US presidency: how Trump has exploited the Covid-19 crisis and how he hasn’t

MICHAEL GOLDHABER, IBA US CORRESPONDENT

By declaring a Covid-19 emergency in mid-March, President Trump gained 123 special powers.

Senate Minority Leader Chuck Schumer warned: ‘The President must not overstep his authority or indulge his autocratic tendencies for purposes not truly related to this public health crisis.’ In fact, if anything, the President has under-used the powers to address the health crisis.

The President has not moved to consolidate autocracy. Nevertheless, he ruthlessly enforces loyalty at the expense of democratic accountability. The ideologues in his cabinet have, meanwhile, used the crisis as a cover to advance their pre-existing policy agenda.

At least rhetorically, this President enjoys raising doubts about democracy. In a typical riff, at a pre-lockdown rally, he free-associated about his tenure as President: ‘Let’s term-limit ourselves at 25 years. No more than 25 years.’

Perhaps the President’s most anti-democratic action came in April and May, when he purged three important independent voices in his administration, including Principal Deputy Inspector General of the Department of Defense Glenn Fine, who was poised to oversee Covid-19 relief.

On signing the $2tn relief bill, the President vowed to disregard any oversight, because, he said, ‘I’ll be the oversight’. The House chairs protested that the President was ‘retaliating against [the Inspectors General] for telling the truth’ and ‘following the law’. Walter Shaub, who resigned as Director of the US Office of Government Ethics in 2017, tweeted grimly: ‘This is a late-stage move in an authoritarian coup against the rule of law.’

But, Aziz Huq, Professor of Law at the University of Chicago Law School and co-author of How to Lose a Constitutional Democracy, sees increased pushback by members of the President’s own party, historically crucial in halting autocracy. Five Republican senators denounced the purge.

After the President claimed ‘total’ authority to end state lockdowns, he was rebuked by at least three Republican members of Congress and a Republican governor. Uncharacteristically, the President swiftly abandoned his claim of total authority.

Despite the President’s rhetoric and personnel moves, the hallmark of his pandemic response has been passivity. Paradoxically, the President’s default lockdown strategy has been to fob off all responsibility onto the states, even as he undermines the governors on policy, and cheerleads the protests against them. Indeed, the President has primarily been attacked for failing to use federal powers during the crisis. The President has made scant use of the Defense Production Act, which allows him to commandeer civilian industries. He has failed to build national capacity in testing and contact tracing, to produce or procure medical and protective equipment, therapeutics and vaccines.

‘He very much wants to pass the buck, because things might go south, and he doesn’t want to be held responsible coming into the election,’ says Elizabeth Goitein, Director of the Liberty & National Security Program at the Brennan Center for Justice. ‘Instead he’s blaming the governors. The situation is [not] without danger, because part of blaming the governors is an effort to foment political resistance and even foment violence.’

Eric Posner of the University of Chicago Law School, the politically moderate author of The Executive Unbound, makes a similar observation. ‘Trump has not exercised the powers he’s been given, and he seems to want to get the country back to economic status quo as soon as possible. He’s doing a very bad job but he’s not trying to destroy democracy. Contrast that with Viktor Orbán in Hungary, who used the crisis to obtain dictatorial powers and once the pandemic is over will still have those powers.’

The President has gone beyond neglecting the health crisis to pursue unresponsive policies. ‘What you see throughout history is the exploitation of emergencies to push through other agendas,’ says Goitein. ‘The first question is, “Is this measure a public health measure to treat Covid-19?” If the answer is no, be very suspicious.’

A number of agencies have taken steps that seem to fail Goitein’s test dramatically. The Occupational Safety and Health Administration agency has granted permission to 15 vast poultry processing plants to speed up their assembly lines – and reduce the space between workers – even as meatpacking facilities have emerged as notorious Covid-19 hotspots nationwide. The Environmental Protection Agency has broadly and indefinitely stopped enforcing all routine rules – regardless of their effect on respiratory health – so long as the regulated company can argue that its failure was ‘caused’ by the health crisis.

