Lying to Congress -- the IRS vs. BP

With the controversy swirling around the IRS's Lois Lerner and the issue of what constitutes lying to Congress, it is interesting to note the disparate standards of proof between government officials, such as Ms. Lerner, and private citizens. Is there a double standard?

In the wake of the government led oil spill containment operation following the Deepwater Horizon accident, two former BP employees were indicted. Once the President had proclaimed it a "Spill of National Significance" and appointed a "National Incident Commander", Admiral Thad Allen, the task became a government project.

isagreements arose between the government and the ad hoc organization, paid for by BP, devoted to controlling the spill. Many of the individuals involved in the control efforts were not BP employees, they were hired contractors. The leadership of the National Incident Command was a mix of government officials, such as Admiral Allen and Rear Admiral James Watkins, now the head of the Bureau of Safety and Environmental Regulation (BSEE) and BP employees who had not been involved in the events leading up to the accident, but who had been called to duty to fix the problem. To ensure the validity of a possible future legal proceeding, a virtual wall was erected between those having direct knowledge of the accident and those called in to fix it.

It is telling that the first, and for a time only, person criminally charged in the event was a now former BP engineer, Kurt Mix, and later a top executive David Rainey. They were on the fixer's side of the virtual wall. The criminal charges against the two Well Site Leaders who had played a part in the drama before the accident came as an afterthought. The charges against Mix and Rainey included lying to Congress and obstruction of justice. These are just the kind of charges one imagines might someday be lodged against Ms. Lerner. So what can we learn from the Mix/Rainey experience that we can apply to the IRS scandal and Ms. Lerner?

For one thing, we can see that the federal courts have thrown out the lying to Congress charge against Mr. Rainey!

U.S. District Judge Kurt Engelhardt cited two reasons for dismissing the obstruction of Congress charge against David Rainey, who was BP's vice president of exploration for the Gulf. First, Engelhardt said the indictment failed to allege that Rainey knew of the pending congressional investigation he was charged with obstructing.

"Because it is an essential element of this crime that the defendant knew of this inquiry and investigation, the indictment must allege such knowledge. It does not," the judge wrote in his 44-page ruling. "Even construing the allegations strongly in the government's favor, it is simply impossible to ascertain from the indictment whether this essential element was presented to and found by the grand jury."

The judge also ruled that the obstruction count must be dismissed because it wasn't clear that it applied to subcommittee investigations like the one at the center of the indictment.

"Although subcommittees exist in both houses of Congress, the statute does not contain the word 'subcommittee.' Thus, the defendant argues that the court should not enlarge the statute to include subcommittees,'" Engelhardt wrote.

Who knew that you can't be charged with lying to Congress if they didn't tell you they were conducting an official investigation? Apparently not the Eric Holder Department of Justice! Contrast that to Ms. Lerner's experience where she had been brought before a House committee and put under oath to "...tell the truth, the whole truth, and nothing but the truth..." Ms. Lerner seems to be unacquainted with the term "the whole truth". She had knowledge that she concealed from Congress, despite being asked direct questions about public concerns that her department had been targeting Tea Party groups for extra scrutiny.

Mr. Mix's attorneys have also been busy. They have gotten the court to force Mix's former employer, BP, to provide exonerating evidence (note that the headline writer got the substance of the court's decision wrong. You just can't get good journalists these days.). They have also asked the court to force the government to provide exonerating evidence and have asked for the transcripts of the grand jury proceedings that approved his indictment. As Tom Wolfe noted in his novel Bonfire of the Vanities:

But mainly you used the grand jury to indict people, and in the famous phrase of Sol Wachtler, chief judge of the State Court of Appeals, a grand jury would "indict a ham sandwich," if that's what you wanted.

Having gotten an indictment of Mr. Mix is a long, long way from obtaining a conviction. Bloomberg reported:

Prosecutors failed to turn over evidence requested by the defense, so-called Brady material, that Mix might use to dispute government allegations, his lawyers said in court papers. They asked U.S. District Judge Stanwood Duval at a hearing yesterday in New Orleans to sanction the government, suggesting in court filings a range of actions including rejection of certain evidence or arguments, or complete dismissal of the indictment.

"The facts make it abundantly clear that these prosecutors have violated Brady," court orders and ethics rules, Joan McPhee, an attorney for Mix, told Duval yesterday. "They have done so by knowingly and intentionally suppressing evidence in their direct personal possession" that contradicts their obstruction charges against Mix, McPhee said.

The U.S. hasn't suppressed evidence, prosecutor Derek Cohen told Duval yesterday. [SNIP]

Duval said he would take the defense motion for sanctions "under advisement," while ordering the government to provide the defense with Federal Bureau of Investigation interviews of witnesses and 400 civil depositions.

Duval asked McPhee what remedies she would like for Mix, "other than hanging and pillorying" the prosecutors (emphasis added).

So what was it about Rainey and Mix that so provoked the ire of the Obama Administration? Why would his prosecutors abandon all sense of propriety?The key to understanding Obama is that he believes that government is the answer to all problems. And it is obvious that he wants plausible deniability for anything that becomes unpopular. He lives and dies by the polls. So when the American people cried out for someone to stop the flow of oil, all eyes turned to Obama. And he went on TV from the Oval Office on May 27, 2010 and told the people that he was in charge. He wanted everyone on the gulf to know "This is what I wake up to in the morning and this is what I go to bed thinking about".  He told the world that every morning his daughter Maila asked, "Have you plugged the hole yet, Daddy?"

What Rainey and Mix did was plug the hole. They did what government under the direct supervision on President Barack Obama could not. They fulfilled a young girl's fondest wish and protected the oil covered birds and kept the turtles from dying.. They embarrassed Obama, and that is a mortal sin to this president. And unbelievers must be destroyed!

