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30 August 21
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t’s great to be a Supreme Court justice in the United States. In theory, your job is to decide if government actions, whether laws passed or actions taken by executive order, are permitted by the bounds of existing law and the US Constitution. In reality, if you want, you can repeal, change, or even make government policy based on your own personal beliefs, provided you have enough like-minded colleagues to vote with you, and as long as you use your legal skills to creatively interpret a legal text in whatever way you need to justify your decision.
The tug-of-war over the federal eviction moratorium, finally settled Thursday in a 6-3 decision by the Supreme Court, is an ideal example. Here is the part of the 1944 Public Health Service Act that Donald Trump, and then Joe Biden, used to order a nationwide pause on evictions during the pandemic:
The [CDC], with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.
The text is pretty clear. The law says the CDC can put in place and enforce regulations that prevent infectious diseases from spreading from state to state, examples of which include inspection, pest extermination, and other measures the CDC decides are necessary — a broad mandate that gives the agency wide latitude to act to contain a killer pandemic.
So is the government’s reasoning. Given the highly infectious nature of this coronavirus, especially the Delta variant ravaging the country right now — and given the fact that homelessness is a major risk factor for getting COVID, which would only get worse if millions of people were abruptly forced to move in with family or seek emergency shelter — temporarily stopping people from being evicted would fall into the broad remit the law gives the CDC to stop a disease from spreading through the country. This is exactly why judges in several lower courts left the ban in place, including one Trump appointee in Georgia, who wrote that “in the situation we have here — an unprecedented pandemic with widespread contagion — this court finds that the CDC’s response is reasonably calibrated to the seriousness of the disease it is combatting.”
Luckily for the Wall Street housing barons and realtors’ associations of the world, that’s nothing a little bit of creative reading can’t fix. When a different Trump-appointed US district court judge struck down the original moratorium back in May, her reasoning was that the CDC’s clear authority to decide on regulations needed to halt an infectious disease in its tracks was somehow “tethered to — and narrowed by — the second sentence” of the law, namely the list of examples given: inspection, fumigation, disinfection, sanitation, pest extermination, and the “destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings.”
The fact that this list ended with a mandate for unspecified “other measures” didn’t matter either, according to the judge: because they were named last, they had to be “similar in nature to those listed” right before, and specifically
they must be directed toward “animals or articles,” and second, those “animals or articles” must be “found to be so infected or contaminated as to be sources of dangerous infection to human beings.”
Needless to say, this is not how any normal human being with a decent grasp of English syntax would read that paragraph, and no evidence was offered that the 1944 law’s drafters meant it that way. But once you’re a judge for life, the rules of language fly out the window, if that’s what you want them to do.
The Supreme Court’s invalidation of Biden’s latest version of the order, which had been amended to target only the parts of the country hardest hit by the virus, relies partly on this same wordplay. But what really makes it interesting is the nakedly ideological terms on which the court’s right-wing supermajority rests its decision in the rest of the opinion.
Charging that the CDC set up the eviction pause “in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination” — a misleading description of the law before you even ask yourself why it matters how old it is — the unsigned opinion goes on to fret about what kinds of harrowing measures the government could compel the private sector to carry out if the moratorium was allowed to stand:
Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?
Such horrors aren’t worth even thinking about.
The opinion also dwells at some length on the plight of landlords. “The moratorium has put the applicants, along with millions of landlords across the country, at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery,” it states. “Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means.” It alludes to the “financial burden on landlords” and charges that “vaccine and rental-assistance distribution had improved since the stay was entered, while the harm to landlords has continued to increase.”
“And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership — the right to exclude,” it concludes. A long-standing part of its view of private property rights, the court most recently used that same right to bar California unions from being able to go onto business premises for three hours a day, 120 days a year to recruit members.
Tenants are mentioned only a handful of times in the opinion, once to dismiss out of hand the idea evicted renters could end up spreading the virus across state lines (even though research suggests that’s exactly what would happen), and several times only in relation to the burden they put on landlords. Somehow, though their task was purely to judge whether the CDC was acting within the letter of the law when it paused evictions as a pandemic-control measure, the court’s “textualists” and “originalists” were mostly preoccupied with whether or not the measure is fair to landlords.
It’s worth noting the remarkable similarity between the rhetoric of the justices’ argument and the arguments voiced last year by ex–Wall Street banker and senator Pat Toomey (R-PA), the former head of the right-wing plutocrats group the Club for Growth, who warned last year that “if the CDC has the authority to force landlords to effectively give away their product for free,” then General Motors could “be forced to give people cars unless they otherwise crowd into subways.” It’s also worth noting that the CDC powers in question are not really limitless: this authority only exists in relation to the pandemic, and few measures are as directly connected to stopping the spread of COVID as stopping evictions.
How absurd is the right-wing justices’ reasoning here? In his dissent, Justice Steven Breyer not only pointed out that were eviction moratoriums used in the past by public health authorities during a pandemic, but even quotes one of the law’s drafters directly refuting the right-wing justices’ contorted reading of the law’s language. In a 1944 hearing on the bill, Alanson Wilcox explicitly told a congressional subcommittee that disposing of “animals and articles” is only mentioned because he wanted “more clearly to provide for it.”
The court’s “textualists” and “originalists” didn’t bother to determine the original spirit behind the language they ruled on, and they didn’t take a plain, commonsense reading of the unambiguous text. They made a brazenly ideological argument with the sole objective of defending property rights, whether that means landlords being able to kick people out of their houses or companies being free from legal mandates forcing them to make deliveries in a pandemic, public health be damned.
Though some have tried to paint this Supreme Court as surprisingly moderate, this is yet another major ruling from what’s already proving to be an extremely right-wing court. In place for life, these partisan justices will for decades be free to keep on deciding cases first and figuring out the legal reasoning later, making decisions based on their ideological convictions that will have vast reverberations for the rest of the country — an unelected “council of elders,” in the words of legal expert Samuel Moyn, who shape law on a whim, with no accountability or oversight. Today, it’s millions of struggling renters who lose out; tomorrow, the world.
