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An EPA document shows that a new Chevron fuel ingredient has a lifetime cancer risk more than 1 million times higher than what the agency usually finds acceptable — even greater than another Chevron fuel’s sky-high risk disclosed earlier this year.
Federal law requires the EPA to conduct safety reviews before allowing new chemical products onto the market. If the agency finds that a substance causes unreasonable risk to health or the environment, the EPA is not allowed to approve it without first finding ways to reduce that risk.
But the agency did not do that in this case. Instead, the EPA decided its scientists were overstating the risks and gave Chevron the go-ahead to make the new boat fuel ingredient at its refinery in Pascagoula, Mississippi. Though the substance can poison air and contaminate water, EPA officials mandated no remedies other than requiring workers to wear gloves, records show.
ProPublica and the Guardian in February reported on the risks of other new plastic-based Chevron fuels that were also approved under an EPA program that the agency had touted as a “climate-friendly” way to boost alternatives to petroleum-based fuels. That story was based on an EPA consent order, a legally binding document the agency issues to address risks to health or the environment. In the Chevron consent order, the highest noted risk came from a jet fuel that was expected to create air pollution so toxic that 1 out of 4 people exposed to it over a lifetime could get cancer.
In February, ProPublica and the Guardian asked the EPA for its scientists’ risk assessment, which underpinned the consent order. The agency declined to provide it, so ProPublica requested it under the Freedom of Information Act. The 203-page risk assessment revealed that, for the boat fuel ingredient, there was a far higher risk that was not in the consent order. EPA scientists included figures that made it possible for ProPublica to calculate the lifetime cancer risk from breathing air pollution that comes from a boat engine burning the fuel. That calculation, which was confirmed by the EPA, came out to 1.3 in 1, meaning every person exposed to it over the course of a full lifetime would be expected to get cancer.
Such risks are exceedingly unusual, according to Maria Doa, a scientist who worked at EPA for 30 years and once directed the division that managed the risks posed by chemicals. The EPA division that approves new chemicals usually limits lifetime cancer risk from an air pollutant to 1 additional case of cancer in a million people. That means that if a million people are continuously exposed over a presumed lifetime of 70 years, there would likely be at least one case of cancer on top of those from other risks people already face.
When Doa first saw the 1-in-4 cancer risk for the jet fuel, she thought it must have been a typo. The even higher cancer risk for the boat fuel component left her struggling for words. “I had never seen a 1-in-4 risk before this, let alone a 1.3-in-1,” said Doa. “This is ridiculously high.”
Another serious cancer risk associated with the boat fuel ingredient that was documented in the risk assessment was also missing from the consent order. For every 100 people who ate fish raised in water contaminated with that same product over a lifetime, seven would be expected to develop cancer — a risk that’s 70,000 times what the agency usually considers acceptable.
When asked why it didn’t include those sky-high risks in the consent order, the EPA acknowledged having made a mistake. This information “was inadvertently not included in the consent order,” an agency spokesperson said in an email.
Nevertheless, in response to questions, the agency wrote, “EPA considered the full range of values described in the risk assessment to develop its risk management approach for these” fuels. The statement said that the cancer risk estimates were “extremely unlikely and reported with high uncertainty.” Because it used conservative assumptions when modeling, the EPA said, it had significantly overestimated the cancer risks posed by both the jet fuel and the component of marine fuel. The agency assumed, for instance, that every plane at an airport would be idling on a runway burning an entire tank of fuel, that the cancer-causing components would be present in the exhaust and that residents nearby would breathe that exhaust every day over their lifetime.
In addition, the EPA also said that it determined the risks from the new chemicals were similar to those from fuels that have been made for years, so the agency relied on existing laws rather than calling for additional protections. But the Toxic Substances Control Act requires the EPA to review every new chemical — no matter how similar to existing ones. Most petroleum-based fuels were never assessed under the law because existing chemicals were exempted from review when it passed in 1976. Studies show people living near refineries have elevated cancer rates.
“EPA recognizes that the model it used in its risk assessments was not designed in a way that led to realistic risk estimates for some of the transportation fuel uses,” an agency spokesperson wrote. For weeks, ProPublica asked what a realistic cancer risk estimate for the fuels would be, but the agency did not provide one by the time of publication.
New chemicals are treated differently under federal law than ones that are already being sold. If the agency is unsure of the dangers posed by a new chemical, the law allows the EPA to order tests to clarify the potential health and environmental harms. The agency can also require that companies monitor the air for emissions or reduce the release of pollutants. It can also restrict the use of new products or bar their production altogether. But in this case, the agency didn’t do any of those things.
Six environmental organizations concerned about the risks from the fuels — the Sierra Club, Natural Resources Defense Council, Moms Clean Air Force, Toxic-Free Future, Environmental Defense Fund and Beyond Plastics — are challenging the agency’s characterization of the cancer risks. “EPA’s assertion that the assumptions in the risk assessment are overly conservative is not supported,” the groups wrote in a letter sent Wednesday to EPA administrator Michael Regan. The groups accused the agency of failing to protect people from dangers posed by the fuels and urged the EPA to withdraw the consent order approving them.
Chevron has not started making the new fuels, the EPA said.
Separately, the EPA acknowledged that it had mislabeled critical information about the harmful emissions. The consent order said the 1-in-4 lifetime cancer risk referred to “stack air” — a term for pollution released through a smokestack. The cancer burden from smokestack pollution would fall on residents who live near the refinery. And indeed a community group in Pascagoula sued the EPA, asking the U.S. Court of Appeals in Washington, D.C., to invalidate the agency’s approval of the chemicals.
But the agency now says that those numbers in the consent order do not reflect the cancer risk posed by air from refinery smokestacks. When the consent order said stack emissions, the EPA says, it really meant pollution released from the exhaust of the jets and boats powered by these fuels.
“We understand that this may have caused a misunderstanding,” the EPA wrote in its response to ProPublica.
Based on that explanation, the extraordinary cancer burden would fall on people near boats or idling airplanes that use the fuels — not those living near the Chevron refinery in Pascagoula.
Each of the two cancer-causing products is expected to be used at 100 sites, the EPA confirmed. ProPublica asked for the exact locations where the public might encounter them, but Chevron declined to say. The EPA said it didn’t know the locations and didn’t even know whether the marine fuel would be used for a Navy vessel, a cruise ship or a motorboat.
In an email, a Chevron spokesperson referred questions to the EPA and added: “The safety of our employees, contractors and communities are our first priority. We place the highest priority on the health and safety of our workforce and protection of our assets, communities and the environment.”
Doa, the former EPA scientist who worked at the agency for three decades, said she had never known the EPA to misidentify a source of pollution in a consent order. “When I was there, if we said something was stack emissions, we meant that they were stack emissions,” she said.
During multiple email exchanges with ProPublica and the Guardian leading up to the February story, the EPA never said that cancer risks listed as coming from stack emissions were actually from boat and airplane exhaust. The agency did not explain why it initially chose not to tell ProPublica and the Guardian that the EPA had mislabeled the emissions.
The agency faced scrutiny after the February story in ProPublica and the Guardian. In an April letter to EPA administrator Michael Regan, Sen. Jeff Merkley, the Oregon Democrat who chairs the Senate’s subcommittee on environmental justice and chemical safety, said he was troubled by the high cancer risks and the fact that the EPA approved the new chemicals using a program meant to address the climate crisis.
EPA assistant administrator Michal Freedhoff told Merkley in a letter earlier this year that the 1-in-4 cancer risk stemmed from exposure to the exhaust of idling airplanes and the real risk to the residents who live near the Pascagoula refinery was “on the order of one in a hundred thousand,” meaning it would cause one case of cancer in 100,000 people exposed over a lifetime.
Told about the even higher cancer risk from the boat fuel ingredient, Merkley said in an email, “It remains deeply concerning that fossil fuel companies are spinning what is a complicated method of burning plastics, that is actually poisoning communities, as beneficial to the climate. We don’t understand the cancer risks associated with creating or using fuels derived from plastics.”
Merkley said he is “leaving no stone unturned while digging into the full scope of the problem, including looking into EPA’s program.”
He added, “Thanks to the dogged reporting from ProPublica we are getting a better sense of the scale and magnitude of this program that has raised so many concerns.”
