we did everything we could," she said. “The system failed him."

The system also failed her. Since the pandemic's early weeks, Cline had complained that the Department of Veterans Affairs, which runs the nation's largest hospital system, wasn't doing enough to protect its front-line health care workers. She had filed complaints about inadequate personal protective equipment with the agency's inspector general and the Occupational Safety and Health Administration, but they had done nothing. Many months into a pandemic, they were still having to ration masks and being asked to reuse them for as many as five shifts.

From Cline's perspective and that of other health care workers I spoke with from the VA hospital in Sioux Falls, the lack of masks was a symptom of larger failures at the agency overseeing the medical care of 9 million veterans. The hospitals lacked staff and scrounged to find gowns, medical supplies, ventilators — everything needed to battle COVID-19.

While every American hospital was stretched by the pandemic, the VA's lack of an effective system for tracking and delivering supplies made it particularly vulnerable, according to a recent examination by the federal Government Accountability Office. When the pandemic hit, the agency relied on a few big contractors to supply everything from N95 masks to needles to isolation gowns. Those few big contractors fell victim to a global shortage of masks. And the VA had no reliable tracking system to tell officials what hospitals have, what they need or what was expired. At the Sioux Falls facility, things got so desperate, the supply chain for masks relied on a guy named Steve who gave them out one at time from a nearby warehouse, employees said.

As COVID-19 overwhelmed the antiquated system, VA leadership asked employees at more than 170 hospitals to enter inventory by hand into spreadsheets every day and did “not have insight" into how resources were being deployed, the report said. In other words, the local Best Buy or Walgreen's had more efficient ways of managing inventory to get supplies to the right place.

The resulting scramble, which ProPublica has investigated over the past eight months, was a disorganized, poorly overseen effort to buy masks and other supplies from just about anyone who said they could deliver. Hoping to compensate for a disastrous lack of preparation, the VA awarded more than 100 contracts worth over $120 million to vendors with whom it had never done business.

The COVID-19 pandemic came at a tough moment for the agency, which was more than a year into a massive reorganization by the administration of President Donald Trump that left hundreds of jobs empty and sent the VA scrambling to hire contract positions to help with, among other things, procurement of supplies.

Kevin Lyons, an associate professor and supply chain expert at Rutgers Business School, said nothing the VA did before or during the pandemic showed it had a handle on its own purchase and delivery of supplies, let alone prepare for a global shortage. His research is exploring how the Trumpadministration's purge of hundreds of VA staff members created a path to disaster.

VA Secretary Robert Wilkie had boasted about across-the-board staff cutbacks in November 2019, just weeks before the first confirmed U.S. COVID-19 case, noting that he had “relieved people as high as network directors to people at the other end of our employee chain."

Lyons, an Air Force veteran, told me top VA officials have been able to claim all's well — even as nurses and doctors describe continued shortages and rationing — because bureaucrats who awarded contracts did little or nothing to track how they worked out. He said the rapid-fire approval of contracts gave “the appearance that we're doing something. But there was no connection between the nurses and the doctors who actually need it."

“All they really care about is, you know, signing a contract, and then crossing your fingers and hoping that stuff comes," Lyons said. “And that's just not the way that supply chain is supposed to happen."

Wilkie had acknowledged at one point early in the pandemic that COVID-19 had dried up the agency's supply chain and forced hospitals to ration critical supplies. The agency has acknowledged the need for improvements to its procurement system. But the VA, which has lost more than 90 staff members to COVID-19, denies that it ever left nurses like Cline with inadequate personal protection. “All VA medical centers have adequate capacity, PPE and supplies to meet current demand, and at no point has a VA facility run out of PPE," said Jamie Maxymuik, a spokeswoman for the VA Sioux Falls health system, in an email.

Yet Cline and other hospital workers had felt increasingly vulnerable as the raging virus revealed the government's failure to adequately prepare or to fight back. In late April and May, emails that Cline shared show the VA instructing nurses to stitch together their own fabric masks at home to get through the crisis. The message coming from managers, Cline said, was to be patriotic and do more with less.

“My first reaction was, 'Which desk jockey sitting at home came up with this nonsense?'" Cline remembered. “And then I thought, 'Well, at least they are openly acknowledging that they aren't providing enough protection.'"

In May, Cline had reached out to me, describing the plight of hospital staff dealing with unresponsive VA management. “They have been rationing masks for weeks now, but sending emails daily saying we have plenty of PPE and that rumors of a shortage are completely false. We have suspected for a few days now that they are lying about this," Cline, 38, wrote.

Her outrage intensified when she read a story I wrote about how the VA awarded a $34.5 million contract to a random mask broker, who then rented a private jet to locate N95s that never existed from suppliers he didn't know with money from investors he'd never met.

It was just a glimpse at the chaos disrupting the crucial supply chain on which Cline's existence depended.

States, cities, hospitals and various federal agencies competed against one another for increasingly scarce masks, many held up in Chinese factories or customs. Health care workers like Cline were captive to the machinations transpiring overhead, unsure why they didn't have the protection they needed.

In this frenzy, masks typically went to the highest bidder. And out of the woodwork came opportunists, counterfeiters, fakes and well-intentioned but clueless mask brokers trying to make a quick buck.

“The incompetence was just stunning to me," Cline remembers thinking. “If they had just told us what was going on I would have felt better. But instead they just kept saying we have enough masks."

Through the summer and fall, as I followed a bizarre trail of mask profiteers, Cline kept me aware of the consequences of an unregulated mask market, a situation that might have been comical if it weren't so crucial to fighting the spread of COVID-19. Cline did not end up contracting COVID-19 but said the months of chaos and collective failure had left its mark.

“When this is over," Cline told me. “Those of us who don't die are going to quit."

Anatomy of a Disaster

How does one account for the incompetence and greed, the poor planning, and the judgment failures at the government's highest levels that led us into the worst public health crisis in at least a century?

Even if the Trump administration had empowered civil servants to wrangle supply chain logistics immediately — it didn't. Even if his administration had dusted off and heeded a pandemic response playbook left behind by the Obama administration — it didn't. Even if Trump had invoked the Defense Production Act to boost domestic mask manufacturing at the first sign of the crisis — it didn't. Even if everything had gone right, we were in deep trouble before the first American travelers brought back a mysterious respiratory virus from Wuhan, China, and Europe.

The nation had spent years building up emergency medical supplies in a Strategic National Stockpile that was supposed to help us weather a national crisis. But after long stretches of inactivity and inadequate funding, it turns out it wasn't all that strategic. Jared Kushner, the president's senior adviser and son-in-law, made it clear that the federal stockpile was not intended to serve the states, leaving them to fend for themselves in the quest for lifesaving supplies.

Retired Navy Rear Adm. John Polowczyk got plucked from the Defense Department in mid-March to lead the White House's fledgling Coronavirus Task Force. “I walked in," he told me, “and the National Stockpile had been given out. I did not have a single — really — I didn't have a single N95 mask, surgical mask, isolation gown, nitrile glove. It had been issued."

Polowczyk had spent 30 years mastering the complex logistics of getting supplies from manufacturer to user. But the Trump White House, he said, had “no bench depth" of experts to manage purchasing and distributing vital supplies.

It's exactly as bad as it sounds, said Robert Handfield, a professor at North Carolina State University who interviewed officials who were working inside the federal effort to supply PPE. He detailed his findings in the Harvard Business Review, but early this month, he boiled it all down for me in a quick summary:

“It was a shit show. They had no idea what was going on."

The VA embarked on a haphazard buying spree through its procurement system, but by the spring, it had to turn for help from FEMA and draw supplies from the stockpile, a “short-term stop-gap buffer" when critical items are not available, according to the GAO. Along with gloves, gowns, swabs and test kits, the VA received more than 8.2 million respirators, and 2.4 million masks.

Despite dire warnings and lessons learned from the SARS outbreak in 2003 and the H1N1 swine flu in 2009, elected officials and administrations led by both parties simply didn't prepare for what scientists warned was not just a probability but an eventuality.

A 2010 study commissioned by the Centers for Disease Control and Prevention following the swine flu outbreak warned that we needed to stock up on masks or face devastating consequences. The study made sweeping observations about existing and potential breakdowns between the local, state and federal governments.

Today, that report reads like prophecy:

“Delays and conflicts in federal guidance on respiratory protection (N95) led to confusion ..." scientists wrote more than a decade ago.

“States experienced significant challenges with the N95 supply chain …"

“There should be a central repository of N95s which is replenished for future events. Federal contracts with N95 and PPE manufacturers generally should be strengthened …"

By February 2020, as the first U.S. outbreaks began, the stockpile housed just 12 million N95 masks, a fraction of what was needed. That same month, Dr. Robert Kadlec, the emergency preparedness czar in the U.S. Department of Health and Human Services, told Congress that the country needed 3.5 billion N95 masks, itself probably an underestimate. In other words, the country's stockpile had less than one half of one percent of the masks we needed.

The stockpile was so depleted, that the moment the spread began, the country needed new production inputs, most of which were in China and would take 60 to 90 days to reach U.S. hospitals by traditional export. If we measure the stockpile in time, the U.S. was several months behind before this even started.

By the time the Trump administration pressured domestic manufacturers to ramp up supply and unleashed $17 billion to source supplies in April, it was far too late.

What that eerily prophetic CDC-commissioned study didn't predict was the beneficiaries of such chaos, of shortages and desperation, and of exceptionally weak government contracting oversight: mask brokers.

