Kamala's Way

by Dan Morain

In her floundering campaign for U.S. Senate in 2016, Congresswoman Loretta Sanchez thought she had an issue with which to sully Harris, the front-runner. Sanchez wasn’t wrong on the politics. In 2016 in California, no politician was less popular than Trump. Candidate Trump, meanwhile, fed the narrative that politicians were corrupt, telling followers at his rallies that campaign donations were transactional. In return for donations, he said, politicians would grant favors. “When you have a candidate who says he contributed to political candidates for favors, then you really have to question why Trump contributed twice to Harris when Trump University was coming under scrutiny, and you have to question why Harris accepted the contributions from Trump,” Sanchez’s campaign spokesman said at the time.

  That Sanchez would make the claim was understandable. She needed an issue. Harris has never publicly discussed the case. But the allegation that Harris decided against filing a suit in exchange for $6,000 in campaign donations strained credulity. Between 2002, when she started running for office, and 2016, Harris had raised more than $32 million for her campaigns. An ambitious politician—a prosecutor no less—who aspired to higher office would not have taken a dive on such a case. Besides, if there had been a lawsuit worth filing, Harris would have attracted national attention for suing Trump during the 2016 presidential campaign.

  The far more likely explanation for not suing Trump is the obvious one. Relatively few Californians were victims of the Trump University scam. People who fell for Trump’s bluster were out some money but weren’t made destitute. In 2015, Harris deftly blunted the issue before Sanchez raised it, finding a fitting use for the $6,000 that Trump donated to her. Her attorney general’s campaign account recorded a $6,000 donation to the Central American Resource Center of Los Angeles, a nonprofit organization that assists refugees and immigrants.

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  In the meantime, Harris had taken aim at a far larger target than Trump’s degree-churning operation, one that hurt Californians. Corinthian Colleges was based in the Orange County city of Santa Ana. Its stock was traded on NASDAQ and rose and fell based on its profitability. Its profits depended on its ability to attract students and their ability to take out federally subsidized loans to pay for Corinthian’s inflated tuition and fees. Whether those students got jobs or could repay those loans mattered little to Corinthian’s shareholders.

  In 2007, then California attorney general Jerry Brown extracted $6.6 million from Corinthian to settle claims that it was misleading students. Corinthian promised to reform. Then the Great Recession hit. Operating under various names, Corinthian advertised heavily during The Jerry Springer Show and The Maury Povich Show, targeting people who had afternoon time on their hands. Its internal documents show Corinthian sought enrollees who were “isolated” and “impatient,” had “low self-esteem,” had “few people in their lives who care about them,” and were “unable to see and plan well for the future.” The Los Angeles Times reported that Corinthian was one of the big beneficiaries of the crash, as unemployed workers seeking training and a better life bought into the Corinthian promise. The company nearly doubled its revenue to $1.75 billion from the start of the Great Recession in 2007 to 2011.

  At one point, Corinthian had twenty-seven thousand students in California and charged them $39,000 or more to obtain an associate’s degree, something they could get almost for free at California’s public community colleges. Corinthian students would pay upward of $68,800 for a bachelor’s degree of questionable utility. A California State University degree could be had for a fraction of that cost. So on October 10, 2013, Harris brought a sweeping lawsuit against Corinthian. It became one of the biggest cases ever brought against a for-profit college, and it crippled and ultimately killed the institution. It also gained the notice of powerful Democrats in Washington, who had been trying to restrict federal subsidies in the form of the student loans that fueled the for-profit college industry, notably Senator Elizabeth Warren, who was among the first national figures to endorse Harris’s Senate run. Corinthian became one of the first targets of the Consumer Finance Protection Bureau, which Warren helped create when she worked in the Obama administration. Warren also was one of a dozen senators who wrote to the Obama administration’s education secretary, Arne Duncan, urging that he crack down on for-profit colleges. The letter singled out Corinthian.

  “Corinthian Colleges Incorporated represents a risk to students on a scale that could overwhelm the current system of support and safety net provisions for students,” the letter said. “Corinthian has shown itself to be one of the worst actors in the for-profit college industry.…”

  Like almost all for-profit colleges, Corinthian depended on students obtaining subsidized loans to pay the inflated tuition and fees. Whether they got jobs at the end of their studies, the students were on the hook to repay the loans. Two-thirds of Corinthian’s students dropped out, and three-fourths of the former students couldn’t repay their loan debt, all of which was fodder for Harris’s suit alleging that Corinthian was fleecing its students and providing them little benefit.

  As the election neared, on March 23, 2016, Harris announced a $1.1 billion judgment. That included $800 million to be repaid to students. By then, however, Corinthian had shut its schools and gone bankrupt. It could not pay. Harris, with other state attorneys general, urged the Obama administration to forgive federal student loans taken out by Corinthian students. Obama’s Department of Education agreed. The Trump administration took the opposite tack by seeking repayment, not that many students could ever meet that obligation.

  The reason Harris sued Corinthian was clear: people wearing fancy suits in well-appointed suites were taking advantage of powerless victims, many of whom were single parents, veterans, and people of color who had little. None of them were, as Harris would say, in the room where decisions get made.

