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16 June 23
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What to expect from Trump’s prosecutors and from his defense attorneys in Florida.
By Tuesday evening, Trump was headed to Bedminster, New Jersey, for a campaign speech, and after his speech, he had a fundraiser with donors who raised at least $100,000 for his campaign, with all invited to a candlelight dinner. Beneath all of this drama, this lawsuit stands as a deadly serious moment for democracy, for the rule of law, and for national security. And if you read the 49-page indictment filed by special counsel Jack Smith in this case, it is amply clear that the focus of this lawsuit is a grave and ongoing threat to national security, one that imperiled the U.S. intelligence community and the Defense Department in ways that almost defy belief.
So in keeping with our get-past-the-horserace legal analysis, on Slate’s legal podcast, Amicus, we wanted to dig in on what this case really involves and why it really matters, and we wanted to do that with Ryan Goodman.
Goodman is the Anne and Joel Ehrenkranz Professor of Law at the NYU School of Law. He served as special counsel to the general counsel of the Defense Department. His work has made important contributions to the law of armed conflict, human rights law, and U.S. national security law, and he is also the founding co–editor in chief of Just Security.
A portion of our conversation is transcribed below. It has been edited and condensed for clarity.
Dahlia Lithwick: Given that it seems as though the bulk of the charges are just about mishandling the documents, rather than trying to sell them or hand them off, are we ever going to be able to ferret out Trump’s actual motive here? And does that affect how he is eventually charged? Because nobody can tell. It doesn’t seem to be about money. It doesn’t seem to be about deliberately engaging in espionage. It seems like he’s just being Trumpy.
Ryan Goodman: I don’t think it affects the charges that are brought, but I do think it affects how likely it is to result in a conviction, because I think if [motive] could be buttoned down, it would be very convincing to a jury, so that they understand the full picture, that they understand the motivation. I think if we had a better understanding of motive, then I think it would also be very compelling as a full narrative, and it’s still this missing piece. And like you say, I also think that the answer to the missing piece might be: It’s Trumpy. Like, it’s a form of a narcissistic personality in which he just thinks, “It’s all mine.” He thought he was the state; he thinks he’s still the state, or the president. It’s mine. Nobody else should have it. So it’s just an extension of himself. He likes to have [the information]; it makes him feel powerful knowing he has it.
And then also sometimes, [he’s] showing it off as a trophy, as we know that he has done with other things that he’s picked up along the way, like Shaquille O’Neal’s sneaker. That’s why he is showing off his classified map to a political ally; it makes him feel powerful. But it would be really great to have the evidence of it. It might be mixed motives.
Does that change anything? The fact that he’s just waving around classified maps because he can, because he thinks they’re his?
Or does it mean more if he’s actually putting people at risk? The whole framing of this indictment is so painstakingly saying, “These are the sources and methods. This is who was burned. This is all the ways in which lives were in danger.” So if Trump neither knew nor cared, does it change anything?
I think it doesn’t necessarily changes anything, because it’s not an essential element of any of the crimes. It just has to prove that he willfully retained the documents. If we do get into a situation—this is not [what] the present charges [are]—but [if we get] charges that are based on sharing information, then it might actually have to be shown that he knew that it could be to the injury of the United States. But as straight-up documents, it doesn’t have to be shown.
I do think one thing that might easily happen in the trial is we have senior U.S. intelligence officials saying that because he compromised these documents, he then compromised certain highly classified programs, and we had to either drop human sources or drop certain programs. That is the kind of remediation that the government would need to necessarily take once they even just see the photograph of the boxes lined up on the ballroom stage, just to be like, “Well, we can’t assume that that stuff hasn’t been compromised.” And it goes to kind of a heart of the question as to: Was there any injury from this? And there is potentially massive injury to U.S. intelligence operations, U.S. national security, in that sense.
I think that could be driven home in a courtroom. And then, of course, it can also be driven home for the public at large to even just understand other ramifications of having so mishandled classified information, and what it means for allied relationships with other governments that are otherwise sharing information with the United States.
To say it as succinctly as I can: There’s a prospect this man becomes reelected to the White House. What do those [allied] governments think? Are they going to be sharing information over the next two years with the possibility that this same person who feels the ability to just keep that kind of information in his shower and on the ballroom floor of his public resort might do it again? I think that that has serious current-day implications.
There’s actually a pragmatic question connected to that that I’ve been dying to ask you, Ryan: How much are Jack Smith and his team prepared to disclose about this? It’s so clear, as you said, how painstakingly redacted this material is.
In order to show how much damage potentially has been done, you might have to burn your own mechanisms of intelligence-gathering and spycraft, and in some sense, burn your own allies. So how do you navigate that?
I think it’s one of the key issues to watch as this criminal procedure moves forward, because a lot of the pretrial motions will be about this very question, and it’s also why I’m very concerned about who is the judge. Is it still Judge Aileen Cannon making those calls?
Because under the Classified Information Procedures Act, there is a framework that Congress set up to deal with that very tension, and it is to allow the prosecutors to protect some of the information by allowing them to do a summary of the content of the documents. That’s one version of it.
But if a judge says, “No, I’m sorry, that would not provide the defendant with proper rights, because they can’t be convicted on the basis of secret information,” you have to give up the entire document so the jury sees it and the public sees it, or something like that. It’s where [the judge] can draw the line on that; [the judge] has enormous discretion.
