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News Brief: Senate Hearing, Supreme Court, Nursing Homes

RACHEL MARTIN, HOST:

The last time Dr. Anthony Fauci testified on Capitol Hill, he gave a warning about how the coronavirus would change American life.

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ANTHONY FAUCI: Things will get worse than they are right now.

STEVE INSKEEP, HOST:

Two months later, Fauci is back to testify before a Senate panel today. And times have changed. Case in point, neither Fauci nor any of the other witnesses will be there in person after many were exposed to someone who tested positive for COVID-19. Nevertheless, senators plan to ask whether it could be safe for the U.S. economy to begin reopening. So will Fauci you have a new warning today?

MARTIN: We've got congressional correspondent Susan Davis with us this morning. Hi, Sue.

SUSAN DAVIS, BYLINE: Hey, Rachel.

MARTIN: So as we've noted, the committee was forced to make this a mostly remote hearing. What are the senators on this panel expecting to learn?

DAVIS: Well, this is the first oversight hearing in Congress since much of the country went into lockdown about two months ago. Fauci's going to be joined alongside the heads of the Centers for Disease Control and Prevention, the Food and Drug Administration and the U.S. Public Health Service. And the hearing is essentially examining everything that it will take to reopen the country and, I imagine what many parents in this country might be tuning in to watch, Rachel, when it will be safe to reopen schools this year.

MARTIN: Yeah.

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DAVIS: Fauci told The New York Times in an email last night - he was asked what his message was going to be. And he said that his warning would be to the senators, if the country opens up too quickly, it will result - in his words - quote, "needless suffering and death," quote, and could setback all the efforts to date to stop the virus spread.

And of course, there's an irony here - right? - that this is a hearing about reopening the country. All of the witnesses will be testifying remotely, as will the chairman, Lamar Alexander, Republican from Tennessee, who is chairing the hearing from his home in Tennessee after he also was exposed to a staffer who's tested positive for the virus.

MARTIN: So testing is likely to come up and be a focus of this hearing. Congress already approved billions of dollars for more testing. Where's that at? I mean, is there talk of needing more money to get the kind of robust testing that the country needs?

DAVIS: It could be. And this has been a top issue for the chairman. He'd already helped secure - I mean, there's been many billions approved to expand testing. But he also personally helped secure an additional billion dollars to focus on rapid-test technologies. That's money that's been sent to the National Institutes of Health.

And Alexander has made the point, as many lawmakers share this view, that unless there is more of these rapid-test technologies available by the late summer, it's going to be really hard to make people feel comfortable about going back out in public, especially unless and until there's a vaccine readily available. There's no current plan for more funding specifically. There's already billions of dollars in the pipeline right now. But Democrats, in particular, are working on more funding proposals. And depending on how hearings like this go, it could be possible that more - even more funding will be needed.

MARTIN: Yeah. So this is the first time in months that lawmakers will be able to question members of the coronavirus task force publicly without President Trump next to them.

DAVIS: Yeah.

MARTIN: How's that likely to change the dynamic?

DAVIS: Well, Democrats certainly want to take advantage of it. I spoke to Patty Murray's office. She's the top Democrat on the committee. And they told me she plans to ask questions about the reports that officials were pressured by the White House about what kind of information they could release to the public.

Democrats are expected to question how the administration has handled testing and why there is no national testing protocol. And in her opening remarks, Murray will accuse the president of, quote, "trying to ignore the facts and ignore the experts." There's a divide here. Democrats have been more skeptical about these reopening efforts. But Republicans have been much more encouraging of states to get back to work to help alleviate some of this economic pain.

MARTIN: NPR's Susan Davis. Thanks, Sue. We appreciate it.

DAVIS: You're welcome.

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MARTIN: Does President Trump's executive authority put him above the law?

INSKEEP: The Supreme Court hears oral arguments today in three cases that address that question. The justices consider the limits of presidential, congressional and judicial power. All three cases involve congressional and grand jury subpoenas for some of the president's financial records.

MARTIN: Andrea Bernstein co-hosts the "Trump, Inc." podcast out of WNYC and ProPublica. And she's been following these cases closely. And she joins us this morning. Andrea, thanks so much for being here.

ANDREA BERNSTEIN: Good morning, Rachel.

MARTIN: So these are three major cases involving President Trump. Can you give us the thumbnail sketch of what each of them are about?

BERNSTEIN: Right. So two of the cases extend from subpoenas that Congress issued, essentially, in the spring of 2019 - one from the House Oversight Committee to Trump's accountants, and one from the House Intelligence Committee to Trump's bankers, Deutsche Bank. And what the congressional investigators said is they wanted these records as part of ongoing investigations, as part of their oversight and legislative responsibilities. And indeed, Trump's bankers, Deutsche Bank, and his accountants, Mazars USA, said, OK. We're going to turn over the documents. At which point Trump, in his private capacity, sued, saying, they could not do so.

The third case is Trump v. Vance, which refers to the Manhattan district attorney, Cyrus Vance, who took over investigating the way the Trump organization handled the business records surrounding the hush money payments to Stormy Daniels after the Justice Department closed that case. And when he did so and asked for tax records for Trump's businesses, Trump also sued. Trump brought the cases to court and lost in each of the lower courts. And today, now, is going to the Supreme Court for decision.