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  Critics and some friends say Kamala Harris was overly cautious during her time as attorney general. There is evidence to support that view. However, there is great danger in being too quick to sue or to file criminal charges. Prosecutors have the power to deprive people of their liberty, destroy their reputation, and seize their property. They need to be certain they’re right before accusing an individual or a corporation of wrongdoing. Kamala Harris was not quick to wield that power. When she did take a shot by filing a case, she rarely missed.

  23 Fighting the Forever War

  On its website, Planned Parenthood’s political advocacy arm lists “9 Reasons to Love Kamala Harris.”

  Some of them: She is unstinting in her defense of access to contraceptives and reproductive health care.

  She bested Supreme Court justice Brett Kavanaugh during his confirmation hearing before the Senate Judiciary Committee.

  And, in a bit of whimsy, “Dancing. And Drumlines. Enough said.”

  Harris’s stand on the side of abortion rights is well aligned with the vast majority of voters in her home state. But among its forty million residents, California has some of everyone. That includes a man called David Daleiden. From at least his high school days in the liberal college town of Davis, California, Daleiden has been a self-styled warrior against abortion. While in his twenties, between October 2013 and July 2015, he and a partner used phony identities to gain access to abortion conferences and clandestinely videotaped conversations with Planned Parenthood physicians and others. In July 2015, he and an entity he created, the Center for Medical Progress, gained national attention by releasing selectively edited and misleading versions of those videos that supposedly depict Planned Parenthood officials agreeing to the sale of fetal parts.

  Daleiden created legal problems for himself. Under California law, it’s a crime to surreptitiously record conversations. Both parties must consent to being recorded. Daleiden believes that the law doesn’t apply to him because he is a journalist who was seeking to expose illegality.

  In the summer of 2015, the forever war over abortion rights ran hot. Planned Parenthood’s work—prov
iding reproductive health care to women including contraceptives, reducing teen pregnancy, combatting sexually transmitted diseases, issuing the latest warnings about pesticides that could cause birth defects—became ever more complicated after the release of Daleiden’s tapes. They led to inquiries by the Republican-controlled Congress and new demands that Planned Parenthood be sanctioned. In the months that followed there was a wave of threats and violence directed at Planned Parenthood. Clinics were firebombed. Physicians and nurses who provided medical care for women at the clinics feared being assassinated. A Washington man was arrested after offering to pay for the murder of a biotech executive whose California firm was mentioned in the tapes. At a Planned Parenthood clinic in Colorado Springs in November 2015, a gunman raving about body parts killed three people: a police officer, an Iraq war veteran, and a mother of two. Later, he purportedly told police that when he died, he believed fetuses in heaven would thank him for averting abortions.

  Daleiden maintained that the violence was not related to his videos. “I don’t think the pro-life movement or my videos have anything to do with that—my videos carry a strong message of nonviolence,” he told Shawn Hubler, then of the Sacramento Bee, in April 2016.

  Democrats in Congress, including Jerrold “Jerry” Nadler of New York and Zoe Lofgren from San Jose, came to Planned Parenthood’s defense, urging Harris to look into the legality of what Daleiden had done and the subsequent attacks on Planned Parenthood.

  “Planned Parenthood is a well-respected and important organization in my community,” Lofgren wrote in July 2015. She urged Harris to investigate, saying, “The recent surreptitiously recorded video is the latest iteration of harassment and partisan attacks on Planned Parenthood which have become far too common, and raises serious legal questions that merit an investigation into whether the so-called ‘Center for Medical Progress’ has broken the law.”

  Kathy Kneer, who for twenty-four years directed Planned Parenthood’s political organization in California, also thought the California Attorney General’s Office should investigate. There was, after all, the state criminal prohibition against the secret recording of conversations.

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  On July 24, 2015, Harris responded to the call from Lofgren and Nadler by issuing a statement saying she would look into the matter. Although she told her staff internally that she worried about the lives of people who worked in the clinics as well as the patients who needed care, she said nothing publicly beyond issuing that statement. There was no press conference.

  Planned Parenthood had been among the Harris campaign’s supporters and donors. That might have given the organization a level of access. It didn’t, at least not initially. Kathy Kneer didn’t have Harris’s cell phone number or her personal email address. Going through regular channels, Kneer got an appointment with the California Department of Justice staff and eventually met with attorneys, not including Harris. More silence followed. “They worked at their normal, slow bureaucratic pace,” Kneer said.

  Threats of violence were not abating, however. Kneer and other Planned Parenthood leaders, concerned about the safety of their staff, worried that local law enforcement was not taking the issue seriously enough. So they again turned to the California Department of Justice. In March 2016, they secured meetings with top officials there.

  Emails from that time show that, as a result of the meetings, one of the lawyers from the California Department of Justice would speak at a general meeting of Planned Parenthood staff, set for April 7, 2016, at the Sheraton Grand Hotel in downtown Sacramento.

