Jack Smith Has 50 Pages Of Real-Time Notes From Evan Corcoran

A lot of things happened. Here are some of the things. This is TPM’s Morning Memo.

Trump Was Warned

President Trump was warned by his lawyer Evan Corcoran that he could not retain classified documents at Mar-a-Lago after they were subpoenaed last year by a DC federal grand jury, the Guardian reports.

The report is based on roughly 50 pages of contemporaneous notes kept by Corcoran and described to the Guardian. Special Counsel Jack Smith has the notes as well as grand jury testimony from Corcoran after the prosecution team succeeded in piercing attorney-client privilege. A federal court ruled there was sufficient evidence to believe that Corcoran’s legal counsel was used in furtherance of a crime.

Corcoran himself searched a storage room at Mar-a-Lago and returned some but – as an FBI search would later reveal – not all of the classified documents retained by Trump:

The federal investigation led by special counsel Jack Smith has recently focused on why the subpoena was not compiled with, notably whether Trump arranged for boxes of classified documents to be moved out of the storage room so he could illegally retain them.

The notes also apparently contain Corcoran’s impressions of Trump:

In addition to his exchange with Trump, Corcoran described Trump’s facial expressions and reactions whenever they discussed the subpoena. The unusually detailed nature of his notes is said to have irritated Trump, who only learned about them after the notes themselves were subpoenaed.

Stay tuned.

The Sound Of A Bus Rolling Over Boris Epshteyn

Outgoing Trump attorney Timothy Parlatore let loose on Boris Epshteyn over the weekend as he explained his decision to leave the Trump legal team:

  •  “There is one individual who works for him, Boris Epshteyn, who had really done everything he could to try to block us, to prevent us from doing what we could to defend the president.”
  • “In my opinion, he was not very honest with us or the client on certain things.”

A New Mystery Jan. 6 Argument

A sealed argument before the DC Court of Appeals on Friday appears to be connected to Special Counsel Jack Smith’s probes, Politico reports:

Ari Holtzblatt, an attorney with the high-powered firm WilmerHale — who has most recently represented Twitter, Google and Meta — argued against Justice Department trial attorney James Pearce, according to filings lodged with the federal D.C. Circuit Court of Appeals. Holtzblatt has most frequently represented Twitter in recent months, including in a Supreme Court case in February that resulted in a significant victory for the social media company earlier this week. Pearce is among the DOJ prosecutors working closely with special counsel Jack Smith’s team.

The exact nature of the proceeding remains unknown publicly.

Trump Accuses Jack Smith Of Treason

In a late-night rant Friday, the former president went to town on Special Counsel Jack Smith:

 TRUMP Hating Special Prosecutor Jack Smith, whose family and friends are Big Time Haters also, will be working overtime on this treasonous quest. They are scoundrels and cheats. THIS IS ALL ABOUT ELECTION INTERFERENCE.

Durham’s Epic Fail, Part 385

Emptywheel:

After getting his ass handed to him by two juries and one judge, in his report, Durham nevertheless repeated the allegations against Michael Sussmann and Igor Danchenko on which they have been acquitted. While in one discussion of his prosecutorial decisions, Durham described these as “allegations,” in his executive summary and elsewhere, he stated, as fact, that both men had made false or fabricated statements. Worse still, in his efforts to sustain his false statements allegations, Durham himself makes claims that were rebutted or undermined by the trial records.

Worth Watching

DC police intel chief has been indicted for allegedly tipping off former Proud Boys chairman Enrique Tarrio. He pleaded not guilty.

Rudy, Rudy, Rudy

A federal judge has ordered Rudy Giuliani to provide financial documents proving he can’t afford to hire anyone to conduct searches for relevant information in the lawsuit against him by two Georgia election workers.

C. Boyden Gray, 1943-2023

If you still need evidence that Donald Trump is not an anomaly but an organic result of Republicanism since Reagan, read this obituary of former Bush I White House Counsel C. Boyden Gray.

Important

NPR: Federal inquiry details abuses of power by Trump’s CEO over Voice of America

White House Weighs In On TPM’s Gosar Exposé

Responding to the TPM report showing links between neo-Nazi Nick Fuentes and the staff of Rep. Paul Gosar (R-AZ), White House deputy press secretary Andrew Bates sent us a statement:

President Biden is adamant that we deny hate any safe harbor. No elected leader should ever tolerate these disgusting and pathetic views. Bigotry, white supremacy, antisemitism, and violence are obscene and un-American.

More here.

Gosar Waxes Nostalgic For Hoover-Era FBI

Biden And McCarthy To Meet One-On-One Today

The debt ceiling hostage-taking is reaching its critical phase.

2024 Ephemera

  • Sen. Bill Cassidy (R-LA): “I don’t think Trump can win a general election.” 
  • Politico: Key Republican recruits hesitate to jump in if Trump is the nominee

What Could Possibly Go Wrong?

George Santos names George Santos as the treasurer for the George Santos’ campaign.

Pomp And Wretched Circumstance

A transgender student skipped her public high school commencement ceremony in Mississippi after a federal judge declined to intervene to block the school from making her wear “boy’s clothes” under her gown.

Good Read

TPM’s Josh Kovensky is back from a personal trip to Kyiv.