The risk assessment makes it clear that cancer is not the only problem. Some of the new fuels pose additional risks to infants, the document said, but the EPA didn’t quantify the effects or do anything to limit those harms, and the agency wouldn’t answer questions about them.
Some of these newly approved toxic chemicals are expected to persist in nature and accumulate in living things, the risk assessment said. That combination is supposed to trigger additional restrictions under EPA policy, including prohibitions on releasing the chemicals into water. Yet the agency lists the risk from eating fish contaminated with several of the compounds, suggesting they are expected to get into water. When asked about this, an EPA spokesperson wrote that the agency’s testing protocols for persistence, bioaccumulation and toxicity are “unsuitable for complex mixtures” and contended that these substances are similar to existing petroleum-based fuels.
The EPA has taken one major step in response to concerns about the plastic-based chemicals. In June, it proposed a rule that would require companies to contact the agency before making any of 18 fuels and related compounds listed in the Chevron consent order. The EPA would then have the option of requiring tests to ensure that the oil used to create the new fuels doesn’t contain unsafe contaminants often found in plastic, including certain flame retardants, heavy metals, dioxins and PFAS. If approved, the rule will require Chevron to undergo such a review before producing the fuels, according to the EPA.
But environmental advocates say that the new information about the plastic-based chemicals has left them convinced that, even without additional contamination, the fuels will pose a grave risk.
“This new information just raises more questions about why they didn’t do this the right way,” said Daniel Rosenberg, director of federal toxics policy at NRDC. “The more that comes out about this, the worse it looks.”
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The fake electors scheme has potentially profound ramifications for Trump as he vies to return to the White House in 2024. (photo: Matt Rourke/AP)
We piece together the astonishing story of how 16 men and women tried to reshape the course of US history
As Bluestein rushed up to the state senate chamber where the 16 Democratic electors were assembling ahead of the historic vote, he passed meeting room 216. He noticed a gaggle of people milling around its heavy wooden door, among them some of the 16 Republican electors chosen to represent Donald Trump should he have won the Georgia race.
The reporter was surprised. Trump had officially lost in Georgia by 11,779 votes, an outcome that had been confirmed by two recounts including a full hand tally of all ballots.
Only the electors of the winning candidate based on popular support were supposed to show up. Electors representing Trump, the loser, simply had no reason to be there.
“So I went over and peeked my head in and went, ‘What’s going on here, guys?’” Bluestein recalled. “A couple of people started flurrying, someone was shuffling papers, then a party functionary standing at the door said to me, ‘It’s an education meeting’ and basically slammed the door on me.”
Thus began one of the more bizarre days in Bluestein’s reporting life. He spent the next couple of hours scurrying up and down the marble steps of the capitol building, ping-ponging between the official casting of the electoral college votes for Biden on the third floor and the thoroughly unofficial casting of fake Trump votes in room 216.
“The Democratic vote had pomp and circumstance – it was a real, formal process. As each elector stood and voted you could feel the gravity and the emotion of the moment,” Bluestein said.
Scrambling down to room 216, by contrast, he found the setting devoid of any gravitas. “It was just willy-nilly.”
It is this gathering of what the Trump campaign called “alternate” electors – but which others have denounced as “fake”, “sham” and “phony” ones – which is now at the centre of the criminal investigation into the attempt to overturn the presidential election in Georgia. The probe is being led by Fani Willis, the district attorney in Fulton county which covers much of Atlanta.
She is expected to convene a grand jury this month with the power to issue indictments. Among the targets of possible charges is Trump himself, several in his inner circle including his former personal lawyer Rudy Giuliani and John Eastman, the conservative attorney credited as being the architect of the legal road map for subverting the 2020 election, and key members of the 16 fake electors who came together in room 216.
The federal investigation into the efforts to overturn the 2020 election led by special counsel Jack Smith is also ramping up its probe of the fake electors. CNN reported in June that at least two Republican fake electors have been forced to testify to a grand jury in Washington in return for limited immunity. And in Michigan, attorney general Dana Nessel recently announced multiple felony charges against the state’s 16 fake electors.
The Fulton county and federal investigations pose serious legal peril for Trump that adds to his criminal prosecution for allegedly mishandling classified documents at his Mar-a-Lago home, and the federal inquiry into his role in the violent storming of the US Capitol on 6 January 2021. A special grand jury in Georgia has already recommended indictments for several people, with the forewoman hinting strongly that they included the former president.
“You’re not going to be shocked. It’s not rocket science,” she said.
The story of how 16 men and women came together in an improvised attempt to reshape the course of US history – told here through interviews with participants, law experts and a review of evidence gathered by the House January 6 committee investigating the Capitol siege – is not only a live legal issue with potentially profound ramifications for Trump as he vies to return to the White House in 2024. It also provides insight into the febrile nature of American politics, where democratic norms can seemingly be shredded “willy-nilly”.
According to the House January 6 committee, the fake elector scheme was the brainchild of an outside legal advisor to the Trump campaign, Kenneth Chesebro. The committee’s final report points to the New York-based lawyer as being “central to the creation of the plan”.
On 18 November, two weeks after the presidential election, Chesebro wrote a secret memo which is seen as the first shot fired in the fake elector war. Taking the example of Wisconsin, he argued that by mobilizing his electors, Trump could buy himself time to challenge through the courts his defeat in key swing states.
Chesebro’s proposal was for Trump electors to turn up and vote in their respective states on 14 December – the date stipulated for the electoral college to convene only for winning candidates under America’s arcane presidential election system. The lawyer glossed over the inconvenient truth that Trump had lost in those states, rendering his electors redundant.
Chesebro conceded in his memo that it “may seem odd that electors pledged to Trump and [vice president Mike] Pence might meet and cast their votes on December 14 even if, at that juncture, the Trump-Pence ticket is behind in the vote count … However, a fair reading of the federal statutes suggests that this is a reasonable course of action.”
Specialists in constitutional law take a starkly different view. They point out that by then Trump’s legal team was struggling to find any credible evidence of fraud in the presidential election and were losing court challenges in abundance – out of at least 62 cases that Trump fought over the 2020 election, 61 were defeated.
Laurence Tribe, a constitutional law professor at Harvard, employed Chesebro as a research assistant some 20 years ago. He told the Guardian that his former aide was “smart enough to know full well that the scheme he helped cook up – a conspiracy for fake electors to gather and sign phony pro-Trump ballots on December 14 so as to buy Trump time – was anything but a ‘reasonable course of action’.”
Tribe added: “It was obviously and transparently illegal – indeed, it was manifestly criminal.”
The Guardian contacted Chesebro directly and through his lawyers, but received no response.
In a deposition with the January 6 committee in October 2022, Chesebro was asked to describe his role in the plan to have electors meet and cast electoral college votes for Trump in states he had lost. He declined to answer, pleading the fifth amendment.
Despite its shaky legal foundations, Chesebro’s theory quickly gained traction within Trump’s inner legal circle, earning the enthusiastic embrace of Eastman and Giuliani.
Within days they had devised a new strategy for what they called “litigation states”. Six states were identified – Georgia, Wisconsin, Arizona, Michigan, Nevada and Pennsylvania – as the focal points of the “alternate” elector master plan.
In all of them, Trump had lost the election, which meant that under electoral law his electors should have stood down.
In all of them, too, Trump lawyers had claimed widespread election fraud without producing evidence and were using that false claim to justify calling their electors into action. It just so happened that the total electoral college votes wielded by these six states (79 votes) came out four ahead of Biden’s actual margin of victory (75 votes).
In other words, the fake electors had the potential, if the plan could be pulled off, to overturn the election and keep Trump in the White House.
Georgia’s 16 Trump electors were nominated towards the beginning of 2020 by the executive committee of the Georgia Republican party. They were drawn from the usual suspects – senior apparatchiks, major donors, and local dignitaries.
The chairman of the state party at the time was David Shafer, who had a controversial four years at its helm. Under his tenure, the party has shifted sharply towards the extreme right. It also effectively handed control of the US Senate to Democrats by losing both senatorial elections in Georgia in 2021.
The group of 16 electors, with Shafer as chairman, began routinely enough. Individuals were flattered to be invited to take part in what is usually seen as a ceremonial electoral role.