Restaurant owners in California are facing a labor crisis, unable to find enough workers amid reopening orders. (photo: Frederic J. Brown/AFP/Getty Images)
ean thought he’d be back to work by now. Over the summer, the cafe where he worked before the pandemic reached out, saying he could have his old job back by early September. The cafe was located on a tech company’s campus in California, and his former boss wanted to staff up as office employees started coming in. (Sean spoke to Vox on the condition that his identity and that of his employer remain anonymous.)
It looked like his return to work would coincide pretty nicely with the wind-down of the unemployment insurance he’d been relying on to get by. “Everything was going fine,” he says — until it wasn’t. In mid-August, the cafe told him they wouldn’t need him back after all. “Due to the delta surge, the campus was completely closed again with no solid date for starting the process again,” he explains. “There’s a chance I get contacted in the fall, but my gut tells me it’s a done deal until next year.”
Like many workers relying on unemployment, Sean is hoping Covid-related unemployment benefits will be extended through the end of the year so he can find some time to devise a plan B, especially given that the delta variant is changing so many businesses’ plans. But that scenario is extremely unlikely. On Labor Day, expanded unemployment benefits put in place in response to the pandemic are set to expire, and there’s virtually no political appetite in Washington to extend them.
“The Biden administration has not made it a priority, and outside of [Democratic Sen.] Ron Wyden, you haven’t heard too many people in the Senate be willing to push on that,” said Andrew Stettner, a senior fellow at the Century Foundation, a liberal think tank. “It doesn’t seem like right now there would even be 50 votes in the Senate.”
That means that the extra $300 per week in federal employment benefits in place since December 2020 will end, as will programs aimed at people who wouldn’t normally qualify for unemployment insurance, such as freelancers, gig workers, and the long-term unemployed, which were put in place in the spring of 2020. Stettner estimates 7.5 million workers will lose all their benefits. Those who still qualify will only get what comes from states.
In a letter to leaders in Congress last week, Treasury Secretary Janet Yellen and Labor Secretary Marty Walsh said they believe that cutting off the extra $300 is “appropriate.” They added that the White House thinks states can use remaining money from stimulus funds to help support some workers (namely, the workers who don’t normally qualify). But it’s not clear how many states are going to take that up. More than half have already cut off expanded unemployment benefits over the summer.
“There will be a few extended benefits programs, but for the most part, there’s going to be nothing available,” Stettner said. He added that, gleaning from his early talks with states, most are not in a position to deliver anything with remaining stimulus dollars.
America’s jobs situation is certainly improving, with 20 million people receiving some sort of unemployment compensation in February 2021 compared to around 12 million right now. And according to data from the Bureau of Labor Statistics, there were 10 million job openings across the country as of June.
Still, there are questions about what the impact of cutting off expanded benefits now will be. Expanded unemployment programs have helped people avert economic disaster over the past 18 months, and it’s not clear what damage might be ahead. The dangerous delta variant is spreading and hitting many parts of the country hard. Hopes that the fall would bring more of a return to normal are fading. Some schools have already started to pause in-person learning or switch to hybrid models, and some parents still prefer to keep their kids home instead of in the classroom or in child care centers out of safety concerns. Return-to-the-office plans for many businesses are still in flux. Come early September, the people still out of a job aren’t going to be able to snap their fingers and land back at work.
That’s certainly the case for Sean, whose hospitality job was unavoidably altered by the pandemic. He acknowledges this has happened to thousands of others as well. “It seems the line of work I was in, as well as thousands of other hospitality cooks, chefs, etc., has completely ceased to exist with the transition to work from home,” he says.
7.5 million people is a lot of people to cut off from unemployment insurance all at once
When the pandemic hit in early 2020, shutdowns meant millions of workers were laid off or furloughed seemingly overnight, and by no fault of their own. Since then, unemployment insurance has made a meaningful difference in helping those people maintain some sort of economic stability, along with other stimulus programs. But expanded unemployment insurance has also been controversial: Many Republicans, business groups, and even some Democrats have argued that it’s too much and is keeping people out of work. And as the economy has recovered, that argument has only gotten louder as some contingents hold that generous benefits are causing a labor shortage.
It is true that some workers are staying on the sidelines — in many parts of the country, it feels like there are “Help Wanted” signs everywhere, and business owners are complaining about not being able to find employees. But what’s not clear is exactly what is causing this; it’s likely a range of factors.
Peter Ganong, a public policy professor at the University of Chicago who has studied the potential disincentive effects of expanded unemployment insurance through the spring of 2021, said that more benefits are having somewhat of an impact, but not a big one. “Only a very small fraction of the number of jobs we need to get back to the pre-pandemic level or trend reflect the unemployment insurance disincentive effect,” he said.
Among states that cut off expanded benefits early over the summer (26 in total, all but one Republican-led), the move doesn’t appear to have significantly contributed to job growth, though economists continue to debate what will happen going forward. New research released in August, first reported on by the New York Times, found that states ending benefits early didn’t meaningfully boost employment but did slash spending — a sign that it’s detrimental to workers and, potentially, the broader economy. The study found that for every eight workers who lost benefits, one found a new job. Meanwhile, it estimates that workers lost $278 a week in benefits on average but gained just $14 a week in earnings. Their spending fell by $145 a week. In the 19 states analyzed, that translates to a $2 billion drop in spending and a $270 million increase in earnings.
More people are likely to reenter the workforce over the weeks and months to come, as they have in previous months and weeks. But the transition won’t be guaranteed or easy. Some workers are struggling to find jobs that match their skills and aren’t positioned to take just any job, or they’re older, or they don’t have the credentials required for certain positions, or, for whatever reason, they’re just not getting a call back.