Right-Wing Media Hoaxed

How Fox News’ Laura Ingraham walked back her report on the supposed removal of homeless vets from a hotel in New York state to make room for migrants that turned out to be a complete fabrication:

Like Morning Memo? Let us know!

He Became Convinced the School Board Was Pushing “Transgender Bullshit.” He Ended Up Arrested — and Emboldened.

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

An image of a shooting target — with two bullet holes to the head and five scattered around the chest — serves as a warning to visitors who climb the brick steps and pass the American flag to reach Eric Jensen’s front door.

“If you can read this you’re in range,” the sign says. Another warning, posted near the doorbell, states: “No Solicitation. … This property charges $50 per minute to listen to any vaccine/medical advice.” He ordered that one in 2021, after mobile units offering COVID-19 vaccines began riding through his community outside Winston-Salem, North Carolina.

For years, Jensen had been looking for a way to voice his many grievances, related not just to masks and vaccines but to “transgender bullshit” and library books “trying to convert kids to gay” and other perceived dangers he says his five younger children face in the public school system. (The 65-year-old retiree has four other children who are adults.) Then he found a place where he could finally be heard.

“You gotta start from the bottom and work yourself up,” Jensen said, not long after he reluctantly opened his front door last November. “I mean, you can’t just go to your governors and try to make a difference. So you start at the bottom, and the bottom is school boards.”

He had intended to wage a campaign against the school board to bring about change. Instead, his efforts got him arrested.

At first he was hesitant to talk about what happened in the lead-up to the February 2022 incident. In the weeks after the arrest, he didn’t comment in any of the news stories that covered it.

Then, as the months wore on and his charges were dropped, he realized that standing up to authorities wasn’t going to lead to any sort of punishment: “I thought, ‘Holy shit, I didn’t have to go through a whole lot of aggravation there.’” He said that, walking away from the ordeal, he felt emboldened.

ProPublica identified 59 people arrested or charged over an 18-month period as a result of turmoil at school board meetings across the country. In the coming weeks, ProPublica will continue to publish stories about how that unrest has played out in various communities and upended once-staid school board meetings.

In the dozens of incidents ProPublica examined, some of which involved threats and violence, only one person who disrupted a meeting was given a jail sentence: a college student protesting in support of transgender rights. By contrast, almost all of the other individuals, including Jensen, railed against the adoption of mask mandates, the teaching of “divisive concepts” concerning racial inequality and the availability of books with LGBTQ+ themes in school libraries. Also like Jensen, the vast majority of people arrested or charged faced few consequences.

Jensen didn’t come up with the idea to target the school board on his own. He’d volunteered to help two women connected to the state chapter of a national group that was rapidly gaining followers through social media sites and YouTube channels promoting the convoluted QAnon conspiracy theory.

Jensen, a solid, gray-haired man with piercing blue eyes, retired about five years ago, though his wife still works as a custodian at the elementary school. He’d been a project manager for a metal building manufacturer that transferred him to North Carolina from Ohio. Prior to that, he and his family owned a campground for three decades.

He described how, several years ago, he made the decision to abandon mainstream media. He said it used to be that “I was always watching the news. But once I found out how much they lie, you have to get back into alternative media to find out the actual truth.” He said he has since become convinced that John F. Kennedy Jr. is alive, Hillary Clinton and Bill Gates are dead, and the COVID-19 vaccine is actually a “death shot.” Echoing a debunked claim, he explained his belief that the vaccine changes your DNA in a way that allows those who patented the modified genetic sequence to “own” you, which is part of an effort to kill people off and depopulate the planet. “I’ve seen it many times, where they’ve got plastic caskets lined up,” he said. “There must be a million of them sitting there in lots waiting for these people to die.”

In January of 2022, shortly after he became interested in what he saw as threats posed by school boards, he logged onto the messaging service Telegram. “I started putting feelers out, trying to find, you know, groups that were involved with it and see what they were doing,” he said.

A Telegram group called North Carolina Bonds for the Win seemed like the right fit. The national Bonds for the Win movement had been gaining steam, promoting its mission to force school districts to drop so-called unconstitutional practices including COVID-19 safety protocols and the distribution of alleged “obscene materials” to minors. To accomplish its goal, its followers would serve local school boards with reams of paperwork outlining an intent to sue their districts’ surety bond (or risk-management plan) providers. The movement, dubbed “paper terrorism” by the Southern Poverty Law Center and the Anti-Defamation League, aims to force school districts into “compliance” to avoid losing federal funding.

The tactic was already being tested in North Carolina’s largest school district, where earlier that January a mother had crossed a security barrier to serve the Wake County school board with papers, warning, “You’ve violated your oath of office.” Another local report described how police turned off lights in an attempt to clear people out of an Iredell-Statesville school board meeting. The people yelled, “You’ve been served!” to the school board members and told police they wouldn’t leave unless they were arrested.

“And that’s when I found these ladies.” Jensen said of the two women leading efforts in his school district for North Carolina Bonds for the Win.

On Feb. 22, 2022, Jensen arrived at the lobby of the Winston-Salem/Forsyth County school board meeting and met the women, Deborah Tuttle and Regina Garner, face-to-face for the first time. They handed him a cardboard box of paperwork, which he understood to be “explanations about how they [district officials] were going to get sued against their bonds” for teaching critical race theory — an academic framework sometimes taught at the college level and above that examines U.S. history through the lens of racism — and allowing books containing “profanity” in schools. He also said the documents included proof that masks don’t work.

