14 June 23
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Unfortunately, it’s likely to have the opposite effect. Every dollar available for auditing taxpayers generates many times that amount for government coffers — and the rate of return is especially astonishing for audits of the wealthiest Americans, according to new research shared exclusively with The Post.
A team of researchers at Harvard University, the University of Sydney and the Treasury Department examined internal IRS data for approximately 710,000 in-person audits from 2010 to 2014. Here’s what they found:
Wealthy people generally have more complex tax returns, so auditing them costs more. Internal government records show that the IRS employees auditing the rich earn higher wages and spend much more time per audit; overhead costs add up, too.
Now here’s the revenue collected per audit, from additional taxes, penalties and interest. The differential for low- vs. high-income taxpayers is even bigger.
This means that while the upfront costs of auditing the wealthy are usually higher — perhaps suggesting these taxpayers aren’t worth going after — the average return on investment is much better.
Another way to think about this: On average, the direct revenue collected from audits exceed costs by a factor of 2 to 1. But, that payoff varies by income. For money spent auditing the bottom half of taxpayers, the IRS only roughly broke even.
Meanwhile, the agency pulled in $3.18 for each dollar spent auditing the top 1 percent, and $6.29 for the top 0.1 percent.
These figures take into account any agency resources spent on appeals, collections, etc., as well as the fact that some lucky taxpayers ended up owing no additional money after the audit process was completed.
And even those eye-popping numbers understate how much money we’re leaving on the table by not fully enforcing tax law. That’s because the biggest bang for the buck comes from what happens well after the audit concludes.
In the years after a taxpayer gets audited, they start paying much more in taxes voluntarily. Maybe, post-audit, they stop taking some dodgy deductions (counting a personal car as a business expense, for example). Or they start reporting income they had previously accepted off the books.
These kinds of changes might happen because the taxpayer in question had previously made an honest mistake. Then again, maybe they had been deliberately cheating Uncle Sam, and were chastened by being caught.
Either way: they begin paying more of what they owe.
These additional taxes equal about three times the revenue raised from the initial audit, on average, over the 14 years of data the researchers had access to. So in other words, the biggest returns from doing more audits come from deterrence effects. (That’s why, incidentally, the IRS has historically publicized its big tax fraud cases in the weeks before Tax Day, when most Americans are filing their returns.)
That multiplier — three times as much revenue from deterrence effects as from the initial audit — is relatively consistent across the income distribution, with both rich and poor adjusting their post-audit tax habits significantly. Which still means that in raw dollar terms auditing the rich has bigger payoffs.
The return on investment appears even higher if you home in on just the tippy-top of the income distribution (say, the top 1 percent or 0.1 percent), but the authors say they are less confident about estimating the deterrence effects for that smaller slice of the population.
Consequences of the deal to claw back money from the IRS
So what do these numbers tell us about Congress’s decision to claw back money from the IRS? They suggest that existing projections for long-term costs likely underestimate the massive hole this policy will blow into federal budgets.
Usually the Congressional Budget Office (among other scorekeepers) assumes relatively modest effects on voluntary compliance from ramping up IRS enforcement. Again, the authors instead find the opposite, that the long-term deterrence effects are huge, much larger than the upfront bounty that comes from the audits themselves.
What’s more, budget analysts usually assume that each additional dollar you give to IRS enforcement will have a little less bang for the buck than most of the dollars spent before it — that is, IRS agents have probably already gone after all the low-hanging fruit, and whatever additional audits they do will have smaller and smaller payoffs. Economists refer to this phenomenon as “diminishing marginal returns.”
This team of researchers determined that this conventional wisdom is likely wrong, too.
They looked at the consequences of the huge cuts to the IRS’s enforcement budget that began in 2010. Audit rates plummeted (by about 40 percent overall, within four years), but the agency did not cut back on the audits with the lowest ROI. Instead, for whatever reason, it cut a lot of the highest bang-for-the-buck audits. Based on the agency’s past prioritization of audits, and the way its internal costs are structured, the authors found no evidence of diminishing marginal returns.
For every additional dollar spent auditing people in the top decile of the income distribution, the government can expect to get 12 times that amount back.
Twelve! As any tax-dodging billionaire can attest: It’s pretty hard to beat that return on investment.
In other words: If the IRS spends more money on audits, and those resources actually target high earners, the payoff could be enormous — far greater than has usually been assumed.
Now, it’s reasonable to worry that a newly flush IRS might not actually concentrate its additional dollars on the highest-ROI audits. Audits of millionaires (and megacorporations) have dramatically declined in recent years, according to data from Syracuse University’s Transactional Records Access Clearinghouse.
Certainly Republicans have fearmongered that the IRS will devote all its new money to deploying “armies” of gun-toting IRS agents to hound honest, middle-class taxpayers. So what evidence do we have that the agency will pursue higher-earning, higher-ROI tax-shirkers instead?
For one, President Biden, Treasury Secretary Janet L. Yellen and others have pledged to raise audit rates only on households earning more than $400,000 (which is close to the top percentile, in this study’s data). Two, the agency is now equipped with better information about how to spend its dollars most efficiently, thanks to this new research.
“The evidence suggests going after higher-income taxpayers has higher returns, and that’s reassuring given the recent policy focus on auditing wealthy individuals,” says Ben Sprung-Keyser, one of the study’s co-authors and a co-director at Policy Impacts, a research organization based at Harvard that promotes standardization in policy analysis. He and his colleagues also found that auditing top earners raises revenue more efficiently than does increasing their tax rates.
Which means rather than soaking the rich through higher tax rates, perhaps we should merely enforce existing law.
In any case, the revenue Congress just agreed to leave on the table by rescinding $20 billion from IRS’s long-term budget could be substantial. Based on that 12 to 1 multiplier found in this study for marginal returns from auditing high earners, that could mean Congress just gave up about $240 billion in revenue, for a net cost to the budget of $220 billion ($240 billion - $20 billion cut from IRS budget = $220 billion).
So much for trying to reduce deficits.
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Former president Donald Trump delivers post-arrest remarks at his golf club in Bedminister, New Jersey. (photo: AFP)
Trump’s mantra is persecution over prosecution.
Though it seemed like his camp was initially reticent to address the specifics of the indictment, Trump went into a detailed defense before a crowd at his Bedminster, New Jersey, golf club. He presented alternate histories, legal disinformation, and false claims of political victimization to craft a narrative that he seemed to believe his followers will accept as fact.
Overall, the speech previewed a strategy to neutralize the impact of a case that could stretch well into the 2024 election and beyond. It’s an effort that mirrors Trump’s successful approach to negating previous threats to his political power, including congressional investigations into his involvement in the January 6, 2021, Capitol insurrection and potential collusion between his campaign and Russia in the 2016 election.
In his remarks, Trump cast his second indictment — for allegedly refusing to return classified documents to federal authorities after he left the White House — as a plot against him, calling it “election interference” and “yet another attempt to rig and steal a presidential election.”
“Threatening me with 400 years in prison for possessing my own presidential papers … is one of the most outrageous and vicious legal theories ever put forward in an American court of law,” he said. “They ought to drop this case immediately.”