Sean, who has a degree in creative writing, has never been able to find a full-time position using that credential. Per California’s requirements, he has been applying for at least three jobs a week since July (even though he planned to go back to his prior employer until recently). He says he hasn’t gotten a single reply. “I have done a dozen or so skill assessments along with the applications, and I’m not hearing anything,” he says.
Workers really don’t know what the fall will bring
When President Joe Biden signed the American Rescue Plan in the spring, the White House and lawmakers rather arbitrarily anticipated that it would be appropriate for unemployment benefits to end on September 6. They didn’t anticipate some of the current challenges workers are facing, including the delta variant and an uncertain scenario for schools, that might render this a bad time to push the unemployed off a cliff.
There are myriad reasons people may not be able to return to work right now, or may be more hesitant to go back. Covid-19 cases and deaths are on the rise again. While the vaccines are available, many people are still nervous to get back out there.
Whether offices will reopen or businesses will close back down is uncertain. Some events are already being canceled, and offices are extending remote work, both of which have important implications for many jobs. Workers in the live events space expecting that work to come back might need to figure out if it’s time for them to change careers altogether instead of continuing to wait it out. Businesses in areas where there used to be a lot of office workers may not need to hire as many employees back soon, or ever.
Child care and elder care remain a challenge for many families. It’s not clear whether schools and day cares will go back to in-person learning and stay that way, meaning a parent may need to stay home. Families may also be hesitant about older parents staying in assisted living facilities and opt to move them home, another care burden.
“For parents, and especially mothers, the ability to go back to work just isn’t there right now. Schools at this point seem to be planning to open, but the minute we see things are bad and kids are getting sick, then things may change again,” said Julie Kashen, a senior fellow and director for women’s economic justice at the Century Foundation. “We don’t know what the fall is going to bring, but we do know it’s not going to bring a full recovery that suggests people don’t still need support.”
Once benefits are cut off, and if people aren’t able to find work, that can do significant harm to their finances and their lives. As the aforementioned research shows, it may also be detrimental to the economy, because people who don’t have money coming in also don’t have money to spend.
“If you’re saying, ‘I’m just going to shut off your benefits,’ but I still don’t have child care, and I still don’t have a way to ensure my child is attending their digital school, how is that going to force me into the labor market?” Rebecca Dixon, executive director of the National Employment Law Project (NELP), told Vox earlier this year. “It may force me into homelessness. It may force me to be hungry. There’s an enormous number of workers that are still behind on rent. This whole narrative is just completely wrong, and it’s incomplete.”
America needs to have a bigger conversation about unemployment insurance
“The anti-poverty response to the pandemic has been really dramatic, unlike anything we’ve ever done before. We’ve done a much better job of ensuring income risk from unemployment,” Ganong said. What that will mean down the road — especially as benefits are shut off — is up in the air. The Labor Department is upping investments in grants to help train some workers, which could help more people find something new. But workers have also found it difficult to decipher whether they need to switch jobs or not.
Apart from what happens in the immediate term, there is one bigger issue in play here: America’s unemployment insurance system needs to be reformed. It’s run as a federal-state program that leaves states with a lot of leeway as to how much assistance to provide workers, what parameters to put in place, and how easy or difficult to make accessing benefits. Many Americans saw firsthand when the pandemic hit just how hard the system is to navigate.
Congress has been guessing at how long expanded unemployment insurance will be needed from the outset of the Covid-19 outbreak. At the outset of the pandemic, President Donald Trump signed a bill putting in place $600 a week in extra federal unemployment benefits, which expired in July 2020. Then lawmakers added an extra $300 in benefits in December, which were extended under Biden. Now both the extra money and the expanded programs are supposed to wrap on Labor Day.
Given the current scenario, reasonable minds could question whether conditions are right to cut people off. Lawmakers could try to put in place conditions to better automate unemployment benefits so that it’s based not on political whims but on the actual health and economic situation on the ground. They could also strengthen minimums required of states so that an unemployed worker in Mississippi isn’t positioned much worse than someone in Massachusetts.
There have been some rumblings from progressives about the possibility of pushing for another extension of pandemic unemployment benefits, but many on the Hill believe that at this point, it’s really a nonstarter. “We don’t have the votes in the caucus for an extension,” one Democratic aide told Vox in an email.
Biden has urged Congress to take up unemployment insurance reforms as part of its upcoming budget reconciliation process, an agenda that he wants to include fraud prevention, equitable access, and adequate support. Those types of measures would make a real difference in the future, but they won’t help workers like Sean, who are being harmed by the cutoff right now. “Safety is really important in all of this, and I’m not mad at the company at all, no harsh feelings whatsoever,” Sean says. “I’m just frustrated by the situation as a whole.”
Thousands of protesters rallied in May against the restrictive new abortion law in Austin, the state capital. (photo: Sergio Flores/Getty Images)
Law letting individuals sue those helping women access service will go into effect on 1 September unless federal court intervenes
A hearing was originally scheduled on Monday on whether the court should block the law. But the fifth circuit court of appeals cancelled the hearing late on Friday, and denied reproductive rights group an emergency motion on Sunday.
“If this law is not blocked by September 1, abortion access in Texas will come to an abrupt stop,” said Marc Hearron, senior counsel at the Center for Reproductive Rights in a statement.
SB8 effectively puts a $10,000 “bounty” on the head of abortion providers and anyone else who helps a woman obtain an abortion past roughly six weeks’ gestation, by allowing private citizens to sue those who “aid and abet” women in exercising this constitutional right.
Opponents have warned the law could also provide a backdoor to attack other controversial civil rights, such as gun rights or free speech.
“The law is really unprecedented in the sense that it bans abortion, but then has no government criminal penalties to enforce the law,” said Brigitte Amiri, deputy director of the American Civil Liberties Union’s Reproductive Freedom Project, and an attorney representing a group of plaintiffs who have sued to stop the law from going into effect.