That’s a big concern. So it was remarkable to me and to many other national security lawyers to see the high-level classification of the documents. It must be the case that the intelligence community has decided that they are prepared to risk some level of exposure at trial. And I do think it probably speaks to the intelligence community’s deep concerns about how important this case is for them. It might also speak to the possibility that Donald Trump’s action has so significantly burned some of these programs that indeed, that’s partly why they can share the documents, because it’s eroded their significance and value to the United States. I’m comparing this to other cases in which I’ve seen indictments for very similar things under the Espionage Act. This is a remarkable indictment, because usually the way that the prosecutors and the intelligence community think of it is that they look for the quote-unquote “Goldilocks documents.”
The Goldilocks documents are the ones that are not too highly sensitive that it would be exposing deep secrets, but not too low in their sensitivity or classification that it really would not compel a jury. Like you’re not going to bring documents marked as “confidential.” These are not in the Goldilocks zone. They’re not like the “secret” level. [The Trump documents] are the tippy-top, top-secret, compartmented information, code-worded. So much so that even the code word has to be redacted. So it’s really remarkable in that sense.
You’re hinting here that so much of this is going to be fundamentally unprovable, because you’re proving a negative, right? You’re proving what you can’t say: that these are the countries that no longer trust us. Yes, these are the programs we’ve had to shut down. These are the spies who had to be pulled. You can’t do any of that. What you’re describing is the system in which, in some sense, you go to trial with one hand tied behind your back, because all of the stuff that makes this catastrophic is the stuff that can’t be in this indictment, and in fact, can’t be proven in court.
Absolutely. The one only other piece that’s maybe different than all the times before, in a certain sense, is that I do think the current leadership of the intelligence community is more likely to be transparent compared to their more recent predecessors. This is in some ways growing out of the Ukraine war. The head of [the Office of the Director of National Intelligence] and the head of the CIA have been forward-leaning in declassifying information or revealing information in that situation, and I think they very well might be here, too, given how enormous the stakes are.
Ryan, I don’t want to waste even a nanosecond of your time on the really dumb claims that are being made about the Presidential Records Act and about the “Clinton sock drawer” defense [of Trump]. Some of it is debunked by the archives themselves. But I do wonder if there is any merit to some of the “legal” defenses. Put aside the political defenses. Is there anything that we should be taking very seriously because it’s a fundamental weakness of the case?
I think the case, to be honest, is airtight, absolutely airtight. The one legal vulnerability that I thought they might have is the venue. If they had brought the case in D.C., they were maybe in deep trouble, because it could have been determined that that was the wrong jurisdiction, because all the activity took place in Florida. And there’s this pending Supreme Court case that many in the audience might know about, strangely titled Smith v. United States—given that Jack Smith is a different Smith—in which the Supreme Court might very well say double jeopardy applies, that if you lose with Time One [prosecuting in an improper venue], you cannot then bring [the same case] in the proper venue for Time Two. So that was going to be the biggest legal vulnerability I could identify if I were to try to stretch my mind to think, “What is his defense?” The answer might be there is no legal defense. He committed the crime. I think it really is that.
If I were to try to stretch it, I would think maybe he can claim: It is true that they were not his documents, but the defendant thought they were his. It is true that they were not declassified, but the defendant thought that they were declassified, and therefore were not closely held national defense information. Well, it’s not true. His own lawyers told him that [the documents] were not his, and if he were to try that defense, he’d have to take the stand.
That would be a total debacle. Let me put it a different way as well. Looking at all of the prior indictments for retention of national defense information under the Espionage Act in the last 20-plus years—and I’ve looked at all of them because we wanted to look at similar cases and whether or not this case has been treated like them, seeing an indictment like this. If it were not Donald Trump, I would say of course the defendant is going to plead guilty. And it is the case that when you have these kinds of allegations, they are prosecuted, and then it usually will end up in a plea deal. But if it ends up in a plea deal, then those defendants, high-powered individuals, often get off with very minimal or no jail time.
So that’s a tragic part of our legal system. But David Petraeus, Sandy Berger, John Deutch: Guilty, guilty, guilty. Pled guilty. And then because of that pleading, they get no jail time. John Deutch got a pardon, as well. This defendant isn’t gonna plead guilty. So that’s the oddity of it. But it shows just how strong the case is, in a certain sense, to compare it against all these others
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Kherson resident Tetiana Bodak did not see her 17-year-old son Vladyslav for eight months after he was abducted by Russian troops. (Photo: Save Ukraine)
"Mom, I'm in Oleshky (a Russian-occupied settlement in Kherson Oblast). On the way to Crimea," she heard him saying.
Bodak's confusion turned into fear the moment her 17-year-old son Vladyslav provided details.
"He told me he was ordered to go to the Druzhba camp in (Russian-occupied) Yevpatoriia," Bodak told the Kyiv Independent.
He said that he was called and told there was some kind of evacuation, according to Bodak. Russians came for Vladyslav at home and took him away, she said.
Like thousands of other children in the occupied territories of Ukraine, Vladyslav became a victim of one of the darkest and most discussed outcomes of Russia's full-scale war — the forced deportation of Ukrainian children.