John Isakson was one of the initial 16 who accepted the invitation. He told the January 6 committee in an interview that Shafer invited him to be a presidential elector.
Isakson agreed. His idea of the role was that if Trump won, “we went to Washington to cast our votes in the electoral college”.
As Isakson rightly conceived it, in the normal run of events the 16 Trump electors would effectively have ceased to exist on 7 December, the date that Biden’s victory was certified in Georgia. But then there was Chesebro’s “reasonable course of action” – the idea that they should gather to vote anyway to buy Trump time.
Days before the Democratic electors were scheduled to appear at the Georgia capitol to cast their ballots on behalf of the winner, the Republican electors began receiving calls asking them to come to the Capitol to cast their alternative ballots. The request came as a surprise to many.
Trump’s legal team tied it to a big lawsuit pending in the US supreme court in which Biden’s victory was being challenged in four battleground states including Georgia. It was claimed (without credible evidence) that voting irregularities had occurred.
The case was lodged on 8 December by the attorney general of Texas, Ken Paxton.
Electors were told that if that suit were to have any chance of success, a slate of “alternate” ballots had to be cast in the battleground states. Otherwise, Trump might win the court challenge, and thus the presidency, only to find himself stymied because key electoral college votes hadn’t been cast on the allotted day.
Shawn Still, a Georgia state senator who served as the secretary of the 16 Republican fake electors, used a sporting analogy to visualise the concept. He told the January 6 committee in a deposition: “When you have the Super Bowl you print T-shirts, both teams as being the winner, and you keep the T-shirts for the ones that were the winner, and you throw away the ones that weren’t, but you still have to have two sets of T-shirts for both sets of winners.”
Guardian interviews with participants in the fake elector plan and a review of January 6 committee documents show that the same official line kept being presented: the Republican electors would have to cast their votes in order to keep Trump’s hopes alive should a judge find in his favour. The votes would only be relevant if the president’s lawsuit went ahead.
The problem was that Trump’s lawsuit did not go ahead. On 11 December, the US supreme court brusquely threw out the Texas case.
The decision, issued three days before the electors were set to gather, was another pivotal point at which the plan could have been called off. In fact, the team of Trump campaign lawyers who had been given the job of running the “alternate” scheme assumed that it would indeed now be terminated.
Records compiled by the January 6 committee reveal that the supreme court’s dismissal of the lawsuit had a seismic impact inside the Trump campaign. Three of its key lawyers – general counsel Matt Morgan, his associate Josh Findlay, and deputy campaign manager Justin Clark – all immediately agreed that the “alternate” elector plan which they supervised up until then no longer had any merit.
“We’re done with this, just stop work on this exercise… There’s no other recourse here,” Morgan told Findlay by phone within minutes of the court’s decision being delivered.
The three lawyers thought that would be the end of it. They were wrong. Shortly after Morgan contacted Findlay to tell him to drop the fake elector scheme, he called a second time.
“Rudy wants to keep fighting this thing,” Morgan said, referring to Giuliani who was at that time leading the legal effort to overturn Biden’s victory. “So we’re going to have you pass it off to Ken.”
This was a bombshell exploding on top of a bombshell. Not only did Giuliani want to press on with the fake elector idea, but he wanted the three most senior campaign lawyers to step aside and hand the project over to Chesebro, the inventor of the plan.
Findlay was astounded. He told January 6 committee investigators that the impetus for this switch in strategy clearly came from Trump himself.
Trump “made it clear that Rudy was in charge of this and that Rudy was executing what he wanted. Rudy had been given power and this is what he wanted to do,” Findlay said.
In that moment the Trump campaign was riven in half. Findlay and his fellow senior attorneys, convinced that the fake elector plan was moribund, suddenly found themselves confronted by Trump, Giuliani and Chesebro who were itching to carry on.
“It led to a divide in the campaign,” Findlay said. “Everyone was shocked by the tactics. It felt like nothing was off the table to some people. [They] were going to do whatever they wanted to do.”
What Giuliani and Chesebro wanted to do was have the 16 fake electors turn up at the Georgia capitol on 14 December and proceed as though Trump had won. For that to proceed, it was critical that the 16 individuals knew nothing about the significance of the dismissal of the Texas lawsuit, the consequent collapse of the legal argument for “alternate” votes, and the rift within the campaign.
As investigators for the January 6 committee told Findlay during his questioning: “Based on our investigation, we have not yet seen any indication that the change in circumstances around the justification for, or reason why, the electors met was communicated to the electors themselves.”
A Georgia official who was close enough to the party leadership to be able to watch the fake elector saga unfold confirmed to the Guardian that many of the electors were kept in the dark. In his estimation, 12 or 13 of the 16 “had no idea what they were doing”.
For at least one of them, the paucity of information was not good enough. Isakson told the January 6 committee that shortly before the electoral college was due to convene, he received a phone call from a number he did not recognize.
The man said there was a gathering at the capitol for the electors and that all of them were invited. Isakson was unimpressed by how the man pitched the event.
“It came across to me like a political rally,” he told investigators. “I indicated that I couldn’t attend because of work.”
In the end, Isakson was one of four of the initial cohort of Republican electors who did not participate in casting fake votes on 14 December. The other three backed out for personal and other reasons that have not been fully disclosed, and all four were replaced.
Apart from keeping the electors in a state of ignorance, there was another order coming down from Trump’s top team: maintain secrecy. Two days before the electoral college gathered, Chesebro wrote to campaign operatives and said that Giuliani would “like to wait until all the electors have voted before putting out any statements or otherwise alerting anyone”.
The following day – just one day to go now – an email was sent by Robert Sinners, the Trump campaign’s state director for election day operations, to all Georgia fake electors. “Thank you for agreeing to serve as a Republican elector or alternate,” it began.
Sinners continued: “I must ask for your complete discretion in this process. Your duties are imperative to ensure the end result – a win in Georgia for President Trump – but will be hampered unless we have complete secrecy and discretion.”
In his deposition to January 6 investigators, Sinners attempted to downplay his email, saying its call for omertà among the fake electors was “innocuous”. He told investigators: “The secrecy element was simply get the people on the bus and make sure that they’re there.”
That was not the sense that Greg Bluestein, the Journal-Constitution reporter, picked up in the days leading to his surreal running up and down the marble stairs at the Georgia Capitol. He reached out to many prominent state Republicans and was repeatedly told nothing was up.
“I remember asking, ‘Hey, just in case, you guys aren’t planning anything right?’ Multiple people told me, ‘No, nope, we’re not gonna do anything.”
This only added to Bluestein’s bemusement when he saw the gaggle outside room 216, including several Republican electors. That’s when he realized that the Trump campaign was very much preparing to do something.
This is the way democracy ends, not with a bang but a whimper. After the electors had gathered in room 216, and the four replacements had been selected, the important business of the day was set to begin – casting false electoral college ballots.
But there was a technical glitch. That morning Sinners, the Trump campaign operative, had bought a new printer at Target to run off the certificates of votes for the electors to sign.
It took him 20 minutes to get the printer out of its box and install the driver software onto his laptop. As the secretary of the fake electors, Shawn Still, recounted to the January 6 committee: “He just fumbled through that, it just kind of became a bit of a snicker moment for everyone”.
Eventually, the printer was sorted. Shafer, as chairman of the electors, called the meeting to order and told the group, in his own words, that “there was an election contest pending and that we were taking these actions today to preserve President Trump’s remedies”. Then they sat around a U-shaped table and each solemnly signed six copies of the certificates.
History had been made. Even if it was fake history.
Copies of those signed documents were obtained by American Oversight, and there it is in black and white: “We, the undersigned, being the duly elected and qualified Electors for President and Vice President of the United States of America from the State of Georgia, do hereby … cast each of [our] ballots FOR DONALD J. TRUMP – 16 VOTES.”
The wording was striking. In Pennsylvania, the fake electors had written into their ballots the proviso that the votes would only count should there be “a final non-appealable court order or other proceeding prescribed by law” that gave Trump victory in that state.
In Georgia, there was no such caveat. The certificates read verbatim exactly as they would have done had Trump legitimately won.
