On February 16, President Donald Trump defended his troubled administration, then all of twenty-seven days old, in a news conference. “I turn on the TV, open the newspapers, and I see stories of chaos,” Trump said. “Chaos! Yet it is the exact opposite. This administration is running like a fine-tuned machine.”
In truth, the Trump administration in its infancy is creating enough blunders, scandals, and controversies to strain the resources even of large news organizations like The New York Times and The Washington Post. The disruptions come on with the suddenness of a summer cloudburst. Even as reporters rush to cover one storm, five others materialize. It isn’t easy to keep up.
The purpose of Trump’s press conference was to distract attention from the withdrawal the day before, on the eve of his confirmation hearing, of his nominee for labor secretary, Andy Puzder, by nominating in great haste a substitute, R. Alexander Acosta, the dean of Florida International University law school and a former member of the National Labor Relations Board. Puzder’s was the first Trump Cabinet nomination to fail, and Trump is not one to dwell on (or even acknowledge) setbacks. By design or happy accident (with Trump it’s often hard to tell) Acosta was a much more confirmable choice—a conservative like Puzder, but far less doctrinaire and personally abrasive. He also would be, if confirmed, the first Latino member of Trump’s cabinet.
Defeat or withdrawal of one or two nominees isn’t unusual at the start of any administration, but Puzder’s withdrawal was striking when you remembered that Trump enjoyed three enormous advantages: a Republican majority in the Senate, with fifty-two votes; a Senate rule, passed when Democrats controlled the chamber, disallowing filibusters against all nominees except those for the Supreme Court; and very rigorous party discipline among Senate Republicans. Despite these, Trump lacked a majority to confirm Puzder. It was the new president’s first legislative defeat, and likely will be his only defeat in assembling his Cabinet.
The people Trump invites into high levels of government fall into two categories: provocateurs and establishmentarians. White House Chief Strategist Steve Bannon and Senior Policy Adviser Stephen Miller are provocateurs. Because many of these provocateurs have ties to the nativist and white-nationalist “alt right,” Trump has tended to place them in White House jobs that don’t require Senate confirmation. The establishmentarians are Trump recruits judged respectable by the Republican establishment (and usually chosen for that reason). In the White House, Vice President Mike Pence and Chief of Staff Reince Priebus are establishmentarians, but most of them have positions in Trump’s Cabinet.
These establishmentarians either have experience in government or a history of generous financial contributions to the Republican Party. Before his nomination, Puzder gave about $300,000 during the 2016 cycle to the Republican National Committee, the Republican Party of California, where he lived until last year, and the Republican senatorial and congressional committees. Senate Majority Leader Mitch McConnell reportedly surprised his colleagues by describing Puzder as better prepared than any nominee for labor secretary in history—even though Elaine Chao, McConnell’s wife, had held the job previously. (Chao is now Trump’s secretary of transportation.) McConnell prized Puzder’s experience as CEO of CKE Restaurants, which owns the Carl’s Jr. and Hardee’s burger chains, because Puzder had been subject to Labor Department regulations that McConnell and Puzder both found meddlesome.
Puzder was an establishmentarian in good standing. But he was also, temperamentally, a bit of a provocateur. “In fast food, you sort of compete for the best of the worst,” Puzder said in a speech in 2011—not the kindest way to describe your workforce. At CKE, Puzder approved raunchy TV ads in which women in tiny bikinis approached slow-motion sexual climax as they sank their teeth into Carl’s Jr. burgers. When women’s groups complained, CKE answered, in a press release, “We believe in putting hot models in our commercials, because ugly ones don’t sell burgers.”
If put to a vote today in Congress, the principal law that the Labor Department exists to enforce—the 1938 Fair Labor Standards Act, which created a minimum wage and the forty-hour workweek—would never overcome Republican opposition. (Even some congressional Democrats might vote against it.) But the FLSA’s governing principle that a fair day’s work deserves a fair day’s pay continues to have support among the broader public. The Republicans’ strategy has therefore been not to attack the FLSA directly, but rather to enforce it lightly and work quietly to make it less burdensome to businesses. (That will likely be Acosta’s approach. While serving with the National Labor Relations Board, Acosta often, though not always, sided with employers such as Walmart in cases involving labor grievances.)
Puzder’s opposition to FLSA regulations wasn’t quiet. “If government could transform unskilled entry-level positions into middle-income jobs,” he wrote about the minimum wage in 2014, “the Soviet Union would be today’s dominant world economy.” Puzder opposed a hike in the hourly minimum even to $10.10, up from the current $7.25; most Democrats support an increase to $12 or $15.1
McConnell thought Puzder’s experience running a fast-food company was an asset, but to many others it looked like a significant liability. Under President Obama, the Labor Department’s Wage and Hour Division targeted restaurants as one of fifteen “low wage, high violation” industries rife with “wage theft”—that is, failure to pay minimum wage or overtime. Even among these fifteen rogue industries, restaurants—mainly fast-food restaurants—were one of the worst, with nearly $40 million in back wages recovered in 2016.
