The concierge catch: Better access for a few patients disrupts care for many

• July 8, 2024

John Rossheim | (TNS) KFF Health News

“You had to pay the fee, or the doctor wasn’t going to see you anymore.”

That was the takeaway for Terri Marroquin of Midland, Texas, when her longtime physician began charging a membership fee in 2019. She found out about the change when someone at the physician’s front desk pointed to a posted notice.

At first, she stuck with the practice; in her area, she said, it is now tough to find a primary care doctor who doesn’t charge an annual membership fee from $350 to $500.

But last year, Marroquin finally left to join a practice with no membership fee where she sees a physician assistant rather than a doctor. “I had had enough. The concierge fee kept going up, and the doctor’s office kept getting nicer and nicer,” she said, referring to the décor.

With the national shortage of primary care physicians reaching 17,637 in 2023 and projected to worsen, more Americans are paying for the privilege of seeing a doctor — on top of insurance premiums that cover most services a doctor might provide or order. Many people seeking a new doctor are calling a long list of primary care practices only to be told they’re not taking new patients.

“Concierge medicine potentially leads to disproportionately richer people being able to pay for the scarce resource of physician time and crowding out people who have lower incomes and are sicker,” said Adam Leive, lead author of a 2023 study on concierge medicine and researcher at University of California-Berkeley’s Goldman School of Public Policy.

Leive’s research showed no decrease in mortality for concierge patients compared with similar patients who saw non-concierge physicians, suggesting concierge care may not notably improve some health outcomes.

A 2005 study showed concierge physicians had smaller proportions of patients with diabetes than their non-concierge counterparts and provided care for fewer Black and Hispanic patients.

There’s little reliable data available on the size of the concierge medicine market. But one market research firm projects that concierge medicine revenue will grow about 10.4% annually through 2030. About 5,000 to 7,000 physicians and practices provide concierge care in the United States, most of whom are primary care providers, according to Concierge Medicine Today. (Yes, the burgeoning field already has a trade publication.)

The concierge pitch is simple: More time with your doctor, in-person or remotely, promptly and at your convenience. With many primary care physicians caring for thousands of patients each in appointments of 15 minutes or less, some people who can afford the fee say they feel forced to pay it just to maintain adequate access to their doctor.

As primary care providers convert to concierge medicine, many patients could face the financial and health consequences of a potentially lengthy search for a new provider. With fewer physicians in non-concierge practices, the pool available to people who can’t or won’t pay is smaller. For them, it is harder to find a doctor.

Concierge care models vary widely, but all involve paying a periodic fee to be a patient of the practice.

These fees are generally not covered by insurance nor payable with a tax-advantaged flexible spending account or health savings account. Annual fees range from $199 for Amazon’s One Medical (with a discount available for Prime members) to low four figures for companies like MDVIP and SignatureMD that partner with physicians, to $10,000 or more for top-branded practices like Massachusetts General Hospital’s.

Many patients are exasperated with the prospect of pay-to-play primary care. For one thing, under the Affordable Care Act, insurers are required to cover a variety of preventive services without a patient paying out-of-pocket. “Your annual physical should be free,” said Caitlin Donovan, a spokesperson for the National Patient Advocate Foundation. “Why are you paying $2,000 for it?”

Liz Glatzer felt her doctor in Providence, Rhode Island, was competent but didn’t have time to absorb her full health history. “I had double mastectomy 25 years ago,” she said. “At my first physical, the doctor ran through my meds and whatever else, and she said, ‘Oh, you haven’t had a mammogram.’ I said, ‘I don’t have breasts to have mammography.’”

In 2023, after repeating that same exchange during her next two physicals, Glatzer signed up to pay $1,900 a year for MDVIP, a concierge staffing service that contracts with her new doctor, who is also a friend’s husband. In her first couple of visits, Glatzer’s new physician took hours to get to know her, she said.

For the growing numbers of Americans who can’t or won’t pay when their doctor switches to concierge care, finding new primary care can mean frustration, delayed or missed tests or treatments, and fragmented health care.

“I’ve met so many patients who couldn’t afford the concierge services and needed to look for a new primary care physician,” said Yalda Jabbarpour, director of the Robert Graham Center and a practicing family physician. Separating from a doctor who’s transitioning to concierge care “breaks the continuity with the provider that we know is so important for good health outcomes,” she said.