These un-caveated certificates were marked to be sent to the “President of the Senate” – Pence in his role as presiding official over the upper chamber of Congress – and to the head of the National Archives. Some of the fake electors were puzzled by this – hadn’t it been agreed that their votes would only be sent to Washington were Trump to win his law case?
Shawn Still told the January 6 committee that he had raised precisely this point as the signed votes were being drawn together by Sinners in room 216. He thought of his Super Bowl T-shirt analogy, and wanted to know from Sinners what would happen to the votes should Trump fail in the courts.
“I remember specifically asking him what happens to them if there is not an overturn. And he said, ‘Well, that’s not up to me to decide, but I guess we’ll just set them aside and box them up somewhere, and that’ll be the end of it’.”
Unbeknownst to several of the Republican electors, Trump’s inner circle of lawyers led by Giuliani and Chesebro had no intention of setting aside the ballots should the legal strategy through the courts fail – as it already had. They now had their sights firmly set on Pence and the final certification of Biden’s victory by Congress on January 6.
On 8 December 2020, six days before the electors convened, Chesebro spoke to an Arizona lawyer who was involved in organising the “alternate” slate for Trump in that state. In an email obtained by the New York Times, the lawyer, Jack Wilenchik, made clear that he was fully aware that the plan was for “fake” votes, though he quickly corrected himself, changing the word to “alternative” and adding a smiley face.
Chesebro’s idea, Wilenchik wrote, was to have the electors send in their votes even though they had no legal standing. That way “members of Congress can fight about whether they should be counted on January 6th … Kind of wild/creative.”
Wild, certainly. Creative, maybe. Legal, unlikely. Tribe told the Guardian that mailing false certificates from Georgia and the other battleground states was a breach of both state and federal laws involving election fraud, interference with the electoral college, obstruction of official government proceedings, and subversion of the lawful transfer of presidential power.
Others have pointed out that sending the false certificates to the National Archives also opened up the possibility of indictments for forgery of a public record. Norm Eisen, a senior fellow at the Brookings Institution, described the Georgia ballots for Trump as being as “phony as a three-dollar bill”
At 12.51pm on 14 December 2020 Shafer, called the meeting in room 216 to a close. The deed had been done. In the end, 84 people from seven states including Georgia signed bogus electoral votes for Trump and sent them off to Washington as part of the billowing sequence of events that culminated violently on January 6.
In the days that followed, the reality sunk in for many people involved in the fake elector plan that they had become enmeshed in something much bigger than themselves. As Sinners put it to January 6 investigators: “It became clear to me afterwards that I don’t think Rudy Giuliani’s intent was ever about legal challenges. He was working with folks like John Eastman and wanted to put pressure on the Vice President to accept these slates of electors regardless … We were just kind of useful idiots or rubes at that point.”
Shafer, the chairman of the electors, stood down in June as head of the state Republican party. He faces legal peril from both the Fulton county and federal probes into the fake elector scheme.
His lawyer Holly Pierson disputed that there was any legal danger from what she called a “baseless, politically motivated prosecution.” She told the Guardian that Shafer was in no actual jeopardy because “everything he and the other presidential electors did was proper and lawful, in keeping with federal and state law, done on the specific advice of legal counsel, and fully protected by the US Constitution.”
Shafer’s lawyers set out his self-defense in an 11-page letter to Fani Willis, the Fulton county district attorney, in May. They said that he had received his own legal advice a week before the events at the state Capitol arguing that it was right for him and the other Republican electors to convene in order to preserve Trump’s remedies.
That advice specifically pointed to a local lawsuit, Trump v Raffensperger, that had been lodged on 4 December and was still pending. (The case languished in the courts until it was voluntarily dismissed a day after the storming of the US Capitol.)
Shafer and his 15 elector peers were all informed last year that they were targets of Willis’ criminal investigation. Since then, at least eight of them have agreed to immunity deals with prosecutors.
The fall-out of the elector plan has elicited a range of responses from the electors themselves. Isakson, who declined to come to the Capitol on 14 December and was replaced in the final fake elector lineup, only learned of what happened after the event.
In his interview with January 6 investigators more than a year later, he was shown one of the false ballots and asked whether he approved of its language that described the 16 as the “duly elected and qualified electors in Georgia”.
He replied: “Knowing everything that I know now, I would have had great concerns. The challenges have been exhausted, and this wouldn’t have been appropriate.”
Some of the electors who, unlike Isakson, did go ahead and sign certificates on 14 December have let it be known privately that they were upset by how things panned out. They had tried to do the right thing but ended up being tied in legal knots.
Sinners expressed even stronger sentiments. He told the January 6 committee that people had been put into a legally compromising position.
“I’m angry. I am angry because I think in a sense, you know, no one really cared if people were potentially putting themselves in jeopardy.”
Sinners was asked by investigators what he felt when he made the connection that his involvement in the fake elector scheme had been used by Trump and Giuliani to spearhead the pressure campaign against Pence leading to the violence on January 6.
“I was ashamed,” he replied. “I was ashamed.”
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Center for Reproductive Rights attorney Molly Duane speaks during a press conference outside the Travis County Courthouse in Austin, Texas on July 20, 2023. (photo: Suzanne Cordeiro/AFP)
Vague health exceptions to extreme abortion bans aren’t just a Texas problem.
Texas’ SB 8, which passed before Roe v. Wade was overturned last year, bans abortions past six weeks with some exceptions and deputizes citizens to enforce the law by suing people who aid or abet abortion, putting healthcare providers at legal risk. Under the law, doctors can provide abortion care if the health or life of the pregnant person is at risk; but the lack of clarity around what those conditions meant had a chilling effect on doctors in the state — and had serious effects on patients’ health
Judge Jessica Mangrum of the Travis County District Court ruled Friday in Zurawski v. State of Texas that physicians could use their “good faith judgement” to perform an abortion for a patient who has, “a physical medical condition or complication of pregnancy that poses a risk of infection, or otherwise makes continuing a pregnancy unsafe for the pregnant person; a physical medical condition that is exacerbated by pregnancy, cannot be effectively treated during pregnancy, or requires recurrent invasive intervention; and/or a fetal condition where the fetus is unlikely to survive the pregnancy and sustain life after birth,” according to the ruling.
The Texas Attorney General’s office filed an appeal in the case on Friday night, staying the injunction while the case is on appeal, according to the New York Times, and accusing Mangrum of trying “to override Texas abortion laws.”
Mangrum’s injunction would block SB 8’s vigilante enforcement mechanism from being enacted against any patients seeking abortions for medical reasons or against the physicians who perform those procedures — and furthermore states that doing so would violate pregnant people’s rights under Texas’s constitution.
Though Mangrum’s injunction is presently on hold, it’s important for two main reasons that are not exclusive to Texas: It forces clarity around abortion exceptions and protects doctors and patients; and it establishes that punishing people who seek or provide abortions under those circumstances is unconstitutional.
Though the eventual, final ruling will apply only to Texas, it’s not the only state where unclear legislation is limiting access to medically necessary abortion. And it’s not the only state where reproductive health advocates are grappling with the right to abortion under the state’s constitution.
The vagueness and chilling effect are the point
As anti-abortion state legislators have enacted bans throughout the country, they’ve had to grapple with the complexities of abortion care and reproductive health. Most pregnancies are safe and healthy, but some cause severe complications or are not viable. Overturning Roe v. Wade didn’t change those conditions or provide better prenatal healthcare, it just made pregnancy more dangerous in many states.
“[Anti-choice legislators] could make whatever political points they wanted to because they had a backstop,” with Roe v. Wade in place, South Carolina Senate Minority Leader Brad Hutto told Vox in September. “They knew nothing they passed was ever going to go into effect. They could pass all they wanted to, and it didn’t matter — and it allowed them to let their rhetoric to just soar to the red meat of their party because they could gin up the party knowing that nothing they said was ever going to be enacted into law. Then, all of a sudden [...] it’s like the dog that caught the bus.”
With SB 8, Texas legislators not only passed a restrictive abortion ban but they empowered ordinary Texans to interpret and prosecute the ban. That compounds the risk for physicians who provide abortion care, in some sense, because they don’t know the conditions under which they can do so — or who might bring a $10,000 lawsuit against them for doing their jobs.
Meanwhile, the state argued in court that the law was clear enough — and if anyone who should have had an abortion was denied one, it was the physician’s fault, not the law’s or the state’s.