Tuttle and Garner did not respond to numerous requests for comment.

Just minutes into the meeting, the school board chairperson watched with curiosity and a dose of trepidation as a man with a huge box took a seat a few rows back. She texted the board members sitting next to her, alerting them to the man. They, too, wanted to know what was in the box.

“He was just staring at us, and we were a little worried for our safety,” chairperson Deanna Kaplan recalled.

Both Garner and Tuttle signed up to address the board during the public-comment period. Garner complained about the district’s failure to uphold the Constitution and accused school officials of practicing medicine without a license and violating child abuse laws. Then Tuttle stepped up. “There’s a lot more violations that she didn’t get to, but you can read those for yourself when we serve you your letters of intent,” she told the board.

As the women spoke, Kaplan grew more uneasy about the man with the box. “Then,” she said, “he started charging at us.”

As Jensen, clutching the box, neared the superintendent, school security officers grabbed him and pulled him out of the meeting room. In the adjacent hallway, he strained against the three men it took to hold him down.

“You work for me!” Jensen repeatedly yelled as security guards tried to shackle his wrists and ankles. His deep voice echoed from the hallway into the meeting room, where some attendees began screaming and board members sat in disbelief as they watched the mounting chaos.

As the board hastily called for an impromptu recess, one man yelled: “Commie cowards!”

“Commie bitch!” yelled another.

“If you walk out, you’re walking away from your job!” Tuttle yelled from the podium.

“There was somebody in the audience that was yelling, ‘The patriots are coming.’ I mean, it was just like a zoo. It was crazy,” Kaplan recalled. “The board members were concerned for our safety.”

Two months after his arrest, Jensen came to court prepared to represent himself on misdemeanor counts of trespass and resisting a public officer. He said he carried a folder with some notes he’d made and a printout of the Constitution. As the judge entered the courtroom, Jensen said, he proudly refused to comply with the order, “All rise.”

“That puts that judge above you,” Jensen later explained. “And that judge is not above you. He’s below you. Or she’s below you.”

Jensen said his refusal to stand angered the bailiff. He also said that before he could even open his folder of evidence, the judge dismissed his case.

Court records show Jensen received a voluntary dismissal. Prosecutors have not responded to requests for comment. A court clerk said that the slew of misdemeanor dismissals that day may have resulted from the court’s attempt to clear a pandemic backlog.

Regarding the judge and the courthouse staff, Jensen said: “I didn’t allow them to boss me around.” As for the security guards who arrested him, he said he’s now considering filing assault charges against one of them “because he grabbed me and threw me down for no reason.”

He described how, overall, the experience left him feeling empowered, although he was disappointed that the movement that inspired his efforts had fizzled.

“The ladies that I was with, they pretty much dropped it,” he said, adding that their decision “kind of threw me, because they weren’t going to fight for it.” Garner ended up running for a seat on the school board, but she was unsuccessful.

Jensen did face one consequence: He said he was banned from school property for any purpose other than to pick up and drop off his children. “But that’s it,” he said. A spokesperson for the Winston-Salem Forsyth County school district confirmed the ban but declined to detail the terms of it, citing legal concerns. He said the bans typically last a year. “In general, the letters outline situations when principals can grant permission for the person to come on campus. They, however, must ask and be granted that permission by school administrators.”

Jensen admitted during the conversation in November that he hasn’t exactly complied with the ban: When he showed up for his youngest daughter’s elementary school graduation last spring, a neighbor called school security on him. But, he said, school officials let him stay. (The district spokesperson said Jensen was allowed to attend the graduation “in an effort to reduce stress and embarrassment for his student and on the condition that he maintained appropriate behavior.”) Jensen also said he’s not that worried about what would happen if he violated the ban again.

He’s since declined to speak further about his experiences or be photographed for this story.

“One of these days, I’m tempted to just walk in and allow them to throw me out or arrest me or whatever, because they have no right to do it,” Jensen said, not long before closing his door. “So we’ll see what shakes out if I do.”

14th Watch

Today President Biden seems to be increasingly teasing 14th Amendment authority, after headlines yesterday suggesting he was telling congressional progressives to drop the idea. I’ve basically stopped trying to interpret what’s happening here. But one thing is clear: even if President Biden has no intention of doing this or resorting to other extraordinary measures, it is insane to rule it out in advance publicly. At a minimum he needs Republicans to think he might take an action that would leave them with no ransom at all. Otherwise you’re simply negotiating against yourself.

Understanding ‘Mass Shootings’

Following up on my post from Thursday, I wanted to address a definitional question about what constitutes a mass shooting. This may seem rather technical, picayune in contrast to the horror. But it’s an important point both for understanding the statistics we see and acting to change things.

We often hear statistics about “mass shootings” in the United States. But those aren’t really what most of us think of as mass shootings. Most news and policy organizations use an FBI-derived statistic which looks at firearms incidents in which four or more people are shot, regardless of the severity of the injuries. That can include stick-ups gone wrong, family disputes, gang hits, everything under the sun.

Continue reading “Understanding ‘Mass Shootings’”

US Has A Long History Of State Lawmakers Silencing Elected Black Officials

This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It was originally published at The Conversation.

