8. Heroes and Villains of the Modern Era: The Second Obama Administration — Social Movements, Constitutional Debates, and Political Scandals (2013–2016)

My Name is Elijah Cummings: From a Baltimore Swimming Pool to U.S. Congress

In the summer of 1962, when I was eleven years old, I went with other Black children to integrate the public swimming pool at Riverside Park in Baltimore. White adults shouted at us, and a bottle struck me in the face. We kept coming back. Now, consider what those adults were asking a child to believe. My father could go to work, pay his taxes, and help support that city pool, yet his son had no business swimming in it. Even at eleven, I understood that I had as much right to that water as any other boy in Baltimore.

My Mother’s Prayer Meetings

I was born in Baltimore on January 18, 1951. My parents had been sharecroppers in South Carolina and had come north hoping their children would enjoy opportunities they had been denied. My mother had gone only as far as the fourth grade. She held prayer meetings in our basement that eventually grew into a church. My father worked long hours doing physical labor and expected every one of us to show up for school. In 1973, I graduated from Howard University. Three years later, I earned my law degree from the University of Maryland, in the very city where grown people had once tried to chase me away from a swimming pool.

The People Who Sent Me

I practiced law in Baltimore and served in the Maryland House of Delegates, where I became the first Black person chosen as speaker pro tempore. That meant I could preside over the House when the speaker was away. In 1996, the people of Maryland’s Seventh District elected me, a Democrat, to the United States Congress. I put my understanding of that job into words on the House floor: “The true measure of our union is the state of the least among us.” A congressman could read an economic report in Washington and come home to Baltimore to find a family still struggling. That family had a claim on his attention, too.

What I Carried Into the Hearing Room

During President Obama’s second term, I was the senior Democrat at hearings about the IRS and on the House committee investigating the deaths of four Americans in Benghazi. Families deserved an accounting. So did citizens whose organizations had been singled out for extra scrutiny. In 2019, I became chairman of the House Oversight Committee. That same year, speaking about voting rights, I told my colleagues what my mother had asked of me near the end of her life: “Do not let them take our votes away from us.” She had lived long enough to see her son elected to Congress. What she wanted him to protect was somebody else’s chance to vote.

The IRS Under Oath — Why Were Tea Party Groups Flagged? - Told by Gwen Ifill

What could a tax examiner learn from the words “Tea Party” at the top of an application? Something about the applicants’ politics, perhaps. Very little about how they spent their money. Yet beginning in 2010, IRS employees in Cincinnati used those words, along with names such as “Patriots,” to send applications for extra review. By May 2013, a federal inspector general had documented the practice, and Congress wanted answers under oath. As a journalist, I would start with the question those citizens had every right to ask: What had their group actually done to deserve a longer wait?

The Question the IRS Should Have Asked

Many of the groups sought recognition as social welfare organizations under section 501(c)(4) of the tax code. They could hold rallies, criticize federal spending, and urge Congress to cut taxes. They could even engage in some election campaigning, provided it was not their primary activity. An examiner therefore had reason to ask how a group spent its time and money. There is a real difference between renting a hall to debate the national debt and buying advertisements to elect a candidate. IRS employees needed to identify applications that raised that second issue. They used political names and policy positions as shortcuts, and supervisors allowed inappropriate criteria to remain in use for more than eighteen months.

What the Delay Cost

At the hearings, lawmakers had more than a list of search terms in front of them. Of 296 applications the auditors tracked, 160 were still open in December 2012. Some applicants had waited more than three years, through two election cycles. Some were asked for donor information the inspector general found unnecessary. Tea Party supporters retained their constitutional rights to speak, assemble, and petition the government throughout that wait. What the IRS took from affected applicants was a timely, impartial review. And when the agency that collects your taxes asks who contributed to a group that criticizes it, a neighbor has a practical reason to hesitate before putting a name on the next contribution.

Would the Same Rule Apply to Black Lives Matter?

Consider two groups of neighbors. One organizes a Tea Party rally about federal debt. The other organizes a Black Lives Matter march about policing. Both have the freedom to protest before either files a tax form. If both later seek recognition under the same tax provision, both deserve the same questions about their activities and the same prompt attention to their answers. If their applications meet the law, both should receive recognition. Equal treatment need not mean that every file closes on the same day. It does mean that neither group should lose an election season waiting for an examiner to get past the name on the envelope.

Flint’s Crisis: Who Had the Power to Protect Drinking Water - Told by Cummings

In March 2016, our House Oversight Committee watched a piece of local television from Flint, Michigan. The recording showed Mayor Dayne Walling drinking tap water on camera the previous July. By then, residents had spent more than a year raising concerns about what came out of their faucets. Consider what that picture meant to a parent in Flint. If the mayor was willing to drink the water on television, would you use it that evening to mix your baby’s formula? I was the senior Democrat on the committee, and Walling was a Democrat, too. A fair hearing required us to ask what evidence supported the reassurance he had given those families.

Who Controlled the Tap?

In April 2014, Flint stopped buying treated water from Detroit and began drawing from the Flint River as a temporary, cost-saving measure. The city was under a state-appointed emergency manager who exercised powers ordinarily held by elected local officials. Michigan’s environmental regulators allowed the switch to go forward without treatment to control corrosion. As the new water flowed through the system, lead from service lines and plumbing entered household taps. Residents complained about discolored, foul-smelling water. Lead itself has no telltale smell or color. Even a clear glass like the mayor’s could tell a family nothing about the lead level at home.

What Local Democrats Could Do

In March 2015, Flint’s City Council voted to return to Detroit’s water system. The emergency manager rejected the move. That vote matters because it shows both what elected officials tried to do and where their authority ended. But the mayor still had a microphone. He could have used that television appearance to explain what remained uncertain, call for independent testing, and put residents who had raised the alarm before the cameras. Instead, families saw him drink. It took residents working with researchers to document contamination across the city. A Flint pediatrician, Dr. Mona Hanna-Attisha, then presented evidence that the proportion of young children with elevated blood lead levels had risen after the switch. Flint returned to Detroit-supplied water in October 2015. The damaged pipes continued to put families at risk.

The Seven Months Washington Had to Explain

I pressed Republican Governor Rick Snyder about the failures of the state he led but truthfully, the Mayor, who potentially tried to cover up the water situation had the majority of the fault. Republicans on our committee pressed an equally concrete question about the Environmental Protection Agency under President Barack Obama. By June 2015, an EPA specialist had documented high lead readings at a Flint home and warned about the missing corrosion treatment. The agency’s own inspector general later concluded that the EPA already had enough information and legal authority that June to issue an emergency order. On October 16, 2015, the city of Flint reconnected to Detroit water. The EPA issued one emergency order the next year on January 21, 2016, seven months after the hearings. For families still depending on those pipes, that interval is the hardest fact to explain. A local council lacked the votes’ practical force to reconnect with its city. A federal agency possessed emergency power and waited to use it. Those of us who demanded answers from Michigan owed Flint the same persistence when the questions reached the Democratic administration in Washington.