“It authorizes anyone in the country to file a lawsuit against any abortion provider, or anyone who helps someone get an abortion, and seek a penalty of that person of at least $10,000 per abortion,” said Amiri.
Abortion became legal across the United States following the 1973 supreme court decision Roe v Wade. The decision provided women a constitutional right to abortion up to the point a fetus can survive outside the womb, generally around 24 weeks. A full-term pregnancy is 39 weeks.
However, that right has been under assault by state legislators for decades, and incursions on abortion rights became particularly aggressive after Tea Party Republicans helped win control of state legislatures in 2011.
In addition to a $10,000 penalty, SB8 would saddle violators of the law with their opponents’ attorneys fees. It provides no such relief for defendants, even if they win. The result would be crushing legal expenses and duplicative lawsuits that would in effect end abortion access in Texas.
Proponents of the law – including a self-described virgin and traveling preacher, and a well-heeled former Texas solicitor general – have already found success in the strategy. In Lubbock, Texas, a similar law was passed via referendum and has forced a Planned Parenthood in the city of 253,000 to stop providing abortions while it fights the case in federal court.
The new law, called “heinous” and the “sue thy neighbor” law by opponents, is part of a three-prong strategy to end abortion in Texas, including a separate ban on the most common surgical abortion procedure after 15 weeks’ gestation, and a third campaign to outlaw medication abortion after seven weeks’ gestation.
“Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion,” Greg Abbott, Texas’s Republican governor, said at a signing ceremony, the Texas Tribune reported in May. Abbott had in effect banned abortion for one month in April 2020 by arguing it was not “immediately medically necessary” because of the Covid-19 pandemic.
Lawyers representing 20 abortion providers are hopeful they will prevail. However, a reprieve in the form of an injunction could come just hours before the law goes into effect, and any delay holds the potential to throw abortion access in Texas into chaos.
“It’s astounding, because what it is doing is deputizing private citizens to become prosecutors in a way,” said Nina Ginsberg, a criminal defense attorney who recently examined how states have built a criminal framework to prosecute abortion should Roe v Wade be overturned, in a report for the National Association of Criminal Defense Lawyers.
Should SB8 succeed, it would ban about 85% of abortions, since most women do not know they are pregnant at six weeks. Although proponents describe SB8 as a “fetal heartbeat” bill, the term can be misleading because, though embryos have cardiac activity at this stage, they do not have functioning hearts.
SB8’s provisions, which allow anyone, anywhere, unconnected to an event to sue, make it highly unusual both as an abortion law and in terms of civil litigation broadly. It would essentially upend the way civil courts consider “standing”, the concept that people must be sued where they live or work and by plaintiffs who have been harmed in some way.
The law is so broad and unconventional that more than 370 Texas lawyers, former judges, legal professors and local officials signed an open letter opposing it.
The Rev Daniel C Kanter, senior minister at First Unitarian church in Dallas, said he became a plaintiff in the suit against the law because outlawing abortion allows “justice and compassion” to be “overrun by ideological issues” – but also because he could be sued under its provisions, limiting his ability to advise pregnant women on options to terminate a pregnancy.
“This is an incredibly dangerous thing, especially around religious liberty,” said Kanter.
Dozens of tiny towns across Texas and Nebraska have adopted measures similar to Texas’s SB8, calling themselves “sanctuary cities for the unborn”. However, those ordinances have had little more than a chilling effect on women, since abortion providers rarely operate in such rural locations.
Madeleine Albright, Elizabeth Holmes, and Jack Ma attend a 2015 Clinton Global Initiative event in New York. (photo: Taylor Hill/FilmMagic)
ALSO SEE: 'Selling a Promise': What Silicon Valley Learned
From the Fall of Theranos
Federal prosecutors have charged Holmes and her former business partner and ex-boyfriend, Ramesh "Sunny" Balwani, with defrauding investors and patients of their blood-testing company Theranos, which Holmes and Balwani claimed would revolutionize laboratory medicine.
Patients who were wrongly diagnosed by Theranos tests are set to testify against Holmes. Some had been told they were HIV-positive. Another, who was pregnant at the time, was incorrectly told she had miscarried her baby.
After the jury is chosen, opening arguments are slated to start on Sept. 8. The trial in San Jose, Calif., is expected to stretch on for four months.
In court documents unsealed Saturday, and first reported by NPR, Holmes' legal team said she is highly likely to take the witness stand and accuse Balwani of manipulating and abusing her to such a degree that it affected her state of mind during the time of the alleged fraud.
Both she and Balwani, who will be tried separately next year, have pleaded not guilty. If convicted, each faces a prison sentence of up to 20 years.
Holmes, who has since married the heir to a California hotel chain, Billy Evans, recently gave birth. Her lawyers have requested arrangements so that she may bring her baby boy to court.
''Fake it until you make it'' approach led to criminal charges
A Stanford University dropout, Holmes dazzled Silicon Valley by founding Theranos at age 19. She promised its technology could screen patients for hundreds of diseases with just a finger prick of blood.
Holmes cultivated a mystique that included a signature black turtleneck like Apple co-founder Steve Jobs, whom she greatly admired.
Big names from former President Bill Clinton to former Secretary of State Henry Kissinger to Mexican billionaire Carlos Slim believed in the company, helping it attract global investment and a valuation of more than $9 billion before its fall from grace in 2015.
That's when a series of stories in The Wall Street Journal showed that Theranos was not using some new breakthrough equipment, as Holmes had claimed. Journalist John Carreyrou revealed that, instead, the company relied mostly on traditional blood-processing machines. And Carreyrou's reporting revealed a pattern of flaws and inaccuracies in patient results.
"There's an expression that's become synonymous with the business culture of Silicon Valley, which is, 'Fake it until you make it,' " Carreyrou told NPR about Holmes. "She thought it was OK to behave that way."
Walgreens stores in Arizona and California stopped allowing patients to get Theranos tests. Plans to expand testing to the rest of the nation were scrapped.
As Theranos became embattled, Holmes was defiant.