“Physicians have been begging for guidance [...] since SB 8 went into effect,” Molly Duane, senior staff attorney at the Center for Reproductive Rights, told Vox in an interview. “No one from the state has provided any guidance, and in fact the only thing the attorney general’s office has done is file their own lawsuit challenging some guidance from Health and Human Services — the federal department that oversees the practice of medicine — saying that a federal statute called EMTALA which allows abortion care and any other care in an emergency, that that shouldn’t apply in Texas.”
Like in Texas, Indiana’s legislature passed a near-total abortion ban that went into effect on August 1. It’s a hostile state for people who need abortions; medication abortion is illegal, and Attorney General Todd Rokita in June signed a letter opposing an amendment to HIPAA, the federal medical privacy law, which would prevent state officials from accessing information about patients who traveled out of state to get an abortion.
Rebecca Gibron, CEO of Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, and Kentucky, told Vox in an interview that the lack of clarity in these laws is the point. “These laws, and this new law, are incredibly confusing,” she said. ”Extreme lawmakers are writing these laws intentionally to cause harm, to create chaos and confusion both for providers and for patients.”
Gibron’s organization filed suit in the state Supreme Court to block the law from going into effect pending a case in trial court which would provide clarity specifically around the health exceptions to Indiana’s abortion ban. “It doesn’t stop the ban from going into effect, it simply is asking the court to clarify the health exception and to block the section of the ban that limits healthcare providers’ ability to offer abortions in cases where the health of the pregnant person is threatened,” she said.
Without that clarity, not only are patients risking their lives with a pregnancy and doctors risking their practices, but it could cause a brain drain for reproductive healthcare providers who feel they can’t safely practice in the states where they live. That’s especially grave in a place like Indiana which has the third-highest maternal mortality rate in the country — and it’s increased 58 percent in the past three years.
How pregnant people can be protected under state constitutions
Zurawski v. State of Texas hinged on the testimony of 13 women and two physicians, who told the court about their life- or health-threatening pregnancies, and how difficult it was to get abortion care when they needed it.
Their argument was that although Texas doesn’t have enshrined in the constitution a right to abortion, the plaintiffs and people like them — those who need an abortion for medical reasons — are protected under the state’s constitution.
“Texas’ constitution has a right to life and liberty, plus they have an equal rights amendment — so, that guarantees equal treatment to women and men, something that does not exist in the federal Constitution,” Duane said. “We brought these life, liberty, and equality claims to the Texas state court because that is the source of the rights, is Texas law and the Texas constitution.”
Duane and her team argued for clarification of the law, but they were also arguing, she told Vox, that “the bare minimum that we believe that pregnant people in Texas are entitled to is protection of their life and health, even while they’re pregnant.”
The case will now go to Texas’ appellate court, and then to the state Supreme Court — which, Duane noted, is not known for its progressive stance on abortion.
Other states have used the constitution more overtly to protect the right to abortion; Ohio will hold an election on Tuesday deciding State Issue 1, which could limit the ability to amend the state constitution through further ballot measures — including one that would enshrine the right to abortion in Ohio’s constitution. That measure will be voted on November 7 and would codify Ohioans’ right to ”make and carry out [their] own reproductive decisions.”
Abortion is presently legal in Ohio until viability despite a 2019 law banning the procedure after about six weeks of pregnancy. A county court judge stayed that law last year after Roe v. Wade was overturned, ruling that Ohio’s state constitution grants the right to abortion because it gives women equal protection and benefit under the law.
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'Xi Jinping is on a tear.' (photo: Thomas Levinson/The Daily Beast)
Xi Jinping is cleaning house—disappearing top Chinese officials and replacing them with loyal allies.
Beijing confirmed this week that the president of the People’s Republic of China has replaced the general at the head of China’s rocket force unit, General Li Yuchao, and his deputy, shaking up the very military unit that would likely be central to any effort to take over Taiwan.
The unit, China’s People’s Liberation Army Rocket Force, steers China’s land-based nuclear and conventional ballistic missiles, hosting nine bases responsible for everything from missile tests to overseeing China’s central nuclear stockpile.
Li and his deputy, General Liu Guangbin, were under investigation as part of an anti-corruption program, according to The South China Morning Post. Beijing has replaced Li and Liu at the top of China’s missile force with Wang Houbin, who will be the new commander, and Xu Xisheng, who will serve as the new political commissar, according to the state council information office of China.
The ousters mark the largest shakeup in the upper echelons of China’s military in years, as U.S. officials warn that China is growing increasingly aggressive toward Taiwan, with sights set on being prepared for possible conflict for either 2025 or 2027. And it’s not just the rocket force Xi is going after: The overhaul at the unit coincides with China’s foreign minister, Qin Gang, dropping out from the public eye for several days, only to be replaced himself.
Xi has long focused his anti-graft campaign on the military to solidify his power and to modernize the rocket force. Corruption has been a constant threat to the force through the years, according to Matt Bruzzese, a Chinese language analyst at BluePath Labs, which has studied the PLA’s rocket force.
“As the PLARF builds up, there is no doubt a lot of money sloshing around right now from lucrative construction and supply contracts, and it wouldn’t be the first time there has been corruption in the PLA contracting process,” Bruzzese told The Daily Beast, citing the notorious sentencing of General Gu Junshan from 2015, who was accused of “immense” corruption.
And although the removals may be targeted at corruption or other reports of possible wrongdoing, Xi is likely working to surround himself with more yes-men as he works to bolster his sense of control over China’s military and foreign policy apparatus, according to Tony Hu, the first Pentagon senior country director for Taiwan.
“It’s partly to solidify his control to ensure all those under him are all very loyal to him,” Hu told The Daily Beast.
Paranoia
Going after the upper rank of the PLA’s rocket force—whom Xi handpicked—in particular indicates Xi may be feeling a series of doubts about his own decision-making. Hu pointed out that the foreign minister—who was ousted after rumors swirled that he was having an ill-advised affair—was also handpicked by Xi.
”This shows that the leadership that Xi has handpicked might be causing him to have concerns about loyalty,” Hu said.
After Qin Gang’s ouster, “he’s probably double checking everybody’s background,” Hu said. “That should cause serious worry in the mind of Xi Jinping to think, who else might be foreign agent or influenced by foreign countries, foreign governments, within his inner circle.”
Freddy Lim, a Taiwanese legislator, told The Daily Beast in an interview in July that Qin Gang’s mysterious disappearance from the public view shows that Xi is looking over his shoulder.
“It shows that Xi Jinping doesn’t doesn’t feel safe in his position,” Lim said. “If he reveals some realities, some reasons why he shouldn’t be in that position anymore then it might just damage Xi Jinping’s authority… so I think he wants to… get rid of Qin Gang.”
The replacements Xi selected for the top of the rocket force come from the navy and the air force, and lack much experience in this space—a key indication that this is likely about trustworthiness and not technical competence.
“The fact that he thought it was necessary to take such an action rather than promote more experienced commanders from within indicates that he is primarily interested in cleaning house and breaking up whatever good ole boy network existed in the top ranks,” Bruzzese said.
Part of Xi’s inclination to shore up the amount of loyal allies surrounding him in the upper ranks in recent days may stem from a growing sense that he may be getting boxed in as other countries are working on countering what he sees as China’s rightful claim to Taiwan, warned Hu.
“The fact that the United States is beginning to formulate an alliance—like with U.S., Japan, Korea tying together, and U.S.-Australia, and other NATO countries becoming involved—that can formulate an alliance that China has to worry about,” Hu said. “Because there’s no way they can win if they are faced with a united alliance with a collective defense objective like the NATO.”
“He is seeing a situation where he has been surrounded,” Hu said.
Just last week Secretary of Defense Lloyd Austin and Secretary of State Tony Blinken visited Australia as part of a broader U.S. government effort to work against China’s influence in the region. The visit came months after the Biden administration inked a nuclear-powered submarine deal with Australia aimed at countering China. During the visit, the leaders agreed on longer expeditionary trips from U.S. submarines and to continue upgrades to Australian bases in the north.
Backfire
The irony of it all is that Xi may be feeling boxed in by other countries by acting increasingly aggressive towards Taiwan, and has likely created the scenario that feeds his growing sense of insecurity.