My Name is Ruth Bader Ginsburg: A Life in the Law

I was born in Brooklyn, New York, on March 15, 1933. My mother, Celia, wanted me to have an education and the means to support myself. She also taught me that losing my temper would seldom help me persuade anyone. She died just before I graduated from high school. Years later, when a lawyer stood before me in the Supreme Court and made an argument I considered quite wrong, I had occasion to remember her advice. A carefully framed question could do more than a sharp reply.

Nine Women at Harvard

At Cornell University, I met Martin Ginsburg. Marty thought it perfectly natural that I should have a career as demanding as his own. In 1956, I entered Harvard Law School as one of nine women in a class of more than five hundred. Our daughter, Jane, was still a baby. When Marty developed cancer, his classmates shared their notes, and I typed his papers while keeping up with my own courses. He recovered. I finished law school at Columbia, tied for first in my class, and discovered that a woman with a young child could have excellent grades and considerable difficulty getting a job.

A Father Named Stephen

I became a law professor and helped found the American Civil Liberties Union’s Women’s Rights Project. One of the people I represented was Stephen Wiesenfeld. His wife, Paula, a teacher who paid Social Security taxes, died giving birth to their son, Jason. Stephen wanted to care for Jason himself. Federal law provided a benefit for a widowed mother in his circumstances. A widowed father could receive none. Consider what that meant for this family. Paula’s earnings bought less protection for her child than a man’s earnings would have bought for his. In 1975, the Supreme Court ruled unanimously in Stephen’s favor.

The Work of a Dissent

After thirteen years as a federal appeals judge, I joined the Supreme Court in 1993, the second woman to serve there. Sometimes I had the responsibility of writing for the Court. Sometimes I had to explain why I thought my colleagues had made a mistake. In 2013, in Shelby County v. Holder, the majority struck down the formula Congress used to decide which places needed federal approval before changing their voting rules. Fewer discriminatory changes were getting through. To my mind, that was evidence that the safeguard was doing its job. I compared setting it aside to “throwing away your umbrella in a rainstorm because you are not getting wet.” I wanted a student reading our opinions years later to understand exactly where we disagreed.

My Name is Antonin Scalia: What Does the Constitution Say?

My name is Antonin Scalia, though my friends called me Nino. I was born in Trenton, New Jersey, on March 11, 1936, and grew up in Queens, New York. My mother taught elementary school. My father came from Sicily, earned a doctorate, and became a professor of Romance languages. People sometimes told the story of our family as though the remarkable thing was that an immigrant’s son had reached the Supreme Court. I thought they ought to take a closer look at my father. By the time I came along, he had done the harder part.

From Cleveland to the Court

I graduated first in my class at Georgetown, studied law at Harvard, and married Maureen McCarthy in 1960. We raised nine children. I practiced law in Cleveland, taught law students, and worked in the Justice Department before becoming a federal appeals judge. In 1986, President Ronald Reagan nominated me to the Supreme Court. The Senate confirmed me 98 to 0, and I became its first Italian American justice. During arguments I asked plenty of questions. If a lawyer proposed a rule that would let his client win, I wanted to know what would happen when the next fellow came along and asked us to apply the very same rule.

The Flag Burner Who Got My Vote

Take Gregory Lee Johnson. He burned an American flag during a political demonstration, and Texas convicted him. I found his conduct thoroughly objectionable. Now suppose that were enough to settle the case. What protection would the First Amendment give a protester whose message offended the next judge? In Texas v. Johnson in 1989, I joined the five justices who voted to overturn the conviction. I believed the Constitution should be read according to the public meaning of its words when they were adopted. Lawyers call that originalism. On that occasion, it meant that a man who had burned a flag was entitled to my vote.

A Dissent and a Night at the Opera

In 2015, the Court held in Obergefell v. Hodges that the Fourteenth Amendment required states to license and recognize marriages between two people of the same sex. I dissented. I believed the Constitution left that decision to the people of each state. My friend Ruth Bader Ginsburg joined the majority. People found our friendship puzzling. Ruth understood my arguments well enough to tell me exactly where she thought they failed, and she had excellent taste in opera. We even appeared together as extras in a performance of Ariadne auf Naxos. For two justices accustomed to having the last word, we did quite well in roles that required neither of us to say a thing.

Who Must Get Permission to Change Voting Rules? - Told by Scalia and Ginsburg

Ruth Bader Ginsburg — In 2008, the city of Calera, Alabama, redrew its city council districts. On the old map, Black voters made up a majority in one district. On the new map, they held a majority in none. Because Alabama was covered by the Voting Rights Act, Calera needed federal approval before it could use the new lines. The Justice Department objected. Calera held the election anyway, and the Black councilman who had represented that district lost his seat. Federal officials went to court, and the city restored the district. Five years later, when Shelby County challenged the law, I thought my colleagues ought to remember what had happened in Calera. It was a city in that very county.

Antonin Scalia — And that brings us to the question Shelby County put before us. Suppose two towns propose to move a polling place from a school gymnasium to the library across the street. One town may make the change on its own. The other must first obtain approval from the United States attorney general or a federal court in Washington, D.C. That requirement was called preclearance. It applied even to an innocent change. Congress had good reason to draw that distinction in 1965. What we had to decide in 2013 was whether it still had good reason to draw the line in the same place.

Which Evidence Should Count?

Ruth Bader Ginsburg — Consider why Congress required advance approval in the first place. For decades, Black citizens could spend years in court defeating one barrier to voting, only to find a new one waiting at the registration desk. Preclearance put the responsibility on election officials to show that a proposed change would meet the law. When Congress renewed that protection in 2006, it had gathered thousands of pages of testimony and evidence. The Fifteenth Amendment expressly gives Congress the power to protect citizens against racial discrimination in voting. I believed Congress had done the homework that responsibility required.

Antonin Scalia — Congress certainly held hearings. My difficulty was with the formula it renewed for another twenty-five years. Whether a place needed permission still depended on voting tests and registration or turnout figures from the 1960s and early 1970s. By 2013, literacy tests had long been illegal nationwide, and Black voter turnout in several originally covered states had surpassed white turnout. If present conditions justified singling out particular states, Congress could identify those conditions and write a formula to fit them. On June 25, 2013, I joined Chief Justice John Roberts’s opinion striking down the old formula. The vote was five to four.

The Price of Waiting Until After an Election

Ruth Bader Ginsburg — Those turnout figures mattered to me, too. Where we differed was over what they proved. If a safeguard helped citizens reach the ballot box, their arrival was a peculiar reason to set the safeguard aside. In my dissent, I compared that reasoning to “throwing away your umbrella in a rainstorm because you are not getting wet.” Remember the councilman in Calera. A lawsuit can restore a district, but voters who have already cast their ballots cannot go back to that election morning and vote under a fair map.