We're so far into this pandemic now that it's easy to forget just how absurd the notion of a mask broker truly is. In normal times, masks aren't all that profitable; an N95 should run about a dollar for anyone working on a dusty home improvement project. They're a cheap widget in a broad catalog of bigger widgets offered by medical supply giants like 3M, Honeywell and Cardinal Health.

Yet the federal government found itself desperate enough to shell out a fortune to unknown people and companies that hadn't existed just days before.

The gang brought in to help with PPE and other medical equipment included the inexperienced federal contractor whose private jet ride and failed mask adventure inspired Cline to reach out to me; a former NASCAR driver who allegedly tried to sell a trillion N95 masks that didn't exist; a wealthy tech investor who used the Task Rabbit contractor-for-hire app to pay people to repackage ineffective Chinese masks so they could pass muster with hospitals.

Just to name a few.

As of December, the federal government spent about $8.5 billion to outfit front-line workers with PPE, medical instruments and various other supplies, according to a ProPublica analysis of spending data. It was not all bad. Some brokers delivered a sorely needed product while making a nice profit. And to be fair to the federal government, many states made the same mistakes.

As brokers made their bets, some making a fortune, some making fools of themselves, others making their criminal defense cases, Cline and millions of other health care workers just prayed there would be enough supplies tomorrow.

“Eye of the Hurricane"

I flew out to meet Cline a few days before Thanksgiving, when South Dakota was reporting the nation's worst COVID-19 infection numbers and nearing 1 in 700 residents dead. While I had only traveled to the Upper Midwest, it felt as though I'd beamed straight into one of Dr. Anthony Fauci's nightmares.

“If you want to tell the story of why COVID is so bad in America, I think South Dakota is the perfect microcosm of it all," Cline told me as we met outdoors for coffee.

Just around the corner from the VA hospital where Cline worked, families huddled maskless and gabbed over heaps of pasta at the local Olive Garden. Gov. Kristi Noem had defied calls from public health experts to issue a state mask mandate, and a local one, recently passed by the Sioux Falls City Council, was, in my observation, scarcely observed.

At my hotel, which was connected by a footbridge to the state's largest hospital, the nonprofit Sanford Medical Center, young people mingled mask-free in the lobby, shouting gleefully over a case of Bud Lights. Around the corner, the hot tub was bubbling, the first I'd seen since March, and was packed with members of two families. It looked ... fun. Like the sort of thing seen in photos coming in lately from Australia, which is averaging zero COVID-19 deaths a day compared with more than 2,000 a day in the U.S.

Cline described a huge disconnect between the devil-may-care attitude of local residents and the reality she was seeing every day. In this alternate universe, she said, there was a “false sense of calm" even as the city moved into the “eye of the hurricane."

“I had a colleague who went to Sturgis," Cline said of the August biker rally in South Dakota that may have led to 266,000 new COVID-19 cases. “She said, 'Well, I drank so much alcohol it probably killed any virus.' This was a nurse!"

Cline had joined the VA in 2019 after 11 years at Sanford, where her friends kept her posted on their COVID-19 battle. More than 150 COVID-19 patients were filling beds at Sanford, with 27 in the ICU and eight on ventilators, according to state statistics.

Yet the CEO of Sanford, the largest hospital system in the Dakotas, had just days before told thousands of health care workers he'd survived COVID-19 and would not wear a mask because he had “no interest in using masks as a symbolic gesture." The hospital's leadership team forced that CEO to retire and sent an email to employees rebutting his comments about masks.

As we sat in the still cold, the city was under silent siege.

Cline and three other VA health care workers I spoke to saw another disconnect between what the VA was saying publicly and conditions on the ground.

“We just had like one surgical face mask for the whole shift," one VA nurse said, describing a stretch of weeks early in the pandemic when even three-ply blue paper masks were hard to find. “And we were even told to use it for the whole week, which these surgical masks are supposed to just be thrown after single use."

She said the PPE situation has improved in recent months, but only after the hospital logged 60 COVID-19 deaths. A VA summary of employee deaths shows no medical personnel at the Sioux Falls hospital have died of COVID.

N95 masks, the critical supplies that the CDC recommended for health care workers, were sitting unused in a Sioux Falls warehouse until Cline complained to the VA director. After that, “we magically got fitted for N95s," this nurse said. “We get it and we stick it in a paper bag, and we use it for five different" shifts.

Such personal accounts were denied by the VA, which signaled to its employees that public comments about hospital conditions would not be tolerated. “In the Spring, Sioux Falls VA Health Care System maintained sufficient PPE for its employees," the Sioux Falls VA spokeswoman said, noting the agency followed loosened CDC guidelines that allowed for nurses to reuse their masks for several shifts.

The agency was sending mixed messages publicly. Trump had claimed in January that everything was “under control," but federal contract data showed erratic and desperate purchases with delivery dates for essential hospital purchases that spanned months. Costly supplies sometimes never made it to hospitals, like an order for 5 million masks that in April was diverted by the Federal Emergency Management Agency.

Cline is an outspoken member of the Emergency Nurses Association, an Illinois-based advocacy group, which asked that I point out she's not speaking on the group's behalf and offered its own statement:

“When nurses fall ill because of inadequate PPE or other factors in their emergency department, patient care suffers — and that cannot be tolerated. Neither can the ongoing mental stress and burnout ... nurses are suffering because of their daily concern for their personal safety," ENA President Mike Hastings said.

I expressed amazement to Cline that after spending most of a year tracking mask brokers, watching billions in federal dollars spent to get supplies for hospitals like hers, that PPE was still scarce, rationed or nonexistent in many hospital settings. I had traveled into various outbreaks in Chicago, Los Angeles, three cities in Texas, Pittsburgh, Cleveland, New York and New Haven, Connecticut. Yet nearing the end of this most terrible year, the nation was facing its biggest spike in cases and deaths.

Back in Washington the next day, I opened a sobering email from Cline. Her VA shift had stretched to 15 hours so she could watch over a COVID-19 patient in crisis. No one was available to relieve her. He was delirious, so she and another nurse sedated him and tied him down, which kept him alive.

“It's like this everywhere," she wrote. “It just got here later. And the shameful thing is we had 8 months to prepare, and we have made a disaster of it."

“The Bottom Line"

When Cline first said to me, “The bottom line is it was too expensive to protect us," I thought she was referring specifically to the VA. This didn't seem right. The VA alone shelled out at least $77.6 million to get PPE, according to our data analysis, so I asked what she meant.

She said she was making a larger point about politics and economics. The depleted stockpile, the brokers and scams, the open bars and sports stadiums, the insistence on ignoring science, the resistance to wearing masks showed the limits of what Americans would sacrifice to protect themselves and each other.

Those of us lucky enough to be spared the sharp hurt of losing a loved one to this virus, or the palpable loss of a job and income, may still be feeling pressed ourselves under the dull weight of this year and what the virus has done to our way of life.

But for Cline, and many health care workers, that nebulous anxiety comes into high definition every time she puts on a used mask to treat someone who got sick because they or someone they cherish didn't wear theirs.

It was too expensive to beef up the national stockpile. Too expensive to keep mask manufacturing in the U.S. Too expensive to keep bars closed. The personal cost was too high to stay home or sacrifice rugged individualism for an anonymizing face covering.

And yet as Christmas approached, the early results of Sioux Falls' mask mandate showed that even the simplest effort could pay off. Cases were trending down.

But Cline had been worn out for weeks, and she wanted to spend time with her boyfriend and her daughter. When I relayed that the VA had categorically denied that nurses were being asked to ration PPE, or that there were shortages early on, she said she was done torturing herself.

The day before Christmas Eve, she told her bosses she was quitting and left her keycard with security.

“Being faceless under PPE for nine months," she said, “has a way of making you feel inconsequential."

'Ridiculous': Trump administration awarded border wall contracts to build on land it doesn't own in Texas

This article is co-published with ProPublica, a nonprofit newsroom that investigates abuses of power. Sign up for ProPublica's Big Story newsletter to receive stories like this one in your inbox as soon as they are published.

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LA GRULLA, Texas — The federal government said it needed Ociel Mendoza's land on the outskirts of this tiny Texas town — and it couldn't wait any longer.

Each additional day of delay was costing the government $15,000 as contractors waited to begin construction on the border fence slated to go through Mendoza's ranch, the Department of Justice argued in court filings. By Nov. 24, the tab for the delay had reached nearly $1.6 million, the land acquisition manager for U.S. Customs and Border Protection said in an affidavit.

More than a year earlier, CBP had awarded a contract then worth $33 million to a New Mexico-based company to build 4 miles of fencing in Starr County. The county is one of the top targets of President Donald Trump's administration for a border wall and a place agents have called the most volatile stretch in the nation. Construction was slated to begin in November 2019, the agency announced.

There was one problem: The government had awarded the contract before obtaining the land it needed, including Mendoza's. This September, after more than a year without getting that land, CBP had to suspend the contract to Southwest Valley Constructors, accruing “substantial" charges along the way, according to court documents.

Ociel Mendoza at his ranch in La Grulla. The U.S. government has requested to take possession of Mendoza's land under the Declaration of Taking Act. In order to build the border wall, the ranch's gate and the fence will have to be moved, Ociel Mendoza, 60, at his ranch in La Grulla. A judge recently granted the government possession of part of Mendoza's land under the Declaration of Taking Act. In order to build the border wall, the ranch's front gate and the fence will have to be moved back. Credit: Verónica G. Cárdenas for The Texas Tribune/ProPublica

An investigation by ProPublica and The Texas Tribune has found that the government's strategy of awarding contracts before acquiring titles to the land in Texas has led to millions of dollars in costs for delays, according to calculations based on statements made by CBP officials in court filings. On at least two dozen occasions, the agency has used the argument, often successfully, to convince even dubious federal judges to immediately seize land from property owners fighting their eminent domain cases.