MARTIN: What are we expecting to hear during oral arguments?

BERNSTEIN: So what Trump's lawyers have said is that these are illegitimate investigations. You can't ask for subpoenas for a sitting president because it overreaches Congress' authority. And if you're the DA, you can't investigate a sitting president because it would invite all the other local prosecutors, they say, to engage in needless lawsuits.

One of the really striking things was, during oral arguments in the 2nd Circuit Court of Appeals, Trump's lawyers were asked about the extent of this. And one of the judges, Denny Chin, even asked Trump's lawyer, William Consovoy, if the president could hypothetically shoot someone on Fifth Avenue and not be investigated by the local DA.

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DENNY CHIN: What's your view on the Fifth Avenue example? Local authorities couldn't investigate? They couldn't do anything about it?

WILLIAM CONSOVOY: I think, once a president is removed from office, they'll look - any local authority. This is not a permanent immunity.

CHIN: Well, I'm talking about while in office.

CONSOVOY: No.

CHIN: That's the hypo. Nothing could be done, that's your position?

CONSOVOY: That is correct.

BERNSTEIN: So that was very striking. Not even if the president shoots somebody can local law enforcement pick up the bullet and have a look at what's going on.

MARTIN: So obviously, the consequences of these decisions could be quite powerful, no?

BERNSTEIN: Well, exactly. I mean, there's two things that are at stake. And the bigger one is the rule of law and how you can hold a president to an account. And at each step of his presidency, President Trump has argued investigations are illegitimate. We saw that with the Mueller report. We saw that with Congress' impeachment investigation in which his lawyers argued it should be settled by the voters. And now we're seeing it in these three cases.

And now the highest court in the land will rule if Congress can get documents and if local law enforcement could even investigate the president and his business. Separately, they could tell us if the president's tax records and business records will ever see the light of day in these first four years of his presidency.

MARTIN: WNYC's Andrea Bernstein, author of the new book "American Oligarchs: The Kushners, The Trumps, And The Marriage Of Money And Power." Andrea, thank you.

BERNSTEIN: Thank you so much.

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MARTIN: Nursing homes have accounted for more than half of COVID-19 deaths in some states.

INSKEEP: Wow. Now, not all states report this information. And the federal government is only beginning to track it. But we know enough to see that the coronavirus has exposed cracks in the nursing home system and revealed how older people are often left vulnerable.

MARTIN: NPR's Ina Jaffe is covering this for us and joins us this morning. Ina, good morning. How serious - just give us the lay of the land. How serious is the situation in nursing homes right now?

INA JAFFE, BYLINE: Well, as you said, the data's incomplete. But it's also pretty alarming. There's Kaiser Family Foundation data that shows nursing home deaths now account for more than half of all COVID-19 deaths. That's just in 14 states. According to The New York Times, one-third of the nearly 80,000 COVID-19 deaths in the U.S. are nursing home residents or workers.

And the AARP says that number is a little lower. Their data showed that more than 16,000 nursing home residents and staffers have died from COVID-19, which is about a quarter of the coronavirus deaths. Some of the headlines have been shocking, from the nursing home in New Jersey, where 17 corpses were piled up, to one in California that was evacuated when the staff just didn't show up for work. But there are a lot of troubled facilities that don't make headlines.

MARTIN: Right. How did things get so bad, Ina?

JAFFE: Well, I've been talking to a number of people who work in nursing homes or study nursing homes. One of them is 31-year-old Christopher Brown (ph). He's a certified nursing assistant at a facility in Chicago where 133 residents have been infected and 23 have died. And he says the COVID-19 crisis didn't create problems in nursing homes. It exposed problems that were already there.

CHRISTOPHER BROWN: We were always underpaid. We were always short of PPE. We were always short of towels, soap, linens, diapers. They don't have what's needed.

JAFFE: Even before the coronavirus pandemic, the nursing home where Christopher Brown works had problems. Among them, it was cited by inspectors for not having an infection control plan. And that plan is one of the most fundamental protections that nursing homes provide. It keeps residents from getting the flu and pneumonia and all kinds of other bugs.

But failure to have a plan for controlling infection, it's the most common cited deficiency in nursing homes nationwide. Even before the pandemic, almost 388,000 nursing home residents died of infections every year. And even after the pandemic, government inspectors found that more than a third of the facilities they looked at still didn't follow proper handwashing procedures. And a quarter didn't use protective gear correctly.

MARTIN: Anything likely to change to prevent something like this again?

JAFFE: Well, critics of nursing homes say it's partially a matter of staffing. There's not enough of it to do all the work that needs to be done and do it safely. There aren't any federal minimums for staff. And many states don't have them either. And since most nursing homes are for-profit businesses, the simplest way to cut costs is to keep the number of staff down.

The thing I hear most often is, if you want to control infection, nursing homes should be smaller. And everyone should have a private room and bath. But that would also affect the bottom line. Currently, many facilities have two or three or even four residents sharing a room and a bathroom. Other suggestions range from how to make the inspection process more effective to changes in design and architecture, to organizing facilities in a way that would respect the dignity of residents.

MARTIN: NPR's Ina Jaffe. Thank you so much, Ina.

JAFFE: Thank you. Transcript provided by NPR, Copyright NPR.