Trump might not be personally thrilled at being arrested for a second time, if only because he “thinks it’s not elegant,” as his former press secretary Stephanie Grisham told CNN. But he clearly recognized that this was a potential make-or-break moment for his campaign in the face of swirling doubts among the GOP donor class, and even some of his political allies who have said that the allegations, if true, make him unfit to be the nominee in 2024.
With the media spotlight on him Tuesday, Trump seized the opportunity to try to convince his party that the latest indictment is more about persecution than prosecution. And if history is any indication, pursuing that strategy may help Trump convince his supporters that he did not do anything wrong, even if a Miami jury ultimately finds him guilty of some or all of the 37 counts against him.
How Trump convinced his supporters that he could do no wrong
Trump argued Tuesday that he’s subject to a nefarious double standard given that his political opponents have never faced charges in connection to retaining documents from their public service.
As “evidence,” he cited cases involving President Joe Biden, his 2016 Democratic opponent Hillary Clinton, and former President Bill Clinton. In recent months, classified documents were found in Biden’s personal Washington office and at his Delaware home. Hillary Clinton used a private, unsecured email server while serving as secretary of state that stored discussions of classified information (but not classified documents themselves). And Bill Clinton kept tapes in his sock drawer documenting an oral history of his time in the White House.
What Trump failed to mention, of course, is that Biden promptly turned over those documents; there is no evidence that he or Hillary Clinton tried to obstruct justice; and a court found that Bill Clinton’s tapes were personal records that did not need to be turned over to the National Archives. None of those cases gave Trump license to keep classified documents in unsecured locations throughout his personal residence after leaving office and to flout a subpoena requiring that he turn them over.
Nevertheless, Trump’s entreaties seem to be working on the base: The crowd at Bedminster was vocally receptive to his pitch, at times interrupting him with pledges to back him in the GOP primary. Those supporters aren’t alone. A CBS News poll conducted June 9 and 10 — right after news of the indictment broke — found that 76 percent of likely Republican primary voters thought that the indictment was politically motivated and 61 percent said it didn’t change their views on Trump. And an even more recent Reuters/Ipsos poll found 36 percent of Republican voters said the second indictment made them more likely to vote for Trump. All that’s despite the fact that some prominent Republicans have admitted that the details of the indictment are damning if true.
If the strategy Trump unveiled at his golf course works, it wouldn’t be the first time he successfully convinced his supporters that it’s the Washington swamp — not him — that’s the problem.
Special counsel Robert Mueller found in 2019 that Trump’s campaign may have colluded with Russia to influence the 2016 election and identified multiple examples in which Trump possibly sought to obstruct justice during his investigation. He did not recommend that Trump be referred for criminal prosecution, in part because of longstanding Justice Department policy that a sitting president cannot be indicted.
In response, Trump blasted what he argued was unfair treatment by the FBI and called the investigation the “Russia hoax,” while often repeating the phrase, “no collusion.” He spawned a four-year (now-failed) investigation into what he argued was a criminal conspiracy to frame him. After Mueller’s report was released, a sizable majority of Republican voters consequently believed that he never obstructed justice and wanted Congress not to take any further action.
Similarly, even though the House January 6 committee found that there was enough evidence to convict Trump for his role in inciting the insurrection, his followers believed his rewritten history of what happened that day.
He called it a mere “day of protesting” and argued that the real crime was a stolen 2020 election despite lacking any evidence. He fed into conspiracy theories about the insurrection being a false flag attack that involved Black Lives Matter and antifa. He claimed that Capitol Police were “ushering” people inside the Capitol when they really had broken in. As of March 2023, more than half of Republicans still described the insurrectionists as participating in a “legitimate public discourse.”
Trump appears to believe that he can replicate that strategy of lies and obfuscation when it comes to defending himself in the court of public opinion while the federal criminal case against him proceeds. And it’s possible that winning the public relations battle is the only victory he really needs. If he’s elected president once again, the charges against him would likely become moot.
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Demonstrators rally in Lafayette Park to demand Temporary Protected Status for Nicaragua, Honduras, Guatemala, and El Salvador on Monday, May 1, 2023. (photo: Tom Williams/CQ-Roll Call)
The Biden administration will allow roughly 337,000 immigrants from El Salvador, Honduras, Nepal and Nicaragua to continue living and working in the U.S. legally under the Temporary Protected Status (TPS) program. CBS News first reported the policy decision on Monday.
The 1990 law authorizing the TPS policy, which the Biden administration has used at an unprecedented scale, allows federal officials to grant deportation relief and work authorization to migrants from countries beset by war, environmental disaster or another "extraordinary" crisis.
As part of its broader crackdown on illegal and legal immigration, the Trump administration tried to end most TPS programs, including those for El Salvador, Honduras, Nepal and Nicaragua, arguing that prior administrations had abused the authority. But those attempts were blocked in federal court.
The Biden administration's move will reverse the decision to end TPS for these four countries and grant a temporary reprieve to those currently enrolled in the program. It will also likely render moot a federal court lawsuit filed by advocates who challenged the Trump administration's TPS terminations. A hearing in that case is scheduled for later this month.
A source familiar with the Biden administration's planning said Tuesday's announcement is directly tied to the ongoing court case.
Despite calls from Democratic lawmakers and migrant advocates, the administration is not moving to expand — or redesignate — the TPS programs for El Salvador, Honduras, Nepal and Nicaragua. Such a move would have opened the program to new applicants, making more recent arrivals from these countries eligible for TPS.
Some top administration officials have opposed expanding TPS eligibility for certain nationalities, citing concerns about encouraging unlawful migration to the southern border, where migrant arrivals have plunged since early May, people familiar with internal deliberations told CBS News. TPS does not benefit new arrivals, but some officials believe generous immigration announcements could act as "pull factors."
Instead, the extension announced Tuesday will allow existing TPS holders from El Salvador, Honduras, Nepal and Nicaragua to continue living in the U.S. for another 18 months. According to U.S. Citizenship and Immigration Services (USCIS) data, 241,699 Salvadorans, 76,737 Hondurans, 14,556 Nepalis and 4,250 Nicaraguans were enrolled in the TPS program as of the end of 2021.
Some of these immigrants have lived in the U.S. for decades and now have American citizen children. The TPS program for El Salvador, for example, was first established in 2001 following a devastating earthquake in the small Central American country.
During the Trump administration, officials also sought to end the TPS programs for Haitian and Sudanese immigrants. The Biden administration later reversed those moves, and expanded the number of Haitians and Sudanese eligible for TPS.
TPS allows beneficiaries to live and work in the country without fear of deportation, but it does not provide them a path to permanent residency or citizenship. Those who lose their TPS protections could become eligible for deportation, unless they apply for, and are granted, another immigration benefit.
Ahilan Arulanantham, a lawyer representing TPS holders in the federal court case over the Trump-era terminations, called Tuesday's announcement "an enormous, hard-fought victory for the TPS community."
"They pushed the Biden Administration to finally fulfill the President's campaign promise, so that everyone who held TPS status in 2017 — when the Trump administration attempted to end the program — now has their status restored," said Arulanantham, who is also a professor at UCLA School of Law.