“His aggressiveness has united countries around the globe, making sure Asia remains peaceful. So it’s his aggressive action that caused this,” Hu said. “I’m not sure he sees this.”
Xi likely opted to remove the rocket force leaders from the equation so he could ensure compliance—and zero drama—if and when push comes to shove with Taiwan, given how important the rocket force would be to any possible conflict, according to Hu.
“Rocket force is the force that’s going to basically initiate an attack on Taiwan if he ever tries to attack. Cyber and rocket will be the first thing that he uses,” Hu told The Daily Beast. “It’s a critical force to set the scene, basically set up for a possible successful invasion of Taiwan… He wants to put his most, most loyal person in.”
But the rampage of dismissals or removals may have implications for China’s readiness for conflict with Taiwan.
Following a clampdown on corruption, Beijing may introduce new red tape that could impact procurement or promotions, according to David C. Logan, who researches nuclear weapons and the U.S.-China security relationship.
“If the leadership change is because of corruption, I would imagine that this might slow the modernization program down,” Logan, assistant professor of security studies at the Fletcher School of Tufts University, told The Daily Beast. “That is just always going to slow things down. Especially when it comes to things like weapons procurement and development and testing and fielding, even promotions.”
There may be “short-term cost to readiness and force development,” particularly with two new leaders without relevant background, noted Bruzzese. “This is also terrible for morale. If you’re a senior PLARF officer, the fact that they’ve very publicly sent outside babysitters to look after your service because they don’t trust you has to be quite embarrassing.”
Other units and leaders would do well to be on watch for other purges, as this is likely not the last leadership makeover Xi is eyeing, according to Hu.
“I don’t think this is the end. I think this is the beginning,” Hu said.
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Juan José Cufiño Rodriguez, a survivor of the 2016 Pulse Nightclub shooting, drove over to the Orlando Police Department to file a criminal complaint. (photo: Zack Wittman/NYT)
Questions about the Orlando nightclub where a shooting occurred in 2016 have persisted. Now survivors want to know: Were there adequate paths to escape?
Another patron, Javier Nava, saw a ladder suspended from the ceiling and thought it could help him escape to the roof. But the ladder led only to a loft-style office, where he was trapped with a bullet wound in his abdomen. César RodrÃguez, who on a whim had gone to Pulse to enjoy Latin Night, recalls seeing people trying to flee out an exit door, only to come rushing back inside because the alley outside had no exit.
“If they had more doors, one could survive and there wouldn’t be so many dead,” Mr. Hernández, 29, said. “If the windows had not been covered, we would have looked for alternative ways to get out. I have always said it: That place had one way in, and one way out.”
Questions about the design, unpermitted renovations and code enforcement at the nightclub where 49 people were killed and 53 others were injured in 2016 have been raised periodically over the years. Both the club owner and city officials said that the facility had sufficient exits and complied with all required building regulations. The full weight of responsibility for the nation’s second-deadliest mass shooting fell on Omar Mateen, the 29-year-old security guard who carried it out and then died in a shootout with the police.
But survivors and relatives of some of those who were killed are now raising these questions anew. In July, more than two dozen of them filed complaints with the Orlando Police Department seeking a criminal investigation into whether insufficient exits, ad hoc renovations and lax code enforcement could have contributed to the staggering death toll. City officials and the club owner say that the club was in compliance with building code requirements and that it is wrong to suggest that such problems led to more deaths.
In their search for answers, the survivors said they had taken inspiration from victims’ relatives in Uvalde, Texas, who brought attention to the delayed police response to a school shooting there last year and pushed publicly for more controls on the sale of military-style assault rifles.
“I think what happened in Uvalde and with Black Lives Matter is that we now have space to criticize and analyze,” said Zachary Blair, vice president of Victims First, a nonprofit organization that has spent four years researching the Pulse shooting and how the death toll climbed so high. “When Pulse happened, it quickly became about celebrating the police response, which took three hours. With so many mass shootings, now we know that three hours is not normal.”
The gay nightclub was still crowded with revelers when, moments after last call around 2 a.m. on June 12, 2016, a gunman who had pledged his allegiance to the Islamic State militant group stormed in with a semiautomatic military-style rifle and a Glock 9-millimeter handgun.
Patrons scrambled for a way out of the darkened disco, where some windows, crime scene photos show, had been covered and blocked as part of a conversion from a restaurant to a nightclub. The building’s owner has said the club had six exits. But two of them led to a closed-off patio that documents indicate had been added without a permit sometime after the club opened. Two more opened out to an area surrounded by an eight-foot fence that had also been erected without a permit very close to the building.
F.B.I. photos and body cam footage released in 2023 show that the fence created a very narrow alleyway enclosed by the building’s roof overhang, and the way out was blocked by a large soft drink cooler.
A spokeswoman for the club owner has said a permit for the fence was obtained sometime after it went up. But there is no record of such a permit in documents released by the city.
After the shooting, a security officer had to punch a hole in the fence to evacuate about 20 people who were briefly trapped there, according to the police homicide report.
Another exit issue raised in the new police complaints was the front door, which appeared to have slammed shut. A police officer reported hearing at least one patron banging on it in an apparent attempt to get out, according to a police report cited in one of the new submissions. It said another set of double doors was obstructed by a stripper stage and furniture.
Mr. RodrÃguez, who suffered broken bones when people trampled over him, remembers people’s frantic efforts to escape.
“I saw people run out the doors and come back inside when they realized there was no way out,” Mr. RodrÃguez said. “If there had been glass windows, someone could have broken them.”
After the shooting, Victims First stepped in. The group was founded and is funded by Anita Busch, a former journalist whose cousin was killed in the mass shooting at a movie theater in Aurora, Colo., in 2012. The group spent four years and over $15,000 on Pulse public records requests. Volunteers from the group listened to body cam audio and pored over blueprints, permits and hundreds of emails and then presented their findings at a weekend-long meeting in July with families and survivors, many of whom flew in from Puerto Rico.
In a complaint he filed with the Orlando Police, Mr. Blair said he had decided to try to seek a fuller accounting after an elected city official told him in a phone call three years after the shooting that unpermitted renovations and code violations at the club had hindered the rescuing of shooting victims.
“This began my research into the issue,” he wrote. He cited in his complaint a 2018 medical journal study that suggested that 16 of the people who died could have survived had they received medical attention sooner.
The complaint cited records he and the others had found that he said revealed a “pattern of the city allowing the Pulse Nightclub to operate in violation of City codes.”
The records, which the group shared at the July meeting, showed that the city had notified the owners in 2010 that the club had received a conditional use permit for a restaurant and martini bar, not a dance club, and that the owners had agreed in 2004 to remove the dance floor but had never done so. Twenty people died on the dance floor.
The city’s press secretary, Cassandra Bell, insisted that while the records show “inconsistencies,” the club was safe and in full compliance with regulations. She acknowledged that the city “does not have records that indicate whether a permit was received or not” for the fence.
“These records demonstrate that the Pulse facility was safe, that it met occupancy, fire and related requirements,” she said. “We found no pattern of critical life-safety violations.”
She said it was a mischaracterization of the city’s records to suggest that the club had been in violation of its conditional use permit by operating a dance club and that the facility had passed a fire exit review just weeks before the shooting.
“After thorough investigations by law enforcement (including the F.B.I.), and a detailed after-action investigation and report, we do not believe any life/safety issues prevented anyone from getting out of the building, or rescuers from getting in,” Ms. Bell said in a statement. “Even if work was completed without a permit, that doesn’t mean that work was done improperly or that it created a safety issue.”
The Orlando Police Department has received the new criminal complaints and is reviewing them, she said.
Barbara Poma, who owns the nightclub property with her husband, Rosario Poma, had — in a statement released before the filing of the new criminal complaints — disputed many of the issues raised by the group, but the statement did not discuss the issues in detail.
“Out of respect to those impacted by this tragedy, I have never responded to the handful of individuals who continue to spread a myriad of untruths about my husband and me, falsely blaming us for what was an unforeseeable terrorist attack,” said the statement, released in May. “While I recognize and respect these individuals’ grief, that should not serve as a free pass for intentionally spreading lies about us.”