The situation could become even more complicated if President-elect Joe Biden makes good on his promise to stop border wall construction.

Mendoza, an entrepreneur, said the government's latest offer, which he said was about $136,000, fell short of the $200,000 he was seeking. The ranch is especially personal. It's a piece of land he vowed to own after he crossed the border illegally over the property as a teen more than 40 years ago.

“It represents a dream to me," said Mendoza, who became a permanent resident in the 1980s. “The American dream."

Since 2017, the federal government has awarded at least a dozen contracts in South Texas worth more than $2 billion prior to obtaining all the land it needed for the projects. The agreements are to build 146 miles of border wall and install nearly three dozen gates.

But very little construction has been completed. Out of the 110 miles the administration planned to build in the Rio Grande Valley, where most of the land is privately owned, 15 miles had been finished as of mid-December.

The Army Corps of Engineers generally requires land to be acquired prior to awarding contracts, but the policy allows exceptions if approved by high-level officials, said Grace Geiger, an agency spokeswoman.

While posing greater risks for the government, she said the practice doesn't have to lead to greater costs as, depending on the situation, the government may still be able to acquire the land before the contractor needs to enter the site.

Contract experts say the practice violates principles of sound procurement.

“It sounds like a formula for waste, or worse, to make the construction contract first and only acquire the land months or years later," said Charles Tiefer, a University of Baltimore contracting expert.

A border patrol vehicle on the banks of the Rio Grande near Villarreal's land in Rio Grande City. A Border Patrol vehicle in Rio Grande City, Texas. Credit: Verónica G. Cárdenas for The Texas Tribune/ProPublica

Austin Evers, the executive director of American Oversight and a senior counsel for the State Department during President Barack Obama's second term, said the practice should be investigated by federal watchdogs.

“The government is arguing that it has to seize these lands right now because it is being penalized under the contract it already signed," Evers said. “In plain English, what that means is that American taxpayers are seeing their money thrown away for no purpose because the government signed the contract before it could execute the project."

Federal judges hearing CBP's eminent domain cases in South Texas also have expressed frustration with the government's legal argument for immediate possession in Starr County. In recent weeks, a segment of border fencing has quietly gone up in a remote area near Mendoza's ranch.

While the government gets the title to the property as soon as it files what's called a “declaration of taking" and deposits the amount it deems reasonable with the court, it can't begin construction until a judge approves an order to possess the land. U.S. District Judge Micaela Alvarez, a George W. Bush appointee, blasted government attorneys' request to take immediate possession of Mendoza's ranch, arguing that the agency has had the funds to acquire private land in Starr County for nearly two years.

“The United States' delay until November 2020 to file its motion for possession is not within the Court's control ... and (does) not create an emergency for this court," she wrote Dec. 17. “The Court has repeatedly expressed its dissatisfaction with the United States' requests for expedited relief. The United States is not entitled to expedited relief, and should cease requesting such relief without good cause."

However, Alvarez said that under the Declaration of Taking Act, she had little option but to grant the government's request to take possession of Mendoza's land, noting that Mendoza had not responded in time and that the government had filed the correct documentation and deposited what it estimated it would pay for the land seizure.

Even as government attorneys continue to cite the growing costs of delays to judges, the agency has downplayed the issue outside the courtroom.

“CBP will not know if there are any associated delay costs due to real estate until the end of the contract, as the Contractor may be able to make up any potential delays incurred," CBP spokesman Matthew Dyman told ProPublica and the Tribune on Friday. Dyman declined to clarify the statement, citing the ongoing litigation.

CBP also insists that awarding contracts without first obtaining land is efficient.

“Once the border wall system design is approved by the Government, and sufficient real estate is acquired by the Government, construction activities can begin," wrote Roger Maier, a spokesman for CBP.

The government has been here before. A decade ago, CBP learned that building in this part of the border would be especially challenging, between acquiring the land — which in some cases took more than two years — and flooding concerns. Under the Bush and Obama administrations, several border wall fence projects, also awarded before the government obtained the land, died because the agency couldn't get them built before funding dried up.

The Trump administration's legal efforts have only intensified, with nearly 40 new eminent domain lawsuits filed in the Southern District of Texas since Election Day.

All of which leaves the incoming Biden administration and hundreds of Texas landowners in a web of title and compensation disputes, multimillion-dollar contracts and a string of unfinished — and disconnected — projects all along the Rio Grande.

Biden has said he will cease wall construction and drop all the lawsuits on day one. His transition team didn't respond to a request for comment as to how exactly the administration would go about canceling existing contracts nor what it would do with land it now owns as part of the eminent domain push. Biden could save up to $2.6 billion if he halts construction, according to Army Corps of Engineers documents reviewed by The Washington Post.

This will not be the first time Biden confronts this issue. Last time he was in the White House, the Obama-Biden administration allowed the lawsuits and contracts to proceed. By the end of their first term, 54 new miles of border fence had been built in South Texas.

Starr County

One of CBP's toughest fights over eminent domain centers on Starr County, a poor, mostly rural county where family properties date back to original Spanish land grants issued 250 years ago, well before the Rio Grande served as an international boundary.

For more than a decade, residents and county officials have resisted the agency's push to build a border wall in Starr County, which the government has said in court filings is the No. 1 county for narcotics seizures across the entire southern border of the United States.

Starr and neighboring Hidalgo and Cameron counties are part of the agency's Rio Grande Valley sector, which accounts for 40% of immigrant arrests and 43% of the marijuana seizures along the southwest border.

Under the Trump administration, Starr has become one of the agency's top priorities for the border wall. Hidalgo and Cameron counties already have about 60 miles of border fencing, built upon concrete levee systems.

But Starr County, which lacks a levee system, had no wall before the Trump administration first proposed building there in 2017. Three years later, CBP has awarded contracts for 55 miles, but only about 5 miles have been built, mostly on U.S. Fish and Wildlife refuge land in remote corners of the county.

As it was a decade ago, the government's effort is once again mired in complicated eminent domain legal battles that have so far prevented construction on the remaining miles.

Of 70 condemnation cases filed by the government since September in South Texas, 53 are in Starr County, where the government has only accelerated legal action since Election Day (25 lawsuits have been filed in this county since Nov. 3).

In one case filed at the end of November, the government is seeking to seize a triangle of land smaller than 2 acres in the county. Despite the tract's small size, there are more than 30 individuals with possible ownership rights, scattered across Texas and as far away as Washington state, according to court records.

Lawyers say that as land has passed through the generations, many partitions have not been documented properly in official records, resulting in a thicket of potential land ownership that the government has struggled to unravel.

“The title issues in Starr County seem to be far more complicated and difficult than what we've seen in the other border counties," said Roy Brandys, an Austin-based eminent domain attorney who represents border residents in these cases. “On several of the cases we've been working on in Starr County, one of the reasons they have not progressed even faster is because the government and frankly, we as the landowners' representatives, are trying to work out the title issues before they move forward."

According to a recent Government Accountability Office report, title issues in Starr have slowed construction timelines considerably. “Some counties in South Texas, such as Starr County, do not have the infrastructure or funding to maintain recordkeeping systems," the report says.

But where the federal government sees as a maze of legal hurdles, local officials see a reflection of the region's heritage.

“For many, the land has been in their families for generations," said Joel Villarreal, mayor of the Starr County seat of Rio Grande City. “We have a large number of residents that own land and they are proud of that heritage to own land. They speak of it as something to be cherished, the idea of having land."

Fight over land

On a recent morning, Mendoza, 60, stood in front of his ranch as orange survey markers fluttered in the wind around him.

At regular intervals, he has built steps into his own mesh and metal tube fencing, allowing would-be border crossers to climb over. He said Border Patrol agents have asked him why he built them. “I tell them for one, I was undocumented when I came here," he explained. “And two, so they don't break down my fence!"

Mendoza has placed approximately 300 ladders on his 400 acre ranch so that people that are crossing the border don't damage his fence. Mendoza says that he built approximately 300 ladders into the fence surrounding his 400-acre ranch so that people crossing the border illegally can pass through more easily — and so he can avoid damage to his fence. Credit: Verónica G. Cárdenas for The Texas Tribune/ProPublica

The ranch holds a special place in the heart of Mendoza, who owns several businesses and properties in Starr County. In 1979, he crossed the border as an undocumented immigrant, passing through the same piece of property on his way to a new life in Houston. Thirty years later he bought the ranch when it came up for sale, and he is loath to lose it.

If the wall comes through the front of his ranch as proposed, Mendoza said he would have to move the fence and an expensive front gate, as well as the corral for the 40 or so cattle he raises on the land. Worse, he said, the wall would render the ranch virtually worthless by placing it almost entirely behind the barrier.

“It won't have any value afterwards" he said. “Anything could happen on the other side of the wall. I won't be protected inside there."

The government first made Mendoza an offer to buy his land in April, according to court documents. Five months later, federal prosecutors sued to take part of his ranch, depositing about $93,000 with the court as a “just compensation."

The government claimed in Mendoza's case that the cost of suspending work was about $15,000 per day. In other cases, the government contended that delays have added as much as $100,000 per day, depending on the size of the contract, according to a review by ProPublica and the Tribune. The expenses came from what officials called de- and re-mobilization and from having equipment and crew on standby beyond the date construction was scheduled to begin.