Mississippi legislators have enacted a law that would create a new judicial system covering the state’s capital city, Jackson, in place of the current county court system.

Set to take effect July 1, 2023, the move by a Republican-dominated legislature has been criticized by opponents as creating a “separate and unequal” court system that is not answerable to the majority-Black community it would seek to govern.

Continue reading “US Has A Long History Of State Lawmakers Silencing Elected Black Officials”

IRS Granted Tax-Exempt Status To White Nationalist And Extremist Groups, Including An Oath Keepers Foundation

This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It was originally published at The Conversation.

When someone mentions nonprofits, chances are you picture homeless shelters, free medical clinics, museums and other groups that you believe are doing good one way or another.

Most of these organizations are legitimate. But not all nonprofits are principled or embrace missions everyone considers worthy of the tax-exempt status that the government grants some 2 million organizations.

You might presume that the government would automatically refuse to grant tax-exempt status to white nationalist and anti-government groups. Yet as a scholar who has researched nonprofit accountability, I’ve seen the authorities struggle to draw the line between which organizations deserve to operate as nonprofits and those that don’t.

8 purposes allowed

The wide array of U.S. nonprofits includes many media outlets, chambers of commerce and political parties. But the term usually refers to the organizations that meet the requirements of Section 501(c)(3) of the tax code. Officially designated as charities, these groups don’t pay income taxes and can accept tax-deductible donations.

All 501(c)(3)s must apply to the Internal Revenue Service for tax exemption unless their revenues are less than $5,000 or they are a church, synagogue, mosque or other house of worship.

The IRS usually grants this status to any applicant with at least one of eight purposes, including being charitable or educational.

Figuring out if food banks deserve exemption is generally straightforward, as they engage in an obviously charitable activity.

Determining whether organizations are truly religious or educational is harder.

Oath Keepers Educational Foundation

Some groups with ties to the Oath Keepers — an extremist group with leaders who were found guilty of seditious conspiracy connected to the Jan. 6, 2021, attack on the U.S. Capitol — were granted this status.

Until recently, the Oath Keepers had chapters scattered across the country, and the main group never became a 501(c)(3) organization. But the Oath Keepers Educational Foundation and several smaller affiliated groups did obtain that status.

The foundation told the IRS when it sought charitable status that its primary purpose was “to give veterans an opportunity for continued involvement in community service.”

The Oath Keepers network has largely collapsed amid the prosecution of its members who engaged in the Jan. 6 attack. Most notably, founder Stewart Rhodes was found guilty in 2022 of seditious conspiracy for helping plot the insurrection. He is expected to be sentenced around May 25, 2023, and could spend more than two decades in prison. Rhodes was also listed as the foundation’s president when it was established.

When the Oath Keepers’ former spokesman Jason Van Tatenhove testified before Congress in 2022, he revealed that the group was radicalizing its followers and spreading violent messaging.

The Three Percenters, another extremist group with ties to people who were convicted for their role in the Jan. 6 attacks, was a charity at that time. Its leadership subsequently dissolved the organization.

Unite the Right ties

Other white nationalist groups, such as Identity Evropa and the National Policy Institute, have received 501(c)(3) status over the years.

Both of those groups were among the organizers of the Unite the Right rally in Charlottesville, Virginia, in 2017, where participants attacked progressive counterprotesters, killing one of them and injuring many others.

A ragtag group of white men, some in helmets, some carrying confederate flags
Some of the white supremacist groups that organized the Unite the Right rally in Charlottesville, Va., in August 2017 were charities at the time. AP Photo/Steve Helber

Policing tax exemption

Although it’s a crime to lie on the application, some groups seeking to become charities do. The IRS doesn’t verify those statements, however, presumably because the threat of prosecution generally prevents misrepresentations, and the cost of verifying what every group says is very high.

Small groups can use a simplified version of the required form, but it is so poorly designed that the IRS has granted exemption to many ineligible organizations. In one extreme case, a scam artist set up 76 fake charities using this form, as The New York Times discovered in 2022.

Another obstacle is that applicants are usually forming new organizations, so the IRS examines their intentions rather than their actions.

Respecting free speech

Because Americans prize the right to free speech, the IRS treads carefully when determining which nonprofits don’t deserve tax-exempt status.

Big Mama Rag, a radical feminist nonprofit magazine, lost its tax exemption in the late 1970s. The IRS revoked its charitable status upon seeing that the magazine refused to publish views contrary to its own. When the magazine fought back, an appeals court determined that the criteria the IRS and a district court had used to deny exemption were unconstitutional because they were based on the organization’s constitutionally protected views.

This case set an important precedent: The government considers charities advancing unpopular views to be educational enough to keep their tax-exempt status.

The IRS now evaluates educational methods, not content. Educational charities must support their assertions with facts and without inflammatory language.

The only reported court case of a group failing this test was a blatantly racist organization, the Nationalist Movement.

That organization sought to “favor Caucasian, Christian, and English-speaking Americans of Northern European descent.” The IRS revoked its 501(c)(3) status in 1994 after determining that the Nationalist Movement was a propaganda organ.

Revoking charitable status is complicated

And it is not always easy to revoke tax exemption, either.