Among twenty fast-food companies that Bloomberg BNA surveyed in September, CKE Restaurants had comparatively few FLSA violations. But “few” meant that 60 percent of Labor Department investigations of restaurants owned directly by CKE or by franchisees ended with citations. A separate calculation by two researchers at the Century Foundation similarly found that since Puzder became CEO in 2000, over half of the inspections by the Occupational Safety and Health Administration of CKE-owned or -franchised restaurants found they had health and safety violations.
Then there was Puzder’s housekeeper problem. On February 6, Ryan Grim reported in The Huffington Post that Puzder had, about five years earlier, discovered that a cleaning woman he and his wife had employed for several years was an undocumented immigrant. He’d fired her and offered to help her get legal status (she declined), but he didn’t get around to paying state and federal employment taxes for her until after his nomination.
Similar problems concerning domestic help previously derailed the nominations of Zoe Baird and Kimba Wood for attorney general during the Clinton administration and the nomination of Linda Chavez for labor secretary during the administration of George W. Bush. But “the view in the transition,” an unidentified Trump official assured The Huffington Post’s Grim, was that disqualifying a candidate based on the household help was very much “the old model.” The new model was to sigh regretfully and confirm. Wilbur Ross’s firing of an undocumented housekeeper after he was nominated to lead Trump’s Commerce Department did not impede his Senate confirmation, and the Senate confirmed White House Budget Director Mick Mulvaney after he admitted to not paying $15,000 in employment taxes on a nanny.
Yet on February 15, when Puzder abruptly lost a crucial half-dozen Republican votes, the decisive cause, we were asked to believe, was Puzder’s cleaning lady. The Washington Post explained, “It was Puzder’s hiring of an undocumented worker for domestic work—as well as his support for more liberalized immigration policies—that pushed several Senate Republicans away.” Puzder, as chairman of a corporation heavily dependent on low-wage immigrant labor, did support a path to citizenship for undocumented workers, as Trump does not. But if that were the problem, why would Trump nominate, the very next day, a substitute whose views on immigration were even more liberal? And why would Puzder’s housekeeper problem suddenly loom so large when Ross’s and Mulvaney’s—and Puzder’s, just one day earlier—had not?
The actual cause for Puzder’s loss of support was a matter few felt like discussing: allegations made three decades ago by his first wife, Lisa Fierstein—and subsequently retracted—that Puzder had assaulted her physically in their home in Clayton, Missouri, an affluent St. Louis suburb. Fierstein has maintained since 1990 that those abuse allegations in the 1980s were lies that she was persuaded to tell by an unscrupulous divorce attorney in order to get a better divorce settlement.
But a July 1989 story in The Riverfront Times, a weekly newspaper in St. Louis, told a different story.2 Citing documents filed in St. Louis County Circuit Court in 1986, The Riverfront Times said Fierstein alleged that Puzder
attacked me, choked me, threw me to the floor, hit me in the head pushed his knee into my chest twisted my arm and dragged me on the floor, threw me against a wall, tried to stop my call to 911 and kicked me in the back.
Puzder’s version, the paper said, was that he had merely “grabbed her by the shoulders and pushed her back” to keep her from hurting herself: “I don’t know if her foot caught or what happened, but she went down on her back and stayed down on the ground.” Puzder told The Riverfront Times that “there was no physical abuse at any point in time.” Both Puzder and Fierstein acknowledged that police were called to the house.
The documents cited in the Riverfront Times article were sealed the day after Puzder’s nomination. But Marianne LeVine, a reporter at Politico, retrieved from the St. Louis County court some documents from a separate filing in 1988 that Puzder appeared to have overlooked. (The couple divorced in 1987.) These included a petition in which Fierstein alleged that in the 1986 episode Puzder “assaulted and battered” her, leaving her with “two ruptured discs and two bulging discs.”
All of the muscles, bones, ligaments and soft tissue of the face, chest, back, shoulders, and neck were violently wrenched, strained, swollen, contused and otherwise injured.
Puzder again denied assaulting Fierstein. The court denied her request for $350,000 in damages on the grounds that the divorce agreement signed the year before had settled all her previous claims against Puzder.