Excerpt from the government's motion for immediate possession in Mendoza's case.

In four Rio Grande Valley projects alone, where the government has detailed the costs of delays in court filings, the total is nearly $9 million, as of the date the court granted the order for immediate possession, which is when work can begin.

Despite not having been able to break ground in 18 months, the original $33 million contract to Southwest Valley Constructors is now worth $42 million thanks to contract options the government has exercised. An earlier review of federal spending data by ProPublica and the Tribune found modifications to contracts have increased the price of the border wall by billions, costing about five times more per mile than it did under previous administrations.

Francis Rooney, a Republican U.S. representative from Florida and longtime real estate developer, called the practice “ridiculous." From a contractor point of view, he said, there's the risk of inflation and rises in labor or material costs, for instance, as work on those sites is delayed.

“That sounds a little reckless to me, but I'm not surprised given some of what this administration has done," he said, in reference to Trump declaring a national emergency and using military funding to accelerate border wall building.

Construction of the border wall close to Mendoza's ranch near La Grulla on Dec. 17, 2020. Construction of the border wall close to Mendoza's ranch near La Grulla. Credit: Verónica G. Cárdenas for The Texas Tribune/ProPublica

ProPublica and the Tribune reached out to the companies with contracts in the Rio Grande Valley awarded under the practice. Most didn't respond and Kiewit Infrastructure West, an affiliate of Southwest Valley Constructors, referred questions to the Army Corps of Engineers.

Raini Bruni, another spokeswoman with the Corps, said border wall contracts are written in a way that puts much of the risk on the contractor, who can request compensation in cases where there's a delay or suspension, approved on a case-by-case basis.

But beyond the risk to the government and contractors, the practice can lead to a loss of protections to landowners, experts said.

Due process is at the heart of the government's power to take private property, said Evers of the nonpartisan watchdog American Oversight. But it is being ignored by rushing things through based on emergencies of the administration's own creation, he added, “which runs counter to basic American values."

Beyond the fight over the value of his land, Mendoza doesn't believe the wall will achieve its goal. “The people won't stop," he said. “It wouldn't have stopped me, I would have jumped over."

“They use the legal system as a threat"

About 20 miles upriver from Mendoza, the Muñiz family is also fighting the government's attempt to seize its land in a case that shows the pressure government agents have put on local landowners, especially in the final months of 2020.

On Sept. 1, the government sued Noelia Muñiz and offered to pay $5,500 for about an acre of land. According to court documents, she felt harassed by constant phone calls that she said were taking a toll on her health.

“They call every day, they threaten that if you don't show your face they will take you to court," said her brother Noe Muñiz Jr., 63, outside their home. “They use the legal system as a threat. ... It's very stressful for her."

Usually the government first tries to settle with landowners but sues when they can't reach an agreement or it's unclear who owns the land.

Ruben Solís in front of his house in La Grulla on Dec. 17, 2020. Ruben Solís, who lives in La Grulla, opposes construction of the border wall. Credit: Verónica G. Cárdenas for The Texas Tribune/ProPublica

Since the beginning of the Trump administration, the government has filed 193 lawsuits — three-fourths just in the past year — asking Texas landowners to relinquish, temporarily or permanently, more than 5,800 acres, according to information provided by the Texas Civil Rights Project and court documents.

Noe Muñiz Jr. said the family has been going through the process without an attorney because it can't afford to pay one. “We have no support at all," he said. “If you want support it takes money and no one has money. ... I'm pretty sure they wouldn't do this in a place where the majority of people are white. Here you have Mexican people and they are poor, so come on."

In a normal condemnation case there would be safeguards in place such as environmental reviews, hydrology reports prior to starting the project, said Brandys, who has represented border residents under the current and previous administrations.

But due to what he calls the politicization of border wall construction, the U.S. attorney and those building the wall are under significant pressure from Washington to get as much done as possible. All of which can significantly impact the landowners, he said, adding, “Unfortunately in some of those situations you won't know until the wall is built and the projects are up and we see what the effects are."

The Department of Homeland Security has a record of abusing the eminent domain process to build border barriers.

In 2017, a ProPublica-Tribune investigation found DHS had cut unfair real estate deals, secretly waived legal safeguards for property owners and ultimately abused the government's power to take land from private citizens. In some cases, the DOJ bungled hundreds of condemnation cases, taking property without knowing the identity of the owners and condemning land without researching facts as basic as property lines.

Under the George W. Bush administration, the federal government filed more than 360 eminent domain lawsuits along the U.S.-Mexico border as part of an effort to build up to 700 miles of fencing by December 2008. Along the Rio Grande, the agency built 50 miles in disconnected strips and seized a total of 564 acres for which it paid $18.2 million, ProPublica and the Tribune reported.

There are still 20 cases pending in South Texas from that era, involving about 440 owners, according to the DOJ.

While lawyers and residents say some things have improved, such as the government providing more details about the property it is trying to take, the pressure on landowners has not eased.

Daniel Villarreal on his property on the Rio Grande in Rio Grande City.. Villarreal says that he sold a portion of his land for the construction of the border wall because he felt pressured to do so and now that Biden won the election he is regretting it. Daniel Villarreal, 56, at his property in Rio Grande City. Villarreal says that he sold a portion of his land for the construction of the border wall because government workers said they were going to take it anyway. Credit: Verónica G. Cárdenas for The Texas Tribune/ProPublica

Daniel Villarreal, a 56-year-old bail bondsman in Rio Grande City, said government negotiators told him earlier this year he either had to accept their offer or they would take it anyway.

But following Biden's victory, he is starting to feel pangs of regret about selling about an acre of his riverfront property to the government.

He didn't want to say how much he agreed to but said it's not life-changing money. “They say they gave me market value, but how long is that going to last? A year or two?" he said. “And then what you're left with is a monument to a man I don't even like."

The wall would also cut Villarreal off from the beauty of the river's edge, a fear echoed by other property owners.

Growing up, Noe Muñiz said he and his siblings swam daily in the river. As he grew older, the river offered respite after a long day of working in cantaloupe and onion fields. He still fishes there but worries that after a wall is built, the river would become too dangerous to visit inside the no man's land that would be created south of the barrier.

Even though the Muñiz family will likely lose the battle to keep its land, it is trying to get what it considers just compensation, he said, and holding onto hope that Biden will cancel the wall contract in the area. “You can't give up on the land. It's not the government's land," he said. “It's hard to let go."

Lexi Churchill contributed to this report.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2020/12/23/trump-border-wall-land-texas/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

The Justice Department sues Walmart — accuses it of illegally dispensing opioids

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More than two years after the federal government was preparing to indict Walmart on charges of illegally dispensing opioids, the U.S. Department of Justice is finally taking action. But it's seeking a financial penalty, not the criminal sanction prosecutors had pushed for.

On Tuesday, the Department of Justice brought a civil suit against Walmart in U.S. District Court in Delaware, accusing the retailing behemoth of illegally dispensing and distributing opioids, helping to fuel a health crisis that has led to the deaths of around half a million Americans since 1999.

The government accuses the company, which operates one of the biggest pharmacy chains in the country, of knowingly filling thousands of invalid opioid prescriptions, failing to alert the government to dangerous or excessive prescriptions, and pushing pharmacists to work faster and look the other way in order to boost corporate profits.

By law, pharmacists are prohibited from filling prescriptions they know are not for legitimate medical needs. “Walmart was well aware of these rules, but made little effort to ensure that it complied with them," the government said in its suit.

Walmart applied “enormous pressure" on pharmacists to fill prescriptions as fast as they could, while preventing them from halting prescriptions they knew came from bad doctors, the government said. When Walmart pharmacists warned headquarters in Bentonville, Arkansas, about doctors who operated “known pill mills," did “not practice real medicine" and had “horrendous prescribing practices," headquarters ignored their pleas, the lawsuit asserts.

Walmart denounced the suit. “The Justice Department's investigation is tainted by historical ethics violations, and this lawsuit invents a legal theory that unlawfully forces pharmacists to come between patients and their doctors, and is riddled with factual inaccuracies and cherry-picked documents taken out of context," the company said in a statement. In October, aware that a government suit was likely, Walmart took the highly unusual step of preemptively suing the Justice Department. The company argued that it did nothing wrong and, there, too, accused the government of acting unethically. According to Walmart, the federal prosecutors used the threat of a criminal case to try to negotiate higher civil penalties. (Prosecutors deny that claim.)

The case against Walmart originated in the summer of 2016, with an investigation of two Texas doctors, Howard Diamond and Randall Wade, who were prescribing opioids on a vast scale. Federal prosecutors in the Eastern District of Texas eventually brought cases against the pair, accusing them of contributing to multiple deaths. The doctors were subsequently convicted of illegal distribution of opioids, with Wade sentenced to 10 years in prison and Diamond to 20 years. That case uncovered evidence that led prosecutors to investigate Walmart itself.

In 2018, Joe Brown, the Trump-appointed U.S. attorney in the Eastern District of Texas, sought to criminally indict the company over its opioid practices, as detailed in a ProPublica story in March. During this period, as Walmart tried to fend off a criminal case, its lawyers expressed willingness to discuss a civil settlement. The company “stands ready to engage in a principled and reasoned dialogue concerning any potential conduct of its employees that merits a civil penalty," Jones Day partner Karen Hewitt wrote in August 2018 to the head of the criminal division of the Justice Department.

