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(Washington, DC)Judicial Watch announced today that it received 1,221 pages of records from the Michigan Department of Health and Human Services related to the settlement agreement of Department Director Robert Gordon, which amounted to nine months’ severance ($155,506), and “includes a confidentiality clause that bars Gordon or state officials from sharing further details about his departure, ‘unless required by law.’” Other records show that Gordon warned of the “freedom crowd” in a discussion about mask mandates, and that controversial consultant Frank Luntz was consulted on COVID messaging.

Gordon was subpoenaed by the Michigan House Oversight Committee over his separation agreement, “they want to know whether he differed with the governor on a policy position and whether that information in some way led to his departure.”

The records also shed light on Michigan’s COVID-19 restrictions and lockdowns.

Judicial Watch received the records in response to a March 5, 2021, Michigan Freedom of Information Act (FOIA) request for:

  1. All emails related to COVID-19, vaccines, masks, school closures, and/or business restrictions sent between former Michigan Department of Health and Human Services Director Robert Gordon and the following officials: Governor Gretchen Whitmer, Lt. Gov. Garlin Gilchrist, Chief Legal Counsel Mark Totten and/or Chief of Staff JoAnne Huls;
  2. All emails between Gov. Whitmer and Chief of Staff Huls regarding the resignation or termination of Director Gordon; and
  3. All DHHS human resources records related to the resignation/termination of employment of Robert Gordon as Director of Michigan’s Department of Health and Human Services, including but not limited to separation agreements, whether in draft or final form.

Among the records received by Judicial Watch is a document titled “SEPARATION AGREEMENT & RELEASE Between the State of Michigan & Robert Gordon,” which reveals that although Gordon “resigned voluntarily,” the settlement agreement was signed to release “all claims against Employer arising out of his employment.” The agreement provides that Michigan will pay him “the sum of $155,506.05, which represents 9 months of salary and COBRA payments.”

The settlement agreement also provides that:

In the interest of protecting deliberations among government officials, the parties agree to maintain confidentiality regarding Employee’s departure from employment unless required by law to release such information.

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[Gordon] is presently named as a Defendant, in both his official and individual capacity, in various lawsuits currently pending and arising out of his appointment to and service as the Director of the Michigan Department of Health and Human Services.

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[Michigan] will provide legal representation for Employee in matters relating to actions taken by Employee while in the course of his employment and while acting within the scope of his authority.”

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[I]n the event a [court] settlement is reached or judgment is entered against Employee, Employee may seek indemnification for damages awarded based upon actions taken by Employee in the course of his employment and while acting within the scope of his authority. In response to such request, Employer will not unreasonably withhold indemnification.

The new records also include information regarding Michigan’s COVID-19 response.

In a June 24, 2020, email with the subject line “outdoor masks,” Gordon writes:

Saw this depressing Detroit clip just now. Gov. Newsom last week issued an order requiring masks in public spaces, indoor and outdoor. We have not done the outdoor piece. Wonder if we should.

As best I can tell, experts are still unclear on level of outdoor transmission, and lack of spike in heavy protest areas gives hope. On the other hand, the protestors largely did wear masks, and recent evidence on masks overall is strong.

Message would be not that we want to stop reopening, but rather that we want to sustain it versus the scary turn in other states. Realize we will run into the “freedom” crowd, but we could even make the order without penalties. This is not about force of state, but about breaking through with a signal that changes norms. In fantasy world there are prominent Republicans who agree to be reasonable here, like in this video, but based on the Detroit clip, getting a diverse urban group on board would help too.

In an April 5, 2020, email to Gordon and others, under the subject line, “Michigan Apex Clarification Importance: High,” Public Information Officer Lynn Sutfin reveals the Department’s reliance on the assumptions of Imperial College to make “rough projections” about COVID-19 and discloses that the Department is working with the McKinsey Group, a global consulting firm, all to support the Governor’s lockdown orders. Additionally, she references COVIDACTNOW.ORG and IHME as working with the Department.

In a March 21, 2020, email from Chief Medical Executive Dr. Joneigh Khaldun, Khaldun predicts that over the next 2-4 weeks there will be “about 6.9 million people in Michigan who become infected across all ages (70% of population), 1 million of those will need hospitalization, and 435,000 of those will require an ICU stay. A subset of the ICU cases will unfortunately die, but I do not have that estimate at this time.” (The actual inflection and death numbers turned out to be far less.)