But Arulanantham said TPS holders would remain "in a continued state of uncertainty," unless they were granted permanent legal status. Despite strong backing from Democrats and some Republicans, proposals to give permanent residency to immigrants with TPS have stalled in Congress, where lawmakers have been gridlocked on immigration issues for decades. Republicans in the current Congress have vowed to oppose any legalization program unless stricter border and asylum laws are passed.
Under President Biden, a Democrat, the U.S. has created TPS programs for a record number of migrants and countries.
Hundreds of thousands of migrants from 16 countries currently qualify for TPS, including those from Afghanistan, Cameroon, Ethiopia, Myanmar, Ukraine and Venezuela, all of whom were made eligible for the program under Mr. Biden.
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People protest during the 'All In For Equality Advocacy Day' demonstration in front of the Texas State Capitol on March 20, 2023, in Austin, Texas. (photo: Brandon Bell)
“Everybody is kind of scrambling just to prepare for the absolute worst.”
“I was working with my therapist and they had to drop me, and then my doctor, we were about to get things going a month ago or so, and then 254 [a bill that bans care for minors, allows the state to take over custody of children receiving gender-affirming care, and even restricts trans healthcare access for adults] was passed, and she had to just be like, ‘Wait, no, I can't actually prescribe you anything,’” Malin said.
Florida is one of the most politically hostile states towards LGBTQ people in the country: A number of anti-trans policies and bills have been introduced in the state this year that restrict gender affirming care and criminalize healthcare providers who provide it, threaten gender affirming parental custody, and ban the use of public funds for gender-affirming care for people of all ages. Now, only doctors can prescribe hormone therapy, something nurse practitioners could previously do as well.
According to reports, many healthcare workers in states with gender-affirming care bans like Florida are avoiding prescribing hormone replacement therapy altogether because they’re worried about repercussions, including criminal charges. The ambiguity of many of the anti-trans bills makes matters worse. Kajsa said that her doctor luckily referred her to an alternative source for Hormone Replacement Therapy (HRT)—something some doctors haven’t done for their patients, she said.
VICE News spoke with trans people about how the current climate is affecting them and their futures in the U.S., and found that many are worried about how bad things could get in the U.S., and how the 2024 presidential election could make things even worse.
While people have different contingency plans—some want to leave the U.S. and others don’t or can’t—it all boils down to the same thing: trans people in the U.S. are worried that things will get worse for trans people before they get better.
They’re not worried unnecessarily: Mainstream hate targeting trans people has been on the rise, and more than 500 anti-trans bills have been introduced in state legislatures in 2023 alone. Nineteen states have passed gender-affirming care bans for minors—16 of those states passed bans this year alone. Some states are going after trans adults, too: states like Texas and Florida have falsely equated gender-affirming care, which is endorsed by major U.S. medical organisations as safe and effective, to child abuse. Politicians at all levels of government across the country have repeatedly tried to restrict what bathrooms trans people can use and what sports teams they can join. Last year, GOP politicians spent upwards of $50 million on anti-trans campaign material during the midterm elections.
Far-right pundits have also zeroed-in on trans people, spreading harmful myths and disinformation. The Daily Wire’s Matt Walsh, disgraced former Fox News anchor Tucker Carlson, and LibsofTikTok founder Chaya Raichik have all falsely accused trans and other LGBTQ people or their families and healthcare providers of “mutilating children” and of being “groomers.” Walsh’s Daily Wire colleague Michael Knowles called for the eradication of “transgenderism.” The rise in hate has also turned physical: viral videos show conservatives defacing pride paraphernalia in stores like Target while hate groups have targeted drag events all over the country.
Ultimately, Malin wants to leave Florida and is considering leaving the U.S. eventually for Norway, where she has some friends. Malin is not the only one. VICE News previously spoke with people who are also trying to flee the U.S., including one person who already left and is currently seeking asylum in Germany.
“Everybody has a lot of anxiety about not knowing what's going to happen next,” JJ, a trans man who lives in Texas, told VICE News. JJ asked to only use initials so that he wouldn’t be outed. “It's just a lot of anxiety, really. Everybody is kind of scrambling just to prepare for the absolute worst.”
JJ is currently in pre-med, and doesn’t plan to make any major life changes until he’s finished school. But, he said, “if things get worse here, the plan is to move out of Texas and ultimately look a little bit farther outside of that if things continue to get worse nationwide. Then, the plan is to leave the United States.”
When she first heard that other transgender people were leaving the U.S. due to anti-trans fervor, Petra Centrella thought it was "a bit over the top." But now, a few months later, she's just as worried—and contemplating possible next steps.
“It's like, ‘maybe now it's time to start worrying—like actually worrying,’” said Centrella, a Tulsa, Oklahoma, resident. “Unfortunately, I'm not in a position to leave the country. I hope it doesn't get too bad.”
Even trans people living in blue states that are still considered safe for LGBTQ people are worried about their futures. “I think regardless of what happens, I don't feel at home in the United States anymore. When I first came out, I was kind of hopeful,” said Lilith, who lives in California. But, she said, “my intent is to no longer live in the United States.” (Lilith asked to only include her first name because she isn’t out everywhere.)
Rei, a trans woman in New Jersey, whose first name is only being used for privacy reasons, said she hasn’t even started transitioning as much as she’d like because of the current climate. “I would like to start doing that and all these other things,” Rei said of medical transitioning. “It's just there's so much uncertainty right now. It's very frustrating and it feels like I'm out, but I'm not out.”
Rei remembers how the first time she dressed in women’s clothing, she cried. “It was like, I'm actually happy. It wasn't just having fun. I was actually genuinely happy inside,” Rei said, adding she didn’t want to take the makeup and clothing off. Today, Rei said, she’s careful about when she goes out presenting the way she’d like—and she doesn’t like going out alone.
“The other day, my mom went with me. There's a gay club and they did a drag queen visibility day,” Rei said. “So I went and did my makeup and stuff… you know, the reason I went is because somebody went with me, like she went with me.”
Rei said she felt safe inside the venue, but outside of it, less so.
“How Florida's going, if that spreads throughout other states that’s the beginning stages of a genocide,” Rei said, adding that leaving the U.S. isn’t an option for Rei; she has a big family and many pets.
“It just really sucks, to be blunt, to live like that: Not to be who I am because of fear and what can happen,” Rei said.
Aly lives in Seattle, Washington, which is also known for its progressive bent. The 34-year-old trans woman, whose last name is withheld for safety reasons, started taking estrogen for the first time a little more than two years ago. She said she felt euphoric when she started treatment: “HRT is producing the most wonderful changes to not just my physical body but to my mental and emotional state, beyond what I could have fathomed. Without a doubt, this is enabling me to live my best life, and I’m just getting started,” Aly said.
But now, even though she lives in a progressive pocket of the country, Aly is worried she’ll soon be unable to access HRT.
“I had to confront the question of like, what if I can't get hormones?” Aly said. “We’re such a big vibrant community. I fear that it would affect us all. I have to question what is my future physiologically?”
Aly feels relatively safe day-to-day, but even in such an LGBTQ-friendly corner of the U.S., she’s noticed an uptick in anti-trans sentiment.
