07 January 22
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It was front-page in the papers and the subhead said that a U.S. senator had been stranded overnight on the interstate. The blockage of an interstate is the true measure of a serious storm and the headline writer tossed in the senator as further evidence, but it only made me wish there had been numerous senators — say, those from Florida, South Carolina, Alabama, Mississippi, and Louisiana, the five states least accomplished at snow motorism, and if the Senate had come to session the next morning, our nation would get moving again, one blockage breaking a logjam. But it was only a Democrat from Virginia, giving Mitch McConnell a one-vote edge, and there is no vacancy on the Supreme Court, so he didn’t need it.
But I have no right to be smug about Washington, you’re right. My wife took away my car keys a couple years ago when I mentioned casually while driving that I have double vision and so my old Minnesota highway skills have atrophied. I sit in the shotgun seat and am astonished at her adeptness in traffic, her unhesitant merging, her acceleration upon seeing the light turn yellow, her masterful (or mistressful) parallel parking. When I met her, she was 35, living in Manhattan, hadn’t ever owned a car, and maybe she married me for transportation and now I admire her driving. She is a whiz: her training as a violinist, paying close attention to the score while also watching an untrustworthy conductor and listening to your section, has served her well as a motorist. Plus, she swears better than I ever could. Growing up evangelical, I swear like a kindergarten teacher. And “gosh” is not useful in reacting to treacherous stupidity, not in the Senate, not on the road.
We’ve spent the pandemic mostly in New York where a car is not the necessity it was back on the farm in Freeport, Minnesota, where I had a long narrow driveway to navigate at 5 a.m. when I left for work at the radio station, and after a heavy snowfall, I felt like Admiral Peary in search of the North Pole. Now, in New York, retired, snow rarely encountered, nothing to do but make coffee and glance at the paper, I’ve been reduced from admiral to a deckhand, and I’m okay with that. I feel no diminution of my manhood whatsoever.
On second thought, I do miss the sense of superiority, cruising through a blizzard along Highway 12, seeing a car in the ditch, and the absolute superiority when I stopped to help a ditched driver with his thumb out. Jesus left that out of the Good Samaritan story, the unseemly pleasure of assisting the helpless. The poor shivering man climbed into my big warm car and — remember, this was before cellphones — I drove him to the next town where he could call for a tow truck, and the gratitude of the poor wretch was satisfying to me, the Man Who Knows How To Drive On Snow, and once a wretch offered me cash, he was a city fellow, unaccustomed to Christian charity, and I said, “No, no, no. My pleasure.” Which it was. A rather smug pleasure.
It’s hard to combat smugness, you just have to grow out of it. I’m at a point in life when people my age are going into assisted living, memory units, the nuthouse, loony bin, call it what you like. As for me, I’m fine. I have a very close relationship with my cardiologist. When you’ve gotten a defibrillator installed in your chest by another man, it’s more than a casual friendship. The other day, he called in a medical technician to make an adjustment to the device and a tall child who appeared to be about fifteen walked in with an iPad and started tapping on the Pad. It is a sobering experience to have a teenager tinkering with your heart on an iPad as if I were a video game. One mistake and the defibrillator might defunctionalize me. What made it worse was his black T-shirt. I assumed health care people wear white or pale blue.
A boy with a plaything held my life in his hands. There is no smugness after this. I’m living on the edge. It’s not the end of the world but I can see it from here. Another three hundred serious snowstorms and the Senate might discuss climate matters.
Demonstrators outside the Pennsylvania Convention Center protest on November 5, 2020, in Philadelphia, Pennsylvania. (photo: Kena Betancur/AFP/Getty Images)
These frontline election workers made sure the votes were counted in 2020. They got death threats. Their torturers stormed the Capitol
For several days in a row after the 2020 election, hundreds of pro-Trump protesters massed outside the Maricopa County Recorder’s Office, where Fontes and his team worked. Chants of “stop the steal” rang out day and night. At one point, notorious conspiracy theorist Alex Jones joined the crowd and yelled into a megaphone, “Resistance is victory!” Other protesters dressed in tactical gear and carried firearms.
Fontes taught a marksmanship course in the Marines, and so he felt a chill when he recognized the weapons in the crowd. The rifles weren’t all that different from the one he carried in the military.
He and his family packed “go-bags” in case they needed to leave their home on short notice. They found back-up housing in case they needed to stay somewhere long-term. On one occasion, his children evacuated for several days. All the while, Fontes says, he, his employees, and a team of volunteers continued to count all 2.1 million ballots cast in the election. “We refused to allow these protesters to potentially disenfranchise Maricopa County voters,” he later said in testimony before Congress.
The anti-democracy movement that stalked Fontes and his employees culminated in the Jan. 6 Capitol insurrection. But a year after that attack, the fortunes of those who protected the 2020 election and those who sought to nullify it could hardly be more different.
Donald Trump remains wildly popular among his party. The Big Lie is the new litmus test for any aspiring Republican official on the national stage — and flogging that lie is the easiest way to climb the GOP ladder. It’s also become a profitable con, with countless conservative media personalities and minor MAGA celebrities boosting their brands by declaring the election stolen.
Those who defended the election, however, have been roundly, and severely, punished for it.