According to the Ukrainian national database, about 19,500 Ukrainian children have been abducted from the occupied territories and sent to other Russian-controlled areas or Russia since last February.
Ukrainian authorities say that to abduct and deport Ukrainian children, Russian troops sometimes kill the parents or take children from their families. Children are also sometimes kidnapped directly from orphanages in occupied settlements or separated from their parents in so-called filtration camps in Russia.
In other cases, children are ordered to go to "recreational camps" for vacations or medical treatment — which was the case for Bodak's son Vladyslav.
The boy was told he would spend only 10 days there. Instead, he was kept away from home for over eight months.
Vladyslav spent two months at a recreational camp in Russian-occupied Crimea and six months at an educational facility in the occupied settlement of Lazurne, Kherson Oblast.
He was forced to sing the Russian anthem and punished for his pro-Ukrainian stance.
Brining children home from Russia is beyond challenging, according to Ukrainian charities and authorities involved in such missions. As of mid-June, only 373 children have been brought back.
To bring Vladyslav back to Ukraine, his mother underwent multiple interrogations by the Russian military and spent almost two days locked in a prison cell.
"It was hell," she says.
The worst was yet to come
Bodak was pregnant with her sixth child when Russia launched its full-scale invasion of Ukraine last February.
Just days later, her home town, the southern Ukrainian city of Kherson, was occupied by Russian troops. Bodak didn’t want to try to evacuate with five children and while pregnant.
In late June, she gave birth to a baby girl, Stefania.
"I had to hide the baby so that she didn't get a Russian birth certificate," she says.
Luckily, Bodak found a hospital that managed to issue Ukrainian documents.
Though the family spent most of their time at home, they could not avoid unwanted encounters with the Russian troops.
A Russian-installed official, accompanied by two soldiers, came to the family's home one day: "We strongly recommend you to send your children to schools," Bodak recalls him saying.
She knew that the Russian occupiers had introduced a Russian curriculum at the schools and did not want to send her kids there. When the armed soldiers appeared at her home, Bodak knew she no longer had a choice.
Then, just a month before Ukrainian troops liberated Kherson, a Russian attack on Kherson Oblast killed her mother.
Bodak says Russian troops launched an airstrike at civilian cars and a bus driving near a bridge not far from the village of Darivka, located just 20 kilometers northwest of Kherson, on Oct. 7.
Ukrainian media also reported the attack on that day, saying that at least five people were killed and five were wounded.
Bodak says her mother was hospitalized only two hours after the attack as “Russian troops did not let ambulances arrive at the site.”
Her mother died at a hospital on Oct. 8.
"It was very difficult," she says, as her voice trembles. "I had to take custody of my younger brother so that no one would take him away from me."
At a moment of great despair and heart-wrenching grief, Bodak received that terrifying call from her son: The "on the way to Crimea" call.
On the same day, Kirill Stremousov, who then served as a deputy head of Russia's illegal occupation government in Kherson Oblast, claimed they were taking children along with their parents and elderly people to occupied Crimea, as well as Russian Rostov and Krasnodar Krai oblasts for a couple of weeks, Russian government-controlled RIA Novosti news site reported.
Vladyslav learned about the order to go to the camp from a phone call from his school. He was picked up by Russian forces at home. Along with his classmates, he was put on a ferry across the Dnipro River and then on a bus to Crimea. Bodak was in touch with Vladyslav the entire time.
In the Druzhba camp, mornings started with the Russian anthem, according to Bodak. Her son told her the food was not good there and that they did sports and other activities as in any summer camp.
However, everything Ukrainian, including the language, was banned there.
One day Bodak learned that Vladyslav had "torn down the Russian flag and hung underwear in its place." As punishment, he was locked in an isolated room with only a bed, toilet, and a shower inside for five days.
"Children were locked there for being pro-Ukrainian," Bodak says.
Vladyslav also told her the camp's staff had done "evacuation" drills in case Ukrainian Armed Forces entered the facility.
When the camp season was over, Vladyslav and four other children from Kherson were transferred to the occupied part of Kherson Oblast instead of their home town, which had already been liberated by Ukraine. For the next six months, they were forced to stay and study at a school in Russian-occupied Lazurne.
According to Bodak, around 50 children from different occupied or formerly occupied areas of Ukraine were also there. The conditions in Lazurne were better than in the Crimean camp, but the rules were the same.
"It was forbidden (for children) to say anything about Ukraine, only how good Russia was," Bodak says.
Vladyslav told his mother they were provided with "good and expensive" clothes and shoes and were paid 1,500 Russian rubles (around $18) as a monthly "scholarship." Bodak says it was Russia's way to bribe the children.
So close, and yet so far away
The entire time her son was in the Lazurne camp, Bodak was trying to find a way to get him out. She knew that even though Lazurne was so close to Kherson – about 100 kilometers south – it would be impossible to get to the Russian-occupied part of Kherson Oblast from the Ukrainian-controlled one, and she didn't have enough money for the long trip through Russia and back.
Fortunately, the Ukrainian non-governmental organization Save Ukraine, which helps bring back Ukrainian children from Russian captivity, agreed to assist Bodak. The NGO funds the trips and provides guidance to the parents.
Bodak and six other mothers of deported children were remotely guided by the volunteers throughout the complicated trip.