  On April 5, 2016, two days ahead of that gathering, the California Justice Department lawyer Jill E. Habig restated in an email what she was planning to discuss: “ongoing security requests/needs (both as to individual doctors and as to clinics) from your affiliates so we could provide assistance as needed with local law enforcement.” She agreed to talk for twenty minutes, with a few minutes for questions. It was to be a small part of the all-day agenda.

  As it happened, April 5, 2016, was a momentous day in David Daleiden’s life. As he has told and retold the story, he was carrying kitchen trash from his Huntington Beach apartment out to the garbage can when California Department of Justice agents stepped out of an unmarked white van and served him with a warrant to search his apartment. That day, nine months after Harris promised to investigate, they seized Daleiden’s computers, hard drives, and documents. Career Justice Department agents who conducted the search are protected by a strong civil service system and their union. As elected attorneys general come and go, they remain, doing their jobs. They’re cops, not politicians, although Daleiden and his attorneys allege that the search was directed from the top, Harris.

  Planned Parenthood’s leaders and top California Department of Justice officials had been trading emails in the days leading up to the search. At least some of the Justice Department officials on the emails knew that the search was being planned. But there were no leaks. Kneer and other Planned Parenthood executives learned of the search only when it became public. “We had no advance word. Not even a hint,” Kneer said.

  Kneer was, of course, delighted at the turn of events. The release of the Daleiden tapes had been “traumatic,” like “gasoline on a fire,” Kneer said. Now, nine months after the tapes became public, perhaps the law might be used to protect Planned Parenthood.

  The April 7 Planned Parenthood general meeting in Sacramento took place as scheduled. The Justice Department lawyer who spoke made no mention of the search or investigation. Harris did not appear at the event, and she did not hold a press conference to tout the search. There was, instead, more silence. The investigation continued through the summer and fall. No charges were filed against Daleiden during Harris’s tenure as attorney general.

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  As Daleiden’s tapes inflamed the abortion wars in 2015, Kamala Harris became one of the lead sponsors of legislation—along with the abortion rights groups Black Women for Wellness and NARAL Pro-Choice California—that was aimed at pregnancy crisis centers. The centers, which operate in California and across the country, are run by conservative Christian organizations. Employees, many of whom are not medical professionals, counsel women against terminating their pregnancies. Called the Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, the legislation required that the antiabortion crisis pregnancy centers post signs informing women of their options. In California, those options include receiving publicly funded abortions.

  The signs would read: “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women.”

  As it stated, the legislation’s goal was to “ensure that California residents make their personal reproductive health care decisions knowing their rights and the health care services available to them.”

  Opponents included the National Institute of Family and Life Advocates, a Virginia organization that “exists to protect life-affirming pregnancy centers that empower abortion-vulnerable women and families to choose life for their unborn children.” “Forcing speech is not the solution,” NIFLA, which operates more than one hundred crisis pregnancy centers in California, said in its letter opposing the bill.

  Lawyers who work for the California State Legislature and advise lawmakers understood that the legislation raised constitutional issues. But their belief was that long-standing law allowed the government to regulate commercial speech to prevent false, deceptive, or misleading statements, particularly where public health is at issue.

  Daleiden’s tapes became part of Republican lawmakers’ talking points in Sacramento as they tried without success to derail the FACT Act. “Now, we’re finding out that maybe a strong motivation for abortion is not to help someone in need… but it is maybe to harvest. Maybe there has been a huge conflict of interest and the nation is waking up to it,” Senator John Moorlach, an Orang
e County Republican, said in his speech opposing the legislation.

  In their weakened state, Republicans were unable to block any legislation in California. The bill passed easily on a party-line vote, with most Democrats supporting it and Republicans voting against it.

  Harris was often accused of being cautious, but not in this instance. Harris cheered when Governor Jerry Brown signed the legislation into law on October 9, 2015: “I am proud to have co-sponsored the Reproductive FACT Act, which ensures that all women have equal access to comprehensive reproductive health care services, and that they have the facts they need to make informed decisions about their health and their lives.”

  If she could have looked into the future, or if she had thought of the makeup of the U.S. Supreme Court, Attorney General Harris might not have been quite so enthusiastic.

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  NIFLA sued, claiming the act violated the free speech rights of the centers by requiring that they post notices that conflicted with their beliefs. The lower courts sided with the state. But after losing in the lower courts, the antiabortion forces appealed to the U.S. Supreme Court. Among the attorneys representing NIFLA was John Eastman, the former clerk to Justice Clarence Thomas who had run for attorney general as a Republican in 2010, the year Harris was elected. On June 18, 2018, in a 5–4 decision authored by Justice Thomas, the court sided with NIFLA.

  “Licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them,” Thomas wrote. “One of those services is abortion—the very practice that petitioners are devoted to opposing.”

  That wasn’t the end of it.

  By law, winning parties in civil rights cases are entitled to attorney fees. In 2019, California attorney general Xavier Becerra settled the claims by agreeing to pay $2 million to attorneys for the antiabortion organizations who had sued over the FACT Act. And in 2019, several of those very same lawyers were in U.S. District Judge William Orrick’s courtroom in San Francisco.