The Texas prosecutors were unswayed by Walmart's arguments. Joined by the head of the Drug Enforcement Administration, Brown's team traveled to Justice Department headquarters in Washington to make an impassioned plea to bring the criminal case.

But Trump appointees at the highest levels of the department — including the deputy attorneys general at different times, Rod Rosenstein and Jeffrey Rosen — stymied the attempt, dictating that Walmart could not be indicted. (Rosen recently was named acting attorney general.) When prosecutors sought to criminally prosecute a Walmart manager, top officials in the Trump Justice Department prevented that, too.

The Justice Department then dragged out civil settlement negotiations. The delays prompted Josh Russ, the head of the civil division in the Eastern District of Texas who had urged bringing a civil suit years ago, to resign in protest. “Corporations cannot poison Americans with impunity. Good sense dictates stern and swift action when Americans die," Russ wrote in his resignation letter in October 2019.

This week's suit largely echoes the allegations that the Eastern District of Texas had made in seeking a criminal case. Legal officials can in some circumstances pursue the same allegations either criminally or civilly, with a higher burden of proof for prosecutors and stiffer potential penalties for defendants when it comes to criminal cases.

In the new suit, prosecutors said Walmart pharmacists routinely filled prescriptions from known “pill mill" doctors. Sometimes those doctors explicitly told their patients to go to Walmart pharmacies, the complaint alleges. Walmart filled prescriptions from doctors even when its pharmacists knew that other pharmacies had stopped filling prescriptions from those doctors.

The suit also details that Walmart's compliance unit based out of its headquarters collected “voluminous" information that its pharmacists were regularly being served invalid prescriptions, but “for years withheld that information" from its pharmacists.

In fact, the compliance department often sent the opposite message. When a regional manager received a list of troubling prescriptions from headquarters, he asked, “Does your team pull out any insights from these we need to highlight?"

In an email cited in the suit, which was first reported by ProPublica, a director of Health and Wellness Practice Compliance at Walmart, responded, “Driving sales and patient awareness is a far better use of our Market Directors and Market manager's time."

Walmart headquarters regularly put pressure on pharmacists to work faster. Managers pushed pharmacists because “shorter wait times keep patients in store," that this was a “battle of seconds" and that “wait times are our Achilles heel!" according to the suit. Pharmacists said the pressure and Walmart's thin staffing “doesn't allow time for individual evaluation of prescriptions," the suit says.

In May, two months after ProPublica published its story, Brown, the U.S. attorney who had pushed for criminal prosecution of Walmart, left his job abruptly. His resignation letter cited the need to “win the fight against opioid abuse in order to save our country" and added that “players both big and small must meet equal justice under the law." Brown did not return a call seeking comment.

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

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

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

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

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

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

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

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

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

“Death Penalty All the Way"

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

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

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

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

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

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

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

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

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

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

“Killing Is Not a Treatment"

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

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

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

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

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

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

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

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

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

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

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

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

“Some Objective Factor"

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

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

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

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

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

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

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

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

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

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

“Moot"

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

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

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

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

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

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

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

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

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

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

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

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

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

Honken died the next day, the third that week.

“A Personal Interest"

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

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

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

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

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

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

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

The regulation became final the day after Thanksgiving.

“It Didn't Go Well"

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

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

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

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

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

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

The Trump administration’s final push to make it easier for religious employers to discriminate

It was the hectic week before Thanksgiving, and Amrith Kaur — the legal director of an advocacy group called the Sikh Coalition — was not prepared for a surprise update from the Equal Employment Opportunity Commission that could have dramatic consequences for her clients.

With little warning, the EEOC published a 112-page overhaul of its guidance on religious discrimination in the workplace. The feedback period was proceeding with no time to spare — she would have to file any comments by Dec. 17.

“To my knowledge, that was the first time that pretty much everybody heard about it," said Kaur, who was busy handling home schooling for her children, ages 8 and 10, when the announcement popped up. “There's so much happening, and I think it's very strategic the way this was brought out."

The guidance is among scores of last-minute actions that ProPublica is tracking on their way through the approval process, many of them accelerating as it became clear that President Donald Trump's time in office would end on Jan. 20.

The EEOC's guidance explains the complicated statutes and legal precedent that govern how employers must deal with religious freedom issues in the workplace. It doesn't have the force of law, but it can be cited in lawsuits, and it serves as a manual for managers navigating thorny situations.

As she dug into the document's dense language and footnotes, Kaur was particularly distressed because of what she found to be a slant toward large Christian employers like colleges and social service agencies, rather than smaller religions like Sikhism, which face widespread prejudice. For example, in recent days, she's had to focus on advising health care workers who keep long beards as part of their religious practice. Some hospitals and nursing homes ban facial hair to ensure a proper fit for face masks, but Kaur has been able to work out accommodations that are both COVID-19-safe and allow medical staff to observe their faith — which the new guidance doesn't address.

As the comment period ended, dozens of other civil rights groups and Democratic leaders filed letters appealing for more time and agreeing that the new guidance could allow for more discrimination under the guise of religious freedom, rather than less.

Unlike many midnight regulations that President-elect Joe Biden could roll back, the EEOC commissioners have multiyear terms, so the Biden administration won't be able to change the board's composition until 2022. Meanwhile, Kaur fears that adverse case law could accumulate. “It is our belief that these proposed changes in the manual, and what I think is a clear bias towards Christian viewpoints at the expense of all others, it's just going to have profound negative effects for years to come," she said.

Most administrations kick rule-making into high gear once they know their party is leaving the White House, and Trump's is no exception. A flood of new entries in the Federal Register includes several rules and guidance documents that widen lanes for religious institutions to exclude those who do not share their faith, or narrow the options for beneficiaries of federal programs who feel uncomfortable receiving services in a religious context.

Some of the freshly finalized rules codify an executive order that Trump issued in 2018 declaring that faith-based organizations should have full access to government grant programs without having to modify their operations. They deliver on the promises that Trump made to evangelical Christians during his presidential run, and which he and Vice President Mike Pence campaigned on again in 2020 — the White House's website contains 228 mentions of “religious freedom," in posted speeches, press releases and other official statements.

Earlier in the term, Trump's religious freedom agenda focused on the Department of Health and Human Services, which adopted a rule that protects health care providers who object to certain procedures — namely abortion — on religious grounds, among a host of other actions. Even now, HHS is witholding funds from states that require their insurance plans to cover abortion.

Later, Trump moved on to further integrating religious organizations into the operations of government itself.

In an October interview with the Religion News Service, Trump touted his administration's work to install religious freedom liaisons in every Cabinet agency. “Led by Pastor Paula White, this Initiative is working to remove barriers which have unfairly prevented faith based organizations from working with or receiving funding from the federal government," Trump said in a written Q&A.

On that front, the first big change finalized Dec. 7 was at the Office of Federal Contract Compliance Programs, an agency within the Labor Department that enforces compliance with civil rights laws among recipients of federal dollars. The new rule clarifies that private companies can qualify as “religious employers" under certain conditions, and that religious employers may deny positions to people who do not subscribe and adhere to their faith. That could include not hiring people in same-sex relationships or someone of a different religion.

Advocates for marginalized communities say that the rules open the door for religious institutions to use faith as a pretext for firing or simply declining to hire people whom they would prefer not to employ because of other factors — such as sexual orientation or medical disability — even though discriminating on those bases is still illegal.

“If that employer just throws up their hands and says 'RFRA!' it's like a get out of jail free card," said Human Rights Campaign legal director Sarah Warbelow, referring to the Religious Freedom Restoration Act, a 1993 law that strengthened the test for what can be considered a burden on the free exercise of religion.

Religious employers say that situation likely won't occur often, but they still supported the change. Jamison Coppola, legislative director of the American Association of Christian Schools, said that most people who work for his member institutions accept that abiding by faith-based principles is part of the deal.

“It's a rare occurrence where people enter an employment decision and then realize, 'Oh, I guess we have some difference of opinion about this,'" Coppola said. “I just think that we don't run into it that often, because of how we approach the totality of what we're trying to do as an assembly of believers."

Among the largest supporters of the rule was Catholic Charities, which, according to USAspending.gov, received approximately $189 million in federal contracts and grants in 2020 across all of its affiliated organizations.

The second change, finalized a few days later after a lightning-fast trip through the Office of Management and Budget, was a joint effort of nine agencies that elaborated on the religious freedom exemptions for recipients of their own spending. It gets rid of the earlier requirement that religious providers of federally funded social services, from food banks to job training, provide referrals to secular alternatives. In the case of “indirect" aid that travels with the beneficiary, like child care and housing vouchers, it eliminates the requirement that there must be a secular option available.

The concerns with those rules center around the possible exclusion of people who may feel uncomfortable getting aid in an explicitly religious setting, even if providers are not allowed to proselytize as part of the programming.

“They are really putting what they believe are the interests of these large social service providers ahead of the people who receive the service," said Maggie Garrett, vice president of public policy at Americans United for Separation of Church and State. “Their priority is not the LGBTQ youth who is seeking services because they were kicked out of their home."

Not all religious organizations — or even Christian organizations — support the changes. Some have recommended that the requirements for secular alternatives be kept because of the delicate political balancing that has gone into these rules over the years.

“It eased peoples' conscience or concerns about having more faith-based groups be involved in these services," said Stanley Carlson-Thies, founder and senior director of the Institutional Religious Freedom Alliance, which represents Christian employers. Now, he fears a backlash.