Antonin Scalia — And the distinction in our ruling matters just as much. Section 2 of the Voting Rights Act still allowed voters across the country to challenge discriminatory rules in court. We also left Congress free to adopt an updated formula for advance approval. What changed immediately was who had to act first. Places covered solely by the old formula could put new rules into effect on their own. A voter or the Justice Department could then bring a challenge. Ruth saw a danger in making citizens take that first step again. I believed the Constitution required Congress to justify, with current evidence, which states had to ask permission.

Hobby Lobby: Can a Business Claim an Exemption? - Told by Scalia and Ginsburg

A Craft Store Closed on Sundays

Antonin Scalia — Walk up to a Hobby Lobby on a Sunday and you will find the doors locked. The Green family, who owned the craft-store chain, gave up a day’s business each week to honor the Christian Sabbath. Their faith also shaped a decision about employee health insurance. Under federal rules implementing the Affordable Care Act, their company’s health plan had to cover twenty methods of contraception without charging employees an extra fee. The Greens accepted sixteen. They objected to four that they believed could act after fertilization. They asked whether federal law could compel them to include those four in the plan.

Ruth Bader Ginsburg — Now consider the same question from the checkout counter. A woman who takes a job at Hobby Lobby agrees to work for the Greens. She may have religious convictions quite different from theirs. Whether to use a particular contraceptive is a decision she makes with her doctor. The Greens believed that providing insurance made them participants in that decision. I saw several independent steps between an employer’s contribution to a health plan and an employee’s choice at the pharmacy. Whose convictions should govern what her insurance covers?

What Congress Required the Government to Prove

Antonin Scalia — Congress had given us a rule in the Religious Freedom Restoration Act of 1993. When the federal government substantially burdens a person’s exercise of religion, it must show that its policy serves a compelling interest and that it has chosen the least restrictive means of achieving it. The Greens faced heavy financial penalties if they kept their health plan and followed their beliefs. I joined Justice Samuel Alito’s conclusion that this protection extended to a closely held corporation like theirs. Why should a family lose that protection when it incorporates the business it still owns and runs?

Ruth Bader Ginsburg — Incorporation matters, Nino. It gives the company a legal identity separate from the family. And this company employed thousands of people who came to work to earn a living. Our religious-exemption cases had long considered what granting an exemption would mean for others. For an employee whose doctor recommended an intrauterine device, one of the four disputed methods, the upfront cost could be substantial. I doubted Congress intended a family’s religious objection to determine whether that employee received a health benefit federal rules promised her.

The Five-to-Four Decision

Antonin Scalia — On June 30, 2014, the Court ruled five to four for Hobby Lobby and the other family businesses that challenged the requirement. One fact weighed heavily with us. The government already had an arrangement for certain religious nonprofits under which employees could receive separate contraceptive coverage. That offered a way to protect access while relieving the owners of the obligation they opposed. Even assuming the government’s interest was compelling, it had failed to show why it had to use this particular means.

Ruth Bader Ginsburg — I dissented because an accommodation has to work for the person on the other side of it, too. I also wanted to know how the Court would decide the next case. What if an employer sincerely objected to insurance coverage for blood transfusions? The majority said other claims would have to be judged individually. For the Greens, the ruling answered a question of conscience. For the justices who would hear those future cases, it left a difficult question open. When the employer receives an exemption, who bears its cost?

Planned Parenthood Videos — Recordings Established? - Told by Elijah Cummings

In July 2015, Americans could sit at their kitchen tables and watch a conversation that had taken place at a restaurant. Activists from the Center for Medical Progress had posed as representatives of a company interested in obtaining fetal tissue for research. Their hidden camera recorded Dr. Deborah Nucatola, a senior Planned Parenthood medical official, discussing how physicians could preserve particular organs during the abortion of a child. She also discussed payments of roughly $30 to $100 per specimen. When Planned Parenthood president Cecile Richards appeared before our House Oversight Committee that September, I was the senior Democrat on the panel. Members had two questions to sort out. What did the conversation reveal about medical judgment, and what did it prove about money?

Whose Interests Came First?

One troubling part of the recording concerned a decision made in the procedure room. Nucatola described how a physician’s technique could affect which organs remained intact. That raised an ethical question a patient had every reason to ask: Could a researcher’s request influence how a doctor performed my abortion? Richards apologized for the tone in which her colleague had spoken. Members of Congress pressed beyond tone to conduct. The recording established that a senior official understood how to preserve tissue researchers wanted and was willing to discuss doing so. To establish that a physician had compromised a particular patient’s care or obtained tissue without her consent, investigators still needed evidence about that patient and that procedure.

What Would Make a Payment Illegal?

Federal law made it a crime to knowingly transfer human fetal tissue for something of value when the transfer affected interstate commerce. It expressly allowed reasonable payments for expenses such as processing, storing, and transporting the tissue. That made the figure on the recording important, but a dollar amount alone could not settle the case. Nucatola described the payments as reimbursement. A congressional investigator had every reason to test that explanation against the books. If a clinic received $100 for a specimen, what expense had it incurred? Who calculated the amount? Where was the record showing how the clinic arrived at it?

The Records Four Affiliates Could Not Produce

In October 2015, Planned Parenthood announced that its affiliates would stop accepting reimbursement for fetal tissue sales. That changed the policy going forward. It left the earlier payments open to examination. When Senate investigators asked for supporting records, Planned Parenthood’s attorneys acknowledged that four affiliates either had not prepared or could not locate the cost analyses or independent audit opinions called for by the organization’s own procedures. In December 2016, Senate Judiciary Committee Chairman Chuck Grassley referred Planned Parenthood, several affiliates, and tissue-procurement companies to federal authorities for investigation. A referral asks prosecutors to investigate possible crimes. It carries no verdict. The recordings established what officials said about organs and payments. The Senate inquiry established a separate failure of accountability: when Congress asked four affiliates to substantiate their practices with the records their own organization expected, they could not produce them.

My Name is Gwen Ifill: A Reporter’s Life

I was nine years old when I knew I wanted to be a journalist. I was born in New York City in 1955, the daughter of a minister, and in our house everybody watched the evening news. When the cameras showed civil rights marchers, my father could tell us what it felt like to walk in one of those marches himself. That interested me. The man on television had part of the story, and the man sitting beside me had another. How many other people had something to tell me if I thought to ask?

Getting My Name in the Paper

While I was a student at Simmons College in Boston, I landed a summer internship at the Boston Herald American. Someone left a racist note for me in the newsroom. I stayed, and the paper later hired me. My early assignments ranged from food to the Boston schools. In Baltimore I covered politics, and at The Washington Post I followed presidential campaigns. By the time I covered Bill Clinton’s White House for The New York Times, I had learned something handy about elected officials. Whether you were talking to someone at city hall or at the White House, it paid to know the answer they had given you last week.