That disruption has consequences. “People don’t get the preventive services that they should, and they use more expensive and inefficient avenues for care that could have otherwise been provided by their doctor,” said Abbie Leibowitz, chief medical officer at Health Advocate, a company that helps patients find care and resolve insurance issues.

What happens to patients who find themselves at loose ends when a physician transitions to concierge practice?

Patients who lose their doctors often give up on having an ongoing relationship with a primary care clinician. They may rely solely on a pharmacy-based clinic or urgent care center or even a hospital emergency department for primary care.

Some concierge providers say they are responding to concerns about access and equity by allowing patients to opt out of concierge care but stay with the practice group at a lower tier of service. This might entail longer waits for shorter appointments, fewer visits with a physician, and more visits with midlevel providers, for example.

Deb Gordon of Cambridge, Massachusetts, said she is searching for a new primary care doctor after hers switched to concierge medicine — a challenge that involves finding someone in her network who has admitting privileges at her preferred hospitals and is accepting new patients.

Gordon, who is co-director of the Alliance of Professional Health Advocates, which provides support services to patient advocates, said the practice that her doctor left has not assigned her a new provider, and her health plan said it was OK if she went without one. “I was shocked that they literally said, ‘You can go to urgent care,’” she said.

Some patients find themselves turning to physician assistants and other midlevel providers. But those clinicians have much less training than physicians with board certification in family medicine or internal medicine and so may not be fully qualified to treat patients with complex health problems. “The expertise of physician assistants and nurse practitioners can really vary widely,” said Russell Phillips, director of the Harvard Medical School Center for Primary Care.

___

(KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs of KFF — the independent source for health policy research, polling and journalism.)

©2024 KFF Health News. Distributed by Tribune Content Agency, LLC.

​ Orange County Register 

Powell to face Fed critics in congress on high rates, bank rules

• July 8, 2024

By Amara Omeokwe | Bloomberg

Jerome Powell will face pressure this week from lawmakers growing impatient for the Federal Reserve to cut interest rates and others who are unhappy with its latest plan to boost capital requirements for Wall Street lenders.

The Fed chair heads to Capitol Hill on Tuesday and Wednesday for his semiannual testimony, more than two years after he and his colleagues began hiking rates in a bid to curb surging inflation.

The hearings are Powell’s last scheduled public address to Congress ahead of the presidential election, and he’ll likely have to defend the central bank’s higher-for-longer policy stance as well as its claim to be independent of politics.

Fed officials in June pared back estimates of how many times they expect to lower borrowing costs this year, signaling they’ll hold rates at a two-decade high as they wait for more evidence inflation is headed down to their 2% target. Powell reiterated that message in comments last week, and declined to specify when rate cuts might begin.

Recent data indicate the Fed’s preferred inflation gauge slowed in May after a bumpy start to the year. A separate measure due Thursday is expected to show underlying inflation posted the smallest back-to-back monthly gains since August.

The labor market, however, is also cooling, and some Fed officials are beginning to warn about the risks of further slowing. June job gains, while still solid, were concentrated in health care and government, and prior months were revised lower. The unemployment rate climbed to 4.1%, the highest since late 2021.

Calls to cut

Democrats pressing for rate cuts say elevated borrowing costs are harming consumers already hit by high prices. As inflation remains top of mind for voters, the question of whether and when to cut rates is turning into a hot-button issue ahead of November’s presidential election.

At the Senate Banking Committee hearing on Tuesday, Senator Elizabeth Warren may press Powell for cuts, following the letter she and Democratic colleagues sent him last month demanding that the Fed follow the European Central Bank’s lead in easing monetary policy.

Other Democrats are walking a careful line to avoid accusations of meddling with the Fed’s independence, amid reports that former President Donald Trump could seek to curb the central bank’s power should he win another term.

Representative Jim Himes, who will hear from Powell on Wednesday before the House Financial Services Committee, said no member of Congress should ever pressure the Fed to raise or lower interest rates.

“One of the cornerstones of our stable economy is our independent monetary policy, and if we start doing electoral politics and monetary policy, the other side will, and soon we will not have a stable economy,” the Connecticut Democrat said.

Others say the calls to cut rates are based more on an assessment of the economy than politics.

“We are making an argument based on data and what we believe it shows,” said Representative Brendan Boyle. Despite the overall strength of the economy, “I think the worry about an economic slowdown is at this point greater than the worry that we haven’t gotten exactly down to 2.0%.”