Aly has restricted her travel in the U.S. to trans-friendly states. During one trip, Aly discovered stickers that said, “a trans person peed here and no one got hurt,” in reference to the onslaught of bathroom bills introduced across the U.S. and the harmful myth that trans people assault cis gender people if they’re allowed in washrooms. Aly made similar stickers and posted them locally, in the Capitol Hill neighborhood of Seattle. But she said that she’s since seen the stickers defaced as well as anti-trans graffiti.
“That is in the middle of Capitol Hill, which is super trans-friendly, and all of a sudden you have this transphobic graffiti taking place amid all of the pro-trans stuff,” Aly said, adding that she isn’t planning on leaving the U.S. and hopes others are able to stay and advocate for trans rights.
There have been, however, moments of hope for the LGBTQ community: During the 2022 midterm elections, a record-breaking number of LGBTQ candidates won seats across the U.S. in what was dubbed the “rainbow wave.” There are also many groups working to support trans healthcare, including community-led shuttles that drive trans youth living in states with gender-affirming care bans to blue states. States like California, Minnesota, and New Mexico have publicly voiced support for trans people and their families.
“I am not some demon that is infiltrating the things that you hold dear. I am not a threat to people,” Aly said. “I just want to live my life. And the reality is I can do that at no consequence to anybody else.”
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Onlookers react to a performance during a Juneteenth celebration in Times Square, in the Manhattan borough of New York, 2022. (photo: Alex Jent/AFP)
Townshend grew convinced at the end of his life that God would punish him if he did not free the enslaved people he owned and give them all of his property. But Townshend's relatives challenged his final wishes in court, arguing that his decision had been the result of a delusion.
That 1848 case was the first U.S. appearance of what became known as the "insane delusion rule," which remains grounds for contesting wills to this day. And Townshend v. Townshend itself has been cited in at least 70 other cases across the country — from New Hampshire to California — over the years, as recently as 2007.
It's one of thousands of cases involving enslaved people that lawyers and judges continue to cite as good precedent, more than a century after the 13th Amendment abolished slavery in the U.S.
Justin Simard, an assistant professor at Michigan State University's College of Law, estimates there are about 11,000 such cases out there — and about one million more that use them to back up their arguments.
"I've done some analysis just with a sample of cases and concluded that 18% of all published American cases are within two steps of a slave case, so they either cite the slave case or cite a case that cites a slave case," Simard tells NPR. "The influence is really, really extensive."
Simard has spent years documenting them, with the help of some two dozen law students.
The result is the Citing Slavery Project, a comprehensive online database (and map) of slave cases and the modern cases that cite them as precedent. They expect to add the last of their nearly 9,000 collected cases to the website this summer.
The project aims to push the legal profession to grapple with its links to slavery, an overdue reckoning that Simard hopes will start with lawyers and judges acknowledging their use of the troubling precedents.
He says 80% of the time judges don't mention that these cases involve slavery at all, either because they're unaware or uncomfortable.
"We're not saying don't cite them," he explains. "All I'm asking people to do is just don't cite them without acknowledgement, without thinking through whether it actually makes sense to cite them, which I think is a pretty reasonable thing to ask."
NPR has reached out to the American Bar Association and American Judges Association for comment.
As part of that effort, Simard successfully advocated for the Bluebook — the country's legal citation style guide — to add a rule requiring cases involving enslaved people to be labeled with a parenthetical, just as moot or overturned cases are.
Where enslaved people were parties in a case, the citation will read "(enslaved party)." Where they were the subject of a property or legal dispute, the footnote should include "(enslaved person at issue)."
Simard says the feature has been used some 70 times in secondary sources and by four different judges since the change took effect in the 2021 edition, which he sees as an exciting first step.
The project also has an education and outreach component, including a pilot program with a high school outside of Detroit.
"How do you fix this? It's not one simple thing, but I do think one thing we can do that ... certainly is helpful is to make the profession more diverse," he adds. "And so we're trying to use our research and engagement to do that as well. But yeah, it's also making it possible just to expose the problems so lawyers who want to engage with it can and lawyers who don't want to might be forced to."
That, says those involved in the project, will help make the justice system better for all who interact with it.
How they do it
Simard first stumbled into this work by accident about a decade ago while working on his dissertation, which was about the debt collection work of a Georgia lawyer.
He wanted to argue that laws in the North and South share more in common than we tend to think, by showing that Northern judges cited this lawyer's cases even at the height of sectional tensions in the 1850s and 1860s. He found lots of examples of that — and of such cases being cited as recently as the 2010s, which struck him as strange.
"So I started doing more research and I thought I'd find just a couple examples, but ended up finding [that] the more I looked, the more I found," he says, adding that within a few months he'd found more than 300 examples of judges citing slave cases within the last 35 years.
The project grew over the years, especially as his students got involved.
Together they comb through commercial legal databases, using basic searches to pull out any cases that mention slavery, then reading them in full, collecting relevant information — including the names of the enslaved people — and inputting it into their database.
The team uses Harvard's Caselaw Access Project to connect their cases to all of the others that cite them later on, painting a picture of their lasting influence.
For example: The concept of adverse possession, or squatter's rights, was first extended to personal property in the form of enslaved people. Separately, a 19th-century case in which a slave-owner sued for damages over injury to his personal property was invoked in 1999 by a tire shredding company after its machinery was damaged by a third party.
"Slavery is all over the place," Simard says. "Part of the goal of our project is to make sure that influence is accounted for."
He says it's interesting to see how many cases from outside the South are linked to these slave cases, and how frequently they appear in private law — things like contracts, trusts and estates, mortgages and so on.
The collection shows that many of these cases involve regular commercial transactions, which Simard says is part of the reason they've been ignored.
Recent Michigan State law graduate Bret Bicoy estimates that he's personally collected somewhere between 3,000 and 4,000 cases during his time working on the project.
He told NPR over email that his biggest takeaway is simple: While many people might associate the word "slave case" with Dred Scott or rulings on the institution of slavery itself, the vast majority of cases aren't that at all.
"You see enslaved persons having been listed in someone's will right alongside their cattle, or their horses. You see people who took out mortgages on human beings the way we do with homes. You see people who sued the person who sold them an enslaved person because they deemed said enslaved person to have been 'faulty,' just like you may sue someone for dishonestly selling you a faulty car," he wrote. "They are, unequivocally, the most dehumanizing and despicable documents I have ever read."
He said sometimes he'd have to "slap and remind" himself that all of these were real human beings, not just words on a will.
"I hope our work can help break the legal profession out of that very same trance," he added.
Why it matters
There are other troubling areas of law that need to be similarly investigated, Simard says, pointing to racist opinions that are cited as a matter of fact in many immigration and Native American law cases today.
But, he points out, their problematic foundations are not necessarily a big secret.
"What's unique about slavery is that many of these cases are still just considered basic commercial law cases ... they've kind of permeated into nearly every area of law, and no one has really accounted for that," he says.
Many other countries have gone through some sort of truth and reconciliation process to address similar harms, he adds, like South Africa after apartheid and Germany after World War II.
The U.S. hasn't done that, Simard says. The country has continued to cite and normalize slave cases long after the Civil War and even after the racial reckoning of 2020, which spurred many institutions to grapple with the darker parts of their histories.