"This is what happens when you work to change things. First, they think you're crazy, then they fight you, then all of a sudden you change the world," Holmes told CNBC in 2018.
Federal prosecutors allege that she was not a scientific genius but rather a huckster who knowingly shilled technology that gave flawed or downright incorrect results to patients and left investors holding the bag.
Carreyrou, who has left The Journal and will be chronicling the trial in a podcast called Bad Blood: The Final Chapter, said the case could have far-reaching implications for tech startup culture.
"If she's acquitted, the lesson that a lot of entrepreneurs and VCs [venture capitalists] in Silicon Valley are going to retain is that Holmes got away with it," Carreyrou said.
"If she's convicted, I expect it to be a wake-up call in Silicon Valley to how much you can exaggerate, how much you can lie, how much you can experiment with your products before you cross that bright red line before you have to go to prison."
Holmes expected to claim ex-boyfriend manipulated her
Holmes and Balwani had a secret romance when she was Theranos' CEO and he was its president and chief operating officer. Now the two are blaming each other for the company's downfall.
Holmes' defense strategy came into view in the documents the court released on Saturday: Her attorneys said they have evidence that Balwani controlled what Holmes' ate, when she slept, how she dressed and with whom she spoke. Court filings also disclosed that Holmes plans on accusing Balwani of domestic abuse, including throwing "hard, sharp objects" at her.
"This pattern of abuse and coercive control continued over the approximately decade-long duration of Ms. Holmes and Mr. Balwani's relationship, including during the period of the charged conspiracies," Holmes' lawyers wrote in a filing.
Through his attorneys, Balwani has denied any abuse.
Company thwarted prosecutors by destroying database of blood-test results
Theranos has made prosecutors' job harder by destroying what could have been damning evidence against Holmes: a large database of three years' worth of blood-sample lab reports.
The government, in April 2018, subpoenaed the database, which could have helped prosecutors establish a pattern of flawed or incorrect results through statistical analysis of the data. Months later, Theranos provided an encrypted version of the hard drive.
At the time, Theranos' attorneys wrote in an email to CEO David Taylor, Holmes' replacement, "We should just give [the Justice Department] the database and let them figure it out. ... [T]hey won't know what to do with it and ... the people who do are in India," according to court filings.
Yet Theranos officials never handed over a "private key" that would have allowed prosecutors into the database, meaning all the data was locked.
Four days later, Theranos informed the court it had physically destroyed the entire database, something that came as a surprise to prosecutors.
There is no evidence that Holmes had anything to do with the destruction of the database, but prosecutors allege they will not have access to it because of the company's actions.
Holmes maintains the database could have proven her innocence.
Investors who lost millions want justice
Investor Eileen Lepera recounts talking to a big-name venture capitalist during the early hype days of Theranos.
"He did say to me that he thinks it's the next Apple, and that I should get as much as I could get," Lepera said in an interview.
She plunged more than $100,000 into the company, more than she had ever invested.
"Everybody kind of assumed that someone else had done due diligence and that these machines did in fact work," she said. "So it was a con on a grand scale."
In all, an estimated $700 million was lost in the unraveling of Theranos. Prosecutors allege that governments, businesses and other investors were duped by Holmes' deceptive statements and presentations.
Holmes' legal team is expected to cast the story in a different light, arguing that while Holmes may have exaggerated her company's achievements, she never intended to mislead patients and investors.
And Thomas Joo, a law professor at the University of California, Davis, said convincing a jury that Holmes intentionally defrauded investors and patients won't be easy.
"They may have thought that she mistakenly had too much faith in her product. She said false things, but if you say them unintentionally, it's not a crime," Joo said.
While Lepera is not hopeful she will ever recoup her investment in Theranos, she said if the jury convicts Holmes, it will be something of a relief.
"I would feel good if justice was served," Lepera said.
'In more than 500 instances between 2016 and 2019, our analysis showed that Early's office held onto seized money and property for more than a decade before filing a motion in court seeking to retain the seized goods and cash.' (photo: Brownie Harris/Getty Images)
Following our investigation, Massachusetts lawmakers are calling for changes to the state’s civil asset forfeiture system, which allowed one top prosecutor to keep people’s money for years, even when they weren’t charged with a crime.
awmakers and criminal justice advocates in Massachusetts are calling for changes to the laws that govern how law enforcement seizes, and keeps, cash and property confiscated in suspected drug crimes. The push follows a WBUR and ProPublica investigation that found a top prosecutor stockpiling people’s money for years, even when they weren’t charged with a drug offense or their cases were dismissed.
The system, known as civil asset forfeiture, was designed to disrupt criminal drug operations, but in Massachusetts, it’s easier for prosecutors to hold onto cash indefinitely once it’s seized. That’s because, under state laws, district attorneys need only meet the lowest legal burden of proof, probable cause, to support suspicions that the money was involved in a drug crime; DAs also face no deadline to notify a person that they intend to keep the cash.
In Worcester County, where annual forfeiture numbers are among the highest in the state, that has led to long delays and, according to legal experts, potential violations of due process rights under the U.S. Constitution. WBUR and ProPublica found District Attorney Joseph D. Early Jr.’s office routinely waits years before attempting to notify someone of their right to legally fight for the return of their money.
In more than 500 instances between 2016 and 2019, our analysis showed that Early’s office held onto seized money and property for more than a decade before filing a motion in court seeking to retain the seized goods and cash.
In an interview, Early told the news organizations that his office obeys the law, but he said he now plans to file civil forfeitures within two years of when the corresponding criminal case is closed. According to a WBUR analysis, the majority of states require DAs to take action within 90 days of a seizure or the conclusion of a criminal case.
Some lawmakers say it’s time to require a deadline for prosecutors in Massachusetts.
State Sen. Jamie Eldridge co-chaired a state commission that recently suggested a range of changes to Massachusetts’ civil forfeiture laws. But he said in an interview that he had no idea some DAs were delaying for so long before he read the WBUR/ProPublica investigation.
