For many of us, the purpose of journalism is to hold power accountable by criticizing its abuses and informing the public of the truth. Indeed, many corporate journalists and social media companies criticize state media of Official EnemiesTM as inherently untrustworthy, subordinate government mouthpieces. Yet corporate media outlets provide cover for US authoritarianism when they publish reports that suggest President Donald Trump possesses executive powers he doesn’t actually have.
A few weeks ago, corporate media published numerous reports of Trump signing an executive order that would supposedly, by reinforcing already-existing law, punish anyone who damages or attempts to damage federal monuments or statues with up to 10 years of imprisonment, as he declared on Twitter:
CBS (6/27/20) reported that Trump’s order
instructs federal law enforcement to prosecute people who damage federal monuments, and threatens to withhold federal funding from state and local governments that fail to protect their own public monuments and statues.
NBC (6/26/20) also characterized Trump’s order as protecting monuments and statues generally, citing the Veterans’ Memorials Preservation and Recognition Act of 2003:
The order would “reinforce” existing federal law, which criminalizes the destruction of federal monuments. For instance, the Veterans’ Memorials Preservation and Recognition Act of 2003 imposes a fine and up to 10 years in prison on anyone who vandalizes a monument.
That is not, in fact, what the Veterans’ Memorials law does. The legislation itself is quite brief, raising questions about whether journalists actually read it before writing about what it does:
Whoever, in a circumstance described in subsection (b), willfully injures or destroys, or attempts to injure or destroy, any structure, plaque, statue, or other monument on public property commemorating the service of any person or persons in the armed forces of the United States shall be fined under this title, imprisoned not more than 10 years, or both.
As the name suggests, the law applies only to veterans’ memorials, not to monuments and statues in general. Even though USA Today (6/26/20) reported that the Veterans Memorial Preservation Act “makes it a crime to destroy or attempt to destroy a plaque, monument or statue ‘commemorating the service’ of anyone who served in the armed forces,” the paper still somehow managed to wrongly summarize that Trump’s order “will provide long prison sentences to people who tear down or vandalize statues and other historical monuments.”
USA Today also failed to specify that the 2003 law protects memorials that commemorate service in the United States armed forces, meaning statues of Confederate generals, memorialized for fighting against the US military, are not covered.
As Business Insider (6/23/20) pointed out, the law “would not apply to many of the statues currently being targeted by protesters,” despite there being regulations that prohibit people from trespassing and committing vandalism on federal grounds. Federal law does protect federal property; non-federal statues are only covered by the Veterans Memorial Preservation Act if they are veterans’ memorials.
In addition to the Confederates, the law would also not apply to the destruction of statues and monuments dedicated to figures like Francis Scott Key and Christopher Columbus, because they were not US veterans. Nor would it apply to some statues and monuments of figures who have served in the US military, like Andrew Jackson, if those memorials are not specifically commemorating their military service. So it is false for USA Today to make blanket claims like:
Anyone who vandalizes or destroys a monument, memorial or statue already can be sentenced to prison for up to 10 years under federal law.
Reports from outlets like CNN (6/26/20) and Vox (6/27/20) commit the same errors above when they fail to point out that statues dedicated to Confederate generals like Robert E. Lee and Williams Carter Wickham aren’t protected by federal law.
Most egregiously, corporate media frequently didn’t point out (Fox, 6/30/20; Daily News, 6/30/20; Newsweek, 6/30/20) that when Trump referred to the “Monuments and Statues Act” on Twitter, he was referring to a law that doesn’t exist—there’s no law by that name. Although it’s hard to say what’s going on in Trump’s head, it seems likely that he was referring to his own executive order as the “Monuments and Statues Act”—which, if true, would be a gross usurpation of legislative authority, treating executive fiat as though it were law.
Factcheckers at ABC (6/24/20) and the Associated Press (6/29/20) both noted that the president is not a judge with the legal authority to impose sentences, and that Trump’s statements on Twitter are “redundant and irrelevant,” because they don’t change what federal law enforcement can and will do. With some exceptions, judges are usually the only party legally authorized to determine sentences for crimes, and if they decide to deliver a sentence that is less than ten years of imprisonment—or to forgo imprisonment altogether—that is their prerogative, not the president’s. Trump’s executive order is essentially a reminder that prosecutors could seek the maximum sentence of 10 years of imprisonment, but there is no requirement for judges to deliver the maximum punishment in every case.