The Pennsylvania Democrat also expressed concern that mortgage rates, which are nearly double pre-pandemic levels, are making homes unaffordable and keeping people who’d like to move from selling their homes.

That’s in line with some economists who argue the Fed is restraining growth unnecessarily.

“We’re within spitting distance of the target. All the trend lines look good,” said Mark Zandi, chief economist at Moody’s Analytics. He has called on the Fed to begin cutting rates immediately, in part because much of inflation’s stickiness above 2% is due to lagging measures of rents.

It could get increasingly complicated to cut rates as the election approaches, Zandi said: “Even though policymakers really don’t want to be influenced by the politics of the current time, they almost certainly are.”

Bank rules

Powell is also likely to face pointed questions over US plans to force Wall Street lenders to set aside significantly more capital. In March, the Fed chief said he expected “broad and material changes” to the proposal American regulators released last July that could require the eight largest US banks to hold about 19% more in capital as a cushion against financial shocks.

Republicans, including House Financial Services Committee Chairman Patrick McHenry, blasted the original plan. McHenry and other GOP lawmakers last September urged regulators withdraw the proposal, arguing that it had “fatal problems” and could pose a risk to the financial system.

Powell hasn’t said whether the central bank, Federal Deposit Insurance Corp. and the Office of the Comptroller of the Currency will scrap the original plan. However, Fed officials recently showed other US regulators a three-page document of possible changes to the planned overhaul that would significantly lighten the load on big lenders.

In a preview of what else could be in store for Powell on Tuesday, Sen. Warren recently accused him of giving bank executives too much opportunity to influence the proposal.

Powell has maintained the Fed doesn’t take politics into account when setting policy.

“I do think support for the Fed’s independence is very high where it really matters on Capitol Hill, in both political parties, among the leaders and most of the following,” Powell said last week. “And so I worry about getting the job right.”

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​ Orange County Register 

This map shows where the Lake Fire is burning in Santa Barbara County

• July 8, 2024

The Lake Fire, burning in a rugged area of Santa Barbara County, has become the biggest wildfire of California’s season.

As of Monday morning, the fire was at 20,320 acres (31.7 square miles) with 8% containment, the California Department of Forestry and Fire Protection said.

That surpassed Sites, which burned 19,195 acres last month in Colusa County.

The Lake Fire’s evacuation order was expanded to about 50 square miles on Sunday evening.

The map above shows the approximate fire perimeter as a black line and the evacuation zones in red. For more evacuation details and latest updates, see Santa Barbara County’s emergency map.

The fire started around 4 p.m. Friday, July 5, near Zaca Lake, in Los Padres National Forest. Its cause is under investigation.

The fire’s western edge was within a mile of the former Michael Jackson Neverland Ranch, as well as several prominent wineries in the Foxen Canyon area.

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In 2007, the same area was burned by the Zaca Fire, which at that time was the second largest wildfire in California’s recorded history. It was started on July 4 by sparks from a grinding tool and wasn’t fully contained until Sept. 4; hot spots continued to burn until the last days of October. The final tally was 240,207 acres (375 square miles). Forty-three people were injured in the firefighting.

So far this year, the state has had five wildfires over 10,000 acres. Last year at this time, its biggest fire was 1,560 acres; all four of the fires in 2023 over 10,000 acres started in August, according to CalFire records.

​ Orange County Register 

16,000-acre Lake Fire in Santa Barbara County prompts evacuations and threatens Neverland Ranch

• July 8, 2024

A wildfire that erupted in the mountains of Santa Barbara County in Southern California has burned more than 16,000 acres, prompting an evacuation order and threatening ranches, including Michael Jackson’s former Neverland Ranch, authorities said.

The fire, called the Lake fire, broke out shortly before 4 p.m. Friday near Zaca Lake, just northeast of the city of Los Olivos, according to the California Department of Forestry and Fire Protection.

The cause of the fire, which was zero percent contained as of Sunday, remained under investigation.

The Santa Barbara County Sheriff’s Office issued an evacuation order for an area near the Los Padres National Forest that includes the property once known as Michael Jackson’s Neverland Ranch, a 2,700-acre property in Los Olivos, California.

About 100 residents were affected by the evacuation order, said Kenichi Haskett, a public information officer for Cal Fire. No structural damage, injuries or fatalities have been reported so far.

Winds were blowing the blaze southeast. The former Neverland Ranch and other ranches were in immediate danger Sunday, Haskett said.