When Queen Latifah Played Me

I moved to NBC News in 1994, and in 1999 I became the first Black woman to moderate Washington Week. On Friday evenings, I sat down with reporters who had spent the week chasing stories and asked them what they had found. I also moderated the vice-presidential debates in 2004 and 2008. After the second one, Queen Latifah played me on Saturday Night Live. That earned me a little standing with young people who had somehow managed to miss all those Friday evenings on public television.

Taking the Questions to Ferguson and Charleston

In 2013, Judy Woodruff and I became co-anchors of the PBS NewsHour, the first two women to anchor a national nightly television newscast together. The following year, after a police officer shot and killed Michael Brown, I moderated a public conversation in Missouri. In 2015, after nine Black worshippers were murdered at Emanuel AME Church, I moderated another in Charleston. One of the people who spoke was the brother of Cynthia Graham Hurd, a librarian killed at the church. Viewers already knew the number nine. Her brother could tell them who Cynthia was. Sometimes the most important thing I could do with a microphone was give somebody else time to speak.

Ferguson — One Shooting, Two Federal Investigations - Told by Gwen Ifill

When I moderated a PBS town hall near Ferguson, Missouri, on September 21, 2014, six weeks had passed since Officer Darren Wilson shot and killed Michael Brown, an unarmed Black eighteen-year-old. Demonstrators had taken to the streets, and Americans far beyond Missouri knew Brown’s name. As a reporter, I heard two questions in the national debate. What happened in the street between Brown and Wilson on August 9? And why did so many Black residents already distrust the police before that afternoon? A witness who saw the shooting might help answer the first. A resident who had spent years dealing with the municipal court might tell us something important about the second. Federal investigators pursued both questions.

What Could Prosecutors Prove About the Shooting?

Investigators examined autopsy findings, bloodstains, bullet trajectories, and witness accounts. The evidence supported Wilson’s account of a struggle at his police vehicle. The harder question concerned the final shots, after Brown had moved away and turned around. Some witnesses said he had raised his hands in surrender. Others described him moving toward Wilson. Investigators found that accounts of a clear surrender conflicted with physical evidence or contained serious inconsistencies. To bring a federal civil rights case, prosecutors needed evidence sufficient to prove beyond a reasonable doubt that Wilson had willfully used unlawful force. On March 4, 2015, the Justice Department explained why the evidence could not sustain that charge.

How Two Parking Tickets Lasted Seven Years

That same day, federal investigators released a second report. One woman’s experience helps explain what they found. In 2007, she received two parking tickets that carried a total fine of $151. She struggled financially and experienced periods of homelessness. Missed court appearances and payments brought additional charges. By December 2014, she had paid $550 and still owed $541. Investigators found that Ferguson officials pressed police and court staff to generate revenue. They also examined whom officers stopped and searched. Black drivers were more than twice as likely as white drivers to be searched during a stop, even though officers found contraband less often when they searched Black drivers. Alongside city records and interviews, that evidence helped establish a pattern of unconstitutional policing and racial discrimination.

Why Both Findings Belong in the Story

Imagine reading only one of the headlines that morning. If you read that Wilson would face no federal charges, you might miss what investigators had documented about the city he served. If you read that Ferguson police had violated residents’ constitutional rights, you might assume investigators had proved what happened in the final seconds of Brown’s life. Each conclusion had evidence behind it, and each answered a different question. That distinction mattered to the people in our town hall. Residents could have sound reasons to distrust their police department. A particular officer accused of a crime was still entitled to have his conduct judged on the evidence from that afternoon.

Charleston — After Nine Worshippers Are Murdered - Told by Gwen Ifill

At a town hall in Charleston, South Carolina, I asked Willi Glee about the night he left Bible study early. It was June 17, 2015. At Emanuel African Methodist Episcopal Church, known to generations of Black Charlestonians as Mother Emanuel, the worshippers had welcomed a young white stranger who sat with them for nearly an hour. After Glee left, that visitor, Dylann Roof, opened fire. He murdered nine Black worshippers because of their race. I asked Glee whether he thought about how close he had come to being killed. He told me his mind had gone somewhere else. He wanted to know what American children were learning about the history that had brought a young man to their church with such hatred. I had asked about one evening. His answer reached back generations.

The People Charleston Knew

Among those who should have come home that Wednesday was Cynthia Graham Hurd. For thirty-one years, she had worked for the Charleston County Public Library. A student who needed help finding a reference might also have known her from the College of Charleston, where she held a second library job. Reverend Clementa Pinckney served both as Emanuel’s pastor and as a South Carolina state senator. Ethel Lance had spent more than thirty years caring for the church itself. Two days after the murders, her daughter, Nadine Collier, spoke at Roof’s bond hearing. She told him she would never hold her mother again. Then she offered him her forgiveness. It was a remarkable thing for a daughter to say. It was also hers alone to decide.

When the Congregation Joined In

On June 26, President Barack Obama came to Charleston to deliver the eulogy for Reverend Pinckney. Toward the end, he paused and began singing “Amazing Grace.” For a moment his was the only voice. Then the people gathered before him took up the hymn. Less than two weeks later, South Carolina removed the Confederate battle flag from its State House grounds. For years, people had argued over what that flag represented and whether it belonged there. At our town hall, Cynthia Hurd’s brother, Malcolm Graham, put the timing in painful terms. In his judgment, the flag would still have been flying if his sister and the other eight had lived.

A Question After the Funerals

When I turned to Reverend Norvel Goff, Emanuel’s interim pastor, I asked, “How is the flock doing?” People around the world had shown the congregation kindness, he said. The healing was still going on, one day at a time. Goff, Glee, and Graham had come to the same gathering with different things they wanted their neighbors to hear. One spoke about tending a congregation. One wanted an honest account of history. One wanted the country to consider what his sister’s death had cost. A reporter could ask how Charleston was doing. To hear the answer, you had to leave room for all three.

HealthCare.gov — Who Knew the Website Might Fail? - Told by Gwen Ifill

“Please wait.” Those were two words I reported on the PBS NewsHour on October 1, 2013, the day the new health insurance marketplaces opened. Americans had spent three years hearing arguments over the Affordable Care Act, widely called Obamacare. Now a family could finally ask a question that mattered at its own kitchen table: What would insurance cost us each month? In states using the federal marketplace, many people who opened HealthCare.gov could not even create an account, much less compare prices. For a reporter, the distinction mattered. A crowd at the door could explain a wait. It could not explain why the government had opened the door without knowing how many people could get through it.