The IRS has historically been underfunded. In 2013, when the Republican-led Congress decided that the IRS was biased against conservative nonprofits, lawmakers penalized the agency by cutting its budget and explicitly forbidding it from creating rules that would draw sharper lines between political and charitable purposes.

It turned out that the IRS was also subjecting progressive groups to an extra layer of scrutiny — and official government reports found inappropriate criteria but no anti-conservative bias. In any case, because it hampered IRS enforcement, this dust-up made it harder for the IRS to root out charities that didn’t deserve the designation.

Unfortunately, the $80 billion added to the IRS budget from 2022 to 2031 is unlikely to increase the scrutiny of charities, because there are too many other priorities, like updating software and making tax scofflaws pay up.

Maintaining diversity

The Oath Keepers Educational Foundation appears to have lost its 501(c)(3) status. The government, which makes it hard to tell why a former charity has lost its tax-exempt status, has not clearly indicated whether this was a voluntary decision on its part or the result of a negotiated settlement with the IRS.

It’s also possible that the organization simply failed to file required annual paperwork with the IRS for three years in a row. That omission automatically causes charities to lose their tax-exempt status, although it can be restored.

While the fact that the white nationalist groups mentioned above ever got charitable status is disturbing, a search of the IRS database of tax-exempt organizations shows that none of them have it today.

In my opinion, a large part of the strength of the nonprofit sector lies in its diversity of causes and viewpoints. For this reason, I think it’s better for the government to err on the side of authorizing too many tax-exempt organizations than to quash free speech or meddle with trying to determine which faith traditions are deserving.

But it should be clear that charities that encourage violence and cheer on extremism are not contributing to society with any of the purposes the IRS allows.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The Conversation

Hospitals In Two States Denied An Abortion To A Miscarrying Patient. Investigators Say They Broke Federal Law.

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

Mylissa Farmer knew her fetus was dying inside of her. Her water broke less than 18 weeks into her pregnancy last August, and she was desperate for an abortion.

But according to federal documents, during three emergency room visits over two days in Missouri and Kansas, doctors repeatedly gave Farmer the same chilling message: Though there was virtually no chance her fetus would survive and the pregnancy was putting her at high risk for life-threatening complications, there was nothing they could do for her.

In the 11 months since the Supreme Court overturned Roe vs. Wade, similar stories have been reported in the 14 states where abortion bans have gone into effect. In Texas, five women are suing the state for denial of care, including one who went into septic shock and almost died.

Now, the Biden administration is employing one of the few tactics it has available to try to hold hospitals accountable for denying pregnant patients abortion care for high-risk conditions.

In April, a first-of-its-kind federal investigation found two hospitals involved in Farmer’s care were violating a federal law that requires hospitals to treat patients in emergency situations. If the hospitals do not demonstrate they can provide appropriate care to patients in Farmer’s situation, they stand to lose future access to crucial Medicare and Medicaid funding. Physicians who fail to treat patients like Farmer could incur fines, and patients may be able to sue for monetary damages, Farmer’s attorney, Alison Tanner, said.

The investigation, conducted by the Centers for Medicare and Medicaid Services, documented that both Freeman Health System in Joplin, Missouri and the University of Kansas Health System breached their internal policies for complying with the Emergency Medical Treatment and Labor Act, and that their protocols continue to place patients in “immediate jeopardy” of serious health risks, the highest level of violation.

Investigators concluded that future patients in similar situations could face “serious injury, harm, impairment or death.” The hospitals will remain under investigation while they come up with plans to ensure that patients in need of emergency abortion care are not turned away, federal officials said.

A “statement of deficiencies” from the investigation contains summaries of interviews with doctors, nurses and a risk manager involved in Farmer’s care. They reveal the extent to which health care providers went against their own medical judgment to comply with new state laws or political pressure. They also provide an on-the-ground view of how strict state abortion bans have altered care for patients with high-stakes pregnancy complications.

The agency did not disclose whether it is pursuing other investigations related to abortion denials. A spokesperson declined to share the number of complaints the agency has received related to denials of abortion care.

Health and Human Services Secretary Xavier Becerra has sent letters to all hospitals that participate in Medicare, warning them that federal law supersedes state abortion bans. The Department of Justice has also sued and won a case in an Idaho federal district court, arguing the state’s abortion law violates the Emergency Medical Treatment and Labor Act.

But experts say such efforts do not resolve the conflict. Last year, a Texas federal district court granted a preliminary injunction blocking Becerra’s guidance, siding with the Texas attorney general’s arguments that EMTALA does not cover abortions intended to prevent an emergency.

The court found “EMTALA creates obligations to stabilize both a pregnant woman and her unborn child, and it fails to resolve the tension when those duties conflict.”

Texas law, the court pointed out, allows abortion only in cases “when the medical condition is life-threatening” and the patient’s condition “pose[s] a serious risk of substantial impairment of a major bodily function.”

That’s a narrower range of circumstances than described in the federal government’s EMTALA guidance, which calls for offering abortion care “when the health of the pregnant woman is in serious jeopardy” or when her condition “could … result in a serious impairment or dysfunction of bodily functions or any bodily organ,” the court found. (The judge added italics for emphasis.)

“In addition to requiring a physical threat to life, [Texas law] requires both a greater likelihood and a greater severity than the Guidance’s interpretation of EMTALA does,” the judge wrote. As a result, EMTALA could not compel hospitals to offer abortions that would not be permitted under state law, the judge wrote.