Jackson bought the ranch for about $17 million in 1988 and transformed it into a private entertainment complex, complete with a zoo, a train and an amusement park that included a Ferris wheel and a 50-seat theater.

Related: This map shows where the Lake Fire is burning

He named it Neverland Ranch, after the mythical island home of Peter Pan, the boy who never grew up.

Before his death in 2009, he faced several allegations that he molested young boys, with some of his accusers alleging that they were abused at Neverland. After a 2005 trial that acquitted him, Jackson never returned to live at his ranch.

The amusement park rides were later removed and the property was rebranded the Sycamore Valley Ranch. It was sold in 2020 for $22 million to Ronald Burkle, a billionaire investor.

Scott Safechuck, a public information officer with Santa Barbara County Fire Department, said on social media that temperatures in the area reached into the 90s over the weekend and that relative humidity levels were low.

More than 750 firefighters from the U.S. Forest Service and Santa Barbara County Fire Department have been assigned to the fire, the U.S. Forest Service said. Aerial support included 10 air tankers and three helicopters, Safechuck said.

Evacuation warnings were in place north of Zaca Lake Road, east of Foxen Canyon Road and South of the Sisquoc River, according to Inciweb, the national incident information system for wildfires and all-hazard incidents. On Sunday evening, the sheriff’s office issued additional evacuation warnings to include areas north of Calzada Avenue, east of East Oak Trail Road, west of Happy Canyon, and south of the Sisquoc River.

The fire was first reported at 3:45 p.m., according to the U.S. Forest Service. A combustible mix of low relative humidity levels, gusty winds and scorching temperatures helped the fire swell to 4,000 acres by 11 p.m., the agency said. By Sunday, the blaze had ripped through at least 16,452 acres.

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​ Orange County Register 

LA-OC home prices 10 times greater than incomes, report finds

• July 8, 2024

Buying a home in Los Angeles and Orange counties costs 10 times more than what a typical family earns in a year, a new housing report shows.

That’s double what it was in 1980, when the price of a house was five times the median household income, according to Harvard’s Joint Center for Housing Studies.

The L.A.-Orange County metro area had the fourth-highest price-income ratio out of 385 U.S. metro areas listed in the report, which came out in late June.

In the Inland Empire, home prices were more than six times greater than its median income, the 37th highest price-income ratio in the nation.

San Diego County’s median home price was almost nine times greater than the median income, 11th highest.

By comparison, U.S. home prices were about five times the nation’s median household income, the report said.

The numbers were part of the Harvard center’s annual State of the Nation’s Housing report. The report compared 2023 median prices for existing single-family homes with Moody’s Analytics estimates of household incomes.

“Nationwide, home prices have jumped a shocking 47% since early 2020, … and 115 percent since 2010,” the report said. “As home prices have risen, they have grown to many multiples of household income.”

In Southern California, the median house price has jumped 45% since early 2020 and 183% since 2010, state Realtor data show.

Using numerous measures of home prices and rent, the report concluded that housing in America has been getting increasingly unaffordable.

“Both homeowners and renters are struggling with high housing costs,” the report said. “Millions of potential homebuyers have been priced out of the market by elevated home prices and interest rates. … For renters, the number with cost burdens has hit an all-time high as rents have escalated.”

More than 56% of Southern California renters are “cost burdened,” meaning they spend more than 30% of their income on rent, according to the report. Almost a third spend at least half of their income on rent.

Those issues are even more exaggerated in Southern California and in the state as a whole.

For example, an Orange County homebuyer with a 3.5% down payment would have to earn just over $420,000 a year to afford payments for a median priced home. That’s the second-highest minimum income for homeownership out of 179 metro areas.

San Jose had the nation’s highest minimum income, with buyers needing to earn more than $566,000 a year to afford a median-priced home.

San Diego County ranked fifth among U.S. metros, with a required income of almost $302,000, according to the report. In Los Angeles County, the minimum income is $253,000, while the Inland Empire’s minimum totals almost $178,500.

Home prices have been rising steadily for the past 12 years, and economists don’t expect them to drop in the near future. Despite high mortgage rates and low affordability, prices keep rising because the number of homes for sale is well below pre-pandemic levels.

Real estate data firm CoreLogic predicted that this year’s U.S. home price will be 5.7% higher than in 2023.