At first, Bodak says she endured a three-hour-long interrogation at the Belarus border. Then, she had to travel through Russia to Crimea and then to occupied Lazurne. The whole trip there and back to Ukraine took around 15 days, Bodak says.
Since she had all the needed documents proving she was Vladyaslav’s mother, the Russian-controlled school agreed to let him go.
Volunteers helped them find a place to spend the night in Lazurne. But soon as they got there, the moment of happiness of being reunited after long months of separation was interrupted by Russian Security Service (FSB) officers. "Don't you have something to tell us?" Bodak says they told her.
They put a bag over her head and then locked her in a basement cell in an unknown location. Bodak says she was offered to take a polygraph test there.
"I agreed. I had nothing to fear because I was just a mother who came to take her child back home," she says.
But it wasn't that easy. Bodak says Russian officers asked many questions about Save Ukraine and its volunteers and that the interrogation lasted for hours. She spent almost two days in the basement.
"They released us on the condition that my son and I had to give an interview praising Russia and saying how bad Ukraine was," Bodak says. Left with no choice, they agreed.
She also says they were offered a “certificate for an apartment in Russia” and 100,000 rubles ($1,200) if they agreed not to return to Ukraine.
Although she felt beyond happy to finally be reunited with her son, Bodak knew that leaving Russia would be just as big of a challenge for them. And she was right.
As they traveled to Russia's Smolensk Oblast to cross the border with Belarus, Russian border guards refused to let them pass. Traveling an additional hundreds of kilometers, the two decided to try their luck in the neighboring Pskov Oblast, which borders Latvia.
When Russia finally let the two go, they "ran away as fast as they could," Bodak says.
"I was standing at the (Latvian) border checkpoint crying," Bodak recalls. "I still feared Russia would somehow bring us back and take my son away again."
The family now lives in the western Ukrainian Khmelnytskyi Oblast, where they moved upon the liberation of Kherson in November to escape Russia’s continuous shelling of the city.
There, Bodak’s husband was drafted into the Armed Forces. He is now fighting for Ukraine’s victory over Russia.
Though that victory may still be far ahead, Bodak is glad she managed to win her personal battle against Moscow: She returned her son home, safe and sound.
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Nita Battise, a member of the Alabama-Coushatta tribe, celebrated the ruling on the steps of the Supreme Court on Thursday. (Photo: Kenny Holston/The New York Times)
At issue in the case was whether a law aimed at keeping Native American adoptees within tribes is constitutional.
Justice Amy Coney Barrett, writing for the majority, affirmed the power of Congress to make laws about Native American tribes and child welfare. But the ruling did not resolve the question of whether the law, the Indian Child Welfare Act, discriminated against non-Native families based on race.
The vote was 7 to 2, with Justices Clarence Thomas and Samuel A. Alito Jr. dissenting.
The case pitted a white foster couple from Texas against five tribes and the Interior Department as they battled over the adoption of a Native American child.
Under the act, preference is given to Native families, a policy that the couple said violated equal protection principles because it hinges on placement based on race.
The tribes have said that they are political entities, not racial groups. Doing away with that distinction, which underpins tribal rights, they argued, could imperil nearly every aspect of Indian law and policy, including measures that govern access to land, water and gambling.
The majority dismissed the equal protection argument, saying that no party in the case had legal standing. Instead, the justices focused on Congress’s longstanding authority to make laws about tribes and rejected claims by the challengers in the case, Jennifer and Chad Brackeen, a Christian couple from Texas, that states, not the federal government, should be addressing issues of family law.
“Our cases leave little doubt that Congress’s power in this field is muscular, superseding both tribal and state authority,” Justice Barrett wrote, adding that its authority touched on subjects as varied as criminal defense, domestic violence, property law, employment and trade. She added, “The Constitution does not erect a firewall around family law.”
In their dissenting opinions, Justices Thomas and Alito asserted that Congress had overstepped.
The majority, Justice Alito wrote, had lost sight of those most at risk: children.
The majority “decides one question after another in a way that disserves the rights and interests of these children and their parents, as well as our Constitution’s division of federal and state authority,” he added.
Justice Thomas wrote that the legislation exceeded the federal government’s power, adding that some of the Native American children involved in the adoptions “may never have even set foot on Indian lands.”
The case began when the Brackeens, along with other families, challenged the law after they took in a boy in 2016 known in court records as A.L.M. The boy, born to a Navajo mother and a Cherokee father, joined the couple after Navajo tribal placements fell through.
Eventually, both tribes agreed to let the couple adopt the child, but in 2018, A.L.M.’s birth mother had another child, a girl known in court records as Y.R.J. She, too, entered foster care. The Brackeens filed for custody, hoping she could join her brother. The Navajo sought to have the child placed with a distant relative, who lives on a reservation.
A state judge determined that the Brackeens would share custody of the girl with the relative. Both the tribe and the couple appealed the decision as A.L.M.’s case made its way to the Supreme Court.
In sidestepping the equal protection argument, the justices appear to have left the door open to challenges on whether the law is racially discriminatory. Justice Brett M. Kavanaugh, in a concurring opinion, wrote that question deserved consideration.
“In my view, the equal protection issue is serious,” he wrote. The Indian Child Welfare Act, he added, can deny a child or an adoptive family a placement “because of the child’s race — even if the placement is otherwise determined to be in the child’s best interests.”