Both cases are under appeal and may eventually make their way to the Supreme Court. In any case, it’s unclear how much impact federal enforcement can have. Though the hospitals who denied Farmer care have been reprimanded, neither has faced sanctions so far.

In a case where providing an abortion would violate state law and failing to provide one would violate federal law, doctors face a lopsided set of potential legal repercussions, said Mary Ziegler, a leading historian of the U.S. abortion debate. The possible penalties for violating EMTALA include fines. The consequences for violating state abortion bans could include prison time and loss of license.

“If [hospitals] interpret EMTALA in keeping with the Biden administration’s understanding of it, they could expose themselves to potentially very serious criminal charges,” Ziegler said. “The incentive structure will be that doctors don’t want to risk legal liability.”

Farmer, whose story was first reported by the Springfield News-Leader, was considered a high-risk patient from the beginning of her pregnancy, according to her doctors. She was 41, had a history of blood clots, an irregular heart beat, polycystic ovary syndrome, past abdominal surgeries and a past miscarriage.

She was nearly 18 weeks pregnant on Aug. 2, 2022, when she felt liquid gush from her vagina and began cramping and bleeding, according to the investigation.

Doctors at Freeman Health System, a Level II trauma center, quickly determined she had suffered previable prelabor rupture of membranes, known as PPROM — her water broke too early and she had lost her amniotic fluid.

PPROM occurs in about 3% of pregnancies. When it happens before viability, which is generally agreed to start at about 23 or 24 weeks, the chances of the fetus’s survival are extremely low because their lungs cannot develop without amniotic fluid. The chances of the pregnant patient developing a life-threatening infection are high.

The American College of Obstetricians and Gynecologists says the standard of care in these cases is to counsel patients on the risks and offer a choice between expectant management — waiting for the miscarriage to complete on its own or the patient to become sicker — or immediate delivery, by inducing labor or performing a dilation and evacuation surgery.

Being forced to wait can have dire outcomes. In Ireland, a woman with PPROM died from sepsis in 2012 after doctors refused her abortion care, prompting public outrage that eventually led abortion to be legalized in that country.

Anti-abortion activists say that state abortion bans include medical exceptions to allow abortions to protect the “life of the mother.” But in most laws, the exceptions are written so broadly they can be interpreted to only cover the most urgent emergencies, and doctors could face stiff penalties for violating the law — up to life in prison in Texas, for example. According to media reports, few patients have been able to access abortions under those exceptions.

PPROM cases where the fetus still has cardiac activity are particularly difficult for hospitals to navigate under the laws, because a patient’s health status can change from stable to life-threatening extremely quickly, said Dr. Chloe Zera, a maternal-fetal medicine specialist in Massachusetts. The laws do not clarify whether physicians can act to prevent an imminent health emergency instead of waiting for one to develop.

“There are [PPROM] cases that do OK. And there are cases where there is overwhelming infection or hemorrhage, or hysterectomy or ICU admission or death. And things can turn really fast,” Zera said. “We just don’t have great ways to predict who’s going to get sick.”

When a patient has PPROM at 18 weeks, she advises ending the pregnancy because the risks to the patient’s health outweigh the chances of the fetus reaching viability. If Farmer had walked into her hospital in Boston, where abortion access has been expanded since Roe was overturned, Zera said Farmer would have been able to have the procedure right away if she wanted.

That’s not what happened in Missouri or Kansas.

According to records, Farmer’s OB-GYN at Freeman Health System and a maternal-fetal medicine specialist described in detail the severe risks Farmer faced if she continued the pregnancy: clotting, sepsis, severe blood loss, loss of her uterus and death. At the doctors’ request, ProPublica is not naming them after they expressed concerns for their safety.

The maternal-fetal medicine specialist explained to Farmer that typical treatment options usually include abortion care, according to the documents. But when Farmer requested that labor be induced, the specialist told her it was not possible in Missouri.

“We discussed that the current Missouri law (188.015.7 RSMo) supercedes our medical judgement, and the MO law language states that we cannot intervene in the setting of a pregnancy with positive fetal heart motion unless there is a ‘medical emergency,’” the specialist wrote in Farmer’s charts, according to the investigation. “She is currently medically stable. … Therefore contrary to the most appropriate management based my medical opinion, due to the legal language of MO law, we are unable to offer induction of labor at this time.”

Missouri’s abortion ban is one of the strictest in the country. It bans all abortions, except those that are necessary to save a pregnant patient’s life. Even in those cases, doctors could still be charged with a crime. The exception is allowed as an affirmative defense, which puts the burden of proof on the doctor to show the abortion was necessary — similar to claiming self-defense in a homicide case.

The maternal-fetal medicine specialist told Farmer she could travel to another state for care or stay at the hospital for observation. “We discussed that awaiting a medical emergency may put her at further risk for maternal mortality,” the documents say. The specialist and the OB-GYN declined to comment, and the hospital’s media department did not respond to calls and text messages.

