Obama the Inchoate Kenyan

It is reasonable to believe that someone attempted to commit fraud in a commercial context when Barack Obama's literary agency published that he was born in Kenya. The few known facts seem to provide enough to constitute probable cause to probe whether an unlawful act occurred. Regardless of whether this is probed at law, and depending on what other underlying facts may come to light, there appear to be troubling legal and moral issues involved.

The free market depends on honest quid pro quo. Fraud is generally defined as misrepresenting a material fact to induce another person to part with something of value.

The quid pro quo between private parties to a transaction need not be equal in the eyes of others, or government regulators, but just fair to the parties to the transaction.

It may be of more value to me than to others to acquire what you have or do, so that I may be willing to pay more than the market price.  However, if you were to intentionally deceive me about your goods or services to lead me to believe that they have a higher value, you have committed a fraud.

There are mutual incentives for honesty in the free market, because once someone is exposed as dishonest, fewer if any people will transact business with that person. Just as mutual honesty is incentive to play fair in the free market, the free market is an incentive to mutual honesty.

The free market does not always result in honest transactions because people are not perfect. Penalties for fraud developed under the law to punish those who intentionally disrupt the integrity of honest transactions.

The law was originally designed to punish those who violated, whether intentionally or by lack of care, the covenants of civil society, and make whole those who were harmed by the wrongful conduct of others. That system goes back to the Old Testament, and the English common law on which American law was first based. Unlike many laws developed under liberal big government since then, the system was quite logical.

Without knowing all the facts yet, there at least appears to be cause to believe that Barack Obama, or someone acting directly on his behalf, misrepresented that Obama was born in Kenya, and that the statement was more than just a fact-checking error by his literary agent.

Such a false statement in the context of trying to obtain a contract for a book -- a commercial transaction -- might make the misrepresentation punishable at law. On the other hand, the misrepresentation may have been designed to induce more people to buy the prospective book, which would be another legal no-no.

To be punishable at law, the misrepresented fact needs to be what the law calls "material," meaning important to the formation of transaction. The fact that the book transaction was not consummated makes the misrepresentation what the law calls "inchoate," meaning incomplete but nevertheless attempted. We've all heard of inchoate lawbreaking such as attempted larceny, and so on.

One of the most important rules of successful marketing is to distinguish your product from others. Merely heading the Harvard Law Review is not a story worthy of a book. Being the first Kenyan-born person to do so, well, that's more of a story to sell. The pre-birther claim of Obama's Kenyan birth fits clearly the marketing rule of distinguishing your product or services. It enhanced the value of the proposed book to both the literary agent and the prospective purchasing public.

The fact that a false narrative of Obama's Kenyan birth was created and remained in the public domain for so long is not evidence per se that a fraud was committed. It is, however, cause to believe that someone in the chain of his literary efforts perpetrated a fraud for the purpose of enhancing the value of his story for sale.

Also, it is generally the rule that the unlawful acts of an agent are attributed legally back to the principal, who in this matter was Obama. A well-known example is that it is no excuse that your tax return preparer filed a tax return with incorrect information.

It is not credible that Obama was not aware that his literary agent published a false statement about his place of birth. Even if those defending him were to claim that he was unaware, Obama had a duty of care to ensure the accuracy of facts material to the sale of his story. He did so over a decade later, but only when he was preparing to run for president.

Compared to the big lies Obama tells regularly about policy and politics, a literary fraud from 1991 is small potatoes. Then again, Obama was relatively small potatoes at the time it first surfaced.