Mike Pence, who refused to join the attempt to overturn democracy, is an afterthought in the 2024 GOP primary. Pro-democracy Republicans like Reps. Adam Kinzinger and Liz Cheney have become pariahs, censured and shunned and attacked for daring to refute the Big Lie and hold Trump accountable for helping foment the unrest that led to the Jan. 6 attack.
But the people who have had it the worst are the people who — in the face of intense pressure and often under threat of physical harm — held the line for American democracy over the past year. They are the local officeholders and election officials who ran the 2020 election amidst a one-in-a-century pandemic and an onslaught of disinformation. They saw with startling clarity how close the country came to a real democratic crisis. “Democracy really is a tapestry. You can pull on a thread and it can come apart,” says Natalie Adona, the assistant clerk-recorder and registrar of voters in Nevada County, California. “Even though this insurrection was really rooted in a lie, in a way it doesn’t even matter. What matters is what people believe to be true, and if you don’t believe democracy is working for you… then everything we have goes away.”
They’ve endured death threats and xenophobic abuse, lost friends and grown estranged from family members. They’re not well-known, overworked and underpaid, not eyeing higher political office or angling for a lucrative book deal. And in many cases, they intend to remain on the job for the 2022 midterms and the presidential election two years later even as the vitriol and hatred aimed at them continues to this day.
Several months later, Fontes watched the January 6th insurrection unfold. He was shocked—but not surprised Jacob Chansley, the so-called QAnon Shaman who strode onto the Senate floor that day in his furs and Viking helmet, had protested outside his office arm-in-arm with Alex Jones chanting Fontes’ name back in November.
“I think the folks who don’t want democracy to live are slowly but surely getting what they want,” he says. “The slow-burn insurgency is afoot.”
Al Schmidt struggles with the notion of the first anniversary of January 6th. To him, it feels as if we’re on the 400th day of the 2020 general election, an event that never seems to end.
Schmidt, a Republican, was a city commissioner on the Philadelphia County Board of Elections in 2020. Starting in June 2020, Schmidt worked seven days a week preparing first for the city’s primary elections and then the general election. Closer to Election Day, he lived in a hotel connected to the Philadelphia convention center and spent every waking hour making sure the vote count went smoothly.
Then came the protests. Philly’s convention center was the vote-counting epicenter of the state. Outside, in the streets, rival demonstrations gave the scene a dark, almost carnival-like atmosphere. Every once in a while, Schmidt walked to a window and watched. This wasn’t Schmidt’s first political battle. He served as executive director of the city Republican Party, and a senior adviser to the state Republican Party. The Republicans were the only party he’d ever known.
Yet he didn’t recognize his party when he looked out on the angry crowd wrapped in Trump flags and screaming about election fraud. Having earned a PhD in political history, Schmidt knew he was witnessing history but struggled to grasp its meaning in the moment, close to the heat.
That would come later. What Schmidt focused on in that hectic, post-election moment was ensuring every valid vote got counted — even if it put him at odds with his own party. When Schmidt shot down the various theories put forward by Trump campaign lawyers, he became a target. Trump tweeted that Schmidt was a “RINO.” He and his wife received death threats: “ALBERT RINO SCHMIDT WILL BE FATALLY SHOT” and “HEADS ON SPIKES. TREASONOUS SCHMIDTS.” People harassed him and his family by posting their home address and the names of his kids. Security officers with the Philly Police Department’s dignitary protection unit guarded him and his family when they walked the dog, bought groceries, or took the kids sledding.
Schmidt announced he wouldn’t seek reelection to the Philadelphia city commission about a month after the election. He would go on take a job running a local nonpartisan good-government group, the Committee of Seventy. He says he had hoped that the anger and paranoia about the election would subside as time passed. He underestimated how much Trump and his campaign would seek to subvert the outcome, and how quickly Trump’s base would transform the election into a rallying cry.
He hoped that January 6th would shake people out “this derangement or whatever is going on.” Instead, it’s just settling in, he says, and now, even with some much-needed distance from the 2020 election and the insurrection, Schmidt is still trying to make sense of the state of the country and where it might be headed. He can’t quite believe that a diehard conservative like Liz Cheney is labeled a RINO for her repudiation of the Big Lie, nor that the litmus test for a “loyal” Republican these days is whether you believe the last election was stolen or not.
He thinks that question is a valuable one — but for the opposite reason his fellow Republicans do. “If you do believe the 2020 election was stolen, you’re either a fool or a liar,” he says.
So long as Republicans continue to deceive the public about the last election, Schmidt says it’s his duty and the duty of others in his position to counter those lies with truth. Even if it means he feels like he’s reliving the last election day after day. “We don’t really have any choice,” he says “even if it’s only being marginally successful and frequently feels like you’re hitting your head against the wall.”
Tommy Gong knew that the board of supervisors meeting scheduled for May 4, 2021 would be tense. Gong was the nonpartisan elections chief for San Luis Obispo County, located on the central coast of California north of Santa Barbara.
Biden had won the county by a 13-point margin, but there were plenty of passionate Trump supporters in San Luis Obispo as well, and in the spring of 2021, months after the vote-counting was over, the local Republican Party came to him with a demand. They wanted a full “forensic audit” of the last election.