Justice Kavanaugh added, “Courts, including ultimately this court, will be able to address the equal protection issue when it is properly raised.”
In another concurring opinion, Justice Neil M. Gorsuch, who has emerged as a fierce advocate of tribal rights, emphasized the fraught history of the legislation, writing that it was meant to remedy the forcible removal of Indian children from their families.
“In all its many forms, the dissolution of the Indian family has had devastating effects on children and parents alike,” he wrote.
Tribal leaders expressed relief about the ruling.
The decision is “a broad affirmation of the rule of law, and of the basic constitutional principles surrounding relationships between Congress and tribal nations,” leaders of the Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Indian Nation said in a joint statement.
President Biden nodded to the country’s past in casting the ruling as a victory.
“In the not-so-distant past, Native children were stolen from the arms of the people who loved them,” he said in a statement. “They were sent to boarding schools or to be raised by non-Indian families — all with the aim of erasing who they are as Native people and tribal citizens.
A spokesman and a family friend for the Brackeens said they were worried about the future of Y.R.J., now 5 years old.
She “has been part of their family for over four years,” said the spokesman, Thomas Graham. “They wish to say they love Y.R.J. more than words can describe and will continue to fight to adopt her and keep her united with her brother, whom the Brackeens also adopted.”
The trial concerning Y.R.J. was paused pending the Supreme Court’s ruling.
The 1978 legislation was meant to address the legacy of abuses of Native American children, hundreds of thousands of whom had been separated from their tribes to be raised by families with no connection to their culture.
Typically in child welfare cases, a judge is charged with determining the best interest of the child. Under the act, however, Native American children are subject to different rules, in part to safeguard their tribal ties.
The law lays out priorities for adoption before a child can be placed with a non-Native family. Children should first be in the care of a member of their extended family. If that is not possible, then priority would move to a member of their tribe; failing that, children should go to “other Indian families.”
The Supreme Court has heard other challenges to the Indian Child Welfare Act, most recently in 2013, but the court’s composition has shifted considerably since then.
Other states, including Ohio and Oklahoma, have backed the Brackeens, arguing that the law intrudes on states’ ability to handle child welfare cases. The Goldwater Institute, a conservative policy center in Arizona that has long mounted challenges to the act, said it improperly forced state agencies to carry out a federal program.
“We’re talking about a law that strips children of legal protections based on their racial ancestry,” Timothy Sandefur, the vice president for legal affairs at the Goldwater Institute, said after the court issued its decision. “This law, for example, makes it harder for state officials to protect abused and neglected Indian children.”
Medical groups, including the American Academy of Pediatrics, have weighed in to support the legislation, arguing that it helps redress “the intergenerational pain of lost connections and the trauma of historical loss.”
In wide-ranging arguments in November, the justices focused on whether Congress had the power to enact the legislation in the first place and whether it violated equal protection principles.
In particular, they considered the provision that allowed Native children to be placed with “other Indian families” — and whether that was a determination based on race.
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A pod or orcas, or killer whales, with a baby orca among them. (Photo: AP)
That's important since orca incidents have been on the rise in this area during recent months, and may continue to increase. Already there's been a shocking number of boat attacks.
According to Alves' map of June, there's been at least one killer whale encounter every single day in the area, so far this month. The map shows 10 attacks since June 1 and an additional 12 orca sightings in the same time period.
"We are having one incident every day, on average, OK? There are days we have two or three," Alves said in an interview with PBS.
On some days, there are multiple attacks. For example, on June 3, there were four identified orca attacks and on June 8, there were two.
Alves' site, according to the PBS interview, connects sailors in the area who can report these incidents, and their locations, along the coasts of Spain and Portugal.
"It was an idea. If you spread the word about something that happens in an area, people will avoid that area," Alves told PBS. "Maybe they will keep the boat and say, 'I don't sail today because there are many orcas at that point. I will sail tomorrow, or maybe I will go in another direction.'"
Why these orcas are spending so much time around boats is unclear. One theory is that a single traumatized orca, called White Gladis, is behind the attacks and other killer whales are imitating her. But other experts suggest the orcas just want to play.
Whatever the reason, these apex predators are not to be underestimated. They've been known to hunt great white sharks and even blue whales. If you encounter a killer whale, there are some important rules to follow, first and foremost being, never enter the water with them.
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While dark money giving to tax exempt groups is legal, a number of utilities have faced criticism for it. (Photo: Unsplash)
Donations have helped utilities increase electricity prices, hinder solar schemes and helped elect sympathetic legislators
Such secretive donations to barely regulated non-profit groups have helped utilities increase electricity prices, hinder solar schemes and helped elect sympathetic legislators in recent years.
While dark money giving to tax-exempt groups is legal, a number of utilities have faced criticism for it. In Arizona and Alabama, power companies faced blowback after they used dark money to aid the election of friendly regulators. In Michigan, regulators barred another company from using dark money entirely after it spent $43m on politics in just three years.
Sometimes, power company dark money giving hides illegality. In 2021 in Ohio, FirstEnergy Corporation pleaded guilty to using dark money groups to bribe politicians in exchange for bailouts.