“Housing supply and affordability remain major challenges,” the study concluded. “The number of households in need of assistance continues to grow even as funding for subsidies fails to keep up, contributing to rising homelessness.”

​ Orange County Register 

Trucks of sand start arriving today to build up beaches at San Clemente and Capistrano Beach

• July 8, 2024

Truckloads of sand will be heading to two south Orange County beaches starting Monday, July 8, as officials try to salvage sand-starved shores at Capistrano Beach in Dana Point and North Beach in San Clemente.

The county’s southernmost coastal town will get an estimated 50,000 cubic yards of sand at North Beach, an area in San Clemente that has long suffered from coastal erosion – now, at high tide little or no sand space is left for beachgoers.

At Capistrano Beach, another 20,000 cubic yards is planned, following a similar replenishment project that brought double that amount last summer to the beach, which had also been battered by a series of strong swells in recent years.

Capistrano Beach after an infusion of sand in Dana Point, CA, on Tuesday, Oct. 3, 2023. Another similar project will bring more sand to the troubled beach from the Santa Ana River starting July 8, 2024. (Photo by Jeff Gritchen, Orange County Register/SCNG)

The sand is from a surplus stuck upstream in the Santa Ana River, natural debris that flows down the waterway but needs to be removed due to flooding concerns.

In previous years, the sand supply had been taken to landfills, but rather than let it go to waste, county officials worked to find ways to use the sand for area beaches in need.

Coastal erosion is an issue plaguing many beach towns across California, due to a number of factors including the concreting of channels, development and droughts that lock sand in place, rather than allowing it to naturally flow down stream to the coast. At the same time, big swells and high tides chomp away at beaches  – a problem that experts worry could worsen as climate change intensifies.

Replenishment projects are just one way authorities are trying to manage the coastline to keep the beaches intact – important not just for recreation but also a tourism and economic driver and protection for infrastructure.

San Clemente is also exploring various “sand retention” structures, studying ways to not just infuse sand onto the beach, but keep it in place using jetties or artificial offshore structures. There’s also been talk of a tax to help fund such beach-saving efforts. 

A recent project in partnership with the US Army Corps of Engineers added 140,000 cubic square yards of sand to the pier area, mostly filling in from the south side of the pier to T-Street. The project is only halfway complete and is expected to resume later this year.

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That project, however, doesn’t cover the northern end of town, where there’s so little sand a restroom building is at risk and lifeguards are unable to reach the area by foot, if needed, with a pedestrian bridge still closed due to a landslide last year.

The North Beach area that will be targeted with the new sand being trucked in starting Monday covers a portion of shoreline that is in the Orange County Transportation Authority’s area of concern because train tracks run oceanfront there. The agency is also proposing plans to add rocks and sand in its efforts to protect the rail line that has been closed multiple times the last couple of years because of damage and landslides.

The new sand comes following city officials declaring an emergency to get through permitting quickly, expected to cost an estimated $2 million.

“If you’ve been to North Beach lately, you will see that the beach is in pretty dire straits,” said Leslea Meyerhoff, the city’s coastal administrator, at that meeting last month.

Each truck will hold about 10 cubic yards, with about 40 loads transported a day, she said. The sand will be spread out across 1,500 feet of beach, from North Beach to the access way at Dije Court.

The goal is to “bolster the function of the sandy beach as a natural shoreline buffer to protect critical public infrastructure and existing structures,” city officials said in an announcement of the project. “North Beach is also a highly valued recreational amenity for the community and visitors.”

Some access points to the beach will be closed Mondays through Thursdays during the project, opening back up for weekend crowds. Construction equipment will be staged in the parking lot at North Beach.

For Capistrano Beach, the trucks will follow the same method used last year, with truckloads bringing the sand from the Santa Ana River to the parking lot to fill in eroded areas there and at Doheny State Beach. That project is expected to go through Aug. 30.

Plans are still underway to create a “living shoreline” in the area to help keep the sand in place, though the county is awaiting grant funding to move forward.

​ Orange County Register 

Californians rank 5th-best in US at bill paying

• July 8, 2024

Californians have been surprisingly good at paying their bills despite all the financial hurdles of Golden State life.

That’s what I found when my trusty spreadsheet looked at a decade’s worth of consumer delinquency data from the New York Fed. These stats came from Equifax credit histories tracking which debts go unpaid – mortgages, autos, credit cards and student loans.

For all the talk about the state’s sky-high cost of living impoverishing scores of residents, Californians had the nation’s fifth-best debt payment rate among the states between 2014 and 2023.