"It's very strange if people are tearing down a monument to a slave owner across the street from a courthouse where some judge is secretly citing cases that were designed to [benefit them]," Simard says. "It's like these little monuments all left scattered across our case reporters."
He says the project has been generally well-received, though is not without its critics.
Some law professors have criticized the Bluebook rule for being "unscholarly" and violating academic freedom, while certain scholars have questioned whether the context of the cases really matters (as opposed to the law that's decided by them) and argued that the impact of slavery should be left up to judges' discretion.
Simard says his research proves otherwise. Lawyers and judges have a tremendous amount of power in society, he says, arguing that it makes sense for the public to stop and think about how their authority is constituted through slave cases and what that suggests about their ability to be fair.
"It's no secret that outcomes for Black people are worse in our legal system, and I think people are attuned to that," he adds. "And this gives people another reason to question whether the legal system is actually providing justice."
And while many people describe Simard's work as timely, he doesn't necessarily agree.
"I think it would have been timely 50 years ago, and I'm afraid it'll probably still be timely in 50 years," he says.
What comes next
The team is aiming to complete their final round of data entry in July, but Simard says that won't be the end of their efforts.
"Some Black studies scholars argue that emancipation has never really happened yet, and I think maybe I think about that the same way," he adds. "The Citing Slavery Project will be done when the project of emancipation is done, which may not be in my lifetime."
Simard wants more legal authorities to identify slave cases as such, and has started reaching out to Westlaw and LexisNexis, the main databases used for case research, to lobby for some kind of symbol.
He says their next big frontier is legal education. They've just started a project that involves analyzing the textbooks used by law professors to examine how much slavery has shaped the cases within them and, they hope, eventually help authors and professors to rethink how they discuss race in their curriculum.
And of course, there's the grant-funded pilot program that enabled Simard and several students to meet with high school juniors and seniors, teaching them about precedent and encouraging them to consider law school for themselves.
They also bused a group of high-schoolers to the law school for an event, and hope to continue reaching grade school students and teachers through similar programming.
Taylor Hall, who was involved in the project before graduating this spring, organized and helped lead the workshop at her own alma mater. She told NPR in a phone interview a handful of students seemed interested in becoming lawyers after the presentation.
"We're showing you this not to be like, 'Now it's your turn to become a lawyer and solve all this or whatever in 10 years,' " she said. "But hopefully the connection is students are able to say, 'What is the legal field shaping now that we should be involved in?' "
African Americans make up 5% of the legal profession despite accounting for 13% of the U.S. population, Hall said — a bigger gap than that of other minorities like Asians and Native Americans, who are also underrepresented in law.
"When you meet new people, your perspective changes and you just learn more and you start to see people as people," she added. "That's what diversity and inclusion could do if we had more Black lawyers."
Hall says her experience with the Citing Slavery Project will stay with her as she begins her career, with a job in corporate law.
"A lot of the laws I'll be dealing with are related to slave law and case law," she adds. "I think moving forward, now that I have this in mind, I'll be able to bring this perspective to a place where I'll be like the only Black person in the room. I also know that's not my complete burden to bear, but it's good to know I'll have that in the back of my mind."
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Israeli surveillance technology is empowering antidemocratic governments to track journalists and human rights activists. Regulation is virtually nonexistent. (photo: Federico Orlandi)
Israeli surveillance technology is empowering antidemocratic governments to track journalists and human rights activists. Regulation is virtually nonexistent.
Ten days after his killing, Triana started receiving unexpected text messages on her mobile phone. She had no idea that they were suspicious until almost one year later, when it was discovered that there had been attempts to infiltrate her phone with the Pegasus system, a phone-hacking tool sold by Israeli surveillance company NSO Group, almost certainly by elements within the Mexican state. “Before Javier’s murder I did not know that we were being monitored,” she told me. Javier had never informed her about the possibility of phone hacking, and she presumed that he was taking precautions for his safety. “Javier knew about the risks of reporting criminal activities, but even so he was aware that someone had to document the atrocities of criminal organizations,” she said.
The murder of Valdez devastated Triana. “He was my husband and father of my two children. I was really shocked because Javier didn’t want to leave Sinaloa even though he knew they [the cartels] could kill him.” I asked her why she thought she had been targeted by Pegasus. She said she believed it was because “they thought that by tapping the phones they could get data from various sources of information or listen to calls related to Javier’s crime investigations.” To this day, Triana has never been told by the Mexican state why it spied on her — and there’s been no court case for the man accused of masterminding her husband’s death.
Both the Mexican government and NSO claim that Pegasus is used solely for the purposes of fighting crime and terrorism, but Triana’s case proves that this claim is false. Mexico has been a major testing ground for NSO technology. “The problem is that it has been used to spy on people who do not represent a danger to the country,” Triana said.
After Valdez’s death, Triana moved to Mexico City, where she works as a journalist and activist. The fear has never gone away, however — the feeling of being violated by both her husband’s gruesome death and the state’s intrusion on her communications. “I am afraid every time I visit Culiacán,” she said. “It is something that I have not been able to overcome.”
Israel’s surveillance apparatus is a competitor and ally of Washington’s National Security Agency (NSA), the most powerful eavesdropping network in the world. While outmatched in terms of manpower, Israel has a long history of spying on its closest ally, a fact that does not appear to publicly bother the superpower. Some estimates suggest that around 350 American intelligence officials spend their days spying on Israel. Despite this, the NSA partners with Israel and has passed on data-mining and analytical software. In turn, says a former NSA intelligence official, Bill Binney, Israel transfers this technology to private Israeli companies, which allows them to gather a massive amount of sensitive military, diplomatic, and economic information to be shared with Israeli officials.
This is the frame around which to see the role of NSO Group, the world’s most successful cyber-surveillance company, and other Israeli high-tech outfits. NSO works with the Israeli state to further its foreign policy goals, and is used as an alluring carrot to attract potential new friends. Since its inception, NSO has been funded by a range of global players, including London-based equity firm Novalpina Capital. One of the biggest investors in Novalpina, to the tune of US$233 million in 2017, before NSO was on the company’s books, was the Oregon state employees’ pension fund. In 2019 pension money for the British gas provider Centrica was also invested in Novalpina.
Former Haaretz tech reporter Amitai Ziv, who has done some of the most insightful work uncovering NSO, told me that the power of NSO is not in the money that it makes but in diplomacy: “When Israel is selling cyber-surveillance to some African country, they can assure their vote at the United Nations. Since there’s an occupation, we need the votes.”
Whether NSO lives or dies, however, will make little difference to the burgeoning global industry in spying tools and cyber weapons. Entire countries can be brought to their knees, such as Russia’s cyberattack on Ukraine’s entire business and government infrastructure in 2017, or government and private companies inserting “zero-day” hacks, bugs for which there are no known fixes, into virtually every piece of hardware or software on the planet from computers to TVs to fridges. NSO is the tip of the iceberg of this surging industry, which largely operates in the shadows with no public scrutiny. It’s not just the American, Chinese, Russian, Israeli, or Iranian authorities unleashing cyber hell but a litany of private entities, sometimes built in democracies, that often act as proxies for state actors. Regulation is virtually nonexistent.