According to a complaint filed on Farmer’s behalf by the National Women’s Law Center, she called multiple hospitals, including two in Illinois and two in Kansas, both states where abortion is legal. She couldn’t get through to some of them. Other hospitals said they were not big enough to provide the care she needed or could only handle miscarriages later in pregnancy. She tried two abortion clinics, but could not reach anyone there. Finally, one hospital recommended she go to the University of Kansas Health System, in Kansas City, Kansas, which has the largest out-of-state emergency room nearest to Farmer. She and her boyfriend drove nearly three hours.

In interviews with federal investigators, Farmer said that when she first arrived at the University of Kansas at 11:35 p.m., doctors confirmed she had no amniotic fluid left and discussed either inducing labor or providing a dilation and evacuation procedure. Farmer preferred to induce labor so she could hold her daughter, who she had named Maeve, but she told the doctors she would choose “whatever option to save my life.” An OB-GYN resident suggested that inducing labor would be easier to get past the hospital’s legal team, according to the documents. ProPublica is not naming the resident because the hospital expressed concerns for the person’s safety.

The resident returned and said: “Unfortunately, due to the political climate, it was too hot and heated right now,” Farmer told investigators. Earlier that same day, Kansans had voted on whether to protect their state’s constitutional right to abortion. To the hospital’s legal team, both procedures “resembled an abortion and it was too risky,” Farmer recalled the resident saying.

At the University of Kansas Health System, investigators spoke to a nurse, an OB-GYN resident and a maternal-fetal medicine specialist involved in Farmer’s care, as well as the chair of the OB-GYN department and a risk management coordinator. They all corroborated Farmer’s account and said they believed they were not allowed to provide an abortion until Farmer’s symptoms progressed or fetal cardiac activity ceased.

Unlike Missouri, Kansas does not have a sweeping abortion ban. Abortion remains legal up to 20 weeks, and on the day Farmer arrived at the hospital there, Kansans overwhelmingly voted to keep abortion rights in their state constitution.

But Republican lawmakers, guided by national anti-abortion groups, have worked for decades to chip away at abortion access in other ways. The hospital referred investigators to a statute from 1998 that specifically prohibits doctors at the University of Kansas from providing abortions except for in emergency situations.

Yet the statement of deficiencies points out that the University of Kansas Health System also has specific policies to advise physicians in emergencies, including guidance on how to care for patients with prelabor rupture of membranes.

That guidance warns that, after a patient’s water breaks, the risk of complications, including infections, hemorrhage, oxygen deprivation and death, increase with time. For PPROM before 23 or 24 weeks, it directs physicians to offer immediate delivery as an option and to make the decision taking into account “the patient’s wishes.”

And the hospital’s EMTALA policy states that the definition of an emergency medical condition is broad and is not limited to patients with traditional “urgent” conditions: “The phrase ‘immediate medical attention’ has been applied to situations in which the need for medical assessment and care was in a time frame of days rather than hours.”

Investigators also documented that less than two months earlier, a 40-year-old woman came to the same emergency room when her water broke at 15 weeks and received an abortion.

She was counseled on the same risks as Farmer. Her fetus still had cardiac activity and her condition had not yet progressed to an emergency. In fact, her condition was slightly more stable than Farmer’s: She was not yet bleeding and still had some amniotic fluid left. Yet the patient was offered and received abortion care.

Under EMTALA, the hospital had a duty to transfer her to another facility if it could not provide care. Nothing in Kansas law would have prevented the hospital from transferring her to another hospital that could provide abortion care.

But Farmer, the documents make clear, was not given any of those options. The investigation found that the doctors did not even take Farmer’s temperature or conduct a pain assessment, steps that are required under the hospital’s triage policies and a critical tool in evaluating whether her condition was worsening.

The doctors on the medical team, Farmer told investigators, “were very clear about making sure that she knew she had a very serious situation and that she needed care” but only advised her to monitor her symptoms and told her to go back to her hospital in Missouri to deal with further concerns.

Farmer felt “pretty much abandoned at that point, that there was nothing they could do, and that [she and her boyfriend] were on their own,” she told investigators. She worried about the cost of an abortion at an abortion clinic.

At 1:30 am, she was discharged.

Investigators also cited the hospital for a separate case: A 73-year-old man who arrived at the hospital’s emergency room in September and had an abnormal electrocardiogram was left in the waiting room for nearly 90 minutes without a medical screening examination, until staff realized he had died.

ProPublica sent the University of Kansas Health System detailed questions about the violations cited in the documents. Jill Chadwick, a spokesperson for the hospital, declined an interview. In a statement about Farmer’s case, Chadwick said: “The care provided to the patient was reviewed by the hospital and found to be in accordance with hospital policy. It met the standard of care based upon the facts known at the time, and complied with all applicable law.”

If Farmer’s treatment complied with hospital policy, the standard of care and the law, ProPublica asked, did that mean providing abortion care two months earlier to another patient with PPROM was a violation?

Chadwick said she could not provide further comment. In a later email, a spokesperson said “physicians can and do provide abortions” at the hospital “if there is an emergent need to save a patient’s life, or to prevent serious and irreversible harm to a patient’s major bodily function.”

Farmer returned to Missouri and, later that evening, went back to the emergency room of Freeman Health System for her pain. Again, doctors counseled her on all the risks of continuing her pregnancy. Again, they told her there was nothing they could do until fetal cardiac activity ceased or she got sicker. They gave her Tylenol and anti-anxiety medication.