“I think what you’ve discovered just highlights another example of injustice in the court system,” Eldridge said. “Elected officials should not be saying that we are a progressive state in the area of civil liberties.”
Eldridge, who also co-chairs the state Legislature’s Joint Committee on the Judiciary, said he will talk with fellow lawmakers about setting a forfeiture deadline for DAs, either through new legislation or in a bill that’s currently being reviewed by his committee.
State Rep. Jay Livingstone, one of the measure’s main sponsors and a former assistant district attorney in Middlesex County, said he’s considering filing such an amendment in response to the WBUR/ProPublica investigation.
“There’s a limit on every type of cause of action civilly, and so it’s surprising that people don’t believe there’s one for civil forfeiture,” he said, “but it seems to me that there should be.”
Two of Livingstone’s prior measures to overhaul the forfeiture system have failed in recent years, but other lawmakers are also pressing the case this session. State Sen. Cindy Creem is sponsoring a companion measure in the Senate.
“It is critical that any system allowing the government to take the personal property of its citizens require the government to meet a high burden of proof, provide significant due process protections and be done in an open and transparent manner,” she said in a statement. “I believe the report of the Special Commission and the recent WBUR investigation reinforce the fact that our state’s civil forfeiture system does not currently meet these standards and is in need of significant reform.”
State Rep. Michael Day, the other co-chair of the Joint Committee on the Judiciary, said the state’s civil forfeiture laws have been on the Legislature’s radar for some time, but the WBUR/ProPublica investigation has helped shine a light on the issue. Day anticipates a committee hearing this fall to review the pending legislation.
“Right now, we’re trying to make sure we get through these hearings and act on things that we believe should be moving at a vigorous pace in the state, and this may very well be one of those issues that we take up this year or this session,” Day said.
State Sen. Michael Moore represents parts of the city of Worcester and neighboring towns, and he was also a member of the state’s commission on civil forfeiture. He said he too now believes the Legislature should address the timeliness of civil forfeiture filings to ensure due process rights are upheld. Some leading stakeholders in the criminal justice system agree.
“A delay in due process is a delay in justice,” said Lisa Hewitt, general counsel for the Committee for Public Counsel Services, the statewide public defender’s office. She said lawmakers should go further and abolish civil forfeiture, as four states have done, including nearby Maine.
Asked about the delays in Worcester County and the potential due process violations, a spokesperson for Attorney General Maura Healey said the office finds “any system in which due process protections and constitutional rights are not being met deeply concerning — especially one that can disproportionately impact low-income communities and communities of color.” Spokesperson Chloe Gotsis said the office is reviewing the current legislative proposals related to forfeiture.
Early said that the district attorney’s office follows the laws and rules set forth by the court, and that he believes individuals who wish to take action to get their money and property back are able to do so. But, as WBUR and ProPublica reported this month, people have just 20 days to respond after notification — one of the shortest response windows in the nation — leaving little time for a letter to be rerouted from an incorrect address or for the person to hire an attorney.
As a result, the majority of civil forfeiture cases are ruled in the district attorney’s favor by default, meaning people took no action to get their money back. In Worcester County, 84% of forfeiture cases in fiscal year 2019 were default judgments, according to data from the trial court.
WBUR’s analysis also showed that nearly 1 in 4 seizures of cash and property that the Worcester DA’s office filed forfeitures for in 2018 either were not associated with a criminal conviction or weren’t even linked to a criminal drug charge. (This is a first-of-its-kind accounting in Massachusetts, and the news organization chose 2018 as the year of study to allow sufficient time for related criminal cases to have concluded.)
Civil rights advocates say this statistic shows why the state should require criminal convictions before law enforcement officials are allowed to keep money and property. Some other New England states, like Connecticut, New Hampshire and Vermont, have conviction provisions before property can be forfeited.
Rahsaan Hall, director of the racial justice program at the ACLU of Massachusetts, pointed to WBUR’s findings in saying he’ll continue pushing for changes to the state’s civil forfeiture laws. He supports Livingstone’s bill, which would require a conviction before prosecutors can keep seized money and belongings.
“There’s more than enough evidence to show that it is a problem and something needs to be done about it,” Hall said of the existing civil forfeiture system. “And my hope is — and I will continue to advocate for this — that the Legislature changes the law so that civil asset forfeiture can no longer be abused by police and district attorneys and that people have some protections against the current practices.”
Gov. Charlie Baker’s office declined to comment on the WBUR/ProPublica investigation, but a spokesperson said the administration would review any legislation that reaches the governor’s desk.
Civilian casualties from US and Afghan aerial attacks are not rare in Afghanistan. (photo: Ali M Latifi/Al Jazeera)
Ten people from a Kabul neighbourhood killed in US drone attack – Washington claims ISKP fighters were the target.
The Sunday afternoon drone attack, which the US claimed was conducted on an Islamic State in Khorasan Province (ISKP, or ISIS-K) target, killed 10 members of the families, ranging from two to 40 years old.
Aimal Ahmadi, whose nieces and nephews were among those killed, is still in disbelief. Like others in the neighbourhood, he is incensed that his brother and nephews and nieces were never recognised in the media as what they were, a family going about their life.
For hours, he and the rest of the surviving family had to listen to Afghan and international media refer to their loved ones, whose remains they had to gather with their own hands, simply as suspected ISKP targets.
“They were innocent, helpless children,” Ahmadi says of the majority of the victims, including two-year-old Malika. Had he not gone out to buy groceries, Ahmadi himself could have very easily been one of the victims.
He says his brother, 40-year-old engineer Zemarai, had just arrived home from work. Because the families were expecting to go to the US, Zemarai asked one of his sons to park the car inside the two-floor house. He wanted his older boys to practice driving before they arrived in the US.
Several of the children quickly packed into the car, wanting to take the short ride from the street to the garden of the family home.