If NSO collapses, many others will rise to take its place and countless Israeli rivals are already in business. One company, Paragon, promotes similar services and is backed by former Israeli Prime Minister Ehud Barak and Unit 8200 veterans. Even if all private cyber-hacking firms are shut down globally, a highly unlikely proposition, far more powerful state actors, from Israel to the US and China to Britain, are more than willing to occupy the space. At least seventy-three nations have used spyware. NSO is just the most prominent spyware company, but large numbers of competitors are stepping in, making these tools even easier to obtain.
The role of Israeli surveillance globally is empowering antidemocratic and fascist governments, Israeli human rights lawyer Eitay Mack told me, and it’s not just targeting journalists and human rights activists. The Israeli defense sector is evolving and becoming far less public. “In the coming years, I do not see police in Bahrain using Israeli rifles or Israeli drones or missiles being bought by the United Arab Emirates because it could cause another Cuban missile crisis type situation and inflame Iran,” Mack said. “But selling Israeli surveillance equipment is much easier to do and not be detected.” He wants NSO spyware completely banned.
When Mack tried in 2016 to force the Israeli state to stop granting NSO an export license, the government succeeded in making all deliberations private. Supreme Court President Justice Esther Hayut was honest about what was at stake: “Our economy, as it happens, rests not a little on that export.” The Israeli Ministry of Defense admitted selling weapons to about 130 countries in 2021.
The trajectory of NSO is symptomatic of an Israeli tradition in testing, marketing, and proliferating surveillance technology across the globe. The reasons behind this were explained by the former head of Israel’s Defense Export Control Agency, Eli Pinko, who told a private conference in late 2021 that Israel had no choice but to sell weapons and cybertech to anyone who asked. “It’s either the civil rights in some country or Israel’s right to exist,” he said. “I would like to see each of you face this dilemma and say: ‘No, we will champion human rights in the other country.’ Gentlemen, it doesn’t work.”
But it is not just a question of free enterprise. A source with intimate knowledge of Israeli surveillance told me that Israel’s Ministry of Defense had “almost complete control” of NSO Group. “The MOD controls ownership and rights and has a veto on shareholders, owners and operators,” he said. “The tech, patent, and IP [intellectual property] is also controlled and technology has to be protected in a way that it can’t be reverse engineered.”
“I think that it is not well understood by American leaders,” said Eva Galperin, director of cybersecurity at the digital rights group Electronic Frontier Foundation, to journalist Ronan Farrow at the New Yorker. “They keep expecting that the Israeli government will crack down on NSO for this, whereas, in fact, they’re doing the Israeli government’s bidding.” The same willful blindness should be directed at much of the international media for its years of viewing NSO as just a rogue corporation, whereas it has always been a crucial tool of the Israeli state.
Mexico was an enthusiastic user of Pegasus, and by 2013 it was installed in at least three Mexican agencies with hardware and software worth US$15 million. During this time, NSO sold for US$77 million a package of services that allowed comprehensive surveillance of individuals whom Mexico under President Felipe Calderon wanted monitored. Calderon called NSO cofounder Shalev Hulio, though ended up speaking to his colleague, and said that “I couldn’t have asked for a better Christmas present. With what you gave us, we can finally eradicate the cartels.”
From a private Mexican company hacking a journalist, despite NSO claiming that it sold only to governments, to advocates of a soda tax that aimed to tackle the huge amount of sugary drinks consumed by Mexicans, it was increasingly clear that the kinds of people being monitored had no connection to crime or terrorism.
Over a decade, Mexico spent over US$160 million on Pegasus, but local authorities said that they could not identify who in the country was behind its use to prosecute anybody. Nonetheless, the profits of NSO’s private security business soared. “The greater the violence and insecurity become, the greater the business opportunities for these companies,” said Dr. Paloma Mendoza Cortes, a Mexican national security investigator, to Haaretz.
The scandals kept on coming in Mexico, where for years NSO had its most profitable work. Drug cartels colluded with corrupt Mexican officials to gain access to Pegasus and use it to eradicate mutual enemies. Criminal networks bribed corrupt officials to target individuals they want removed or monitored. Cybersurveillance is a completely unregulated industry, and despite NSO’s assurances there is no indication that Pegasus is monitored for breaches once installed. Since the 2010s, Mexico’s voting pattern at the United Nations has shifted to a less critical stance toward Israeli policies.
Unknown numbers of journalists, critical of state corruption, had their phones hacked by NSO spyware and ended up dead. They included freelance reporter Cecilio Pineda Birto in 2017. Just hours after hosting a Facebook Live video in which he accused local politicians and state police of working with a renegade thug, he was shot dead in the town of Ciudad Altamirano in southern Mexico. A few weeks before his killing, his mobile phone number had been selected as a possible target of Pegasus surveillance by the Mexican state.
This was just the tip of the iceberg of NSO’s potential victims, for between 2016 and 2017 leaked data (revealed in 2021) showed that over fifteen thousand Mexicans had been listed as potential targets of surveillance. At least fifty people connected to Mexico’s President Andrés Manuel López Obrador, including his close family, were placed on a list of phone numbers revealed by The Pegasus Project, a leak of fifty thousand numbers potentially used globally by NSO clients.
If Mexico was the first major NSO testbed, other states across the world soon followed. Pegasus was quickly purchased by often undemocratic clients, including the United Arab Emirates, Panama, Kenya, and Turkey, and reportedly assisted in the disclosure of terror cells, child abduction rings, and organized crime. Within a few years, NSO was celebrated across Israel, heralded by academic institutions and lavished with funds.
Research agency Forensic Architecture describes the role of NSO and cyber hacking actors as “digital infections” that do not “target civil society actors as individuals, but rather as networks of collaboration.” The group found that in India, Mexico, and Saudi Arabia, one person is initially hacked “before their professional networks are targeted within a similar time period. In each of these examples, the use of Pegasus occurs after or during periods where these civil society networks expose or confront controversial or criminal state policy.”
Pegasus was used by the Moroccan regime to target its critics, including outspoken opponents of the government who ended up in prison on bogus charges. Israel and Morocco normalized ties in late 2020, with the understanding that the US would recognize Morocco’s disputed control of Western Sahara. To sweeten the deal, Israel sold kamikaze drones to Morocco and in the past has sold a missile defense system. When Israel’s Defense Minister Benny Gantz visited Morocco in November 2021, there was no hiding that the two nations were principally interested in arms trading (with diplomatic relations further down the list). “Morocco is no chump in the cyber field,” Israel’s Foreign Minister Yair Lapid said in 2021, conveniently omitting to mention that it was Israeli technology that boosted Morocco’s cyberhacking abilities.
A full rogue’s gallery of dictatorships has bought and deployed Pegasus, nations that either had official relations with Israel or desperately wanted Israeli spyware. Bahraini and Omani activists have been targeted by NSO tech. Rwanda used Pegasus to monitor dissident Paul Rusesabagina, the man who inspired the Hotel Rwanda film, who was tricked and then kidnapped by Rwandan officials in Dubai, put on trial in Rwanda in 2021, and found guilty of terror-related crimes. Morocco used Pegasus to spy on senior French politicians including President Emmanuel Macron. Hungarian Prime Minister Viktor Orbán, a close ally of Netanyahu, bought Pegasus to spy on opposition politicians and critical journalists. When this was exposed in 2021, Orbán’s spokesman defaulted to his government’s usual anti-Semitic refrain when under attack, blaming billionaire Jewish philanthropist George Soros. This was the kind of ally that Israel wanted to foster in Europe.