In another instance of ethically questionable actions, Florida Power and Light (FPL) used dark money to interfere with ballot initiatives, and the elections of five politicians who in part aimed to tackle the high prices of electric bills and environmental and climate goals.
“We are captive payers. To be funding lobbying against clean energy and climate that customers actually want goes against the public interest,” said Jean Su, a senior attorney at environmental group Center for Biological Diversity.
Customers can also lose out.
This was a scenario in Arizona when, in 2014, power company Arizona Public Service gave $10.7m to dark money groups that donated to key regulatory commission races. The two Republican commissioners backed by the groups won. In 2017, they went on to support the power company’s request for a $95m-a-year increase in electric bills, which ultimately was passed down to customers.
It took a subpoena from a regulator to finally prove in 2019 that the company had been behind the political spending.
That’s because the groups which receive the donations can be mysterious. They often bear generic or patriotic-sounding names, rarely disclose their funding sources and transfer large amounts of money between themselves. Regulations mandating public disclosure of dark money utility political spending are rare at the state level. Federal regulators stopped requiring public, line-by-line accounting of power company political spending in 2002.
Floodlight and the Guardian used public records and self-disclosure data from the Center for Political Accountability (CPA), a non-profit that tracks corporate dark-money, to piece together how much for-profit power companies might be spending. Dark money is difficult to unearth, and the total will be an undercount.
There are 44 regulated for-profit utilities across the US, according to the Edison Electric Institute, their trade association. Twenty-three of them self-disclosed giving nearly $100m to so-called dark money 501(c)(4) and 501(c)(6) groups between 2014 and 2020.
Some offered more detail than others. Many companies do not report the total amounts they donate, but rather just the amount that cannot be deducted from taxes. Others don’t disclose the dark money giving of their subsidiaries. FirstEnergy in Ohio did not self-disclose at all.
Overall, the total amount of dark money uncovered by regulators and the Department of Justice – about $115m – was greater than the total amount the companies disclosed.
The Edison Electric Institute defended the spending. “Electric companies are subject to the same strict laws and regulations that apply to all businesses,” said Brian Reil, spokesman for the industry group. State regulators add even more scrutiny, he said.
Critics argue the dark money spending is kept private, in part to ensure the disruptive transition to green energy happens on the companies’ terms or not at all, and to hinder oversight.
A rare instance where a utility was held to account for its dark money spending happened this past spring in Ohio.
Back in 2016 two nuclear reactors operated by the FirstEnergy Corporation were hemorrhaging money. The company sought help from Larry Householder, a Republican state politician who had just been re-elected and was eyeing the speaker’s gavel.
Over meetings and private jet flights in 2017, Householder and FirstEnergy made a deal: the company would financially support Householder and his political loyalists in statewide elections, and in return, FirstEnergy would get a bailout for its nuclear plants. The conspirators created dark money groups, among them Generation Now and Partners for Progress, and started flooding them with cash.
But the FBI was listening.
David Devillers, the former US attorney for the southern district of Ohio, said in an interview that dark money groups were “the perfect money laundering animal”. With tens of millions from FirstEnergy, Householder won the speakership in January 2019. He later passed a bill that provided $1.3bn in taxpayer-funded bailouts for FirstEnergy’s nuclear plants.
The bill faced backlash and a ballot initiative to repeal it emerged. But Householder used $38m in dark money to fight it. Racist and misleading television ads warning of a “Chinese takeover of Ohio’s electric grid” saturated the airwaves, telling Ohioans not to sign the ballot petition against the bailout.
In total, FirstEnergy contributed about $60m in dark money to Householder. FirstEnergy pleaded guilty to conspiracy to commit honest services wire fraud and was forced to pay a $230m fine. Householder was found guilty this March, and could face up to 20 years in prison when sentenced in late June.
“FirstEnergy has taken significant steps to put past issues behind us,” said Will Boye, a spokesman for the company.
Several groups are calling on the federal government to look more deeply into how power companies wield dark money. The Center for Biological Diversity has petitioned the Federal Trade Commission (FTC) to investigate how power companies pay for their political activity. Another group, Citizens for Responsibility and Ethics in Washington, filed an FEC (Federal Election Commission) complaint last October against half a dozen dark money groups linked to FPL.
During the 2018 and 2020 election cycles in Florida, FPL employed a consulting group that created at least a half-dozen dark money organizations that spent tens of millions of dollars on political attack ads, private investigators and spoiler candidates to challenge politicians in important races – according to leaked documents obtained by Floodlight, and reporting in the Orlando Sentinel and the Miami Herald.
South Miami’s former mayor Philip Stoddard witnessed the power of the company’s dark money network first-hand. When in office he was critical of FPL’s handling of a nearby nuclear plant and was pushing for more rooftop solar.
During his re-election in 2018, a dark money group called A Better Miami Dade published mailers, robocalls and ads to discredit him, according to public records and the group’s former president, Stephen Cody.
The group spent over $200,000 trying to defeat Stoddard, public records show.
Even after Stoddard won, another group called the South Florida Anti-Corruption Task Force filed a complaint against Stoddard at his university job, according to Rick Yabor, the groups president. A private investigator paid by the group also began digging into Stoddard’s personal life.
Stoddard spent last year tracing a complex financial web that winds from the utility through dozens of dark money groups, many of which had direct financial ties to A Better Miami Dade.