The Warning That Arrived in April

Months before the public encountered that screen, officials at the Centers for Medicare & Medicaid Services, the federal agency responsible for the marketplace, had concerns serious enough to put in writing. In April 2013, they warned a major contractor about the quality of its work and its response to the agency’s directions. The agency had also postponed a key review of the marketplace’s readiness from March until September. That left only weeks before opening day. Consider what had to happen after a parent typed in a name: one system had to verify identity, another had to help determine eligibility for financial assistance, and enrollment information had to reach the insurer. Testing each piece could tell officials whether it worked on its own. A family needed to know whether the pieces worked together.

What Reached the President?

On October 30, Health and Human Services Secretary Kathleen Sebelius went before Congress and apologized. That evening on the NewsHour, I reported on a memo showing that officials had raised concerns about inadequate security testing before launch. The memo documented a warning. It did not establish that anyone had stolen an applicant’s information. Nor did a warning inside an agency establish what the president personally knew. On November 14, Barack Obama said, “I was not informed directly that the website would not be working the way it was supposed to.” His answer left an important question for his administration. With contractors receiving written warnings and a major review months overdue, who had been responsible for giving the president a reliable answer about opening day?

What the Repair Could Tell Us

Federal officials brought in more technical help, identified failures, and repaired the site. By April 19, 2014, about 5.4 million people had selected a plan through the federal marketplace. That count included people who had yet to pay their first premium. The improvement was real, and so was the disappointment of October. Officials had months to question contractors, test the system, and tell Americans what to expect. Families got their first clear warning only after they sat down to apply. They had come looking for the price of health insurance. Instead, they helped Washington discover which parts of its website worked.

Same-Sex Marriage — Who Decides? - Told by Scalia and Ginsburg

Antonin Scalia — In August 2008, at a church forum in California, Pastor Rick Warren asked presidential candidate Barack Obama to define marriage. Obama answered, “I believe that marriage is the union between a man and a woman.” He described marriage as sacred to him as a Christian. He also supported civil unions and believed gay partners should be able to visit each other in the hospital. Here was a candidate drawing a distinction that mattered to many voters. He supported legal protections for same-sex couples while reserving the word marriage for a husband and wife.

Ruth Bader Ginsburg — Four years later, the same man gave a different answer. On May 9, 2012, President Obama told ABC’s Robin Roberts, “I think same-sex couples should be able to get married.” He spoke of staff members raising children with same-sex partners and of Americans serving in uniform who wanted to marry. Those were his reasons for changing his public position. His announcement, however, could not issue a marriage license or require one state to recognize a marriage performed in another. An Ohio couple would soon show us exactly why that distinction mattered.

A Wedding on an Airport Tarmac

Antonin Scalia — James Obergefell and John Arthur had been together for more than twenty years. Arthur was dying of ALS, a disease that gradually took away his ability to move. In July 2013, they flew from Ohio to Maryland, where they could legally marry. Arthur could scarcely move, so they exchanged vows aboard the plane on the airport tarmac. Back home, Ohio would not recognize their marriage. When Arthur died three months later, the dispute concerned a single line on his death certificate. Could Ohio refuse to record Obergefell as his surviving spouse?

Ruth Bader Ginsburg — That line tells you something about civil marriage. The state records who belongs to a family, and its answer follows people through births, illnesses, and deaths. Obergefell’s case reached us alongside those of other couples. Some wanted their home states to recognize their marriages. Others wanted permission to marry where they lived. I joined Justice Anthony Kennedy’s opinion because the Fourteenth Amendment protects both liberty and equal treatment under the law. We concluded that those promises extend to a same-sex couple making the same commitment the state honors when a man and a woman marry.

Five Votes and a Dissent

Antonin Scalia — My objection concerned who had authority to settle the matter. When Americans adopted the Fourteenth Amendment in 1868, every state understood marriage as the union of a man and a woman. By 2015, citizens in several states had changed their marriage laws through elections and legislation. Other citizens were still arguing the question. I believed they had the constitutional authority to continue that debate and decide it for themselves. In my dissent, I asked what entitled five unelected justices to settle it for the entire country.

Ruth Bader Ginsburg — And I would ask what Obergefell was supposed to do while that debate continued. He and Arthur had already spent two decades together. They had only three months as a married couple. On June 26, 2015, our Court ruled five to four in Obergefell v. Hodges that every state must license marriages between two people of the same sex and recognize such marriages lawfully performed elsewhere. For the country, it was a constitutional ruling. For James Obergefell, it answered the question he had carried from that Maryland tarmac back home to Ohio. In the eyes of his own state, he was John Arthur’s surviving husband.

The School Bathroom Debate — Who Interprets Title IX? - Told by Antonin Scalia

For about seven weeks in the fall of 2014, Gavin Grimm used the boys’ restroom at Gloucester High School in Virginia with the principal’s permission. Grimm was a transgender boy. After community members objected, the school board adopted a policy assigning students to the boys’ or girls’ restrooms according to what the board called biological gender. It offered an alternative of private facilities. Board members said students were entitled to privacy. Grimm said being directed to a separate restroom singled him out each time he needed to use it. In 2015, he sued. Now a federal judge had to answer a question the school board’s vote could not settle: What did federal law require?

What Congress Wrote and What the Department Added

I would ask a student to place two documents side by side. The first is Title IX, the law Congress passed in 1972. It bars schools receiving federal financial assistance from discriminating “on the basis of sex.” The second is a federal regulation allowing schools to provide separate toilet facilities on the basis of sex so long as the facilities are comparable. Both sides could read those words. Their disagreement arose over how the school should assign a transgender student to one of the two facilities. In a January 2015 letter, an Education Department official said schools generally had to treat transgender students consistently with their gender identity. How much authority did that letter carry?

Why Two Judges Read the Rule One Way and a Third Disagreed

On April 19, 2016, two judges on the Fourth Circuit Court of Appeals concluded that the restroom regulation left the question unresolved. Under the legal rules courts followed at the time, that ambiguity mattered: a court generally gave considerable weight to an agency’s reasonable interpretation of its own regulation. The majority therefore deferred to the department and allowed Grimm’s Title IX claim to proceed. Judge Paul Niemeyer dissented. He believed the regulation’s language already authorized schools to separate restrooms by biological sex to protect bodily privacy. In his reading, the department was changing the rule through a letter. A new rule, he argued, required a public process that gave citizens a chance to respond.

What the Supreme Court Left Open

In May 2016, the Obama administration sent schools nationwide guidance adopting its interpretation. The Supreme Court agreed that autumn to hear the Gloucester case. Before oral argument, the incoming Trump administration withdrew the guidance. In March 2017, the justices set aside the appeals ruling and returned the case for reconsideration. Notice what a change of presidents could do here. It could change the federal government’s instructions to schools. It could not change the words Congress enacted in 1972. The question that mattered to Grimm each school day still required a judicial answer about those words.