The Department of Health and Human Services has sealed America’s land borders, ostensibly to protect the US from foreign germs. Yet when it pulled up the drawbridge, the US had nearly 500 times as many confirmed cases as Central America’s Northern Triangle. The anti-immigration aide Stephen Miller reportedly wants the President to enforce border closure with the military under the 1807 Insurrection Act. Miller explained his thinking long before the pandemic gave him a pretext: ‘The powers of the President to protect our country are very substantial – and will not be questioned.’

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IBA President ratifies Climate Crisis Statement

The Statement has five resolutions, including urging lawyers to take a climate-conscious approach to problems encountered in daily legal practice, and encouraging engagement with current and future policymaking efforts to address the climate crisis. Mr Bernardes Neto, a senior partner at Motta Fernandes Advogados in São Paulo, commented that these five resolutions ‘recognise the role that lawyers can and must play in combatting the climate emergency’. Further, he highlighted that a global response to the climate emergency will give rise to increased disputes, with lawyers representing the legal interests and rights of all sides. Parties to those disputes will include states, corporations, communities, civil society organisations and individuals who are most vulnerable to the impacts of this particular crisis.

To download the IBA Climate Crisis Statement, visit tinyurl.com/IBAClimateCrisis

To see IBA reports, films and resources on climate crisis, visit tinyurl.com/IBAclimateresources

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Covid-19 video project highlights IBA voices from around the world

IBA officers and members worldwide have been sharing their personal and professional experiences of the Covid-19 pandemic through a new IBA initiative collating video messages from more than 70 individuals in 50 cities, covering every continent. Members have participated from across the breadth of the IBA’s committees and other groups, and the videos focus on elements such as adapting to new working practices, the importance of pro bono work and the issues presenting themselves across the legal spectrum in the various practice areas.

The videos are available to watch via an interactive map on the IBA website where you can select videos to watch by specific location. You can also search for the hashtag #ibaglobalvoice on Twitter to see selected highlights of the project.

Visit the interactive map at tinyurl.com/ibaglobalvoice

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Covid-19: latest updates and resources from the IBA

The IBA has created a webpage to highlight its content relating to the Covid-19 pandemic. The page includes Global Insight news analysis and feature articles, the latest podcasts, details of past and upcoming webinars, press releases from the IBA’s Legal Policy & Research Unit and Human Rights Institute and articles published by its committees on the subject. These cover a wide range of topics including the effects on the global oil and gas markets, the impact of emergency legislation on the rule of law, freedom of expression, workers’ rights and force majeure.

The hub page also features a list of matrices compiled by committees. Each matrix is a comprehensive, sector-specific guide to the measures that jurisdictions around the world are taking in light of the Covid-19 pandemic.

These include contributions from the following committees:

• Antitrust;
• Asset Management and Investment Funds;
• Corporate and M&A Law;
• Employment and Industrial Relations;
• Immigration and Nationality Law;
• Law Firm Management;
• Litigation;
• Mining Law;
• Real Estate;
• Securities Law; and
• Taxes.

Further contributions are expected and these matrices are being updated regularly to reflect any changes in the global response to Covid-19.

Access the webpage at tinyurl.com/IBAcovidhub

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IBA launches research project focusing on interests of young lawyers around the world

A survey has been developed by the IBA Young Lawyers’ Committee (YLC) and the IBA Legal Policy & Research Unit (LPRU) that aims to collect data on the collective interests, priorities and concerns of young lawyers.

The YLC and LPRU hope to use this data, and any trends that may appear, to generate dialogue between young lawyers and the current leaders of the legal profession, and encourage positive changes where necessary.

The anonymous survey is available to both IBA members and non-members, and can be completed in English or Spanish. If you are a lawyer aged 40 or under, your participation in the survey will be greatly appreciated.

Topics covered include factors influencing a decision to move workplaces, impacts on career progression and the effect of technology and artificial intelligence in the workplace.

Elsewhere, the IBA has launched two vlogging competitions, one for young lawyers and one for law students. Applicants must submit a video of two to three minutes in length on any aspect of the topic ‘Covid-19 and the law’. The deadline for submissions is Tuesday 30 June 2020. Winners will receive two years’ free membership of the IBA, waived registration for a selected IBA conference plus economy airfare and associated accommodation.