“I want to shut down this scam,” Stoddard said in an interview. “This is being used to corrupt the political system.”
If the IRS accepts a whistleblower complaint Stoddard has made, FPL’s former political consultants could face up to $200m in liabilities and Stoddard could get a share of the recovered back taxes.
While leaked records indicate FPL probably donated tens of millions of dollars to dark money groups between 2014 and 2020, its parent company has only self-disclosed about $1.4m in dark money giving. A spokesman for the company declined to confirm a total.
Through a spokesman, FPL declined to comment for this story.
But despite the recent exposure of dark money’s noxious effects in states like Ohio and Florida, experts caution that these networks are rarely brought to task.
While the Internal Revenue Service (IRS) is responsible for overseeing non-profit groups, experts uniformly describe dark money as the “wild west”. Between 2015 and 2019, the IRS didn’t revoke any tax-exempt group’s status for violating political spending rules. And the numbers of IRS agents whose job it is to police the groups has dwindled from nearly 1,000 to fewer than 600, according to congressional testimony.
“There’s very little revenue for the IRS in regulating charities and there’s enormous political risk that seems to have been damaging to the IRS’s capacity to do other things,” Brian Galle, a law professor at Georgetown University who focuses on taxation and non-profits, said.
He said it was largely a result of the current tax code, which is written to protect the privacy of individuals filing their taxes.
“When we wrote [the code] it didn’t really occur to us that this was going to create problems for the political system,” Galle said. “It comes from an era where we emphasized individual privacy, maybe more, because we didn’t understand the stakes for politics.”
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Trump is accused of holding on to classified documents on plans to invade Iran. (photo: AP)
Donald Trump’s indictment was the biggest news of the week, but what was lost in the typical Trump absurdities of documents in ballrooms and bathrooms is the revelation of US plans to attack Iran.
The case has monopolized national attention the past few days, with a broad range of commentators expressing outrage and condemning Trump for potentially compromising US nuclear secrets, weapons capabilities, defensive vulnerabilities, and plans for waging war on Iran.
Wait — war with Iran?
Yes, in a detail that’s been almost entirely glossed over, central to this case are a set of secret government plans for attacking Iran. Other than as a pure factual matter or to stress how recklessly Trump treated classified information, this has been little remarked upon, even as forthright condemnations of wars of aggression and paeans to international law have taken center stage in US political discourse over the past year.
The issue stems from Trump’s apparent frustration with what he claimed was a false narrative being pushed by the press: that after losing the 2020 election, under the advice of then Israeli prime minister Benjamin Netanyahu (who was briefly removed from power before returning last November) and the coterie of Iran hawks he’d surrounded himself with, Trump was dangerously close to ordering strikes on Iran that could have triggered full-scale war and had to be talked down from it by chairman of the Joint Chiefs of Staff Mark Milley.
According to the indictment, in a recorded interview Trump gave at his New Jersey golf club in July 2021 to a writer and publisher working on an upcoming book, the former president maintained the reality of the situation was the exact opposite: that it was Milley and the Pentagon who were pushing for an attack on Iran on a reluctant Trump and that the classified documents he had kept were proof of this. Specifically, Trump showed them a “pages-long” set of plans for attacking Iran that he said were independently drawn up by the military and presented to him.
“This totally wins my case, you know,” Trump allegedly said, according to the indictment. “Except it is like, highly confidential.” (Hilariously, Trump also went on to say that “as president I could have declassified it” but “now I can’t,” one of many instances in the indictment of Trump effectively doing prosecutors’ job for them).
It’s difficult to know what to believe here. The original New Yorker article, which came out of interviews conducted by author Susan Glasser and her husband, New York Times reporter Peter Baker, points to reporting from the Wall Street Journal’s Michael Bender and the Washington Post’s Philip Rucker and Carol Leonnig as corroboration, each of whom put out their own books about the final years of Trump’s presidency. But neither of those books features that particular episode.
In fact, while Rucker and Leonnig’s I Alone Can Fix It alleges that Milley told a confidante that he viewed preventing war with Iran before the 2021 inauguration as one of his “missions,” it also depicts Milley as one of the advisors urging on Trump’s drone assassination of Iranian Quds Force commander Gen. Qassem Soleimani — the one-year anniversary of which fell on January 3, 2021, which was the reason there were fears of some kind of Iranian attack in Trump’s lame-duck period at all to begin with. Baker’s own reporting on that assassination at the time didn’t depict Milley in the best light, as he justified the reckless strike on the basis of reportedly vague intelligence about threats that didn’t actually come to pass.
On the other hand, Milley has been a voice of restraint on other wars, including during Joe Biden’s presidency, and Trump is a relentless, career-long liar.
Whatever the case, the bigger point here is that there are US war plans for Iran at all. One could argue that the military has to draw up potential plans for all kinds of contingencies (even if the fact that they allegedly passed it on to Trump suggests this was more than just a hypothetical, break-glass-in-case-of-emergency document filed away in obscurity).
But this comes in the midst of years of ratcheting up tensions between not just Iran and the United States, but maybe more dangerously, Iran and Israel. The latter’s government has been pushing the Biden administration to take a more aggressive posture posture toward Iran for years, pressure that has been ratcheted up under Netanyahu’s current hard-line government, which has carried out its own strikes inside Iran and done several major and threatening joint exercises with the US military, including one just last week.