Apple v. FBI: Can Government Make a Company Unlock a Phone? - Told by Scalia

After two attackers murdered fourteen people in San Bernardino, California, on December 2, 2015, investigators recovered an iPhone 5c used by one of the attackers, Syed Rizwan Farook. San Bernardino County, his employer, owned the phone and consented to a search. The FBI also had a warrant. Ordinarily, a student might expect the next sentence to tell us what the agents found. But a judge’s signature supplied legal permission. It could not supply Farook’s passcode. Guessing carried a risk: if the phone’s automatic-erase feature was enabled, ten failed attempts could make its data permanently inaccessible.

What the Judge Ordered Apple to Do

The government asked a federal magistrate judge to order Apple to help. Read the order carefully. It called for a way to disable automatic erasure, let investigators submit guesses electronically, and remove the added delays between attempts. The FBI would still have to discover the passcode. What it wanted from Apple was software that would let a computer keep trying without destroying the evidence. The government proposed that Apple could retain custody of the software and tie it to that particular phone. For investigators trying to learn whether anyone else had helped the attackers, that limit mattered. They could identify the device, its owner, the crime, and the evidence they hoped to find.

Could a Court Compel an Invention?

Here is where I would open the law book. The government relied on the All Writs Act, a law with roots in 1789 that gives federal courts authority to issue orders needed to carry out their lawful duties. Prosecutors argued that a court with power to authorize this search could require reasonable technical help to execute it. Apple’s objection turned on what help meant. The company would have to direct its engineers to create software and give it Apple’s digital signature so the phone would trust it. Even if that version worked on just one device, the next prosecutor could ask a judge for another version. Apple argued that Congress should decide whether companies could be compelled to do that work.

The Phone Opened Before the Court Could Answer

On March 28, 2016, the Justice Department announced that an outside party had helped the FBI gain access to the phone. Prosecutors asked the judge to withdraw the order. That ending leaves us with a useful legal distinction. The government had authority to search Farook’s phone from the beginning. The disputed power was its authority to require other people to build the means of entry. Investigators solved their immediate problem, and Apple never had to create the software. The case ended without a final ruling settling whether the government could compel such assistance the next time a phone stayed locked.

Benghazi — What Did Hillary Clinton’s Testimony Establish? - Told by Cummings

On October 22, 2015, I sat across from former Secretary of State Hillary Clinton as the senior Democrat on the House Select Committee on Benghazi. One of the sharpest questions that day came from Republican Congressman Jim Jordan. He read from a record of Clinton’s conversation with Egypt’s prime minister on September 12, 2012, the day after armed men stormed the American diplomatic compound in Benghazi, Libya. She had told him, “It was a planned attack, not a protest.” Jordan wanted to know why the American people had not heard those same plain words from their secretary of state. Four Americans had died: Ambassador Chris Stevens, Sean Smith, Tyrone Woods, and Glen Doherty. Their families had every reason to care what Washington knew and when it knew it.

Whose Warnings Reached the Secretary?

Chairman Trey Gowdy pursued a question about the months before the attack. Clinton’s friend Sidney Blumenthal, who held no government position, could send reports about Libya directly to her private inbox. Yet Clinton testified that requests for additional security went through State Department professionals and that the specific requests under discussion had never reached her. Gowdy asked how she decided who could come straight to her and who had to work through the chain of command. Clinton defended assigning security decisions to trained officials. She also acknowledged that the diplomats in Libya did not receive everything they requested. An independent review had already found serious management failures that left the Benghazi post inadequately protected. If Clinton’s account was accurate, Gowdy’s question still stood: Why had the department she ran failed to bring those needs to her attention?

What Help Did She Seek That Night?

While Stevens was missing, Clinton contacted Libya’s president for help protecting Americans. Our committee also heard about former CIA Director David Petraeus’s testimony that Clinton had personally called him for assistance. Republican Congressman Lynn Westmoreland pressed her on a specific option the State Department had available: a Foreign Emergency Support Team. He argued that its crisis-management and communications specialists could have been sent while officials were still trying to locate the ambassador. Clinton questioned what that team could have accomplished in time. The calls documented action on her part. Westmoreland wanted an accounting of an option she had left unused. Whether that team could have reached the Americans in time to save anyone remained unproven.

What the Public Was Told

Jordan returned to Clinton’s own words. On the night of the attack, she privately told her daughter that a group resembling al-Qaeda was responsible. Her public statement that evening mentioned inflammatory material posted online and said some people had invoked it to justify the violence. Clinton testified that she was condemning that justification and that officials were still evaluating a militant group’s claim of responsibility. Jordan argued that invoking the video publicly, while speaking with greater certainty in private, gave Americans a misleading impression weeks before a presidential election. Investigators established that no protest preceded the assault at the compound. As a congressman, I could distinguish an accusation about Clinton’s political motive from what the documents established. As a citizen, I could still ask why an Egyptian official received a clearer account than the families listening at home.

Empty Supreme Court Seat — Must the Senate Hold a Hearing? - Told by Ginsburg

When Justice Antonin Scalia died on February 13, 2016, I lost a dear friend. Nino and I shared a love of opera and a habit of reading each other’s opinions closely, especially when we disagreed. At the Supreme Court, our colleagues and I still had cases to decide. There were now eight of us. Within hours of Nino’s death, Senate Majority Leader Mitch McConnell said the vacancy should remain open until Americans elected their next president. President Barack Obama announced that he intended to nominate a successor. Both men held offices voters had entrusted to them. Which of them had the authority to fill that chair?

What the Constitution Actually Says

I would begin where Nino and I so often began, with the words on the page. Article II says the president “shall nominate” Supreme Court justices and appoint them “by and with the Advice and Consent of the Senate.” Those words divide the work. President Obama could choose a nominee throughout his term, including its final year. His choice could take a seat on the Court only with the Senate’s consent. Must the Senate hold a hearing? The Constitution gives no express command to hold one, take a vote, or act by a particular date. A public hearing is a practice senators developed so they and the country could examine a nominee. In 2016, the dispute was over what senators owed the public when they chose to set that practice aside.

A Nominee Without a Hearing

On March 16, President Obama nominated Merrick Garland, chief judge of the federal appeals court in Washington, D.C. Ordinarily, the next public scene would have been familiar to me. At my own confirmation hearing in 1993, senators asked how I understood the Constitution, and I had to explain my reasoning to people who might vote against me. Judge Garland never had that occasion. Senator McConnell and his Republican colleagues argued that voters should influence the choice through the November presidential election. President Obama answered that voters had already elected him to a four-year term and that the Senate should examine Garland’s record and vote. The Judiciary Committee held no confirmation hearing, and the full Senate took no vote.