“When the car had come to a stop, that’s when the rocket hit,” Aimal told Al Jazeera.
Walls stained red with blood
What happened next was an all-too-common scene of mayhem in Afghanistan as frantic relatives and neighbours ran to the scene. Some brought water, hoping to douse the flames that had spread from the Toyota sedan the children had packed into to an SUV parked nearby.
Neighbours speaking to Al Jazeera said the house, where little boys and girls had been playing a few minutes prior, turned into a “horror scene”. They described human flesh stuck to the walls. Bones fallen into the bushes. Walls stained red with blood. Shattered glass everywhere.
Talking about one of the younger boys, Farzad, a neighbour said: “We only found his legs.”
By early Monday morning, Zemarai’s home was crowded with family, neighbours and concerned friends who had come to see the burned cars, the plastic children’s toys bent out of shape by the impact of the blast and the little girl’s slippers that were left in one of the downstairs rooms.
The US maintains it conducted, “a self-defence unmanned over-the-horizon air strike today on a vehicle in Kabul, eliminating an imminent ISIS-K threat”, it said in a statement late Sunday afternoon, referring to the ISIL affiliate.
The statement went on to say US Central Command is “assessing the possibilities of civilian casualties” but that they have “no indications at this time” that civilians were killed.
That evening, the US military said it has launched investigations into the incident.
To the Ahmadis and their neighbours, claims that the attack had targeted a potential ISKL car bomber is infuriating.
“We are all Afghan, we know what a car laden with explosives would do if it was struck from the sky,” said Abdol Matin, a neighbour who grew up with the Ahmadi children and saw the boys as brothers. Like so many others gathered in the Ahmadi residence, Abdol Matin does not buy Washington’s claim that they had conducted a precise strike on an enemy target.
“If you can’t manage to hit the right target, then leave Afghanistan to the Afghans,” said Abdol Matin the day before US forces are scheduled to fully depart from the country after 20 years, ending America’s longest overseas war.
Anger in the neighbourhood
Other neighbours said one only had to look at the two oldest victims, Zemarai and his brother-in-law, Naser Nejrabi, as proof that they had no ill intentions or affiliation with any armed groups.
Zemarai had been working as a technical engineer for more than a decade. His brother-in-law, Naser Nejrabi, who was among those killed, had served in the Afghan Army in the southern province of Kandahar.
Zemarai’s other brother, Romal, who was also away at the time of the attack, had worked as a driver at the Ministry of Water and Energy. The men’s time with the government and affiliation with foreign forces had earned the family a Special Immigrant Visa offered by the US.
“They worked for private companies. They served in the military. They were part of the government, what would make anyone think they’re terrorists,” said Aimal.
The Ahmadis were preparing to leave the residential neighbourhood only a few kilometres from Kabul airport where they have lived for decades. Over the past week, the family had congregated in the small two-floor home, busily packing their bags in anticipation of the day they would depart from the very airport Washington claimed they posed a threat to.
Enraged neighbours said the family should have their names cleared and that a real investigation should take place.
Civilian casualties from US and Afghan aerial attacks are not rare in Afghanistan but over the past 15 years, most of them were in remote areas of provinces like Nangarhar, Baghlan, Maidan Wardak, Takhar, Herat, Kunduz and Logar, not the capital city.
The cost of these drone attacks
Emran Feroz, an Afghan journalist based in Germany who has investigated the impact of aerial attacks on Afghan civilians for 10 years, says the fact that Sunday’s attack took place in Kabul will help draw media attention to an issue that has plagued Afghan civilians since the US-led invasion in 2001.
“It’s very symbolic that US operations in Afghanistan started with drone strikes and ended with drone strikes. It seems they’ve learned nothing in 20 years,” he told Al Jazeera.
Feroz, who published the German-language book Death at the Push of a Button in 2017, says the results of the US drone war can be seen on the streets of Kabul where high-ranking Taliban members, including some who had been reported “killed” multiple times have been roaming the capital since the group took control of the country.
“But the question no one seems to want to ask is who was killed instead of them?”
Feroz said another US drone attack was carried out in Nangarhar a day before the attack on the Ahmadi family, but that “nobody asked about it”.
“All the media outlets repeated Joe Biden’s statement that the targets were Daesh without questioning it,” he said referring to the Arabic name for the ISIL armed group.
Feroz says that from the start of the US invasion through to its final days, Washington and its allies have been trying to “convince the Afghan people that these aerial attacks are only killing terrorists but now, in Kabul, we are seeing their true costs.”
He points to the first-ever US drone attack in Afghanistan on October 7, 2001 – which claimed to kill Taliban leader Mullah Mohammad Omar – as proof of the deadly cost of these tactics.
“To this day we don’t know who was actually killed, and we may never know.”
A gas flare from the Shell Chemical LP petroleum refinery illuminates the sky on August 21, 2019 in Norco, Louisiana. (photo: Drew Angerer/Getty Images)
wo-thirds of Louisiana’s industrial sites lie in the path of Hurricane Ida, including oil refineries, storage tanks and other infrastructure like oil platforms in the Gulf of Mexico. Louisiana’s Gulf Coast is a major oil and gas hub, with 17 oil refineries, two liquefied natural gas export terminals, as well as a nuclear power plant and many Superfund sites. Oil spills and chemical releases due to climate change-intensified storms are a “worsening, consistent problem” in Louisiana’s Gulf Coast, says Antonia Juhasz, a longtime oil and energy investigative journalist. Communities of color living on the Gulf Coast near polluting gas and oil infrastructure “now also have to deal with that worsening climate crisis creating a storm that harms these facilities, that then causes more releases,” she adds.