I asked the NSO PR team questions about how and why it sells its products to undemocratic states and what safeguards are put into place to ensure that its products aren’t abused by the buyer. In response, NSO directed me to its “Transparency and Responsibility Report,” released in 2021. In it, NSO claimed that it had “rejected over US$300 million in sales opportunities as a result of its human rights review processes” and said that Israel’s Ministry of Defense “restricts the licensing of some of our products and it conducts its own analysis of potential customers from a human rights perspective.” The report further claimed that the company is “committed to respecting human rights” by the establishment of a Governance, Risk, and Compliance Committee (GRCC). The GRCC “reviews potential sales, providing recommendations and decisions after an in-depth, risk-based due diligence process including a comprehensive assessment of potential human rights impacts.”
It is not only NSO that’s causing harm around the globe. Cellebrite is another Israeli company that works with repressive states and yet it has received far less criticism. It is hard to know exactly why it has escaped NSO’s notoriety, but perhaps it’s because Cellebrite prefers to operate under the radar with its phone hacking capabilities or because NSO’s alliance with despots has uniquely captured the attention of researchers and media outlets that often fail to make the necessary ties to the Israeli state. “Cellebrite sells equipment to hack phones from short distance and NSO Group from long distance, but the effect is the same for activists,” Israeli human rights lawyer Eitay Mack told me.
Founded in the 1990s, Cellebrite started out as a consumer technology firm but by the 2010s was deep into the surveillance business and mobile phone hacking because it saw the potential of huge profits from working with law enforcement officials around the world. In late 2021, Cellebrite launched a large scale PR campaign called “Heroes behind the Heroes,” featuring online ads and physical billboards that promoted the essential work being performed by their “digital intelligence solutions” in police forces around the globe.
Unsurprisingly, the PR blitz was selective about what services Cellebrite offered and who these advertisements were intended to influence. In 2022 Eitay Mack wrote to the company and Israel’s Defense Ministry to remind it where Cellebrite equipment had ended up, including Russia, where journalists are pursued, and the Philippines, where countless reporters have been murdered during the reign of President Rodrigo Duterte. Neither the Israeli government nor Cellebrite could claim ignorance of what might happen to sophisticated surveillance gear in the hands of autocrats. There is a published photograph of Cellebrite employees meeting Duterte in 2018 and admitting that the corporation had trained a range of public bodies, some of whom were directly complicit in the murder of thousands of Filipinos during Duterte’s brutal “war on drugs.” When challenged on its complicity, Cellebrite told Haaretz that it had “strict oversight mechanisms” over its sales. It was a statement that was remarkably similar to NSO’s when pushed on its international relations.
The countries where Cellebrite surveillance tech has been used against critics, journalists, dissidents, or human rights workers include Botswana, Vietnam, Bangladesh, and Uganda. This includes the Universal Forensic Extraction Device (UFED) hacking tool, which allows the extraction of information from mobile phones. In Bangladesh the hardware was used by the Rapid Action Battalion, a notorious paramilitary unit, which has been accused of extrajudicial killings and disappearances. When this connection was exposed in 2021, the company quickly announced that sales to Bangladesh were being suspended, though it was likely Bangladesh could still use the tech that had already been acquired. Furthermore, Cellebrite said it would establish an advisory committee to ensure that “ethical considerations” were prioritized moving forward. Once again, Cellebrite used the same PR-driven tactic employed by NSO. Bangladesh has no formal ties with the Israeli government, but this did not stop Israeli intelligence experts from training Bangladeshi officers during a four-day event on the outskirts of Budapest, Hungary, in 2019. The Ethiopian federal police use Cellebrite products despite the government’s mass detention of minorities and repression of dissidents, journalists and activists.
The disgraced Hollywood producer Harvey Weinstein wanted to hire the most effective private intelligence firm that money could buy to kill any media stories about his sexual assault on countless women. In 2016, he chose Israeli company Black Cube, founded in 2010 by former Israeli intelligence officers and the former head of Mossad, Meir Dagan. The company would get a US$300,000 bonus if a major story about Weinstein did not appear in the New York Times. Former Israeli Prime Minister Ehud Barak admitted introducing Weinstein to the Israeli firm. Nonetheless, Weinstein failed in his mission, and he’s now in a US prison for a string of rapes.
London-based spy, former journalist, stockbroker, and IDF soldier Seth Freedman admitted to working for Black Cube and investigating ninety-one people associated with Weinstein who had some connection to his sexual assaults. They included actress Rose McGowan, who Freedman tricked, along with many others, into an interview for a supposed story in the paper he used to write for, the Guardian. When asked by the BBC if he regretted his work, he said that “my job is to get a piece of information that isn’t freely available, and as long as I stay within the letter of the law, I’m not worried about your ethics when you judge me.”
How to stop these NSO-type companies in their tracks? It will take systematic, global change because the disappearance of NSO itself will not remove the demand for tools like Pegasus by democracies and dictatorships alike. David Kaye, the former United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression between 2014 and 2020, argues that “our attention shouldn’t be focused only on one company [NSO] because if we’re only focused on them then we might think that the solutions are just to restrain Israeli export control processes. Or we need to ensure that NSO alone abides by emerging standards for corporate, human rights responsibility. The problem is global.”
Kaye believes that an international code of conduct for cyber-surveillance firms is an important first step, though he acknowledges it would likely be nonbinding and thus making enforcement close to impossible. Government regulation was the better option, Kaye told me, because then companies would fear stepping out of line. He compared it to the 1997 Anti-Personnel Landmines Convention where most of the world, except the US, Israel, China, Pakistan, India, Egypt, and Russia, came together to outlaw the destructive weapons.
“You could imagine a process where some members of the international community want to ban this stuff [cyber weapons],” Kaye said. “My guess is that most governments would only be willing to regulate the export and use, because give me a reason why states would give up this ridiculously powerful tool?”
During his time as a UN Special Rapporteur, Kaye regularly called out NSO for its transgressions against human rights activists and journalists worldwide. At the end of his term in 2020 he acknowledged that global regulation was in its infancy. “Right now, it’s almost as if there are no shadows because there are no legal constraints,” he told the Committee to Protect Journalists.101 UN human rights experts, including Kaye’s UN successor, Irene Khan, issued a call in 2021 for states to “impose a global moratorium on the sale and transfer of surveillance technology until they have put in place robust regulations that guarantee its use in compliance with international human rights standards.”
The challenges of regulating this out-of-control industry may be hard to overcome, since it is already so ubiquitous around the globe. But as Shoshana Zuboff, Harvard professor and author of The Age of Surveillance Capitalism, has said, this is the same feeling that many people had before unions started fighting for workers’ rights or the abolition of child labor. A simple, sensible suggestion is to ban all commercial tools in cyber-hacking. “Eliminating the profit motive reduces the risks of proliferation while protecting progress,” Edward Snowden argues, thus “leaving room for publicly minded research and inherently governmental work.”