“I personally don't know of anybody who was asking for this change, but there it is, and I don't think it's a good change," Carlson-Thies said. “And I think that one thing that's going to happen is that the next administration is going to go through a regulatory process and take those out, and they'll do other things too that to my mind won't be so positive."

Finally, the Trump administration is moving forward with its guidance for all employers, whether they contract with the federal government or not, through the EEOC.

The last time the agency updated its religious freedom guidance, in 2008, it went through an expansive, yearslong process that incorporated feedback from a panoply of groups that represent faith communities and those impacted by them, such as advocates for LGBTQ people and women's reproductive rights.

Trump's EEOC has shifted its emphasis toward supporting the rights of religious employers and employees. For example, it took up the case of two Kroger employees who were fired after they objected to wearing a rainbow heart emblem on their uniforms, which they interpreted as a symbol of support for gay rights.

In a November online forum hosted by the conservative Federalist Society, EEOC General Counsel Sharon Fast Gustafson articulated the new focus. “The EEOC has an interest in the courts getting all aspects of employment discrimination right, whether getting it right helps the employee, or whether getting it right helps the employer," she said. “Religious liberty has been a high priority for the current administration, where everyone I have spoken with has been unequivocally supportive of religious liberty for all."

However, many religious groups felt left out of the process that led to the EEOC's new guidance.

The updates were put together in the wake of a landmark Supreme Court decision in June that declared gender identity and sexual orientation to be protected classes in an employment context, making it much more difficult to discriminate against gay, lesbian or transgender people in the workplace. EEOC spokeswoman Christine Nazer said the new guidance was drafted by the agency's office of legal counsel, with no input from external stakeholders.

Many groups that closely track religious freedom issues found out about the updates during a three-day listening session convened by the commission's Religious Freedom Work Group, which is led by Assistant General Counsel Christine Lambrou Johnson. According to her LinkedIn profile, Lambrou Johnson is a member of the Christian Legal Society, which describes itself as “a fellowship of Christians dedicated to serving Jesus Christ through the practice and study of law, the defense of religious freedom and life, and the provision of legal aid to the needy."

Nazer said the Religious Freedom Work Group's duties are separate from the development of the guidance, and that the commission voted to publish the guidance for public comment on Nov. 9, giving additional time for discussion. But at that meeting, the body's two Democratic commissioners said that they hadn't had enough time to provide input or that it was rejected by the commission's Republican members. The Democratic commissioners also raised questions about the legal soundness of some of the guidance's interpretations and pleaded for the vote to be delayed. It wasn't.

In addition to liberally interpreting exemptions from Title VII of the Civil Rights Act for religious employers to hire and fire on religious grounds, the guidance also raises the bar for intervention when one employee might be harassing another on religious grounds. And it says little about some of the common questions raised by the COVID-19 pandemic, such as the Sikh nurses that Kaur has been helping negotiate accommodations with hospitals, which would be easier if the EEOC had set out a clear position.

In response to these concerns, Nazer said that the commission is “carefully considering all of the comments provided to us by our stakeholders as we finalize the guidance."

Kaur is not comforted.

“Manuals like this, that are sort of taken as law even though they're not, are what our government is going to rely on to make a decision on whether discrimination took place," Kaur said. “We have the Title VII protections in the Civil Rights Act for a reason, and to try and decimate it in a way that's not supported by the law is a sad and disappointing attempt at getting around having to be fair to everybody."

A temp worker died on the job after FedEx didn’t fix a known hazard. The fine: $7,000.

MEMPHIS, Tenn. — Fannie Stanberry had been on the job for two months as a package handler at FedEx Express' massive World Hub when, toward the end of her overnight shift, packages started to fall from a huge shipping container that rolled past her.

As Stanberry, then 61, bent to pick up the packages, she fell and became trapped between the catwalk she'd been standing on and the wheeled platform carrying the shipping container, also known as a dolly. “I thought I was a goner," Stanberry said. She broke eight ribs and her left arm and lacerated her liver, she said. “I had to learn how to walk over again."

FedEx, which is headquartered in Memphis, reported the Nov. 22, 2016, incident to the Tennessee Occupational Safety and Health Administration, the agency charged with protecting workers. TOSHA asked the shipping giant to investigate itself and suggest corrections, according to state records reviewed by MLK50: Justice Through Journalism and ProPublica and reported here for the first time.

FedEx told TOSHA it would train employees on safe work methods, and the agency declared the company's response sufficient and closed its case.

Nearly three years later, a strikingly similar incident at the same location claimed the life of Duntate Young, a 23-year-old temporary worker who'd been on the job just shy of a month. Like Stanberry, his job was to unload packages from shipping containers pulled by motorized tugs.

A worker closed but didn't lock the vinyl door of a container, a practice that was common. When packages fell against the door, it swung open, hitting Young in the back of the leg. He fell chest first into a metal pole. The church musician, devoted father and rapper was pronounced dead at a nearby hospital.

This time, TOSHA did an on-site investigation. It concluded that FedEx was aware from Stanberry's injury of the hazards associated with containers and the equipment ferrying them around, but that the company had not done enough to fix the problem.

FedEx, whose annual revenue tops $75 billion, was fined $7,000 in March for failing to provide a workplace “free from recognized hazards that were causing or likely to cause death or serious physical harm to employees."

The penalty was later reduced to $5,950, after FedEx provided TOSHA with a list of measures it took to prevent similar incidents.

As FedEx faces what is its busiest season ever — delivering holiday packages and long-awaited COVID-19 vaccine doses across the country — experts say what happened to Young and the citation that resulted raise key questions about the company's safety practices.

Young's death was “extremely preventable," said Peter Dooley, a certified industrial hygienist for the National Council for Occupational Safety and Health, which promotes worker safety.

“The fact that this similar circumstance ends up in fatality several years later just shows how inadequate the investigation and follow up was into the previous incident."

Workers interviewed by MLK50 and ProPublica said that they were pressured to work faster than they felt was safe, and that the training they received, if any, bore little resemblance to what they actually did on the job.

“A lot of stuff they just overlook because everybody is just trying to rush to get through," said former FedEx employee Aisha Prater, who was packing shipping containers at the hub the night Young was killed.

FedEx's data shows the rising hazards to its workers: The number of fatalities at FedEx locations increased from seven in its 2017 and 2018 fiscal years to 10 last year, according to its most recent Global Citizenship Report. Its rate of time off taken after nonfatal, traumatic injuries rose 28% in North America between fiscal 2017 and 2019, though the data is not broken out for its World Hub or other locations. That rate is higher than for competitor UPS, whose own global sustainability report says that it has expanded safety mentoring for new employees because research shows most injuries happen in the first year on the job.

Last month, Young's father, Leanell “Troy" McClenton, filed a wrongful death lawsuit against FedEx and Satco Inc., the manufacturer of the shipping container involved in Young's death, seeking $3 million in compensatory damages for Young's two sons.

The lawsuit alleges that FedEx didn't provide adequate training for temporary workers and allowed workers to engage in dangerous practices “because it valued getting their customers packages delivered on time (and making money) more than it valued the safety of its employees and temporary workers."

In a statement, FedEx stressed its core commitment to “Safety Above All" and the “hundreds of millions" it spends on safety training each year, as well as the millions spent on equipment and technology to prevent injuries and accidents.

“We fully cooperated with the Tennessee Occupational Safety and Health Administration throughout its investigation, and we have implemented and are continuing to implement measures to further enhance our safety measures and training," the statement said.

“While we cannot comment about ongoing litigation, we will defend the lawsuit. ... The safety and well-being of our team members is our top priority, and we are committed to providing a safe and secure work environment for our team members." (Read the full statement here.)

In its Global Citizenship Report, FedEx attributed the rise in lost time to an increase in its North America operations. “We have investigated the root causes of this increase and are working to improve safety performance going forward through new training methods, additional implementation of industry-leading technology, and initiatives to make sure our Safety Above All approach is reflected in every action."

Satco officials did not respond to multiple requests for comment.

A year after his son's death, McClenton remembered his son's insatiable sweet tooth and all the times they'd played music together at church Young on drums, McClenton on guitar and vocals and his wife, Jeanette, on keyboard and vocals. It feels like his son's life was disposable, he said.

“I don't think they actually care about them," said McClenton, a maintenance technician who lives in West Memphis, Arkansas. “The only thing they want is them to move those packages out, and that's it."

Area's Largest Employer and “Major Contributor" to State

One in six Memphis metro area workers labor in the logistics industry, and FedEx is the industry's giant, with 30,000 employees in the region. More than a third of them work at the World Hub, which is next to the Memphis International Airport.

The company's name marks the FedExForum, where the Memphis Grizzlies play, the FedEx Institute of Technology at the University of Memphis and the World Golf Championship-FedEx St. Jude Invitational.

The city's growth is inextricably linked to FedEx's; a $1.5 billion expansion and modernization project underway at the airport will be completed in 2025. FedEx's World Hub contributes $4.7 billion in wages to the regional economy, according to a 2018 Memphis Business Journal article.

FedEx is also playing a starring role in the nation's fight against the coronavirus pandemic. FedEx trucks provided the backdrop for a Dec. 3 roundtable discussion about vaccine distribution at the airport, featuring Vice President Mike Pence, who was joined by top FedEx officials. As of Tuesday, the company's stock had risen 80% this year, exceeding the benchmarks for its peer companies and the transportation sector.

The logistics industry, which plays an essential role in the nation's economy, can be dangerous. Of the major occupational groups, transportation and material moving has the highest number of fatal work injuries and the second-highest rate of fatal work injuries, according to the Bureau of Labor Statistics' 2019 data.