Transcript
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: I want to bring in another resident of the area, also who evacuated to Pensacola, Florida, as you did, Monique Verdin. I want to bring in Antonia Juhasz. As Hurricane Ida slammed ashore Sunday as a Category 4 storm off the southeast coast of Louisiana, with two-thirds of the state’s industrial sites in its path, including oil refineries, storage tanks and other infrastructure, like oil platforms in the Gulf of Mexico, this is — this Louisiana Department of Environmental Quality says it has asked more than 1,500 oil refineries, chemical plants and other industrial facilities in the area to self-report leaks or spills, after about 95% of oil and gas production in the Gulf Coast region.
For more, I want to bring into this conversation the longtime oil and energy investigative journalist Antonia Juhasz, who tweeted Sunday, “Hurricane Ida cutting through Louisiana’s offshore oil & gas corridor, into Port Fourchon, and on into Cancer Alley, Baton Rouge & New Orleans: areas congested with fossil fuel & petrochemical infrastructure: refineries, storage tanks, petrochemical manufacturing, pipelines, etc. … It has always struck me as the most painful of ironies that the industry contributing the most profoundly to the climate crisis has also located its operations in the heart of the region consistently overrun with global warming’s worsening storms.” Those, the words of Antonia Juhasz, who lives in New Orleans but just evacuated to Pensacola, as well as Monique Verdin.
Welcome back to Democracy Now!, Antonia. Talk about just that fact, that horrific contrast of the energy and gas facilities that are producing the climate change that intensifies the hurricane in the path of that storm, and what it means for the population.
ANTONIA JUHASZ: And this has been, obviously, a consistent problem, a worsening, consistent problem, with every hurricane, every worsening hurricane, and storm system that’s come through the Gulf of Mexico, is that the oil and gas industry is concentrated here in Louisiana and Texas. And Ida is barreling through, as you read from my tweet, first the offshore infrastructure. And let’s recall, in Katrina, we saw about 9 million barrels of oil released from the pipelines. So you have the offshore rigs, and then there is a mesh of pipelines that carry that product to shore. And those pipelines burst during — or, were split during Katrina, releasing oil. You had a platform that unmoored during Katrina. So you’ve got the offshore infrastructure, then the infrastructure that carries it to shore.
Then, onshore, you have tanks that hold the product. You have refineries that convert it. You have petrochemical plants. You have LNG export terminals and facilities. All of that is concentrated in this area. And particularly, you know, this storm moving through first the coastal region, which is already so hard hit, as Monique explained, from coastal erosion — the coastal erosion is the result of the building of canals to facilitate the movement of the oil and gas, construction of the infrastructure and the movement of the pipes to shore. Those canals created an opening that saltwater comes in, and then it eats up the shore, essentially making it so that communities that have lived — Indigenous communities that have lived on the coastal region forever, homes are rapidly disappearing. When you add to that the spills — so, oil, when it spills — and we saw this intensely with the BP Deepwater Horizon disaster — the oil eats the marsh. It eats the shore, literally. And so, then, the oil itself is literally, when it spills, eating away at the shore.
Then you move in through Cancer Alley, this intense concentration of petrochemical and fossil fuel facilities, primarily in a Black, low-income region, from New Orleans to Baton Rouge — New Orleans and Baton Rouge, also massive refinery, massive petrochemical storage facility operations in both cities. And as you said at the top, there is no power in New Orleans. None. There is — already the refineries have been announcing flaring, and I’ve already seen photos of flaring. That’s what we’re able to see with our eyes. What we know, in these storms, that happens, that we get the data after, is the chemical releases that go into the air, the chemical releases that go into the water, the spills. Those storage facilities, massive storage facilities that hold the chemicals, the oil, liquefied natural gas, those tanks have a very strong tendency to squash and break in storms. And this storm has the highest winds of any storm and a stronger wind system than Katrina.
You know, just the — and what we don’t know right now. So, you know, as Monique was saying, we have not been able to get complete reporting from anywhere in this region right now. And the only information we have, other than what people can see, which is the flaring, is the reporting from the companies themselves. And that has been limited, and it’s not — you know, generally, we only get the truth about what’s happened with spills and releases, under normal conditions, at refineries and petrochemical facilities from lawsuits, when nongovernmental organizations, citizens’ groups sue to get the full information.
AMY GOODMAN: Can you talk about the scientific connection between what we’re seeing and climate change, the hurricane?
ANTONIA JUHASZ: Yeah. So, the IPCC report, finally, you know, had enough — the most recent report — to be able to say, with scientific certainty, looking at all of the data that’s now been collected between global warming and storms — to be able to say, with certainty, that global warming is worsening the climate crisis, which is directly linked to factors that are intensifying storm systems. So, the burning of fossil fuels is responsible for 80% of the emissions that cause global warming and lead to the climate crisis, and that that warming is making storms increase in frequency, increase in intensity, and makes them more likely and worse. It makes them stay in place longer. That’s one of the things we’re seeing right now with Ida. It’s moving really slowly. It’s really strong, which means it’s just hitting and sitting. And it has great intensity, that I said, and that we — that the IPCC was able to say now with its — the first sort of — greatest certainty that it had so far, that worsening storms, frequency of storms is a direct result of climate change, global warming.
And so, this storm system hitting — another massive storm system hitting this region — and, you know, there’s been plenty that have already been hitting; Katrina was by far the last one — is getting pummeled by the fossil fuels that are also concentrated in this region. And they, in turn, are getting pummeled by the storms that they’ve created, which releases more chemicals and toxins on the very same communities that have to deal with the impacts of this infrastructure, day in and day out, and the impacts of a worsening climate crisis, day in and day out, now also have to deal with that worsening climate crisis creating a storm that harms these facilities, that then causes more releases.
But the companies also know that the storms are worsening, of course, that their facilities are threatened. And they have still not put in place — I mean, first, let’s say, when you’re going to have a massive hurricane come in, you really shouldn’t have fossil fuel infrastructure in its path. There’s only so much you can do to prepare for it. But there are things that they’ve known that they can do much better that they still haven’t put in place, even knowing of the consequences to local communities, to their workers, to safety, of these intensifying storms, which they themselves are causing.
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