Gong had heard about these partisan audits in other counties. Arizona’s state senate, he knew, had ordered a full recount of all 2.1 million ballots cast in Maricopa County. Gong had already explained to the local Republicans why he couldn’t give them unfettered access to the county’s voting system for their “audit.” There were strict chain of custody protocols to follow, confidentiality protections, and a state-level requirement that all of the materials used to conduct a federal election be retained and stored for 22 months.
At the May 4 supervisors meeting, Gong made his case as clearly and professionally as he could as to why a forensic audit wasn’t possible and why the 2020 vote count was fair and accurate. He mentioned that the county had audited a small sample of votes after the election, which had confirmed the result with the exception of two votes. For the public comment period, people submitted messages to be played at the hearing. Some fixated on the county’s Dominion Voting Systems equipment, a frequent target of election-fraud conspiracy theories. “These machines can be used to alter the outcome of elections,” one person said.
Another woman took aim at Gong directly. “Is Tommy Gong in any way in relationship [sic] to the Chinese Communist Party?” the woman asked in a message played aloud at the meeting.
Did they really say that, he thought. Then the twinge of recognition: Yes, someone really just said that. An affable, chatty fellow, Gong was a third-generation Californian. He went to Cal-Berkeley. He had family scattered across the state. The slur made national headlines and Gong got calls from major newspapers.
He had already started thinking about leaving town. He would be closer to some family in the Bay Area. He would have the chance to work in a bigger county. He also couldn’t deny that the attack on him factored into his thinking as well. Later, as he thought back on that exchange, he wondered: “Where is this going?” (Gong says a woman approached him a few weeks later, identified herself as the person who made the Communist comment, and apologized to him.)
In June, he resigned from his position as San Luis Obispo’s top election official and took a new job as the deputy elections chief in Contra Costa County, which covers the East Bay suburbs. In his new position, Gong is helping create a multi-county coalition to help educate voters about how elections work and to counteract the spread of misinformation about voting.
“This is really becoming something much larger than election officials have ever experienced,” he says of the spread of election-related lies. “I think we have a huge challenge ahead of us having to deal with this. That’s what I’m recognizing right now. 2022 is going to be the first testing ground for this.”
The targeting of election officials didn’t end after the 2020 election was certified and Joe Biden began his presidency. Adrian Fontes, the former Maricopa County recorder, says he’s still on the receiving end of threatening messages. “Some of what we experienced after is still happening,” he says. “Fighting authoritarianism and fascism is a dangerous thing.”
A June 2021 survey of election workers by the Brennan Center for Justice at NYU found that 1 in 3 had received threats during or after the last election. Many have quit in the year since the election and January 6th.
Yet others say they feel compelled to stay on the front lines of democracy at this precarious moment in history.
Adona, the election official from Nevada County, California, says she’s heard firsthand accounts from her colleagues about the abuse they’ve faced. “I heard stories of election officials getting screamed at, followed to their offices, chased down the street,” she says. “The effect is just as devastating as an individual.”
Nevertheless, Adona is running for her boss’s seat to be the county’s top election official. “In a way, I feel a deep responsibility in part because of what happened on January 6th to continue on with this work,” she says. “I don’t know that I could be happy doing anything else, and I know there are a lot of my peers who feel the same way.”
Adrian Fontes is a candidate for Arizona secretary of state. He sees his campaign as part of “a full-blown battle” against the “insurgency” that wants to tear down democracy in America. Fontes says he’s running “not because I’m angry. I fear for the future of this republic. I fear my children will live in a world where they cannot vote.”
Fox News host Tucker Carlson criticized Sen. Ted Cruz (R-TX) for describing the Jan. 6 riot as "a violent terrorist attack." (photo: Ron Filipkowski/Twitter)
Instead, Carlson placed Cruz in the stocks and administered a brutal whipping.
This ritual humiliation has gotten Cruz widely mocked for his submissive groveling. But this absurd saga also captures something enduring and essential about the far right’s direction in the (hopefully) post-Donald Trump era, and the hallowed place of Jan. 6 in its evolving ideological schema.
“You called this a terror attack,” Carlson sternly told Cruz. “That’s a lie. You told that lie on purpose. And I’m wondering why you did.”
After meekly admitting that he’d been “sloppy,” Cruz insisted he was referring only to those who waged “violent attacks against police officers." He frantically swore that he didn’t mean to impugn “peaceful” Trump-supporting “patriots.”
But this didn’t satisfy Carlson. The Fox host agreed that anyone who assaults police officers should “go to jail,” but added: “That person’s still not a terrorist.”
“You’re playing into the other side’s characterization,” Carlson admonished, which “allows them to define an entire population as foreign combatants.”
Herein lies the real crux of the matter. What Carlson really objects to is the depiction of the Jan. 6 rioters, and their supporters, as in some sense waging war on our country, on our political system.
Ted Cruz’s real sin
First, let’s concede that the debate over the “terrorist” label is complicated. Experts note that under federal law, “domestic terrorism” applies to illegal life-threatening acts with the apparent goal of influencing government policy. That might or might not apply here. Still, defendants are not being tried for terrorism, and many haven’t yet been convicted of the offenses for which they are charged.
But either way, Carlson’s objection is broader. The valorization and mythologizing of Jan. 6, which Carlson traffics heavily in — indeed, this led to the resignation of two Fox contributors — require erasing the degree to which it constituted a genuine effort to thwart a legitimately elected Democratic government from taking power, an effort to fundamentally subvert our constitutional arrangements.
