The government's desperate effort to collect outsized environmental fines as a result of the BP oil spill took a major blow when former BP drilling engineer Kurt Mix finally got his day in court Monday May14th. He is still the only person to have been arrested as a result of the BP oil spill. The complaint against him was that he recently deleted 300 text messages from his phone relating to the oil flow rate during the top kill operation in late May 2010. He was charged with an obstruction of justice charge despite not being involved in the fatal accident itself, only the source control efforts afterward.
Politicians of both parties have been planning to do what they all love to do best, spend other people's money using the fines collected from BP as the source. The widely publicized expectation is that they would eventually have about $20 billion in fines to split amongst themselves, based on the official government estimate of a total flow of 5 million barrels and a fine of $4,300 per barrel for criminal negligence.
BP has set aside $3.5 billion based on a more realistic estimate of no more than 3.2 million barrels at the civil maximum civil negligence fine of $1,100 per barrel. Based on the government's own "Fate of the Oil" report the total flow was 4,928,100 barrels of which 827,046 barrels were collected before entering the gulf and another 1,253,839 barrels were deemed "remaining" and were described by NOAA Administrator Jane Lubchenco as "missing."
Maximizing the total flow subject to the fine is essential to maximizing the loot to spread around. But two years of dedicated searching have failed to turn up any hint of the over 1 million barrels of "missing oil," leading to the logical conclusion that the "missing" oil never flowed out of the well in the first place, as BP has long contended in court filings. The government has a financial and political interest in discrediting and intimidating witnesses, such as Mr. Mix, who are knowledgeable about the actual flow rate. Making him do a perp walk was just a part of their trial by media strategy given the weaknesses of their case in court.
But in a hearing before U.S. District Judge Jane Triche Milazzo, his attorneys presented Exhibit A.
Mix's lawyers filed "Exhibit A," the complete recovered string of more than 100 text messages between Mix and a BP contractor hired to help analyze the flow of oil from BP's subsea Macondo well. The texts, running from May 13, 2010, about three weeks after the oil spill began, until August 20, 2011, cover such mundane topics as trips to California, borrowing each other's vehicles, setting up lunches and the results of a pet's surgery.
Another 200 of the deleted text messages are protected under a privilege claim by a different party to the litigation (likely his former employer BP). He has asked that they be allowed into evidence under seal.
Mix asked Milazzo to let him disclose that information to the court under a protective order, so that the judge and prosecutors can see that he was cooperating and never intended to destroy key evidence, but also so it remains under seal so the unnamed third party could also keep its privileged documents out of public view. [SNIP]
"If evidence emerges that exonerates Mix, however, it would be a major embarrassment to the government," said David Uhlmann, a law professor at the University of Michigan and the former chief of the Justice Department's Environmental Crimes Section. "Today's developments underscore the need for the government to move forward with charges based on the oil spill and the worker deaths, rather than focusing on obstruction of justice charges that are not at the heart of the matter."
Now that Mr. Mix has survived being falsely arrested by the government, he becomes a desirable witness to testify before the House Natural Resources Committee which is seeking to learn the facts surrounding the spill and the associated offshore drilling moratorium. It was illegally implemented after midnight machinations by the White House during the exact time period in question. Mr. Mix likely has intimate knowledge related to some of the questions the committee has unsuccessfully tried to answer, particularly whether Steven Chu sabotaged BP's efforts to kill the well in May 2010. The committee could offer him immunity from prosecution by the government and whistleblower protection against BP to get to the truth and thereby start to get to the truth of the matter.
Once again we have seen the wisdom of the old adage "...and the truth shall set you free" (AKA John 8:32).
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