What Eight Justices Could Decide

While Washington debated, a group of California public school teachers waited for our answer. They objected to paying fees for a union’s bargaining work when they had chosen not to join it. We had heard their case while Nino was alive. On March 29, our decision consisted of one sentence: “The judgment is affirmed by an equally divided Court.” Four votes on each side meant the lower court’s ruling stood. The teachers had an answer, but courts elsewhere had no new Supreme Court precedent to follow. Garland’s nomination expired in January 2017. That April, the Senate confirmed President Donald Trump’s nominee, Neil Gorsuch. For the teachers who had brought their question all the way to Washington, the ninth justice arrived a year too late to resolve their case.

Kunduz — Who Should Investigate a Deadly Military Mistake? - Told by Gwen Ifill

If I were opening a broadcast about Kunduz, I would begin with a fact that both the American military and Doctors Without Borders agreed on. Before the attack, the hospital had given its exact location to the people fighting the war. Its trauma center in northern Afghanistan was on the U.S. military’s list of places protected from attack. On the night of October 3, 2015, the hospital counted 105 patients inside. Some were asleep. Others were undergoing surgery. Shortly after two in the morning, an American AC-130 gunship opened fire on the main building. At least 42 people died, including 24 patients, 14 staff members, and four people caring for patients. How did a hospital whose address was known become a target?

What the Aircrew Saw

The military’s investigation began with a different building. American forces supporting Afghan troops in their fight against the Taliban wanted the gunship to strike an Afghan intelligence facility believed to be in enemy hands. When the crew entered the target coordinates, its equipment pointed to an open field. The crew recognized the error and searched for a building that matched the description relayed from the ground. They settled on the hospital. Equipment failures had disrupted communications, and the people approving the strike failed to verify what the crew had identified. Meanwhile, hospital officials, realizing they were under attack, called military contacts to stop the firing. Those warnings took time to reach the people who could act on them.

What the Military Found

On April 29, 2016, General Joseph Votel presented the findings of the American investigation. It helps to be precise about what he acknowledged. The hospital was protected. American personnel had broken rules governing when they could open fire. The military concluded that those involved had mistakenly believed they were attacking the intended target and that their conduct did not amount to a war crime. Sixteen service members received disciplinary or administrative action. Military investigators had access to the crew, its communications, and the orders that governed the mission. Their report allowed the public to follow a series of decisions that a doctor in the operating room could never have seen.

Who Gets to Ask the Next Question?

Doctors Without Borders could supply the other half of that account. Its staff knew when the firing began, whom they called, and which patients and colleagues never came out. The organization asked the United States and Afghanistan to consent to an inquiry by the International Humanitarian Fact-Finding Commission, an independent body set up to examine alleged violations of the laws of war. That inquiry did not take place. As a reporter, I would put one question to anyone assessing the military’s findings: Who had the opportunity to test them? The military had explained how its crew came to fire on the wrong building. The families were also entitled to ask whether someone outside the military could examine those same records and reach a judgment of their own.

Clinton’s Private Email Server and the FBI Recommend Influence - Told by Scalia

I would begin with a question about dates. When Hillary Clinton was secretary of state, she used a private email system to conduct official business. Years later, FBI agents examined roughly 30,000 work emails she had turned over to the State Department. Some contained information the government classified only afterward. But 110 emails, spread across 52 conversations, contained information that was already classified when someone sent or received it. Eight of those conversations contained information classified as Top Secret at the time. Few messages carried markings that signaled their status. Even so, the FBI concluded that experienced officials should have recognized that some subjects belonged on a secure government system.

Two Words Worth Looking Up

On July 5, 2016, FBI Director James Comey called Clinton and her colleagues “extremely careless.” Then he recommended that the Justice Department bring no criminal charges. A listener might reasonably ask how those two statements could come from the same man at the same lectern. I would open the statute book. One federal law allows prosecution when a person entrusted with national-defense information permits it, through “gross negligence,” to be removed from its proper place of custody. Congress put those words there. A prosecutor considering that provision could hardly close the book upon learning that Clinton had no intention of helping a foreign power. The harder question was whether the evidence could prove each part of the offense beyond a reasonable doubt.

What Persuaded the Investigators

Comey acknowledged evidence of possible violations. He also explained what investigators had found in earlier prosecutions. Those cases typically involved some combination of deliberate mishandling, enormous quantities of exposed information, disloyalty to the United States, or efforts to obstruct the investigation. He judged the facts of Clinton’s case too different to justify bringing charges. On one particularly serious question, the agents reached an unsatisfying but precise answer. They found no direct evidence that a foreign adversary had broken into Clinton’s personal email system. They also concluded that a skilled intruder might have left no trace they could detect.

Who Made the Decision?

Comey told the public that “no reasonable prosecutor would bring such a case.” That was a striking claim from the director of an investigative agency. The authority to prosecute belonged to the Justice Department. On July 6, Attorney General Loretta Lynch accepted the recommendation of the agents and career prosecutors and closed the investigation without charges. The distinction matters. No jury heard the evidence, and no judge ruled on whether Clinton’s conduct met the statute’s definition of gross negligence. The officials responsible for bringing a case had decided they could not justify asking a jury to convict. That decision, and Comey’s unusual choice to criticize Clinton publicly while announcing it, gave Americans two separate judgments to examine.

The $400 Million Iran Payment — Leverage or Ransom? - Told by Scalia and Ifill

Two Departures on the Same Day

Gwen Ifill — On January 17, 2016, a plane carrying three freed Americans left Tehran. In Geneva, Iranian officials took possession of $400 million in foreign banknotes. Washington had held up the cash until it knew the Americans were on their way. That detail, which the State Department acknowledged publicly in August, gave critics a pointed question: If this money settled an old bill, why did its delivery depend on a plane taking off? To answer that, we have to follow two stories. One began in a prison. The other began decades earlier with an order for American military equipment.

Antonin Scalia — Start with whose money it was. Before Iran’s 1979 revolution, its government deposited money in a U.S. account to buy military equipment. The revolution interrupted the purchases, and $400 million remained in dispute. Iran sought the return of that principal plus decades of interest. In 2016, the Obama administration agreed to return the $400 million and pay another $1.3 billion in negotiated interest. That brought the settlement to $1.7 billion. The announcement came alongside the prisoner exchange and the implementation of the nuclear agreement, but the arms claim had a legal history of its own.

What Authority Did The Hague Have?

Gwen Ifill — News reports often shortened that history to two words: The Hague. That is a city in the Netherlands. The institution that mattered here was the Iran–United States Claims Tribunal, which the two governments created in 1981 as part of the agreements that ended the American embassy hostage crisis. Did a foreign court have the power to order an American president to load cash onto a plane?