In a December 4, 2020, email to colleagues, Gordon forwards the results of a survey conducted of Michiganders taken from November 20 – December 1 focusing on COVID-19 vaccines and tells them there are “big challenges ahead.”

  • There is significant reluctance toward Covid-19 vaccine adoption, with 66% saying they are likely to get a COVID-19 vaccine, but only 43% “very likely”
  • Attitudes toward the Covid-19 vaccine vary widely by demographic group, with more men saying they are “very likely” to get the vaccine (51%) than women (35%)
  • Age is a key factor in how likely someone is to get the vaccine, with over 62% of respondents 65+ reporting that they are “very likely” to get the vaccine (higher than younger age groups)
  • There are also striking differences in vaccine adoption by race, with white respondents far more likely to say they are “very likely” (47%) to get the vaccine than are black respondents (25%)

The records show that Gordon was in contact with Dr. Ezekiel (Zeke) Emmanuel, a bioethicist who served as Special Advisor for Health Policy at Office of Management and Budget during the Obama administration and as a member of then-President Elect Joe Biden’s Public Health Advisory Committee.

In a March 27, 2020, email, Emanuel, acting as an advisor to the Whitmer administration, introduces Gordon to Sacha Samotin, a principal in a company called Applecart, urges the State of Michigan to hire.

Admitting he has an investment in Applecart, Emanuel tells Gordon:

[Applecart] uses social media and behavioral economic techniques – prompts by people you know – to get people to vote and do other socially positive things.

He has had some great ideas about how to do that for COVID-19. This might address your PR campaign issues.

In full disclosure, I have an investment in Sacha’s company. But that is because it is super effective at what it does.

Gordon responds positively to Emanuel after Samotin reaches out to him, saying “Please give me a call.” Samotin then sends Gordon a “concept memo” on Applecart and what it does. Gordon forwards the email exchange and concept paper on to Whitmer’s chief legal counsel, Mark Totten, and others, saying, “I think the PR and ad partners could be key for raising our game.”

The memo labeled “CONFIDENTIAL: NOT FOR DISTRIBUTION,” promotes Appleacart:

[A] leading NYC-based data science company that builds dense, accurate, and actionable maps of real-world relationships between individuals using publicly available data and a proprietary Social Graph platform. Applecart’s Social Graph catalogues more than 25 billion social relationships between 250M+ Americans.

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To assist in the efforts to combat COVID-19, Applecart can use its Social Graph to generate high-value custom advertising audiences comprised of people who have personal or professional relationships with major company executives or state and local government officials. These audiences can be targeted with either a) the latest information about the actions that companies and governments must take to prevent the spread of Coronavirus or b) negative news stories that criticize the companies and governments for their inaction, in order to spur action.

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Applecart can work to counter the threat of harmful misinformation by generating custom audiences comprised of the personal and professional networks surrounding key local and national reporters, editors, news producers, and other influential decision makers in media. Using these audiences, those fighting to stop the spread of Coronavirus can promote the latest public health information or pushback on widespread misinformation to the networks surrounding members of the media. This approach will ensure the high visibility of accurate information about how to prevent the spread of virus and will counter misinformation within the networks that surround and inform journalists. Ensuring that members of the media and those they trust are getting the latest, high quality information is the best way to ensure that the public at large receives the same.

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Applecart can mine its Social Graph to assemble lists of employees of restaurants, bars, movie theaters, and other businesses that have been mandated to close during the COVID-19 crisis and make these lists available to government agencies, as well as grocery stores, pharmacies, and other businesses, who may be in need of extra labor during a time of extraordinary demand.

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Applecart can mine its Social Graph to identify a list of Americans over the age of 65 and, for each, their closest neighbors under the age of 40. Public and private sector actors looking to combat COVID-19 can then call or text the neighbors, in order to enlist them as volunteers to procure and deliver food and medicine to their older neighbors, while they are sheltering-in-place.

Also on March 27, Gordon emails Governor Whitmer:

Good morning, Governor.

Just wanted to share – I talked with Josh Sharfstein from Johns Hopkins last night about what more we can do in light of the urgent situation in and around Detroit. His advice was that while we are doing the right things on surge, we should not lose sight of potential more active steps on social distancing. Even small gains will help, even if mostly to bring down the peak sooner. Brainstormed ideas with Josh and then with Zeke Emanuel, who made the connection [to Applecart] below. (Aware of procurement issue and have thoughts.)