Some of the building issues raised by the families and the survivors are likely to be aired as part of a negligence lawsuit against the club that has yet to go to trial, although most of the Pulse victims have already settled their cases, said Keith Altman, the lawyer who represented about 60 of the survivors and families. The nightclub carried $2 million in insurance, and with more than 100 survivors and deaths, the payouts have been small, he said.
“In the end, what is definitely true is that Omar Mateen caused this disaster,” Mr. Altman said. “He is the primary cause, but there were contributing factors.”
Many of the survivors and relatives say their current effort is not about money, but about persuading the city to re-examine what could have been done that might have saved more lives.
“At the end of the day, all we are asking for is a little bit of accountability,” said Norman Casiano, 31, a former chef who was shot in the back and then hid in the club’s bathroom. Since then, he has been unable to work and is on disability.
“Millions of dollars are not going to bring my life back,” he said. “It won’t make me a chef again. It won’t allow me to sleep again.”
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The overflow of the Spoon and Illinois rivers supplied food and resources for Indigenous people for thousands of years. Village and burial sites are nearby. A new law allows tribal nations with ancestral ties to areas like this one to have the final say in how the remains and sacred items of their forebears will be treated and returned to them. (photo: Sky Hopinka/ProPublica)
For the first time, tribal nations forcibly removed from Illinois will have final say in how and when the remains of their ancestors will be returned to them.
“With the Governor signing these bills into law, Illinois is proving that a government is capable of reflecting on its past injustices and planning for a future that respects and celebrates our interconnectedness,” Prairie Band Potawatomi Nation Chairperson Joseph “Zeke” Rupnick said.
The newly signed Human Remains Protection Act was shaped by tribal nations over more than two years of consultations with the Illinois State Museum and the state Department of Natural Resources. The legislation unanimously passed the state House and Senate this spring and follows publication of ProPublica’s “The Repatriation Project,” an ongoing investigation into the delayed return of Native American ancestral remains by universities, museums and government agencies.
“Here in Illinois we believe in justice, and we won’t hide from the truth,” Pritzker said. “It’s up to us to right the wrongs of the past and to chart a new course.”
The law makes it the state’s responsibility to help return ancestral remains, funerary objects and other important cultural items to tribal nations, and it compels the state to follow the lead of tribal nations throughout the repatriation process. It also establishes a state Repatriation and Reinterment Fund to help with the costs of reburial, tribal consultation and the repair of any damage to burial sites, remains or sacred items.
Existing law to protect unmarked cemeteries in Illinois failed to create a pathway for tribal nations to rebury ancestral remains that had been disinterred. That law, passed in 1989, deemed most Native American remains to be property of the state.
The new law increases criminal penalties for the looting and desecration of gravesites, while adding a ban on profiteering from human remains and funerary objects through their sale, purchase or exhibition. Moreover, it mandates tribal nations be consulted as soon as possible when Indigenous gravesites are unintentionally disturbed or unearthed — such as during construction projects.
The measure follows decades of Indigenous activism, new leadership within the Illinois State Museum and IDNR, and ProPublica reporting that revealed widespread delays in institutions’ compliance with a 1990 federal repatriation law. ProPublica found that more than 30 years after passage of the Native American Graves Protection and Repatriation Act, museums and other institutions nationwide still hold more than 100,000 Native American human remains.
The failure to repatriate expeditiously, as required by NAGPRA, is rife in Illinois, where more than 15,461 Native Americans have been excavated — more than from any other state, the ProPublica investigation found. The vast majority of those ancestors are still held by Illinois institutions. Previous policies at the Illinois State Museum, which holds the remains of at least 7,000 ancestors, favored the scientific study of remains over their return to tribes for reburial.
Sunshine Thomas-Bear, the cultural preservation director for the Winnebago Tribe of Nebraska, said, “It has been a rough road in trying to get the protection and rights that non-Natives have in protecting our ancestral burial sites and homelands.” She added that many Illinois gravesites have been desecrated and destroyed.
“This bill cannot remedy the damage that has been caused thus far, but perhaps it will protect the sites that remain in our homelands,” Thomas-Bear said, though she emphasized that the law is “a step in the right direction” for rebuilding relationships.
Significantly, the law empowers IDNR to set aside and maintain land solely for the reburial of repatriated Native American ancestors and their belongings. Tribal nations have pointed to the lack of protected places for reburial in Illinois as among the highest barriers to repatriation.
For example, in 1999 the Sac & Fox Tribe of the Mississippi in Iowa, the Sac and Fox Nation of Missouri in Kansas and Nebraska and the Sac and Fox Nation, Oklahoma, repatriated the remains of 34 of their ancestors held by the University of Illinois Urbana-Champaign, records show. The tribes wanted to rebury their ancestors at or near the site where they were originally interred: a former Sauk and Meskwaki village in Rock Island County along the Mississippi River. But the state wouldn’t allow the tribes to use the land, said Johnathan Buffalo, the tribal historic preservation director of the Sac & Fox Tribe of the Mississippi in Iowa. They had to rebury the ancestors in Iowa — west of the Mississippi River, the same borderline used by the U.S. government when it expelled all Native American tribes from the state during the 1830s.
“That old wound opened when Illinois did that to us,” Buffalo said.
More than 30 tribal nations are recognized by the state museum as having cultural and historic ties to Illinois. The consultations, which are ongoing, began with discussing the repatriation of more than 230 ancestors unearthed from what today is known as Dickson Mounds.
“The need to rebury and to think about a different way of being in relationship with land from the state side was reiterated to us from just about every tribal nation,” said Heather Miller, the director of tribal relations and historic preservation for the Illinois State Museum. Miller is also an enrolled citizen of the Wyandotte Nation.
The new law is part of a broader effort to recenter Native voices in Illinois and within state institutions, a commitment brought to the Illinois State Museum in part by its former director, Cinnamon Catlin-Legutko, before her death this year. It was signed in tandem with two other laws; one requires the history of Native Americans in the Midwest be taught in Illinois public schools and another that bans school boards from prohibiting students from wearing cultural or tribal clothing and regalia in schools and at graduation ceremonies.
Interim Director Jennifer Edginton said the museum and IDNR, which oversees the institution, have “been looking very inward” to address the previous absence of Indigenous worldviews in their programs, collections and exhibits.
“We don’t want to continue that erasure, or stereotypes, or things that the museum field in general, unfortunately, has done since the inception of museums,” Edginton said.
The Legacy of Forced Removal
Today, no federally recognized tribes reside in Illinois, though Chicago is home to one of the largest urban communities of Indigenous people in the country. The absence of an organized political presence and tribal government has in part led to the state having among the worst repatriation track records in the nation.
“Forced removal affects everything,” said Miller, referring to the expulsion of Native American tribes from Illinois throughout the 1800s. “There was the physical removal, but that also removed [tribal nations] from being able to have a say in law, to have a say in voting, and from participating in all the ways the state operates and functions.”
That legacy has also contributed to Illinois museums designating many of the ancestral remains in their collections as “culturally unidentifiable” under the federal repatriation law. That designation has been misused by some institutions to avoid repatriating remains under NAGPRA, giving museums outsize power in consultations with tribal nations.
With passage of the new Illinois law, that balance of power will for the first time tip toward tribal nations whose ancestral lands became the state of Illinois.
“We have the ability to now bring those communities that were forcibly removed in violent ways back here,” Miller said. “Rather than being a ‘removal state,’ Illinois could be known as a ‘new relations’ state instead.”
The Future of Funerary Items
Another significant aspect of the new law is that it prohibits institutions from charging admission to view human remains that are Native American and any items that were originally buried with those individuals. Although the public display of Native American ancestral remains by museums fell out of practice after the passage of NAGPRA in the early 1990s, the public display of their funerary items has not.
After Dickson Mounds Museum in the early 1990s closed a burial exhibit that displayed the remains of more than 230 Native Americans, the institution still maintained a permanent exhibit that featured items taken from Indigenous gravesites across the state. As ProPublica reported this year, in September 2021, curators dismantled much of the exhibit at the request of tribal partners, who wished to see the items reunited with the ancestors they were buried with before their repatriation. Those funerary items made up about 40% of the exhibit.
State museum officials told ProPublica they’re not sure how many museums in Illinois still display funerary items. The law applies to every museum, university and historical society in the state — far more than the 15 institutions in Illinois that have reported their Native American holdings under the NAGPRA.