More recently, the Discord leaks of Pentagon intelligence revealed that the CIA itself doesn’t know how serious Israel is about its threats to attack. Even so, the White House has signaled it would approve of whatever Israel decides to do, even if Israel ends up sparking a regional war or even drags the United States into the fray — a radical reversal of US posture under President Barack Obama.
And while Washington and Tehran have thankfully made recent progress in nuclear talks that Biden himself declared “dead” last year, that may not matter. Netanyahu, no doubt emboldened by the White House’s “ironclad” support, has more or less explicitly said that whatever agreement is struck, Israel won’t be bound by it and won’t consider Iran’s nuclear program stopped, justifying unilateral strikes regardless — even as the Pentagon’s own National Defense Strategy paper openly states that Iran not only doesn’t have a nuclear weapon but isn’t even currently pursuing one.
The existence of US war plans for Iran suggests it wouldn’t take much for Israeli attacks to draw the United States into yet another disastrous war, particularly if Iran retaliates, particularly if it winds up killing Americans in the process, whether intentionally or not. Any such war would be a calamity, not just for innocent Iranians but around the world, further destabilizing oil prices and adding to the economic havoc from the war in Ukraine that’s already caused much secondary human suffering, while potentially creating the conditions for a much bigger and more dangerous confrontation. Iran’s deepening alliance with Russia, after all, could draw Moscow into the war, turning the country into the second front of a global proxy battle between two nuclear superpowers, the United States and Russia, while adding a third nuclear power, Israel, into the volatile mix.
We’re not nearly there yet. But it’s incumbent on all peace-loving people in the United States to work now, proactively, to stop this scenario from coming to pass — not just to ensure the past year’s rhetoric about illegal wars, imperialism, human rights, and international law isn’t mere hollow, cynical posturing, but to prevent even more needless death and suffering. Unfortunately, what seems like collective disinterest in the US-Israeli march to war in the press and otherwise doesn’t bode well for these efforts.
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The young activist graduated high school but says "the fight has only just begun." (photo: Ronald Patrick)
The young activist graduated high school but says "the fight has only just begun."
“The fight has only just begun,” Thunberg wrote in an announcement on Twitter on Friday.
Thunberg began skipping school in 2018 to sit outside the Swedish Parliament building as a form of climate protest. She quickly attracted attention from the press and solidarity from other students similarly frustrated by their governments’ lack of action on climate change. Within a year, millions of young people around the world were skipping school on Friday to take part in protests affiliated with Thunberg’s “Fridays for Future” movement.
Building on this momentum, Thunberg took a year off from school to pursue climate activism. In August 2019, she sailed for two weeks on a zero-emissions yacht across the Atlantic to speak at the U.N. Climate Action Summit in New York City. There, she blasted world leaders for failing to address a global crisis that will irreparably harm the lives of young people and future generations.
“I shouldn’t be up here. I should be back in school on the other side of the ocean,” Thunberg told policymakers. “You are failing us. But the young people are starting to understand your betrayal. The eyes of all future generations are upon you.”
Three days before the summit, millions of young people and other activists in more than 160 countries took to the streets in a global climate strike led by the Fridays for Future movement that was likely the largest coordinated climate protest in world history. A few months later, Thunberg spoke at the U.N. COP25 climate summit in Spain. That year, she was named Time Magazine’s Person of the Year and nominated for a Nobel Peace Prize.
Fridays for Future joined a rising tide of youth-led climate activism in the late 2010s, along with groups like the Sunrise Movement and Zero Hour. Though the arrival of COVID-19 forced protests to move online in 2020, Fridays for Future school strikes are still alive and well. The group is currently organizing a global climate strike in September.
Thunberg remains active in climate activism. In January this year, she was detained by police in Germany at a protest against the expansion of a coal mine attended by tens of thousands of people. In March, Thunberg joined Indigenous Sámi youth to protest an illegal wind farm in Norway. She regularly makes headlines for taking positions on prominent issues — for example, arguing against Germany’s use of coal in its phaseout of nuclear power and decrying Russia’s apparent bombing of a dam in Ukraine.
But some advocates have noted that the media’s spotlight on Thunberg often comes at the exclusion of young climate activists from the Global South. In a particularly damning example, the Associated Press cropped Ugandan climate activist Vanessa Nakate out of a photo of climate activists including Thunberg in 2020.
“Frustratingly, these other activists are often referred to in the media as the ‘Greta Thunberg’ of their country, or are said to be following in her footsteps, even in cases where they began their public activism long before she started hers,” writer Chika Unigwe observed in The Guardian. Over the years, Thunberg has asked reporters to focus on climate activists from other countries.
The end of school strikes is one of a few recent shifts in Thunberg’s activism. She chose to not attend either COP26 or COP27, the last two major U.N. climate conferences in Scotland and Egypt, respectively, saying, “the COPs are not really working, unless of course we use them as an opportunity to mobilize.”
“Much has changed since we started, and yet we have much further to go,” Thunberg wrote on Twitter on Friday. “We are still moving in the wrong direction, where those in power are allowed to sacrifice marginalized and affected people and the planet in the name of greed, profit and economic growth.”
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