Access the Young Lawyers’ Survey at tinyurl.com/IBAyounglawyerssurvey

Find full details of the vlogging competition at tinyurl.com/IBAvlogcomp

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Covid-19: global oil and gas markets thrown into turmoil by pandemic

MARGARET TAYLOR

The global oil and gas industry has been hit extremely hard by the Covid-19 pandemic, with demand falling off a cliff. The markets have been thrown into turmoil, with a barrel of Brent oil dropping to just over $22, its lowest level in close to 18 years. The key American West Texas Intermediate (WTI) benchmark entered negative territory for the first time in history.

The sector had just recovered after taking a battering in 2015 and 2016. By the beginning of 2020, the Brent and WTI indices, which had dipped to around $28 a barrel at the beginning of 2016, were trading at between $60 and $70. Then Covid-19 struck, just as the Russians and Saudis entered into a war over price.

Around 51,000 drilling and refining jobs were lost in the US in March, according to a report from research consultancy BW Research Partnership, while the UK Oil and Gas Industry Association (OGUK) predicts up to 30,000 North Sea jobs could be lost in the coming months. A survey of the UK organisation’s members found investment in the sector is likely to fall by up to £4bn over the course of 2020.

Paul Stockley, Chair of the IBA Oil and Gas Law Committee and a partner at UK firm Fieldfisher, says ‘The global oil and gas industry is significantly challenged by the combined effects of the Covid-19 lockdown on demand and the recent price war between Saudi Arabia and Russia, which flooded the market with oil at exactly the wrong time.’

As advisers to the sector, law firms have had to prioritise the services they offer in response to the slump, at the same time as coming to terms with the constraints the pandemic has put on their own operating models. Roger Connon, Head of Oil and Gas at Pinsent Masons’ legal resourcing arm Vario, says oil sector clients, who previously insisted their lawyers be on the ground in their offices, have finally woken up to the fact that remote advisers can handle their needs just as well.

Given the challenges these clients are now dealing with, such concessions are unsurprising. Contracts predicated on considerably higher oil prices are having to be renegotiated and litigation is already starting to replace corporate deal activity. A battle is raging in Scotland’s Court of Session, for example, over Premier Oil’s plan to acquire $660m of North Sea assets from BP and Dana Petroleum. In April, Premier Oil won the Court’s backing to proceed with the deals but its largest creditor, Asia Research and Capital Management, has vowed to appeal because it believes the oil price crash makes the deals too risky.

Oil prices have begun to tentatively bounce back from their April lows, with Saudi Arabia’s promise to cut production to its lowest level in two decades, as of June, expected to have a stabilising effect. Despite this, Giovani Loss, a partner at Brazilian firm Mattos Filho and former Chair of the IBA Oil and Gas Law Committee, believes many other legal issues are yet to come as the full impact of global Covid-19 shutdowns becomes clearer.

‘Certain deals are in the interim period between signing and closing, and these deals are generally not suspended,’ he says. ‘There are, however, specific demands related to the Covid-19 pandemic, including contract analysis for force majeure, material adverse effect or other clauses that may be activated considering the current scenario, resulting in potential termination or at least renegotiation of contracts. Litigation related to oil contracts is starting to happen. We should see a big number of restructurings, re-financings or even crisis M&A, taking advantage of market opportunities, happening in the next 12 to 18 months.’

One silver lining is that net-zero targets to bring the climate emergency under control will be met well ahead of schedule. Air quality across the world dramatically improved when factories closed and vehicles were forced off the roads during various lockdowns. Indeed, the Centre for Research on Energy and Clean Air says 11,000 air pollution-related deaths have been avoided across Europe.

Yet, while OGUK has committed to accelerating the transition to net-zero in light of the current crisis, the downturn could, paradoxically, hamper their efforts.

Stockley notes that while the oil and gas sector ‘is well positioned with the skills, resources and infrastructure to be a driving force behind the energy transition,’ the fact its ‘social licence to operate is under threat’ could be a distraction. ‘The sector urgently needs to take steps to reduce its carbon footprint to mitigate that risk,’ he says.

Loss points out that the slump in oil prices could actually deter the use of cleaner energies, even if just temporarily.

‘The trend of changes on the energy matrix as a result of climate change is inevitable,’ he says. ‘However, the reduction in oil prices tends to delay such a trend. Since the costs of alternative energy are usually high, when oil prices are low other sources of energy may become uneconomical.’

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