Cruz’s real sin in Carlson’s eyes appears to be that he lent support to that broader narrative. In fact, Carlson later made this clearer, ripping into Cruz by insisting he’s helping those who “use language to distort the events of that day,” such as the word “insurrection.”
Cruz’s response to Carlson on that larger accusation really gets to the essence of this. Cruz insisted that he was merely being consistent here: He describes many leftists as “terrorists,” too!
“I used that word all in 2020 for the antifa and BLM terrorists that assaulted cops,” Cruz pleaded, referring to Black Lives Matter. But then he capitulated entirely: “I agree: It was a mistake to use that word" for Jan. 6, because it helps “Democrats and the corporate media” demonize the right as “Nazis.”
This is the landing point Carlson really wanted: Not that it’s wrong to generally call people who assault police officers “terrorists,” but that it’s wrong to call right-wingers who assault police officers “terrorists."
The latter, after all, serves those who would depict Jan. 6, and the procedural election subversion leading up to it, as at bottom an effort to overturn our political order.
In this worldview, the ones really waging war to overturn our political order are leftists and Black Lives Matter protesters, who have been endlessly depicted on Fox as posing a civilizational threat in all sorts of ways, complete with lurid imagery of cities sliding into full-scale civic collapse.
Indeed, Carlson himself has applied the T-label to such leftists. Carlson has called Black Lives Matter a “revolutionary group” and a “terrorist organization.”
The mythologizing of Jan. 6
This trope is everywhere on the right. Reps. Marjorie Taylor Greene (R-Ga.) and Lauren Boebert (R-Colo.) recently spent days depicting Rep. Ilhan Omar (D-Minn.) as a bloodthirsty terrorist. For this they were celebrated on Stephen K. Bannon’s podcast, a command center for the far-right insurgency.
Pointing this out is not meant as whataboutism. This depiction of the left as an all-powerful monolithic enemy, as a full-scale civilizational threat, is absolutely central to the right-wing project as pursued by the likes of those great warriors.
It’s the key to valorizing the underlying goals of the Jan. 6 rioters and to the mythologizing of them as heroes and patriots. It lays the foundation for treating what they call the “regime,” i.e. democratically elected Democratic governments, as illegitimate, justifying Jan. 6, corrupt procedural efforts to overturn elections, the flirtation with political violence, and who knows what future acts in response.
As long as Cruz is calling the left “terrorists” in service of this broader ideological project, he’ll remain in Carlson’s good graces. But when Cruz starts applying this label to the alleged right-wing attackers of police officers on Jan. 6, he must be disciplined severely, because he’s undermining that project.
Last summer, Seattle officers fabricated sightings of Proud Boys with guns, a brewing fight with protesters, and a police response. (photo: David Ryder/Getty)
After a precinct captain approved a “misinformation effort,” officers fabricated sightings of Proud Boys with guns, a brewing fight with protesters, and a police response.
The “misinformation effort,” as the report dubbed it, “improperly added fuel to the fire” of the already tense protests, wrote OPA Director Andrew Myerberg.
“The use of the Proud Boys when it was known that the transmissions would be monitored took a volatile situation and made it even more so,” he wrote.
For more than two hours on the night of June 8, officers made remarks like “It looks like a few of them might be open carrying” and “Hearing from the Proud Boys group… They may be looking for somewhere else for confrontation.” In their radio transmissions on an open channel, cops fabricated reports of a brewing fight between the Proud Boys and protesters in Pioneer Square and a police response to it.
The precinct captain who ordered the ruse, Bryan Grenon, told OPA that he was looking for “an innocent way to just throw out some distraction” at a time when the police department was short-handed and under pressure.
According to the report, an unnamed journalist who was with protesters that night told OPA “that, in his perspective, things were going fine in CHAZ/CHOP until people in the crowd heard reports that the Proud Boys were coming. The journalist stated that, when this occurred, it seemed like everyone in the crowd who owned guns went to get theirs and the event went from being peaceful to something entirely different.” CHOP stands for “Capitol Hill Occupied Protest,” the site of last summer’s racial justice protests.
Captain Grenon told investigators the purpose of the faked conversations was to “get [protesters] into other areas” because “we were overrun with, you know, forces or protesters.” Grenon said, “It was never my intent to cause alarm,” adding that “Hindsight is 20/20.”
Then-Chief Carmen Best told investigators that she had not been informed about the tactic.
The OPA report found that Grenon, who later ascended to the rank of assistant chief, violated departmental policies, as did the two officers involved. All three had already left the department by the time of the report’s release, so they will face no discipline from within Seattle PD.
A man stands outside JP Morgan Chase's corporate headquarters, August 12, 2014, in New York City. (photo: Getty)
But even as those words were published, the bank had quietly begun to unleash a lawsuit blitz against many of its struggling customers. Starting in early 2020 and continuing to today, Chase has filed thousands of lawsuits against credit card customers who have fallen behind on their payments.
Chase had stopped pursuing credit card lawsuits in 2011, in the wake of the last major economic downturn, after regulators found that the company was filing tens of thousands of flimsy suits, sometimes overstating what customers owed. Rather than being backed by extensive billing records to document the debts, according to the regulators, the suits were typically filed with a short affidavit from one of a half-dozen Chase employees in one office in San Antonio who vouched for the accuracy of the bank’s information in thousands of suits.