With the controversy swirling around the IRS's Lois Lerner and the issue of what constitutes lying to Congress, it is interesting to note the disparate standards of proof between government officials, such as Ms. Lerner, and private citizens. Is there a double standard?

In the wake of the government led oil spill containment operation following the Deepwater Horizon accident, two former BP employees were indicted. Once the President had proclaimed it a "Spill of National Significance" and appointed a "National Incident Commander", Admiral Thad Allen, the task became a government project.

isagreements arose between the government and the ad hoc organization, paid for by BP, devoted to controlling the spill. Many of the individuals involved in the control efforts were not BP employees, they were hired contractors. The leadership of the National Incident Command was a mix of government officials, such as Admiral Allen and Rear Admiral James Watkins, now the head of the Bureau of Safety and Environmental Regulation (BSEE) and BP employees who had not been involved in the events leading up to the accident, but who had been called to duty to fix the problem. To ensure the validity of a possible future legal proceeding, a virtual wall was erected between those having direct knowledge of the accident and those called in to fix it.

It is telling that the first, and for a time only, person criminally charged in the event was a now former BP engineer, Kurt Mix, and later a top executive David Rainey. They were on the fixer's side of the virtual wall. The criminal charges against the two Well Site Leaders who had played a part in the drama before the accident came as an afterthought. The charges against Mix and Rainey included lying to Congress and obstruction of justice. These are just the kind of charges one imagines might someday be lodged against Ms. Lerner. So what can we learn from the Mix/Rainey experience that we can apply to the IRS scandal and Ms. Lerner?

For one thing, we can see that the federal courts have thrown out the lying to Congress charge against Mr. Rainey!

U.S. District Judge Kurt Engelhardt cited two reasons for dismissing the obstruction of Congress charge against David Rainey, who was BP's vice president of exploration for the Gulf. First, Engelhardt said the indictment failed to allege that Rainey knew of the pending congressional investigation he was charged with obstructing.

"Because it is an essential element of this crime that the defendant knew of this inquiry and investigation, the indictment must allege such knowledge. It does not," the judge wrote in his 44-page ruling. "Even construing the allegations strongly in the government's favor, it is simply impossible to ascertain from the indictment whether this essential element was presented to and found by the grand jury."

The judge also ruled that the obstruction count must be dismissed because it wasn't clear that it applied to subcommittee investigations like the one at the center of the indictment.

"Although subcommittees exist in both houses of Congress, the statute does not contain the word 'subcommittee.' Thus, the defendant argues that the court should not enlarge the statute to include subcommittees,'" Engelhardt wrote.

Who knew that you can't be charged with lying to Congress if they didn't tell you they were conducting an official investigation? Apparently not the Eric Holder Department of Justice! Contrast that to Ms. Lerner's experience where she had been brought before a House committee and put under oath to "...tell the truth, the whole truth, and nothing but the truth..." Ms. Lerner seems to be unacquainted with the term "the whole truth". She had knowledge that she concealed from Congress, despite being asked direct questions about public concerns that her department had been targeting Tea Party groups for extra scrutiny.

Mr. Mix's attorneys have also been busy. They have gotten the court to force Mix's former employer, BP, to provide exonerating evidence (note that the headline writer got the substance of the court's decision wrong. You just can't get good journalists these days.). They have also asked the court to force the government to provide exonerating evidence and have asked for the transcripts of the grand jury proceedings that approved his indictment. As Tom Wolfe noted in his novel Bonfire of the Vanities:

But mainly you used the grand jury to indict people, and in the famous phrase of Sol Wachtler, chief judge of the State Court of Appeals, a grand jury would "indict a ham sandwich," if that's what you wanted.

Having gotten an indictment of Mr. Mix is a long, long way from obtaining a conviction. Bloomberg reported:

Prosecutors failed to turn over evidence requested by the defense, so-called Brady material, that Mix might use to dispute government allegations, his lawyers said in court papers. They asked U.S. District Judge Stanwood Duval at a hearing yesterday in New Orleans to sanction the government, suggesting in court filings a range of actions including rejection of certain evidence or arguments, or complete dismissal of the indictment.

"The facts make it abundantly clear that these prosecutors have violated Brady," court orders and ethics rules, Joan McPhee, an attorney for Mix, told Duval yesterday. "They have done so by knowingly and intentionally suppressing evidence in their direct personal possession" that contradicts their obstruction charges against Mix, McPhee said.

The U.S. hasn't suppressed evidence, prosecutor Derek Cohen told Duval yesterday. [SNIP]

Duval said he would take the defense motion for sanctions "under advisement," while ordering the government to provide the defense with Federal Bureau of Investigation interviews of witnesses and 400 civil depositions.

Duval asked McPhee what remedies she would like for Mix, "other than hanging and pillorying" the prosecutors (emphasis added).

So what was it about Rainey and Mix that so provoked the ire of the Obama Administration? Why would his prosecutors abandon all sense of propriety?The key to understanding Obama is that he believes that government is the answer to all problems. And it is obvious that he wants plausible deniability for anything that becomes unpopular. He lives and dies by the polls. So when the American people cried out for someone to stop the flow of oil, all eyes turned to Obama. And he went on TV from the Oval Office on May 27, 2010 and told the people that he was in charge. He wanted everyone on the gulf to know "This is what I wake up to in the morning and this is what I go to bed thinking about".  He told the world that every morning his daughter Maila asked, "Have you plugged the hole yet, Daddy?"

What Rainey and Mix did was plug the hole. They did what government under the direct supervision on President Barack Obama could not. They fulfilled a young girl's fondest wish and protected the oil covered birds and kept the turtles from dying.. They embarrassed Obama, and that is a mortal sin to this president. And unbelievers must be destroyed!

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