Between 2016 and 2019, more than 70 injuries were reported at the site where Stanberry was hurt and Young was fatally injured, according to a log that FedEx turned over to the state as part of its investigation into Young's death. OSHA requires employers to keep for five years the logs of work-related injuries and illnesses, which include a brief description of what happened.

The physical toll of hazardous jobs falls hardest on workers of color: In the past six years, four workers have died at FedEx Memphis' hub; all but one was Black. Studies using data from the U.S. census and the Bureau of Labor Statistics show Black workers nationwide are more likely than whites to work in dangerous industries and more likely to be injured on the job.

A 2018 video of FedEx's World Hub shows a bustling operation, as loaders lift and lower shipping containers on and off planes. Motorized tugs pull cargo containers on dollies across the facility, which spans 880 acres, an area larger than New York's Central Park.

“As you can see, the process happens very quickly. However, safety guidelines require strict adherence to procedures that ensure safety comes before schedule," the narrator says as shipping containers like the one involved in Young's death are loaded onto a plane.

But TOSHA investigation reports and interviews with former workers show that FedEx didn't enforce its own guidelines.

“I Did It as Fast as I Could"

For many workers, FedEx's lure is that it pays above minimum wage, no small feat in a state whose share of minimum wage jobs exceeds that of more than 40 states. In Memphis, 1 in 4 Black residents live below the poverty line but fewer than 1 in 10 white residents do.

Stanberry, who like many of the hub employees is Black, was working at the Food Rite in Somerville, Tennessee, about 40 miles east of Memphis, when she met a FedEx recruiter. After two years at the grocery store, Stanberry was still making minimum wage and didn't have any benefits.

So she quit the store and joined FedEx as a part-time employee, where she'd earn just over $11 an hour and have health insurance. FedEx even provided transportation from the town's post office parking lot to the World Hub, the company's largest sort facility in the world.

Stanberry worked in an input area. Massive aluminum shipping containers are unloaded from planes and are loaded onto dollies, which pull them up to one of several lines in the input area.

Stanberry stood on a grated catwalk just inches from the shipping containers and the tug. Her job was to take packages out of the containers and place them on conveyor belts.

“You gotta be fast when you take the packages off," she said. “I just wasn't fast like I should have been. ... I did it as fast as I could for somebody my age."

Most hub employees work overnight shifts, handling packages coming in from around the world and heading back out around the globe.

Stanberry wasn't the only one to notice that almost all of her co-workers were much younger. One co-worker “asked why they put me on that line because I was a little too old to be sorting the packages," she recalled.

A key part of the safety protocol is the commands team members issue, such as “standby," when co-workers need to move away from equipment preparing to move, and “clear," when they need to stand still, facing the moving equipment.

After 2 a.m. on Nov. 22, 2016, according to the TOSHA report, workers had unloaded the containers when an employee gave the “clear" command, “which means to face forward, back to the belts, and do not move," a FedEx staffer noted in the report it sent TOSHA. “As the containers moved forward, some freight fell out."

Stanberry doesn't remember exactly what happened next, only what she was told when she regained consciousness in the hospital: She bent to pick up the packages, lost her footing and her balance, fell and was trapped under the dolly.

“All I know (is) they said they had to lift the big ole silver thing up off me," she said, referring to the shipping container.

FedEx reported the incident to TOSHA as required for all workplace incidents that lead to in-patient hospitalizations, loss of limbs or an eye, or death — and the agency responded by letter.

“While ... this letter is not a citation, and we do not intend to conduct an investigation at this time, we ask that you immediately conduct your own investigation into the incident and make any necessary changes to avoid further incidents," a TOSHA representative wrote to FedEx in a Dec. 1, 2016, letter.

FedEx returned a two-page form and in three sentences described the corrective actions recommended and taken: To review the safety procedures that instructed workers to stand with their backs against the belts when containers are moving and wait until equipment has come to a complete stop to move.

Injured two days before Thanksgiving, Stanberry spent that holiday, as well as Christmas, New Year's and her birthday in the hospital, followed by weeks of rehab.

In hindsight, she regrets leaving the grocery store and a 35-year career in food service. “I was just with FedEx to get some extra money, because I had to pay rent."

Stanberry, who received a small settlement from FedEx, is now unemployed and collects Social Security. “My arms and everything was messed up. I can't even lift nothing heavy no more. ... I can't go back to work even if I wanted to."

She acknowledges that workers were trained to stand still when the containers were moving, but when working the line, she followed what her more experienced co-workers did.

Dooley, of the National Council for Occupational Safety and Health, wasn't surprised that the safety protocols in the training didn't match what workers did on the job.

“The pace of work and the pressure to be doing so many unloads in a certain amount of time ... challenges any conformity with procedures and rules," Dooley said.

Between the time of Stanberry's accident and Young's death, more than 50 people were injured at the hub seriously enough to require treatment beyond first aid, according to the OSHA logs. The logs include bare-bones descriptions of the incidents and the number of days missed from work. Many more were injured but didn't require further care.

In one incident, a worker missed 119 days of work after being caught between a container and dolly. In another, an employee missed 46 days of work after being struck by a package.

Caught-under incidents can be deadly. The night before Thanksgiving in 2017, Ellen Gladney, 60, was working on a crew unloading packages from a 777.

Gladney's job that night was to make sure the loader didn't make accidental contact with the plane. It was her third day on the team, one worker told TOSHA.

There were no witnesses to the incident, but workers discovered Gladney under a platform attached to the cargo loader's deck. She was pronounced dead at the scene.

“Ms. Gladney was following procedures," TOSHA's compliance officer wrote, but faulted FedEx for failing to correct for the blind spots and failing to have procedures to ensure all crew members were accounted for before the cargo loader started moving.

Standing in front of moving equipment and out of sight of the loader operator is “easily recognized as a serious safety hazard," the TOSHA report said.

While team leaders typically watch crew members to be sure safety rules are being enforced, a worker told TOSHA, “Employees take short cuts all the time when Managers aren't around. Doing the right thing is based on your own integrity."

As in Young's death, FedEx was fined $7,000. FedEx told TOSHA that it had since amended its aircraft ramp operations manual to make sure the ground crew is out of the loader's path before it moves.

“They Said I Couldn't Touch Him"

Young started working at FedEx in mid-October 2019, hired at around $14 an hour by Volt Workforce Solutions, a temporary agency that supplied workers to FedEx.

Staffing agencies regularly supply seasonal workers to FedEx, but the lawsuit alleges that the company doesn't provide them with enough training.

A Volt manager said she could not comment on the “tragic" incident that killed Young, but she did say FedEx is still a client and that all Volt temporary workers there are supervised by a full-time FedEx employee.

It isn't unusual for temp workers to receive different or less training than permanent employees for doing the same work, said Dave Desario, director of Temp Worker Justice, an advocacy organization.

Young convinced two childhood friends — Kevin Donnerson and Drekeon Smith to join him, and they too got hired through Volt. All emerging rappers, they planned to save their earnings to record a music video.

They shared a home in suburban Germantown, Tennessee, and on Nov. 12, 2019, Young drove them to work in what Donnerson said was essentially the family car.

Smith and Donnerson worked in a mailroom indoors, but they say Young told them how unsafe it was where he worked, in the courtyard input area described in the TOSHA investigative report as a sprawling, 70,000-square-foot covered space. (A football field is 57,600 square feet.)

Containers are taken off planes, placed on dollies and pulled via a motorized tug to one of four lines in the input area. Each line had room for three tugs pulling containers.

The 10-foot-long, 8-foot-tall container involved in Young's death was manufactured by Satco, a California-based company. It had the company's “exclusive curve contour," a rounded back that fit neatly into cargo planes.

Another plus of this container's design: speed. “Taking only seconds to open and close, the patented fabric roll-up door assembly has proven to be the most cost effective door assembly ever produced by Satco," the company says on its website.

On the night he was killed, Young was working on an input line, standing with more than a dozen co-workers on an elevated grated walkway 14 inches off the ground. On the other side of the walkway was a three-tier conveyor belt system.

Handlers such as Young would take the packages from the containers and put them onto one of the belts. Even if containers weren't fully unloaded, the tug would move forward, witnesses told TOSHA. It was common for containers' roll-up doors to be left partly open or unlocked, and common for packages to fall out of the containers. Both happened that night, the TOSHA report said.

Toward the end of what would be Young's last shift, workers were still unloading the last container on line No. 2 when a worker gave the “standby" command, alerting workers to exit the containers because the tug was about to move. Interviews revealed that a worker lowered the last container's roll-up door but didn't lock it at the bottom.

An employee made the “clear" sign — forearms crossed at head level — which tells workers to stand with their backs to the conveyor belts. When a worker signaled for the tug operator to pull forward, six workers stood with their backs to the conveyor belts, per the safety protocol. But the team leader, as well as Young and six others walked in the direction the tug was moving.

Young was the worker at the end of the line, and as the tug driver pulled forward, packages in the last container fell out, pushing the partially locked door over the grated walkway and into Young's leg. He fell into a metal rail on the conveyor belt system, “stood up, took a few steps, and fell back onto the grating," according to the TOSHA report.

When the shift ended around 3 a.m., Donnerson and Smith waited for Young in their usual meeting spot, the clock out lobby.

When he didn't show, they went to the car, where their phones were locked inside. (FedEx doesn't allow workers to have cellphones inside the hub.) They went back to the lobby where they saw some of Young's co-workers, who were uncharacteristically mute. “Everyone was just looking at us weird," Donnerson recalled.