Chase “filed lawsuits and obtained judgments against consumers using deceptive affidavits and other documents that were prepared without following required procedures,” the Consumer Financial Protection Bureau concluded in 2015. At times, Chase employees signed affidavits “without personal knowledge of the signer, a practice commonly referred to as ‘robo-signing.’” According to the CFPB’s findings, there were mistakes in about 10% of cases Chase won and the judgments “contained erroneous amounts that were greater than what the consumers legally owed.”
Chase neither admitted nor denied the CFPB’s findings, but it agreed, as part of a consent order, to provide significant evidence to make its cases in the future. The company also agreed it would provide “relevant information and documentation maintained by [Chase] to support their claims” in cases — the vast majority of those it filed — in which customers did not respond to the lawsuit.
But that provision expired on New Year’s Day 2020. And since then the bank has gone back to bringing lawsuits much as it did before 2011, according to lawyers who have defended Chase customers.
“From what I can see, nothing has changed,” said Cliff Dorsen, a consumer-rights attorney in Georgia who represents Chase credit card customers.
Chase declined to make executives available for interviews. It said in a statement that the timing of the resumption of its credit card lawsuits was just a coincidence. “We have engaged with our regulators throughout this process,” said Tom Kelly, a bank spokesperson. “We continue to meet the requirements of the consent order.” (Kelly said Chase also filed some credit card lawsuits in 2019.)
Kelly declined to say how many suits it has filed in its blitz of the past two years, but civil dockets from across the country give a hint of the scale — and its accelerating pace. Chase sued more than 800 credit card customers around Fort Lauderdale, Florida, last year after suing 70 in 2020 and none in 2019, according to a review of court records. In Westchester County, in New York’s suburbs, court records show that Chase has sued more than 400 customers over credit card debt since 2020; a year earlier, the equivalent figure was one.
A similar surge is occurring in Texas, according to January Advisors, a data-science firm. Chase filed more than 1,000 consumer debt lawsuits around Houston last year after filing only seven in 2020, the analytics firm’s review of court records in Harris County shows. Chase instigated 141 consumer debt cases in Austin last year after filing only one such case in 2020, according to January Advisors, which is conducting research for a nationwide study of debt collection cases.
Today, just as it did before running afoul of the CFPB, Chase is mass-producing affidavits from the same San Antonio office where low-level employees generated hundreds of thousands of affidavits in the past, according to defense attorneys and court documents. Those affidavits are often the main piece of evidence that Chase uses to win its case while detailed customer records — and any errors they may contain — remain out of sight.
“Our clients deserve to see everything that Chase has in its files,” Dorsen said. “Instead, Chase gives us these affidavits and says: ‘You can trust us about the rest.’”
Before the robo-signing scandal a decade ago, Chase recovered about a billion dollars a year with its credit card collections business, according to the CFPB. Why would Chase stop suing customers for years, forgoing billions of dollars, only to ramp up its suits once key provisions of the CFPB settlement had expired?
Craig Cowie thinks he has an answer. “Chase did not think it could make money if it had to sue customers and abide by the CFPB settlement,” said Cowie, who worked as an enforcement attorney at the CFPB during the Obama administration and now teaches at the University of Montana Law School. “That’s the only explanation that makes sense for why the bank would have held back.”
Cowie, who did not work on the CFPB’s case against Chase, said he doesn’t know why the agency agreed to a time limit on some settlement provisions. He pointed out that such agreements are negotiated and the CFPB cannot just dictate the terms. The agency may have felt it had to let some provisions of the settlement expire to get Chase to agree to the deal, Cowie said.
The CFPB declined to comment.
For its part, Chase said it waited years to restart its lawsuits because it took that long to get the system working right. “We rebuilt the litigation program slowly and methodically to make sure we had the right controls in place,” said its spokesperson, Kelly.
At the time, the CFPB had found numerous flaws in Chase’s suits. The agency concluded that Chase used “unfair” legal tactics when it promised that its credit card account information was reliable and mistake-free. It wasn’t simply a matter of errors in calculating how much was owed; in some cases the company even got the customer’s name wrong. Chase would sometimes pass accounts with errors — including instances where customers had been victims of credit card fraud, others who had tried to settle their debts and even some who had died — on to outside debt collectors, who might then take action based on that information.
Once Chase won a victory in court, the bank could seek to garnish a customer’s wages or raid their bank accounts, and those customers would pay a further price: a stain on their credit report that could make it harder to “obtain credit, employment, housing, and insurance,” the CFPB wrote.
Those sued by Chase, then and now, might spot errors if the company provided full records in its court filings, consumer advocates say. Instead, Chase typically submits copies of a few credit card statements along with a two-page affidavit attesting that the bank’s records were accurate and complete.
Consumer advocates say they do not expect that the majority of Chase’s credit card records are tainted with errors. But if today’s error rate is the same 10% that the CFPB estimated in the past and the Chase lawsuit push continues, thousands of customers may be sued for money they don’t owe. And there is no easy way to check when Chase keeps so many of its records out of sight.
Chase said that its current system for processing credit card lawsuits is sound and reliable. “We quality-check 100% of our affidavits today,” the company said in a statement.