Antonin Scalia — No tribunal issued such an order. The two governments chose to settle the claim. But it would also be a mistake to say the tribunal had no legal authority. The United States had agreed that its awards on claims within its jurisdiction would bind both countries. In Dames & Moore v. Regan, our Supreme Court upheld the president’s authority, in those circumstances, to suspend certain claims in American courts and send them to the tribunal. The Hague could neither write an American statute nor overrule our Supreme Court. Its authority over this dispute came from an agreement the United States itself had made. Washington could negotiate a figure or risk an award that might cost more.

What Could Reporters Establish About the Money?

Gwen Ifill — The administration said it negotiated the prisoners’ release and the financial settlement separately. It also acknowledged deliberately linking their timing. Officials called that leverage: they already owed the settlement and held the cash until Iran kept its word. Critics called it ransom because Iran received the money only after Americans were freed. They warned that another government watching those departures might see a financial advantage in detaining an American. The timing is documented. It does not, by itself, establish that Iran demanded $400 million as the price of release.

Gwen Ifill — Then there is the question that remained after the cash changed hands. Iran financed Hezbollah, and money is fungible: one source of funds can replace another. If Tehran used settlement money to pay a domestic bill, it could use money previously set aside for that bill to support an armed proxy. Critics who raised that risk did not need to show that Hezbollah received the very banknotes delivered in Geneva. But a claim that a particular group actually received part of the settlement requires evidence of where the funds went. In 2016, U.S. officials told Congress they had no information showing that the payment went to Iran’s Revolutionary Guard. The public record established who received the cash and why Washington delayed its release. It did not establish the cash’s final destination.

Obama’s Nuclear Deal with Iran — Did the Bargain Contain the Seeds of Its Own Failure? (2015–2016) - Told by Elijah Cummings and Gwen Ifill

The Ship That Left Iran

Elijah Cummings — On December 28, 2015, a ship left Iran bound for Russia. Its cargo included more than 25,000 pounds of low-enriched uranium materials. For a congressman who had voted for the nuclear agreement, that ship mattered. On July 14, Iran, the United States, and five other world powers had announced a bargain in Vienna. Iran would shrink its stockpile, limit the machines it used to enrich uranium, and allow international inspectors to verify its work. In return, Iran would receive relief from nuclear-related economic sanctions. A promise made at a negotiating table is one thing. A ship carrying nuclear material out of the country is something inspectors can check.

Gwen Ifill — Then let me ask the question a reporter ought to ask at the dock: What stayed behind? The shipment included Iran’s uranium enriched to about 20 percent, except for material already made into fuel plates for a research reactor in Tehran. The agreement also allowed Iran to keep a much smaller stockpile of low-enriched material. So the claim that Iran kept most of its higher-enriched stockpile misses what actually left. The opposition had a stronger argument. Iran kept scientists who knew how to enrich uranium, facilities in which to do it, and permission to continue some of that work. The ship could carry away years of production. It could not carry away the knowledge that had produced it.

What Did America Buy With Sanctions Relief?

Elijah Cummings — At Natanz, Iran could operate 5,060 of its older centrifuges for ten years. A centrifuge is a machine that helps concentrate the form of uranium needed for reactor fuel or, at much higher enrichment, a weapon. For fifteen years, Iran agreed to cap enrichment at 3.67 percent and limit its stockpile to the equivalent of 300 kilograms of uranium hexafluoride enriched to that level. It also removed the original core of its unfinished Arak reactor and filled the core’s openings with concrete, blocking a separate route to plutonium. The Obama administration estimated that the restrictions would extend the time Iran needed to produce enough weapons-grade uranium for one bomb from roughly two or three months to at least a year during the first decade. That estimate concerned bomb material. Building a working weapon would take additional steps.

Gwen Ifill — A year of warning sounds valuable, Congressman. Now put yourself in the position of an American president ten years down the road. The people who negotiated the agreement may be out of office. Iran’s engineers may be more experienced. Some restrictions will begin expiring even if Iran has complied with every line. At Fordow, the underground facility built into a mountain, Iran agreed to stop enriching uranium for fifteen years, but the facility itself remained. Critics asked why the United States should give up valuable economic pressure in 2016 for restrictions with expiration dates. Iran’s continuing obligation never to acquire a nuclear weapon answered one question. How quickly it might someday be able to break that promise was another.

Could Inspectors Find What Iran Did Not Declare?

Elijah Cummings — On January 16, 2016, the International Atomic Energy Agency verified that Iran had taken the initial nuclear steps required for sanctions relief. Inspectors had regular access to declared facilities, including Natanz and Fordow. The harder case was a warehouse or military location Iran had never declared as nuclear. If inspectors had grounds for concern, they could request access and explain why. Iran could propose another way to resolve the concern. If that failed, a joint commission could direct Iran to cooperate. The timetable could run to twenty-four days from the formal access request. That delay applied to a disputed site. An inspector visiting a declared enrichment plant did not have to start a new twenty-four-day clock at the gate.

Gwen Ifill — But who tells the inspector which gate to visit? Natanz and Fordow had both come to international attention after secret construction. That history gave critics good reason to question how confidently anyone could rule out another hidden site. It did not establish how many undisclosed facilities existed in 2015. And the twenty-four-day clock began only after inspectors knew enough to ask. Uranium can leave traces that are difficult to scrub away, an important point in the agreement’s favor. Equipment can be moved, however, and some weapons-related research leaves little nuclear material to sample. Monitoring a known stockpile and discovering a secret program are different jobs. Success at the first could never guarantee success at the second.

Would Washington Use the Penalty?

Elijah Cummings — The agreement did contain an enforcement mechanism. If a participating government believed Iran had significantly failed to meet its commitments, it could take the dispute to the United Nations Security Council. Once that process reached the council, earlier U.N. sanctions would return after thirty days unless the council voted to continue relief. But I do have to agree that sanctions in the past have not done much to keep Iran from developing their enrichment program as far as it already has. Russia or China could not keep sanctions lifted simply by casting a veto, but it didn’t stop them from supporting Iran during those sanctions as they have don in the past. That feature persuade me to vote for the agreement, though later reflections on these objections would make me think differently. But a penalty written on paper still leaves somebody with a decision. Faced with an ambiguous violation, would an American president risk the whole bargain to punish it? Congress had every reason to keep asking that question after the vote.

Gwen Ifill — And that was the opposition’s strongest case for calling it a poor bargain for America. Iran would receive an economic benefit as soon as inspectors confirmed its initial steps. Later, if inspectors raised an alarm, American leaders would have to persuade allies, risk a diplomatic rupture, and decide how much evidence was enough. Restoring sanctions could squeeze Iran again. It could not recover money Iran had already spent or erase expertise its scientists had retained. By the end of 2016, there was evidence that the bargain had reduced Iran’s nuclear capacity but not even slowed them down to enriching uranium towards a nuclear bomb. Whether America had bought enough lasting security was a judgment the departing ship could never settle. That depended on what inspectors could discover after it sailed, and what governments were prepared to do about what they found.