Statewide, 1.7% of combined debt balances in those categories were 90 days or more late – well below the 2.7% delinquency rate nationally. Utah had the fewest missed payments during these 10 years – just 1.4%. Next was Washington at 1.52% and Colorado and Alaska at 1.6%.

And the worst payment patterns? They were found in Mississippi, with 4.8% of debts delinquent. Then came West Virginia at 4%, Louisiana at 3.9%, Florida at 3.8%, and Oklahoma at 3.7%. Oh, and economic rival Texas was 17th-worst at 3.1% late.

Largest debts

Don’t let the good payment history obscure the fact that Californians like to borrow. Some might argue most Golden State residents need significant loans to financially survive.

The California consumer debt load equaled $70,414 per person during the past decade in these four categories. That level of per-capita loans was 45% above the U.S. norm. Only Delaware at $86,905 and Colorado at $70,466 had more.

The smallest debts were found in West Virginia at $27,766 per person, Mississippi at $29,545, and Arkansas at $31,800. And Texas was No. 29 at $42,930 and Florida was No. 26 at $44,273.

But when it came to dollars of late debts, California ranked only 23rd highest among the states – an average $1,206 per capita over the 10 years. And that’s 7% below the U.S. norm.

Tops for tardy balances? Delaware at $2,090 per capita, New Jersey at $1,901, and Maryland at $1,818. Lows? Nebraska at $712, West Virginia at $730, and North Dakota at $758.

Also, Texas was No. 15 at $1,325 and Florida was No. 6 at $1,668.

By the slice

California bill paying is by no means consistent across the four debt categories.

Mortgages: Californians have been excellent at paying their homes loans over the past decade. Tight lending restrictions helped stop missed payments and lowered foreclosure woes. Sadly, these rules also squash many homeownership dreams.

Home-loan delinquencies statewide were only 0.7% of all balances due statewide over 10 years – the ninth-lowest rate among the states and nearly half of the 1.2% national rate.

Auto loans: Californians are just OK at making car payments, nationally speaking. The state ranked No. 27 with 3.7% of 2014-23 auto loans balances delinquent. Nationally, 4.1% of car loans were late.

Student loans: California were equally mediocre the past 10 years – ranking No. 20 with 7.4% of balance late compared to 8% nationally.

Credit cards: A California weak spot, ranking eighth-worst at 8.8% late over 10 years compared to 8.1% nationally.

Bottom line

Let’s note one caveat: This data tracks only people with credit histories and the stats are averages, which can be skewed by higher-income folks.

Still, why do Californians typically pay these bills on time?

Look at some broad economic statistics for the top 10 states for bill paying compared with trends in the 10 worst late payment states. Debts aren’t missed as much in high-salary, vibrant economies.

Per capita income is more robust in the 10 best bill-paying states in 2014-23, averaging $58,568 compared to $46,540 for the worst-payers. That’s 26% higher. And California incomes were $64,815.

And pay raises are slightly larger. Incomes rose 55% in 10 years in the best bill-paying states compared to 51% in the worst-payers. California incomes grew 67%.

Plus, states with solid bill paying had noteworthy population growth: 7.2% average increases in a decade for the top 10 compared to 5.1% for the bottom 10. California didn’t fit this mold with only 1.9% population growth.

However, job growth was roughly the same 12.4% in 10 years in the best bill-paying states compared to 12.7% in the worst-paying. Yet California was up 17.7%.

But the unemployment rates were lower: 4.1% average in bill-paying’s top 10 compared to 5.1% for the bottom 10. California was an outlier at 5.9%.

Despite numerous monetary challenges Californians face, when it comes to meeting major financial obligations more than a few can “afford” the Golden State.

Jonathan Lansner is the business columnist for the Southern California News Group. He can be reached at jlansner@scng.com

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​ Orange County Register 

The ‘lawfare’ against Donald Trump is collapsing

• July 8, 2024

The U.S. Supreme Court’s decision on presidential immunity didn’t sit well at all with the current occupant of the office.

“The American people deserve to have an answer in the courts before the upcoming election,” President Joe Biden said in a televised speech. “The public has a right to know the answer about what happened on January 6th, before they are asked to vote again this year. Now because of today’s decision, that is highly, highly unlikely.”

President Biden openly said what his Justice Department and Special Counsel Jack Smith have not been willing to say directly: they need former President Donald Trump convicted in time to affect the outcome of the November election.