Credit card customers do not respond to collections lawsuits in roughly 70% of cases, according to research from The Pew Charitable Trusts. In those instances, the customer typically loses by default.
In the small percentage of cases where a customer gets a lawyer or otherwise fights back, Chase still has the advantage because it can access all of the customer’s account records easily, according to consumer lawyers. (The bank typically closes accounts of customers who have failed to pay their debts, leaving them unable to access their records online.) Chase usually shares the complete credit card account file only after a legal fight, according to attorneys and pleadings from across the country. “Chase has all the evidence and we have to beg to get it,” said Jerry Jarzombek, a consumer-rights attorney in Fort Worth, Texas, who is defending several Chase customers.
The result leaves many defendants in a bind: They don’t have enough information to know whether they should dispute the company’s claims. “Chase wants us to believe its records are reliable so we don’t need to see them,” Jarzombek said. “Well, I’m sorry. I’ve dealt with Chase for decades. I’d prefer to see what evidence they’ve actually got.”
The robo-signing scandal exposed Chase’s affidavit-signing assembly line. Before the settlement, Chase had about a half-dozen employees churning through affidavits stacked a foot high or taller, according to the former Chase executive who brought the practices to light at the time. Kamala Harris, who was then California’s attorney general and is now vice president, likened the process to an affidavit mill.
The current operation involves roughly a dozen “signing officers” working from the same San Antonio offices as before and performing many of the same tasks, according to Chase employees and outside lawyers who have represented the company.
Chase used to prepare affidavits “in bulk using stock templates,” according to the 2015 CFPB findings. That is again happening today, according to two of Chase’s outside lawyers who requested anonymity because they were not authorized to discuss the process.
The lawyers said they typically send their affidavit requests in batches. The requests already contain the basic details of the customer’s account when they arrive in Chase’s San Antonio office, they said. An affidavit request that is sent one day can typically be processed and returned the next business day, the lawyers said.
Chase affidavits contain stock language that the “signing officer” has “personal knowledge of and access to [Chase’s] books and records.” That “personal knowledge” is limited, said one signing officer who declined to be named. Chase does not expect signing officers to perform a forensic review of an account but rather to follow computer prompts to complete the affidavit, said the employee. “We just work with what’s on the screen.”
Chase declined to discuss its process for creating affidavits, but the bank said it satisfies the rules set by courts in the places where it operates. “Judges, clerks and other judiciary staff are well versed in the court rules and laws in their jurisdictions,” said the statement by the bank’s spokesperson, Kelly. “Through our counsel, we provide the information those parties require in matters before them.”
Courts around the country have grown too accepting of what big banks and debt collectors say, according to consumer advocates. And the justice they dispense can feel as cursory and hurried as the suits that Chase files.
In Texas a decade ago, lawmakers pushed most credit card cases into the state’s version of small claims courts, known as justice courts. The rules of evidence are more lax there and the judge might not even be a lawyer. A retired basketball player presides over one such courtroom in Houston. “One of these judges said to me: ‘What’s the point of seeing a bunch of evidence? We already know these people borrowed the money,’” said Jarzombek, the Fort Worth attorney. “I said: ‘Why even have a trial, then? Let the banks take whatever they want.’”
In Houston, where Chase has more than 1,000 consumer credit suits on the docket, only one defendant in those cases has fought to a trial on her own, according to court records.
That person’s experience is instructive. Like many, Melissa Razo struggled financially during the early pandemic. A former restaurant manager, the 42-year-old Razo had gone back to school, the University of Houston, to study psychology, and she supported herself by doing typing for an online transcription service. That work suddenly dried up when the pandemic hit, and Razo began missing credit card payments. Her debt escalated. Chase sued her in January 2021, claiming she owed a total of about $8,500 on two credit cards.
Razo had a previous court experience stemming from an acrimonious divorce, where she had learned that a plaintiff needs facts and evidence to win. “Nothing I presented was good enough,” she recalled of the divorce case.
Using what she’d learned, Razo prepared for her day in court against Chase. She could not access her account anymore, she said, because the bank had shut it down. So in late June, as her hearing date approached, Razo pulled together as many of her credit card statements as she could find. They told a story of grocery runs and shopping at Target and Goodwill, along with missed payments and penalties.
Razo presumed Chase would have to back up its claims just as she had been expected to do in divorce court. She expected the company’s lawyers would have five years of statements and documents to show that she owed exactly what they said she owed. This was a trial, after all.
The trial lasted perhaps a minute, according to Razo. It boiled down to two questions. Was Razo present? the judge asked over Zoom. When she announced herself, the judge asked if she had a Chase credit card. Yes, Razo said, that was true. Then, she said, the judge ruled in favor of Chase.
Chase declined to comment on the case. The judge was not authorized to speak about the matter, according to a court clerk. And the justice courts do not transcribe their hearings, so ProPublica could not verify what was said. (The court’s docket did confirm that a judgment was entered in Chase’s favor after a judge trial.)
Razo’s courtroom experience, though, sounds typical, according to Rich Tomlinson, a lawyer with Lone Star Legal Aid. “I can’t recall ever seeing a live witness in a debt case,” said Tomlinson, who has represented hundreds of debtors in his career. “These trials are not like Perry Mason. They’re not even Judge Judy.”