“The patient’s medical record also indicated that the patient was exhibiting psychological distress associated with the situation and expressed that she perceived financial barriers to seeking further care on an outpatient basis,” investigators wrote. They also found that medical providers did not reexamine Farmer’s cervix to check how quickly she was progressing and whether she might soon go into labor.

According to her complaint, Farmer finally got connected with an abortion clinic in Illinois that agreed to provide the procedure as soon as possible because of the urgency of her condition. In the car on the way there, she began to experience contractions, but did not want to stop at any Missouri hospital for fear of being denied care again. Upon arrival, a physician performed surgery to end the pregnancy.

Because of their travel, both Farmer and her boyfriend missed work. She was docked a week’s pay and he lost his job. Her insurance refused to cover her care at the abortion clinic, according to her complaint. Afterward, she continued to experience pain and doctors told her she had likely developed an infection during the ordeal. Farmer has since had a tubal ligation to ensure she can never get pregnant again, and she has shared her story with multiple media outlets, alerting federal officials and others to her case and prompting investigations. (She declined through her lawyer to speak with ProPublica because of the trauma of reliving the experience.)

“It was dehumanizing. It was terrifying. It was horrible not to get the care to save your life,” she told The Associated Press. “I felt like I was responsible to do something, to say something, to not have this happen again to another woman. It was bad enough to be so powerless.”

How Does EMTALA Intersect With Abortion Law?

What is EMTALA? The Emergency Medical Treatment and Labor Act requires hospitals that receive federal funding to treat and stabilize anyone who presents at their emergency department, regardless of their ability to pay. If the hospital is not equipped to provide treatment, it is required to arrange a transfer to a hospital that is.

Hospitals cannot delay medical screening or stabilizing treatment for any reason.

How does EMTALA apply to abortion care? Some patients experience pregnancy complications that put them at high risk for rapidly developing a life-threatening emergency. Since state abortion bans went into effect, patients in some states have reported being denied abortion care until fetal cardiac activity stopped or they got sicker.

The federal government says that hospitals must provide abortions in these cases, even if that directly conflicts with interpretations of state laws that outlaw abortions.

What do state laws say? Abortion bans have gone into effect in 14 states. Though the language varies, most state abortion laws do include exceptions for medical emergencies. But doctors say the definitions of what constitutes a medical emergency are too narrow and do not encompass the range of complications that can arise during pregnancy and endanger a patient’s health. A doctor who provides abortion care risks prosecution and could face years in prison, fines and loss of their medical license.

This has caused some hospitals and physicians to interpret these laws in the strictest terms to mean that abortion care is not legal until fetal cardiac activity has ceased or the patient’s condition has progressed to an immediate emergency. In the 11 months since Roe was overturned, most state officials have not clarified that interpretation. In Texas, the attorney general has argued that the medical exceptions granted under the ban do not apply to abortions intended to prevent an emergency.

How can I file an EMTALA complaint? The process for investigating hospitals to determine if they are complying with EMTALA is “complaint driven,” a spokesperson with the Centers for Medicare and Medicaid Services said. Anyone can file an EMTALA complaint with their state’s survey agency, which will investigate the issue and, when appropriate, verify that corrective action is taken to ensure the hospital is in compliance.

A Wingnut Anti-Migrant Story Implodes – But Is This the Full Story?

I’m feeling exhausted after a long week and you probably are too. But I want to put something on your radar. Because there’s something more going on here. A week ago the New York Post went to town with a made-for-Fox News story of a group of veterans who had been booted out of hotels about an hour north of New York City to make way for migrants. As I said, it was a made-for-Fox News: Here are these disabled or impoverished American veterans getting kicked to the curb to make way for migrants with no permission to be in the country in the first place. Politicians jumped on the story. The Post ran it. It made the rounds of the wingnutosphere. Fox of course got on board.

But none of it was true. And I don’t just mean not true in the sense of being misleading or incomplete or embellished or sensationalized. It was a hoax. Sharon Toney-Finch, the founder and head of a small local nonprofit, the YIT Foundation, which focuses on veterans issue and premature births (?) was the source of the original story. But it turns out the she recruited a group of 15 homeless men from a local shelter to impersonate veterans and talk to the press about their tale of woe.

Continue reading “A Wingnut Anti-Migrant Story Implodes – But Is This the Full Story?”

A ‘Pause’: The Freedom Caucus Yanks Kev’s Leash. What Next?

Quite a few of you have written in to ask me: Is it possible the White House was negotiating with the knowledge that McCarthy would be forced to make unreasonable demands, thus leading House GOPs to close the door on negotiations? In other words, were they negotiating with the knowledge they’d get credit for coming to the table and having the Republicans walk away?

It’s possible?

Normally I have a pretty intuitive sense of political tussles. In this case, I don’t. It’s not clear to me what’s happening, what will happen and to what extent the different players even have a plan. On the hypothetical above: I doubt the White House would enter into negotiations with the expectation and hope that they would fail. More likely it would be that they decided to sound out the possibility of a reasonable deal with the knowledge that Republicans were likely to blow up the negotiations on their own. In that case they get back the reasonableness/adult in the room cred from the D.C. powers that be at little cost.

Maybe.

Continue reading “A ‘Pause’: The Freedom Caucus Yanks Kev’s Leash. What Next?”