Fierstein’s first retraction of the assault claims, LeVine discovered, turned out to be a condition of a 1990 child-custody agreement with Puzder. Fierstein’s subsequent insistence that her abuse claims against him had been a mere ruse to leverage a better divorce settlement wasn’t easy to square with the fact that she had first filed them before the couple even separated. Nor was it a good fit with LeVine’s discovery that, eight months before the child-custody agreement, Fierstein repeated her accusations disguised in sunglasses and a wig and using the pseudonym “Ann” on an episode of The Oprah Winfrey Show. If Fierstein didn’t identify herself on Oprah, how could her accusations possibly affect any legal proceeding? (I should here disclose that I was LeVine’s editor on these stories, and once or twice shared a byline with her.)
After LeVine reported the fact of Fierstein’s Oprah appearance, Fierstein explained in a letter to the Senate Health, Education, Labor, and Pensions Committee, then considering Puzder’s nomination, that she’d been invited onto Oprah’s program after the Riverfront Times story appeared. “I was hesitant but encouraged by friends and became caught up in the notion of a free trip to Chicago and being a champion of women and women’s issues,” she wrote. “I regret my decision to appear on that show. I never told Andy about it.”
The obvious next step, for both the HELP Committee and the press, was to locate the 1990 Oprah episode and find out what she’d said. This proved surprisingly difficult. The Oprah Winfrey Network, which controlled the video library, put off all press inquiries. (Two intimates of Winfrey’s later explained to me that angry cattlemen had filed an $11 million libel suit against her in 1996 over something she’d said on her show about hamburgers. She’d won this screwball lawsuit, but resolved never again to make available any past episode deemed even remotely controversial.)
Winfrey was more responsive to the HELP Committee, agreeing quietly to its request that she turn over all episodes on domestic violence that she’d aired between 1985 and 1990. (There turned out to be twenty.) The committee was able to identify Fierstein because only one episode featured a woman named “Ann” in wig and sunglasses. But Winfrey made it a condition of providing the tapes that only senators—not even committee staffers—could review the episode.
Word got out only three days before Puzder’s hearing was to take place that HELP Committee senators were reviewing the video. The March 1990 date of the episode (“High Class Battered Women”) quickly leaked, and LeVine learned that another guest on the show was Charlotte Fedders, a well-known victim of domestic violence whose husband, John, had abruptly lost his job as enforcement chief in President Ronald Reagan’s Securities and Exchange Commission after The Wall Street Journal reported he was a wife-beater.3 Charlotte Fedders had kept a VHS tape of the episode and quickly agreed to share it. On the program, Fierstein said that when she went public with her charges of abuse Puzder said to her, “I will see you in the gutter. This will never be over. You will pay for this.” It was, of course, impossible to know whether Fierstein was lying. But she did not seem, on the tape, to be obviously mendacious or unhinged.
Politico posted its story, with video snippets and a transcript of Fierstein’s comments, at 1:00 AM on February 15.4 By lunchtime CNN was reporting that there were four to twelve firm Republican “no” votes (the day before there had been only Republican undecideds) and that Senate GOP leaders were advising the White House to pull the nomination. Within a couple of hours, Puzder withdrew.
Twelve days later, the conservative talk radio host Hugh Hewitt invited Puzder on his show to commiserate about his defeat. Puzder said he was the victim of a “fake news tsunami.” He didn’t say what that news was, and Hewitt was too much of a gentleman to ask.
Since Puzder withdrew, some liberal Washington policymakers and journalists have expressed regret that he was brought down by allegations aired in a messy divorce rather than by his views about American workers. The implication is that plausible past allegations of domestic violence don’t warrant serious consideration in assessing a man’s fitness for public office. It perhaps is not coincidental that none of those who have voiced this complaint was a woman.
—March 9, 2017
Candidate Trump initially opposed any increase, prompting organized labor and others to dispute his economic populism. Eventually Trump settled on $10, though he seems in no rush to introduce legislation on the matter. ↩
Gianna Jacobson and J.A. Lobbia, “Puzder v. Puzder,” The Riverfront Times, July 26, 1989. ↩
Brooks Jackson, “Storm Center: John Fedders of SEC Is Pummeled by Legal and Personal Problems,” The Wall Street Journal, February 25, 1985. The article caused a sensation, prompting Charlotte Fedders to publish a 1987 memoir about the experience titled Shattered Dreams. A TV adaptation aired on CBS in May 1990. The theme of all three was that domestic abuse was not confined to lower-income families—there were rich men who beat their wives too, and they were much better able to keep it from being discovered. ↩
Marianne LeVine and Timothy Noah, “Puzder’s Ex-Wife Told Oprah He Threatened ‘You Will Pay for This,’” Politico, February 15, 2017. ↩