Indonesian soldiers patrol in an armored fighting vehicle at the ExxonMobil Arun natural gas field near Lhokseumawe, in Indonesia's Aceh Province, in April 2001. (photo: AP)
"He was taken by soldiers," one of the 11 plaintiffs in the case, identified only as Jane Doe V, says of her husband, who went missing in January 2001. "Then his hand was cut off and they took his eye."
The lawsuit, which was originally filed in the District Court for the District of Columbia in the U.S. in June 2001, alleges that oil and gas giant ExxonMobil was responsible for human rights violations, including sexual assault, battery and wrongful death, committed by members of the Indonesian military. The soldiers had been hired to guard the ExxonMobil plant in Aceh in the late 1990s and were thus under contract with ExxonMobil when the abuses took place, the lawsuit says.
ExxonMobil has tried to have the plaintiffs' claims dismissed nine times, slowing the legal process to a crawl. The case has dragged through the courts for over 20 years. Now, however, lawyers for the plaintiffs are hoping they will get their long-awaited day in court.
Agnieszka Fryszman, who serves as co-counsel in the case, told Nikkei Asia that the plaintiffs' legal team has filed over 300 pages of factual findings, approximately 400 exhibits and five expert reports. It has conducted around 40 depositions to prepare the case for trial. In November, the team filed a motion to set a trial date, which could happen as soon as this spring, depending on the course of the coronavirus pandemic.
"This case raises important issues. We are confident in the evidence we have presented and look forward to proving the claims in court," she said.
In court documents, ExxonMobil has repeatedly countered that it had no knowledge of any human rights abuses and cannot be held responsible for any violations that may have occurred.
Aceh Province is one of the most resource-rich parts of Indonesia and is known for its large oil and gas reserves.
In 1971, Mobil Oil Indonesia discovered that the area around Lhoksukon was rich in natural gas, which it then moved to extract and liquefy. In its heyday in the late 1990s and early 2000s, the plant at Arun Field, which was part of the wider Lhokseumawe Industrial Zone, generated over $1 billion annually.
In 1999, Exxon bought Mobil Oil and formed ExxonMobil Corp. in Indonesia, which ran the Arun Field until 2001.
"Our case began as an important effort to hold one of the world's largest and most powerful corporations accountable for fundamental human rights violations," said human rights lawyer Terry Collingsworth. "Indeed, the first United States federal judge assigned to the case, Louis F. Oberdorfer, stated in an early ruling, 'The United States, as leader of the free world, has an overarching vital interest in the safety, prosperity and consequences of the behavior of its citizens, particularly its super corporations conducting business in one or more foreign countries.'"
When ExxonMobil came to Aceh, the province was embroiled in a bloody civil war that had raged for decades as the Free Aceh Movement (GAM) battled for independence from Indonesia.
In 1989, Aceh was officially declared "an area of special military operations," and Indonesian troops were dispatched to clamp down on the civil unrest. In the late 1990s and early 2000s, violence regularly erupted in the province, causing ExxonMobil to hire Indonesian soldiers to protect its plant and staff from attacks.
It was at this time, the plaintiffs allege, that the soldiers under contract to ExxonMobil also conducted sweeping raids, torturing villagers whom they incorrectly accused of being separatists, making ExxonMobil potentially responsible for any human rights abuses they committed.
Oberdorfer, who originally presided over the case, died in 2013, as have four of the original 11 plaintiffs.
The remaining plaintiffs told Nikkei that the pressure of having the case hang over them for more than two decades has taken its toll, but they are ready for their voices to be heard.
"We hope they can schedule the trial so that we can finish this quickly," one of the plaintiffs said, speaking on the condition of anonymity. "We need to know the verdict. We want things to be clear, but we are not scared. We faced this torture and we experienced it. We were the ones who were hit and beaten."
The plaintiff said that, when he was taken by soldiers, he lost all hope that he would be released or live to tell his story in court. "I just kept talking to Allah in my heart," he said. "I couldn't do anything. I couldn't resist. There were so many soldiers and they all had weapons."
Another plaintiff, who told Nikkei that he is still traumatized by his abduction and torture at the hands of the "Exxon Army," said that forced disappearances were rife in the area in the early 2000s. "People were buried in unmarked graves and still haven't been found all this time later," he said.
"So many people have died but this case still lives on. We are still alive and we are ready to go to trial."
When contacted for comment on the case, ExxonMobil spokesman Todd Spitler referred Nikkei to a previous statement: "We have fought the baseless claims for many years ... The plaintiffs' claims are without merit. While conducting its business in Indonesia, ExxonMobil has worked for generations to improve the quality of life in Aceh through employment of local workers, provision of health services and extensive community investment. The company strongly condemns human rights violations in any form."
Military veterans confront police guarding a bridge near Oceti Sakowin Camp on the edge of the Standing Rock Sioux Reservation in 2016. (photo: Scott Olson/Getty)
In a legal fight over public records, press advocates say that Dakota Access pipeline company Energy Transfer engaged in “abusive litigation tactics.”
“This is the first opinion that I’ve been aware of that’s made it clear that when you give records to a public entity like this private investigation board, they become public records,” said Jack McDonald, attorney for the North Dakota Newspaper Association. “What relationship there was between Energy Transfer and TigerSwan — that doesn’t affect the records.”