Not doing so guarantees a proliferation of NSO-type tools where every person on the planet might have their mobile phone or digital devices vulnerable to exposure. But this is not enough. The purveyors of these tools, whether in Israel, the US, or Italy, must be held legally liable. A few major court victories against surveillance corporations could be morally clarifying for those in the trade.
Hacking of mobile phones is just the beginning of what is possible in the complete surveillance of our lives. Bill Marczak, a senior research fellow at Citizen Lab, fears that the improved security of mobile devices in the future could “make it extremely difficult for NSO and others to target them. It may come to the point where it’s not feasible. Maybe they’ll hack smart cameras in homes instead, turning on microphones to listen in. Or fridges, toasters, and cars. There’s no shortages of domains to surveil.”
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Plaintiffs arrive for the second day of the trial in Helena, Montana - the the first ever constitutional climate trial in U.S. history. (photo: Robin Loznak/Shutterstock)
Montana teen Mica is one of 16 plaintiffs in historic trial, alleging state has violated residents’ right to healthy environment
“I understood it more than my parents thought I would,” he testified in a groundbreaking trial on Tuesday. “I just knew something bad was happening, but I didn’t know exactly what it was.”
Mica came home from the film crying, he recalled. His parents helped him send a letter about the climate crisis to Senator Jon Tester, a rare Democrat in office in Mica’s home state of Montana. But Tester’s office merely sent an automated response.
Since then, Mica told the first judicial district court of Montana, he has learned more about climate change in school and by reading scientific articles, and has become involved in advocacy to combat it. He has also seen its effects first-hand.
Mica is one of the 16 youth plaintiffs in the 2020 lawsuit Held v Montana, which is being heard in the state capital, Helena, this week. The challengers allege that state officials have violated their constitutional rights to a healthy environment. The trial, which began on Monday, marks the first ever constitutional climate trial in US history.
A lover of the outdoors, Mica, who lives in Missoula, Montana, said he was frequently bothered by smoke from wildfires. This makes it hard to go for runs, something the young plaintiff has enjoyed since he was five.
When he can’t train due to the smoke, Mica said, he feels “trapped”.
“I can’t get my mind off things,” he said.
In 2020, Mica contracted Covid and was forced to isolate from his family in his basement. Because of the intensely hazy conditions, he could not go outside.
“I’m a prisoner in my own home,” Mica, who this spring was diagnosed with asthma, wrote in a poem at the time, which he read on the stand.
In the future, Montana’s wildfires will only get worse as heat and dry conditions become more common, according to Earth scientist Cathy Whitlock, a professor emerita of Earth sciences at Montana State University who served as an expert witness for the plaintiffs earlier in the day.
Whitlock, who led Montana’s 2017 climate assessment and has co-authored several other climate reports for the state, explained that Montana’s average temperatures (according to Noaa data) have risen by an average of 0.2F (0.1C) each decade since 1900. Since 1970, the rise has been even more drastic, at 0.53F (0.29C) every decade.
“And the rate is increasing,” she said.
All that warming, Whitlock said, fuels not only wildfires – which spark more easily in hot, dry conditions – but also drought, snowpack loss and extreme heat.
These trends are only expected to become more dramatic as the climate crisis progresses.
“The plaintiffs by the end of the century are going to be experiencing much warmer conditions than now,” Whitlock said.
Tensions ran high as Whitlock was cross-examined by Thane Johnson, an attorney representing the state.
The court case specifically alleges that part of the Montana Environmental Policy Act, which prevents the state from considering how its energy economy may contribute to climate change, runs counter to the state’s constitutional requirements to provide a “clean and healthful” environment.
Johnson asked Whitlock about the state’s non-energy sources of emissions, such as agriculture, which would not be affected if the Montana Environmental Policy Act was overturned. Further, he asked if Montana could tackle the climate crisis on its own.
Whitlock agreed that every sector in Montana must cut its emissions, and that the climate crisis is a global problem. But slashing planet-warming pollution from the energy sector, she said, would help secure a livable future.
“All areas have to do their part,” she said.
In an interview outside the courtroom, Barbara Chilcott, a senior attorney at the Western Environmental Law Center who is representing the plaintiffs, echoed that sentiment.
“As most people know who work in this space, every ton of carbon matters and that’s no different in Montana,” she said.
Johnson became visibly agitated while cross-examining Whitlock, earning him an admonishment from the judge.
“You need to settle down just a little bit, Mr Johnson,” Judge Kathy Seeley said.
Next week, the court is expected to hear from the defense’s expert witnesses, including climate crisis-denying climatologist Judith Curry.
Curry, a former Georgia Tech professor who is frequently invited by Republicans to testify at congressional hearings, was in 2010 called “a new breed of climate change contrarian – the delayer” by esteemed climatologist Michael Mann. Her private weather forecasting company counts utilities and oil companies among its clients, and the state has paid her tens of thousands of dollars for her time, climate website DeSmog reported.
In Tuesday’s testimony, Whitlock rebutted an expert report that Curry submitted to the court, explaining that methodologies she employed for the research were flawed. The data Curry used, she said, was “cherry-picked”.
Curry’s report concluded that climate change has not altered precipitation in Montana, but that assertion, Whitlock said, did not account for the fact that the state’s spring and fall seasons have gotten wetter and its summers have gotten drier.
“That’s like evaluating health based on the total number of calories taken in in a year,” she said. “It matters when you take in calories and where those calories come from.”
Veteran ecologist Daniel Fagre, who for three decades worked at the US Geological Survey, was also called by the plaintiffs’ team to testify on Tuesday.
The glaciers in north-western Montana’s Glacier national park, he said, “will disappear under current likely emission scenarios due to the
climate crisis”.
He went on to contest assertions that Curry made in her expert report about glacial melt, saying she relied on flawed methods.
The state’s glaciers are crucial for water systems, Fagre said, and have also inspired Montanans for decades.
Later in the afternoon, Badge, a 15-year-old plaintiff from Kalispell, Montana, testified about his love for Montana’s renowned natural beauty.
“I wouldn’t choose to live anywhere else,” he said.
But Badge, an avid hunter, fisher and hiker, said he’s witnessed those iconic landscapes change over his lifetime. He was named after the Badger-Two Medicine, a swath of lush protected land adjacent to Glacier national park which in 2015 was scorched by wildfires. He saw the damage first-hand on a trip to the area with his father.
“Being with my namesake, it’s saddening,” he said, tearing up.
Physician Lori Byron testified last on Tuesday, saying children are especially vulnerable to the physical and mental health effects of the climate crisis.
“Children’s health is already being harmed,” she said.
On Wednesday, Byron is expected to continue her testimony, which will include a rebuttal of Curry’s report.
Despite their anxiety, both Mica and Badge said participating in the Held v Montana case has empowered them.
“I want to preserve this beautiful land for myself and future generations,” Badge testified.
Chilcott said she was moved by the young plaintiffs’ optimism.
“I hope that their hope will be met,” she said, “and that we will continue to make progress in mitigating climate change for them.”
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