The statue story was not the only instance when many in corporate media give their audiences the false impression that Trump has executive powers he doesn’t actually have. Earlier this year, a flurry of reports claimed that Trump’s executive order on April 28 (two days after Tyson warned of a potential “meat shortage”) compelled meat-processing plants to stay open under the Defense Production Act (DPA), despite many of their employees testing positive for Covid-19. Although there’s little evidence so far that the coronavirus is foodborne, coronavirus hotspots in the US have been linked to meat-processing plants, where workers operate in unsafe conditions even during normal times, but are even more dangerous during a pandemic (Conversation, 5/6/20). More than 90% of US meat plant workers infected with Covid-19 have been people of color (Bloomberg Law, 7/7/20).
The Associated Press’s report (4/28/20) claimed that
President Donald Trump took executive action Tuesday to order meat processing plants to stay open amid concerns over growing coronavirus cases and the impact on the nation’s food supply.
The order uses the Defense Production Act to classify meat processing as critical infrastructure to try to prevent a shortage of chicken, pork and other meat on supermarket shelves.
The AP relied on an anonymous official, who claimed that the Trump administration was trying to “prevent a situation” where the availability of meat to supermarkets could be reduced as much as 80%, and that the Department of Labor was working to “provide enhanced safety guidance for meatpacking workers.”
CNN (5/1/20) claimed that Trump’s order granted Secretary of Agriculture Sonny Perdue “the power to invoke the Defense Production Act and force companies to keep their plants humming.” ABC (4/28/20) also asserted that the order was “compelling the nation’s meatpacking plants, many of which have closed because of Covid-19 outbreaks among workers, to stay open as part of ‘critical infrastructure’ in the United States.”
But should the Trump administration’s word be taken at face value? Legal scholar Daniel Hemel (Washington Post, 5/4/20) pointed out that Trump’s executive order “does not actually order meat-processing plants to reopen. Indeed, it does not order the meat-processing plants to do anything.” Hemel explained that the order asserts that meat and poultry are “critical and strategic materials” under Section 101(b) of the DPA, and delegates the presidents’ DPA authority to Agriculture Secretary Sonny Perdue, as well as prioritizing federal contracts over “performance of any other contracts or orders.” However, the order itself does not compel any action, and even if Perdue were to order plants to reopen under the authority of the DPA, it would neither shield the plants from liability for Covid-19 exposure, nor require workers to return to work.
Comedian Hasan Minhaj’s show Patriot Act (6/1/20) criticized cable news coverage for falsely reporting on the content of Trump’s executive order—a situation that, again, suggests journalists either hadn’t read or had misunderstood it, despite its brevity. Minhaj pointed out that while the Trump administration ostensibly claimed to have invoked the DPA to remove a potential “bottleneck” in meat supply, in news conferences on the day he signed it, Trump repeatedly emphasized shielding meat suppliers from liability for their workers.
The view that Trump’s executive order was designed to give meat suppliers’ cover to stay open at the expense of their workers’ health—rather than any concern over a “bottleneck” in meat production—seems to be borne out by a Smithfield plant in Nebraska getting away with forcing workers to return to the plant on April 28, after it had closed on April 27 for health concerns (NBC, 5/6/20). It’s also hard to take the Trump administration’s feigned concerns for worker safety seriously when his administration is relaxing OSHA standards, and with Republican governors blocking unemployment insurance for workers refusing to risk their lives (Payday Report, 4/30/20).
Hemel also pointed out that Trump’s executive order doesn’t shield corporations like Tyson and Smithfield from lawsuits arising from Covid-19 exposures either, and made the astute observation that bad media coverage can actually turn a “paper-thin proclamation with limited legal effect” into a “death warrant”:
The president’s assertions of legal authority, like his off-the-cuff medical advice, often have little basis in reality. But our responses to the president’s statements do matter, because we can transform his imaginations into facts on the ground. If employees return to work at meat-processing plants because of the president’s order, then for all practical purposes, he does have the power that he asserts, even though no statute gives him that power, and the order drafted by his lawyers doesn’t compel anyone in a factory to do anything.
Far from serving to hold power accountable in the US, such credulous coverage functions more to legitimize abuses of power. Especially when many of these same outlets are acknowledging Trump’s authoritarian dispositions, it’s crucial that media report on Trump’s executive orders accurately—and not grant Trump powers that he doesn’t actually possess.