The North Dakota case revolves around 16,000 documents that an administrative law judge forced TigerSwan to hand over to the state’s Private Investigation and Security Board in the summer of 2020 as part of discovery in a lawsuit accusing the company of operating without a security license. TigerSwan was hired by Energy Transfer in September 2016 to lead its security response to the Indigenous-led movement to stop construction of the Dakota Access pipeline, or DAPL, at the edge of the Standing Rock Sioux Reservation.
A portion of the discovery documents were already made public in court filings. The documents provided unprecedented detail about the security firm’s activities against members of the anti-pipeline movement, known as water protectors, and raised questions about whether public officials’ responses to Energy Transfer’s activities were appropriate.
In October 2020, I made a public records request under the aegis of The Intercept for the full set of documents that gave rise to the court case. This week, Energy Transfer attorneys said they plan to appeal the latest ruling and requested a stay to prevent the North Dakota security board from releasing the material.
Led by a former commander of the elite Army unit Delta Force, TigerSwan approached the water protectors as “an ideologically driven insurgency with a strong religious component,” according to internal documents leaked to The Intercept. Company tactics — including aerial surveillance, communications monitoring, infiltration of activist circles, and coordination with law enforcement agencies — were revealed by The Intercept in an investigative series. In one of the discovery documents that has already been released, TigerSwan bluntly said that its “counterinsurgency approach to the problem set is to identify and break down the activist network.”
Energy Transfer is pouring money into fighting more documents disclosures. The pipeline company hired Kasowitz Benson Torres LLP, a law firm founded by Marc Kasowitz, one of former President Donald Trump’s longtime attorneys. Critics say the firm’s aggressive lawsuits against environmentalists are designed to strain its opponents’ resources and chill public debate.
Kasowitz Benson Torres represented Energy Transfer in a federal suit accusing Greenpeace and others of launching the Standing Rock movement through a misinformation campaign and of violating the Racketeer Influenced and Corrupt Organizations Act, or RICO, which was designed to take down the mob. The suit against Greenpeace was dismissed by a federal judge, who said that its RICO interpretation was “dangerously broad.” (Energy Transfer and Kasowitz Benson Torres declined to comment for this story.)
“The dehumanization, demonization, and lawfare tactics used against water protectors from Standing Rock and Line 3” — another contested pipeline — “to front lines across the world are bankrolled by private fossil fuel corporations with endlessly deep pockets,” said Natali Segovia, legal director of the Water Protector Legal Collective, which represents opponents of the Dakota Access pipeline and other polluting projects. “These documents are crucial to understanding just how far those tactics run and the extent of the harm they have already caused to those that were at Standing Rock.”
Shortly after TigerSwan handed over its documents to the North Dakota Private Investigation and Security Board, Energy Transfer began fighting to get them back, including by suing the board itself. The fight continued after TigerSwan and the board agreed to a settlement in the licensing dispute, in which TigerSwan affirmed that it would not operate in the state and would pay $175,000 but admitted no fault.
Meanwhile, the board denied The Intercept’s public records request for the documents, in part by citing pending litigation. When The Intercept sued for the documents, the two cases were combined.
Energy Transfer argued that the documents don’t count as public records because, it claimed, TigerSwan had inadvertently supplied material that went beyond the discovery request, violating its contract with Energy Transfer. TigerSwan agreed in court filings that the material should be returned and kept from release.
Feland, the judge, dismissed the claim and others, affirming that Energy Transfer’s contract with TigerSwan does not override North Dakota’s open records laws.
Although the ruling only directly applies to a handful of North Dakota counties, it could have consequences beyond the region. “State law rulings can really spread,” said Victoria Noble, a First Amendment fellow at The Intercept and one of the lawyers representing the news outlet in court. “If Energy Transfer had prevailed here, that would have given a blueprint both for Energy Transfer and for other companies to make the same arguments in other states, in other cases.”
The ruling does not mean that the North Dakota board will immediately hand over the documents, in part because the judge did not rule on whether a public records law exemption asserted by the security board applies. Energy Transfer’s appeal and request for a stay are likely to halt any potential release for the time being.
Separately, the company is still fighting in North Dakota’s Supreme Court to intervene in the security board’s now-settled administrative case against TigerSwan, aiming to get the administrative law judge to issue a protective order forcing the board to withhold the documents.
In an amicus brief, news organizations characterized Energy Transfer and Kasowitz Benson Torres’s arguments to the Supreme Court as “abusive litigation tactics.” The signatories — the North Dakota Newspaper Association; HPR LLC, which publishes Fargo’s High Plains Reader; and First Look Institute, The Intercept’s parent company — said that allowing Energy Transfer to make arguments similar to those already presented in district court again to an administrative law judge would be “duplicative litigation” and would “seriously impair the rights of the press and public under the Open Records Act” because of the high expense of fighting the Fortune 500 company in multiple venues.
The aggressive approach is nothing new for Energy Transfer. In 2019, when Energy Transfer’s RICO suit against Greenpeace was dismissed, its Kasowitz Benson Torres attorneys filed a new version of the suit in a North Dakota state court within a week; that case is ongoing. Last spring, the attorneys filed wide-ranging subpoenas against individuals and groups associated with the Standing Rock movement — including press. Among the subpoenas was one demanding that the nonprofit news organization Unicorn Riot turn over audio, communications, and article drafts related to Standing Rock reporting.
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