When asked about what he would say to museums that may push back against the law, Illinois State Rep. Mark L. Walker said: “Too bad.”
Walker, a Democrat who represents part of Chicago’s northwest suburbs, sponsored the legislation. He said he’s already received interest from other states looking to adopt similar laws.
“I think we can be a model for other states,” Walker said. “Whether we can change [Illinois’] image to such an extent that these communities actually trust us? I don’t know. That may take 30 years.”
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The York Fire burns at the Mojave National Preserve on July 30. (photo: David Swanson/AFP)
Those who know the park well can rattle off the names and dates of the blazes that seared these split-screen images into the desert: the Hackberry Fire, 2005; the Dome Fire, 2020; and now the York Fire, which ignited July 28 and has torn through more than 90,000 acres, becoming California’s largest inferno this year and torching an untold number of cherished Joshua trees and other protected plants.
For the Joshua tree — a wild and whimsical internationally recognized symbol of California — fire has become an existential threat. Because its delicate desert habitat did not evolve with major wildfires, the Joshua tree is especially vulnerable to flames. When they burn, they burn fast. And they rarely survive.
That’s of particular concern at this Southern California preserve, where fires were once uncommon but are now increasing in frequency and ferocity. Officials at the 1.5 million-acre park are still assessing the latest damage, but it appears to be catastrophic, said deputy superintendent Debra Hughson, who compared the devastation to the Dome Fire, which burned more than a million Joshua trees.
“The landscape is changing in front of my eyes,” said Hughson, who has worked in the Mojave for more than two decades. “It’s losing something you love and you’ll never get back. Generations from now, people could be born who never see a Joshua tree, like the passenger pigeon.”
The York Fire sparked at a crucial moment for Joshua trees. One of the plant’s two species recently received protection under state law, which will help shield it from the sprawl and development that has endangered its habitat. But as the second large fire in three years took a heavy toll, some are now reckoning with the possibility of a future without Joshua trees.
In California, where residents have learned to dread fire seasons that keep breaking records, this year had been eerily quiet. But the York Fire, fueled by grasses that grew tall during heavy winter rains and dried out in recent heat waves, could be a sign of what is in store for the coming months, experts say.
The fire, which started on private land inside the preserve, had grown to 93,000 acres by Friday, more than four times the size of all the season’s previous fires combined. Some 9,000 acres burned across the border in Nevada, scorching America’s newest national monument, Avi Kwa Ame.
By week’s end, the fire was mostly contained. But the damage was already done.
‘Huge unknowables’
Hughson could feel the danger before it arrived. She was surveying the preserve last month, driving a gravel road into its New York Mountains. She looked warily around at the thick scrub, brush and grasses.
“Man, this is going to burn,” she said to herself. “For me, it’s a sense of inevitability.”
The greater Mojave Desert, home to Death Valley, was already one of the hottest places on Earth. But rising temperatures and the changing climate has also altered the region’s so-called “fire regime,” the pattern of wildfire occurrence. It is now considered a “climate change hot spot,” characterized by drier dry spells and wetter wet years.
“This is a place that has historically rarely ever burned,” said Terry McGlynn, the director of the California Desert Studies Center, which is located at the Western edge of the preserve. “So it’s unprepared for the fire. The seeds of desert plants aren’t prepared to regenerate after fire.”
For that reason, it’s difficult to predict what a recovery from fire might look like.
“As an ecologist, what I see are huge unknowables,” McGlynn said.
But it is clear the land will not be the same. Joshua trees high mortality rates during fires, and scientists estimate the preserve’s pinyon-juniper woodlands, which are full of hardy evergreen plants that thrive in higher elevations and rocky soil, could take up to three centuries to return to something like their pre-fire state.
Examples of long-lingering wounds were obvious on a visit to the preserve this week. In Cedar Canyon, a remote area near the middle of the park, pinyon-juniper covers the north side. On the south, gray tree skeletons dot the hills. This is the aftermath of the Hackberry Fire, which burned more than 70,000 acres and still pocked the ecosystem some 18 years later.
Northwest, in and around Cima Dome, one of the densest and largest Joshua tree forests in the world, the land is littered with the consequences of the Dome Fire. Here, it was the high concentration of plants rather than the burn radius — about 44,000 acres, far less than the York Fire — that led to so much destruction.
The effect is especially visible along Morning Star Mine Road near Cima, where one side of the street is home to thick stretches of green, spiny Joshua trees, while the other is covered in their carcasses, which stood like bouquets of burned toilet brushes against the blue afternoon sky.
Scenes like these will become more common as the climate warms, said Justin M. Valliere, a plant sciences professor at the University of California at Davis who has studied what is known as the invasive grass cycle. It goes like this: After fires, landscapes like the Mojave can become more vulnerable to invasive species, which then grow faster and promote more fires, continuing a positive feedback loop.
Valliere’s research, which has focused on coastal ecosystems, has linked fossil fuel emissions to increased invasive plant growth. Other studies have shown the phenomenon is occurring in the Mojave, meaning that exhaust from vehicles driven around car-choked Los Angeles can send nitrogen deposits all the way to the desert, fertilizing invasive grasses like red brome.
“Invasive grasses in the Mojave Desert are completely altering the fire regime there,” Valliere said, “and leading to more frequent fires.”
‘Grotesque yet magnificent’
These threats have led to increased Joshua tree preservation efforts. Advocates, who scored a big victory with the June passage of the Western Joshua Tree Conservation Act, are now turning their focus to fire.
But the mere fact that a legion is willing to fight for their survival is a big win for Joshua trees, which have not always enjoyed such reverence in American culture. The earliest reports were tough.
“Their stiff and ungraceful form makes them to the traveler the most repulsive tree in the vegetable kingdom,” wrote the explorer and eventual U.S. Sen. John C. Frémont in 1845, penning its first-known English language description.
Nearly a century later, public opinion had softened, slightly. A magazine article from the 1930s described them as “grotesque in the extreme … yet they are magnificent.”
Now, however, the plant is iconic.
It appeared on the artwork for one of the best-selling albums of all time, U2’s “The Joshua Tree,” and has been visited and photographed millions of times by people from across the world. It has entered the echelons of California’s most charismatic flora, along with the coastal redwoods, giant sequoias and bristlecone pines.
If those are the tallest, largest and oldest trees, the Joshua tree is perhaps the strangest. Stranger still: It’s technically not even a tree, belonging instead to the yucca genus.
“They have that awkward, gangly, Seussian countenance,” said Brendan Cummings, the conservation director at the nonprofit Center for Biological Diversity. “Maybe they remind us of ourselves and the tensions we have in the world. They can simultaneously be magical but odd.”
After the Dome Fire, volunteers undertook a massive effort to plant 1,500 Joshua tree seedlings alongside thousands of their burned forebears. “It’s really a lot to take in,” a firefighter who traveled from New Mexico told the Los Angeles Times then, looking around at the scorched trees.
Cummings was in that group, and he said more such efforts will be needed following the York Fire. Preserve officials were able to estimate the number of plants claimed in the Dome Fire because it burned on research plots, where scientists knew how many Joshua trees grew and could estimate the total loss.
But after the York Fire, that calculation is impossible. Cummings estimates the number is probably several hundred thousand.
“While the preserve has been fundamentally transformed by this fire, it’s still a critically important ecological area that should be the focus of restoration efforts,” he said. “The land is still worth protecting beyond that.”
On Thursday, in the southern swath of the burn scar, the hot air still smelled of bonfire. Plumes of smoke were visible in the distance. Near a campground flying a tattered American flag, what appeared to be acres of freshly burned Joshua trees stretched across the land. Parts of the sandy ground were singed black. One tall plant had toppled into the road.
Conservationists have said it is sometimes difficult to convince members of the public to care about the desert the way they might about, say, a redwood forest. This environment is often mistaken for a desolate wasteland. But the desert is home to thousands of ecologically important species: rare plants, mammals, birds and the endangered desert tortoise, California’s state reptile.
Scientists, advocates and park officials are desperately trying to keep it that way.
“The desert is not an empty wilderness,” said McGlynn, of the Desert Studies Center. “It is full of life.”
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