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AUGUST 2, 2023

On the Prospect website

Today on the site, we continue our Business of Health Care series with
Sara Sirota and Krista Brown's history of UnitedHealth
<[link removed]>,
the nation's largest insurer and largest employer of physicians, which
has eaten so much of the health care system that 25 percent of its
revenue comes from

**itself**. Plus, Luke Goldstein on discount retailer Dollar General's
foray into health care
<[link removed]>,
and my interview with Dr. Wendy Dean
<[link removed]>,
who coined the term "moral injury" to describe clinicians' pain at not
being able to put patients over profits. And don't miss Robert
Kuttner's take
<[link removed]>
on how the degradation of our democracy led to the rise of Trump, who
attempted to subvert it.

Dayen on TAP

Trump's Third Indictment and the End of Automatic Impunity

Jack Smith's prosecution for conspiracy has led to a familiar blowback
defense: prosecute the powerful and everyone will get hurt.

"Innocent until proven guilty" is a bedrock of our legal system, but
it's hard to apply in a criminal case where everyone saw the defendant
engage in the activities, most of them on television or social media.
The indictment of Donald Trump
<[link removed]>
for a conspiracy to attempt to overturn the 2020 election has few
surprises (though co-conspirator Jeffrey Clark casually remarking that
Trump could use the Insurrection Act to put down riots actually had the
rare power to shock), because of course there were few surprises. There
was a limited series produced about all this called the January 6th
Commission. People involved in the case have to be impartial; the rest
of us can assess what we've already seen.

That's why official Republican engines are spinning like a top, with
objections and theories and even dark warnings that this prosecution is
a mistake or even a catastrophe. But these counterpoints are also
familiar. They are trotted out every time someone with a modicum of
power in America gets into trouble.

Trump's legal defenses, as laid out by Semafor
<[link removed]>,
are pretty weak, in my opinion. First, they claim that you cannot
criminalize free speech, even as special counsel Jack Smith took pains
to say in the complaint that Trump could contest the election in court
and even lie about it if he wanted to. It was acting on the lies to
definitively work to change the outcome that was actionable. It's not
free speech to engineer the creation of fake electors to be used to
confuse the vote count and subvert the popular will, or to tell the
Justice Department to "just say that the election was corrupt and leave
the rest to me and the Republican congressmen."

Then there's the idea that Trump honestly believed in election fraud,
and therefore had no intent to deceive. This gets into George Costanza
"it's not a lie if you believe it <[link removed]>"
territory. At some point, when you are told dozens if not hundreds of
times that there was no fraud, and you continue to say there was, your
claim to innocence goes away. The legal concept is "willful blindness,"
and nothing more perfectly encapsulates Trump. And even without that,
the moment when Trump is discussing a national-security issue and says,
"We're going to give that to the next guy," or when he tells his vice
president, "You're too honest," does indicate a recognition that he
lost and is lying about it.

Another notion, that the conspiracy was never going to work, is a
curious one that suggests we can only prosecute fraud schemes in this
country if they're successful. I again appeal to pop culture with
Sideshow Bob's lament <[link removed]>:
"Attempted murder. Now honestly what is that? Can you win a Nobel Prize
for attempted chemistry?"

But the most pernicious defense of Trump is one the

**Wall Street Journal**editorial board, not really Trump's biggest
fan, highlighted
<[link removed]>:
the idea that it's actually dangerous to indict a former president.
There's a somewhat legal version of this, involving a president's
"absolute immunity from damages liability predicated on his official
acts," though devising a fake elector scheme doesn't seem all that
official. But then there's the version intended for public
consumption, which says that prosecuting a sitting president only makes
them stronger and destroys our democracy. It's the blowback defense.

Not only is this an example of self-perpetuating immunity
<[link removed]>, a theory to
inoculate presidents ever since Nixon said it
<[link removed]>. But it is also how every wealthy and
powerful person warns America when confronted with accountability for
their conduct. "Punish me and actually you will be punished," the
concept goes.

After the financial crisis, any attempt to make bank CEOs responsible
for torching the U.S. economy amid a mountain of improper mortgage
originations and false documents was met with the retort that it would
chill mortgage lending, harm the poor family who just wants a house.
Access to credit, in this sense, was deemed more important than whether
the credit is legitimate.

That version of the blowback defense is essentially a capital strike,
that any effort to prosecute crimes will cause a John Galt-like
withdrawal from the economic system. My consistent response to that was
(1) OK, go away then, we'll manage with the honest businesspeople; and
(2) this tips over the line of a defense and into that of a threat.
That's the same threat Trump and his allies are making and it's not
veiled. If you use the legal system to prosecute crimes perpetrated by a
president, we will be forced to commit more crimes, and it will be your
fault.

In past years, this was enough to call off Gerald Ford, who pardoned
Nixon, and Barack Obama, who vowed
<[link removed]>
to "look forward as opposed to looking backwards" at the actions of
George W. Bush. It's been enough to cause Washington's opinion
leaders to wobble before, and maybe again.

But if anyone thought this non-aggression pact would bring us a higher
caliber of president, I invite them to read the Smith indictment.
Worrying about the consequences of prosecuting crimes against democracy
has not led to fewer crimes against democracy. Ending automatic impunity
is the bare minimum to expect of a country that professes to follow the
rule of law.

~ DAVID DAYEN

Follow David Dayen on Twitter <[link removed]>

or Bluesky Social <[link removed]>

[link removed]

Indicting the System That Bred Trumpism
<[link removed]>
These overdue charges take us only partway back to functioning
democracy. BY ROBERT KUTTNER

Health Care's Intertwined Colossus
<[link removed]>
How decades of policy failures led to the ever-powerful UnitedHealth
Group BY KRISTA BROWN & SARA SIROTA

Discount Health
<[link removed]>
Dollar General is part of a trend of major retailers trying to move into
medical care. Cut-rate treatment is the last thing needed in the
vulnerable populations dollar stores serve. BY LUKE GOLDSTEIN

Q&A: How Corporate Medicine Destroys Doctors
<[link removed]>
Wendy Dean, who co-authored a new book about moral injury in American
medicine, says working in today's health care system is 'not the
agreement that we thought we were making.' BY DAVID DAYEN

[link removed]

 

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