On April 12, 2020, Gordon asks Emmanuel:

What’s your case for a mask mandate, even with DIY [do it yourself] masks? Is it that masks themselves reduce spread or that wearing masks changes other behavior, and is there evidence on the latter?

Emanuel replies:

Yes probably worth it – lots of studies. Not as good as N95 but really does cut down on droplets spread and absorption, plus reminds people f [sic] public health.

On April 14, Gordon emails Whitmer’s Chief Legal Counsel Mark Totten, Deputy Chief of Staff Zack Pohl and University of Michigan Law Professor Nick Bagley revealing the procurement issues with Applecart were overcome and Emanuel’s recommended company has been hired:

Our vendor Applecart reported based on their data collection for us that we are doing very well on our messaging on social distancing and hand washing—but not on masks. Most people don’t see the need. Appears to be an aspect of social distancing where we have room for growth. And valuable both for intrinsic public health benefits (about which much written at this point) and for signaling effect on behavior.

Great if this could be an order; also meaningful would be a symbolic statement like wearing a mask at a press conference. Here’s RI Governor today. Also could amp up MiMask challenge, which launched with a bang but seems to me dormant right now.

On December 1, 2020, Gordon forwarded to Whitmer’s chief of staff a PowerPoint summary on COVID political messaging, “Changing the COVID Conversation,” put together by pollster Frank Luntz working with a company called de Beaumont Foundation, based on a survey of 1,100 Americans. They “tested specific words, sentences, phrases, and attributes Americans need to hear to change their behavior and stop the spread of the coronavirus.” A significant part of the report analyzed Democrat-vs.-Republican responses. For example, one of several “warnings” Luntz emphasized, “Many Republicans refuse to follow guidelines because they argue the science keeps changing. It’s up to you to communicate – at the outset – that the science is settled.”

Much of the Luntz Report deals with wordsmithing. A table in the report categorizes words as “Words to Use” and “Words to Lose.” For example, use “protocols” and lose “orders & decrees;” use “social distancing” and lose “physical distancing.” Another Luntz recommendation is to “Call It the Pandemic,” based on his surveys that found the word “pandemic” is “more significant, serious, and scary” than the alternatives “COVID-19” and “The Coronavirus.”

The survey of 1,100 people, which included an “oversample of 300 African Americans,” found that there was a “chasm” between Republicans and Democrats on Covid, and “In every possible way, Democrats and Republicans think differently and act differently.” Luntz said they “tested specific words, sentences, phrases, and attributes Americans need to hear to change their behavior and stop the spread of the coronavirus.” When asked the survey question, “Which is more important to you regarding Covid-19?” survey respondents outranked “Health” to “Liberty” by 48% to 13%. Among African Americans, 54% responded “Health” and 6% said “Liberty.”

Based on his findings, Luntz had a series of “insights” he offered:

Nothing scares GOPers more than an IRS audit‚ except testing positive for COVID.

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Despite vocal criticism from President Trump, President-elect Joe Biden was rewarded, not punished for “staying in his basement” for two months.

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There are only two trusted organizations and people – the CDC and Dr. Anthony Fauci. No one else is close. And don’t forget to utilize survivors of Covid as well. Congress also lacks credibility.

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If you want Republican buy-in, you must make the case that the science is settled and that everyone now agrees.

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“Say “Public,” Not “Government”

An April 2, 2020, email exchange among top Michigan government, National Guard and state police officials shows heightened concern over the failure of Michigan to utilize Trump administration-approved military personnel to help respond to COVID-19, while other states had already brought in thousands of troops. In one email, Major Gen. Paul Rogers, head of the Michigan National Guard, tells his colleagues:

This is a critical need. We must act quickly to request support on behalf of Michigan. I actually thought this request went out yesterday.

After listing states where thousands of military troops had been sent to other states, he notes: “Michigan has Zero!”

Gordon then forwards the exchange on to JoAnne Huls, Whitmer’s chief of staff, saying:

You should read this chain. Big Problem. Just discussing with General Rogers. Wondering if you want to intervene with MSP [Michigan State Police] tonight.

“These new Michigan documents show the ugly and cynical approach by Michigan state officials to COVID – who were using tax dollars to buy secrecy and manipulate public opinion,” stated Judicial Watch President Tom Fitton.

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