Finally, a FedEx human resources employee told them to get in touch with the family.

The family was already at Regional One Health, the area's only Level 1 trauma unit, by the time Donnerson and Smith found a ride there.

Bresha Mitchell, the mother of Young's youngest son, knew the news wasn't good when the hospital moved the family into a private waiting room. “I was just hoping for a miracle," she said.

When the family went into the hospital room, Young was lying on a gurney.

“They said I couldn't touch him," McClenton recalled. “I remember leaning over and whispering in his ear, and I said, 'Wake up.'"

The hospital gave Young's car keys to McClenton, as well as his wallet, which McClenton carries every day. It had $8 inside.

“Inconsistencies" Between Policies and Practice

Just like in the incident that killed Gladney, TOSHA found that in Young's death FedEx didn't have adequate procedures to protect employees from known hazards.

The manufacturer Satco told TOSHA that the door is only secure when it's rolled up all the way, or closed and locked on the bottom. Workers told TOSHA that they didn't know whether doors were supposed to be completely open, partially opened or locked when the containers moved with packages inside, the report said. A manager told TOSHA that it was a “judgement (sic) call" by employees whether to close the doors partially or leave them open when the containers moved.

TOSHA interviewed more than a dozen workers in the input area and all said they were trained on line calls and safety procedures, including standing with their backs to the conveyor belt when the containers moved. But many also said that employees move when the containers move and eight said they'd seen the roll-up doors swing over the grated walkway, as the door did in Young's death.

“Interviews revealed inconsistencies between the written procedures and employee practice," the report said.

Again, speed may have been a factor: “Employees don't always stop moving when the freight moves," one temporary worker told TOSHA during the investigation. “Employees were expected to move as the freight moved in order to get the freight unloaded quicker."

For about a month or two after the incident, team leaders “made it a necessity to stop moving while the freight moved but now it is back to the way it was before the incident," the worker said. “The only thing that has changed since the incident is that Temp employees are now given safety vests to wear."

This worker had a near accident when a partially closed door “caught my pant leg and dragged me up the line," the worker told the TOSHA compliance officer. “I reported the incident to two Team Leaders but neither one of them reported it to a Manager because I was not injured severely enough to be reported."

Two managers received warning letters and an employee was fired following the incident that killed Young, according to disciplinary records FedEx provided to TOSHA.

Safety concerns and the pressure to work faster eventually led Prater, 26, to leave the job she started the same month Young did. Her job was to take packages from a conveyor belt and load them into the shipping containers lined up behind her and her co-workers.

Before she started, she watched about four hours of training and safety videos, which would have been sufficient, she said, “if we were actually going to do what the videos showed us how to do."

“But it seemed like it was a waste, 'cause you get out there and it's nothing like what they say they want you to do in the video."

Workers aren't supposed to throw boxes from the conveyor belt into the containers, but they did, she said, and sometimes co-workers would be struck by flying packages. The protocol for stacking boxes in the containers was routinely ignored.

She narrowly avoided being injured herself, when one night she slipped on ice inside one of the containers she was loading. She managed to catch herself on the container's wall. She reported the hazard to her supervisor, but it took hours for the icy container to be replaced and in the meantime, packages piled up.

By February, she'd had enough. FedEx wasn't her first warehouse job, but she vows it will be her last. She's studying to be a dental assistant. “I do not recommend it for anybody," she said. “I tell everybody it's hell out there."

FedEx did not respond to questions about the experiences of Prater and other employees. Instead its general statement reiterated the company's concerns about employee safety.

Workers “at the Mercy of" TOSHA and Employers

When Stanberry was injured in 2016, TOSHA conducted what's called a rapid response investigation, but the term is a misnomer, as it doesn't involve sending an inspector to the site to interview workers.

Instead, TOSHA asked the employer to investigate itself, which FedEx did.

The practice of sending a letter to the employer and then waiting for the employer to write back is “horrible," said Eric Frumin, health and safety director of Change to Win, a federation of labor unions. He worked as a union labor health and safety expert for more than 40 years and has focused on issues in the South.

“There's almost no worker involvement in it, and the workers are at the mercy of the relationship between OSHA and the employer."

But when FedEx reported the fatal incident that killed Young, TOSHA's investigators collected witness statements, the medical examiner's report, surveillance videos, police reports, FedEx's safety procedures, Satco equipment manuals and other documents. Those, along with the investigative report, fill more than 450 pages. Many parts are redacted because they contain witnesses' names or because FedEx contends the information contains trade secrets, such as a six-page document titled “FedEx Express How to be Safe!"

The fixes that FedEx suggested were all focused on training and safety, but it's a mistake to focus simply on training and not the equipment too, said Michael Felsen, a retired U.S. Department of Labor attorney during the Obama and Trump administrations.

Employers concerned about safety should also focus on “engineering controls," such as modifying the equipment, which “do not rely on the workers having to behave in a particular way, but rather they're protected by virtue of the nature of the process," said Felsen, who litigated and supervised worker safety cases for OSHA in the New England region. This is particularly true in the case of temporary workers, he said.

While Felsen and other experts placed the majority of the onus for workplace safety on the employer, a top TOSHA official noted that the workers bore some responsibility too.

“Employers train their employees to follow the rules and in some cases, we can't protect employees from hazards," said Larry Hunt, TOSHA's assistant administrator.

“Employees can get complacent. What FedEx needs to do is to ensure that its training system is effective, and it's not just training, but enforcement of their own rules."

Given the similarities between the incident that injured Stanberry and the one that killed Young, one safety expert wondered why TOSHA didn't cite FedEx with a repeat violation, or even a willful violation, which comes with steeper fines and allows for criminal prosecution.

Hunt said he didn't think TOSHA could have proven that the 2016 and 2019 incidents were similar enough to sustain a willful violation with the information the agency had available.

“We have to prove that the employer had knowledge that these doors weren't latched and the disregard allowed that situation to continue. I don't think that they could prove that," he said. “It's difficult to determine everything that's going on when you show up on the site to do the inspections."

Asked how TOSHA could be confident that FedEx would do now what it said it'd do in 2016 when Stanberry was injured, Hunt said workers can file complaints by mail or online. “We can't know what's going on in every place, that's just not practical," he said.

Gov. Bill Lee, a Republican, has made no secret of his desire to make the state attractive to businesses.

When FedEx announced an additional financial investment in its Memphis hub modernization project last year, Lee highlighted the company's role as a major job producer.

The state of Tennessee awarded FedEx $21 million in tax incentives for the project, an amount Lee declared fitting.

“They are a major contributor to what happens in this state," Lee was quoted in the Commercial Appeal as saying. “So our office, our administration, has regular communication about what they're doing and what their plans are and what we can do to create a business environment not only for FedEx, but for every company."

That business-first approach from the state's highest elected office invariably filters down to workplace safety enforcement and investigations, Felsen said.

“If states are all going to be competing against one another to make sure that they're as business-friendly as possible, who's there to protect the workers?

“We want (FedEx) to help save the lives of people by shipping the vaccine. We don't want their own workers to be sacrificing their lives because of the crunch of having to do that."

“The Anger Is Gone. The Disappointment Is There."

Young's funeral was held on a gray Saturday at a West Memphis Baptist church. Hundreds of mourners filed by the shiny casket, and when Young's mother approached for a last look, she collapsed in tears on her son's chest.

McClenton, himself a Baptist pastor, mustered the strength to preach his son's eulogy. He vacillated between bold proclamations of his faith in God and wrenching grief and confusion.

“To this day, I don't know what the hell happened to him," McClenton said that day. “Ain't nobody telling me nothing."

“Right now, what you looking at before you, you looking at an atomic bomb," he told those gathered. “I'm not an advocate for violence, but I am so angry."

A year later, McClenton's grief was still raw, but his rage had been replaced.

“No one at FedEx is wanting to cooperate as far as I'm concerned," he said. “No sympathy letters, no flowers, no actual concern about the family. I mean we lost a child. We lost a child. ... The anger is gone. The disappointment is there."

In a statement, FedEx said that a manager offered condolences to the family at the hospital. “We also reached out to the family on multiple occasions afterward to again offer condolences and seek an opportunity to discuss what happened."

Young's eldest son turned 6 the day Young died. His youngest son is his namesake, Duntate Young Jr., who is not quite 2 years old.

“These young boys will have to grow up not knowing their father, only looking at pictures and whatever memories they have of him," McClenton said.

Donnerson and Smith never went back to FedEx. They too say they're done with warehouse work. After Young's death, his friends published “Long Live Tate," an album of songs they'd done together.

Mitchell can see Young's sense of rhythm in Duntate Jr. and wants to nurture it. “I just make beats with him and I try to play his dad's music," Mitchell said. “I think he can recognize his voice because he will just stare at the speaker."

In an odd coincidence, she worked at FedEx in 2017, the year before she met Young. She was hired through a temp agency to unload shipping containers and remembers feeling unprepared to do the job.

“We didn't know what to do, we were kind of just looking at each other, asking the people that were working there," she said. “You learn as you go."

Mitchell is now studying music recording at the University of Memphis, working a part-time marketing job from home and raising her son, who pulled on his mother's braids as she did a Zoom interview.

The death benefits mandated through the state worker's compensation means that the temporary agency that hired Young will pay the mothers of both sons $97 per week until the boys are adults.

But to the people who loved Young, that's not nearly enough, and it's not justice.

“Justice to me," Mitchell said, “would be just restructuring (FedEx's) whole process or setup as far as safety of the employees."

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