The timeline looks so sketchy. Trump announced on November 15, 2022, that he would run for re-election. He was indicted in Manhattan the following April, then in Florida in June, then in Washington, D.C., on August 1 and in Georgia on August 15. All the conduct occurred years earlier, but Trump was criminally charged only after he became a candidate.

The first Republican primary debate was held on August 23, just one week after the indictment in Georgia. There were eight “not Trump” hopefuls on the stage that night. By March 6, they were all out of the race.

That probably increased the pressure to get Trump convicted before the election. However,  the Constitution guarantees due process of law, the opposite of arbitrary power.

In the Washington, D.C., case, Trump moved to dismiss the indictment based on presidential immunity from prosecution for his actions in office: making public statements, communicating with various officials about investigating election fraud and organizing contingent slates of electors, all within the “outer perimeter of his official responsibilities.”

Both U.S. District Court Judge Tanya Chutkan and the D.C. Circuit Court of Appeals ruled that there is no presidential immunity, but in their rush to expedite the case, neither bothered to analyze whether the actions described in the indictment involved official acts.

That’s when the Supreme Court agreed to decide this question: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

Chief Justice John Roberts wrote the majority opinion in the case known as Trump v. United States.

“The first step is to distinguish his official from unofficial actions,” Roberts wrote. “In this case, however, no court has thus far considered how to draw that distinction, in general or with respect to the conduct alleged in particular. Despite the unprecedented nature of this case, and the very significant constitutional questions that it raises, the lower courts rendered their decisions on a highly expedited basis.”

Roberts explained the constitutional structure of separation of powers. Because the president is “the only person who alone composes a branch of government,” he is entitled to absolute immunity from criminal prosecution for actions within his “exclusive and preclusive constitutional authority.”

One example of this type of power is the pardon, which can’t be limited or reviewed by Congress or the courts. Roberts related that during and after the Civil War, “President Lincoln offered a full pardon, with restoration of property rights, to anyone who had ‘engaged in the rebellion’ but agreed to take an oath of allegiance to the Union.”

It’s true, people fighting the actual Civil War were forgiven a lot faster than the January 6th protesters, still getting indicted almost four years later.

The court held that a president is also entitled to a presumption of immunity “for his remaining official acts,” but has no immunity for “unofficial acts.”

Which is which? That determination now goes back to the district court, but Roberts offered “guidance.” The courts “may not inquire into the President’s motives” or “deem an action unofficial merely because it allegedly violates a generally applicable law.” Subjecting the president to “judicial examination” or trial on a “mere allegation” would risk intruding on the constitutional separation of powers that immunity is intended to protect.

Additionally, prosecutors may not “admit testimony or private records of the President or his advisers probing the official act itself.” Roberts wrote that “allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety,” seriously impairing “the President’s exercise of his official duties.”

Turning to the conduct described in the indictment, the court said Trump’s “threatened removal of the Acting Attorney General” is within his exclusive power to remove “executive officers of the United States whom he has appointed.” Trump is “absolutely immune from prosecution for the al­leged conduct involving his discussions with Justice De­partment officials.”

Trump is “at least presumptively immune from prosecution for his discussions with Vice President Mike Pence.” The district court will have to determine the facts “with input from the parties.”

All the allegations in the indictment will now be subject to “fact specific” analysis to sort official acts from unofficial. And when considering Trump’s words, “content, form and context” will “necessarily inform the inquiry.” No deceptive editing.

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The Supreme Court’s decision is a wrecking ball into the indictments. Already Trump’s lawyers have challenged the conviction in the New York “hush money” case. Sentencing has been postponed until September, if it even happens.

And there’s more. Justice Clarence Thomas wrote a concurring opinion explaining in detail why Attorney General Merrick Garland’s appointment of Jack Smith as special counsel is likely illegal. That question has already come up in the Florida case.

The “lawfare” against Trump is collapsing. Instead of 91 criminal convictions before the election, there may be 91 dismissed charges.

“Now the American people will have to do what the courts should have been willing to do but would not,” Biden implored the public in his televised speech. “The American people must decide whether Donald Trump’s assault on our democracy on January 6th makes him unfit for public office in the highest office in the land.”

The American people will decide. We’ll see who they think is unfit for the office.

Write Susan@SusanShelley.com and follow her on Twitter @Susan_Shelley

​ Orange County Register