Justice as Collateral Damage

On Tuesday, June 2, we will find out what the Department of Justice alleges constitutes the crime of obstruction of justice by deleting electronic messages. That is when case No. 14-30837, United States of America, Appellant vs. Kurt Mix, aka Kurt E. Mix; will be heard in the 5th Court of Appeals. For those who don’t remember, Mr. Mix was an engineer working on solving the blowout of the Deepwater Horizon oil spill back in 2010. He was indicted on two charges of obstruction of justice bearing a maximum to forty years in prison upon conviction. He played no part in the design or operation of the Macondo 252 well that suffered the blowout. He bore zero responsibility for creating the mess, he just had the misfortune of being an expert in the computer software used to try and model the blown out well after the accident had occurred.

With the topic of former Secretary of State Hillary Clinton’s private email server much in the news, we will get the guidance of the “best and the brightest” of the DOJ’s legal minds. Can a person who delete private messages not related to work from the archives be convicted of a crime? Kurt Mix was originally indicted, in part, for deleting text messages he sent to his sister! Why was this cause for him to be indicted when Secretary Clinton claims the right to delete email regarding her daughter’s wedding and yoga classes? Mr. Mix was charged with deleting about 300 text messages. Secretary Clinton admits deleting about 30,000 “private” emails. At a rate of forty years in prison per 300 messages, does that mean the DOJ thinks Secretary Clinton should get four thousand years in prison if convicted of a “crime” she admits to having committed?

The DOJ made a big deal of indicting Mr. Mix, as the first person charged with a crime in the Deepwater Horizon oil spill, citing the fact that eleven men died in the accident, before Mr. Mix got involved with the well for the first time! How is the death of those eleven workers relevant to Mr. Mix’s case, as contrasted with how the deaths of Ambassador Christopher Stevens and three other men are relevant to Secretary Clinton’s actions regarding the attack on the American consulate in Benghazi, Libya? She was directly involved in the government’s response to that terrorist attack in real time. Those four men were alive when she had the chance to do something to ensure their survival.

The courts rejected the first attempts by DOJ to bring Mr. Mix to trial and were forced to go back before the grand jury to get indictments the court would consider bringing to trial. When Mr. Mix’ case was ultimately brought to trial, one of the charges was dismissed. He was initially convicted on the other charge, but that conviction was overturned by the court due to improper actions by the foreman of the jury. The judge determined that he was entitled to a new trial. That put the DOJ in the position of needing to accept the court’s decision or appeal the judge’s decision. They have asserted the need to take the matter to the highest levels of the DOJ to make the decision on whether to continue this case by appealing the judge’s decision of a mistrial. That is the matter at hand on June 2.

Walter Pavlo of Forbes wrote this about the case

“It is no secret that BP corporate executives, not Mix, made public statements during the spill which were inaccurate. Whether that was the result of just not knowing, not wanting to know or plain old lying, we may never know. The most misleading information concerned the flow rate of 15,000 barrels of oil per day (BOPD) mentioned in a meeting in preparation for operation Top Kill, an effort to cap the well. Those who attended the meeting noted that it had some chance of success and minimal chance of making things worse … so why not go for it? However, they all knew that if the flow rate was significantly greater than 15,000 BOPD Top Kill would fail. It failed. That meeting, one that Mix attended, was allowed to be entered as evidence against him at trial as proof that he knew the flow of oil was much higher than others at BP had stated and deletion of text messages, any sort of text message, by someone working on the spill must be criminal in nature. Never mind that the texts were between known friends of Mix’s and contained information relating to golf, yoga and lunch plans. It was a stretch but a jury bought it … or so it seemed.”

Twenty years for ‘obstructing justice’ by deleting texts about yoga plans?

What this has always been about is protecting the image of an all-powerful government. The only potentially relevant text message Mr. Mix deleted dealt with the flow rate of the oil at the time of the unsuccessful top kill operation in late May 2010. In a text to his supervisor, he noted the flow rate exceeded 15,000 barrels per day.

The government was desperately trying to exaggerate the flow rate to maximize the fines BP would pay for the oil spill. What is interesting is that after an expensive, lengthy trial before another judge, Carl Barbier, the government has been found, as a matter of legal fact, to have grossly exaggerated its estimate of the flow rate and therefore the total size of the oil spill. As Reuters reported:

BP Plc. will face a maximum fine of $13.7 billion under the Clean Water Act for its Gulf of Mexico oil spill, several billion dollars less than feared, after a judge ruled that it was smaller than the U.S. government claimed.

The ruling by federal magistrate Carl Barbier put the size of the worst offshore spill in U.S. history in 2010 at 3.19 million barrels.

That was well below the government's estimate of 4.09 million barrels, which could have led to penalties of up to $17.6 billion.

The government was caught trying to sell the court on the spill having been about one million barrels of “missing oil” larger than it was. Judge Barbier didn’t buy that fiction. So who was it trying to obstruct justice, Mr. Mix or the DOJ? When will the government be forced to admit its guilt in deceiving the long suffering residents of the Gulf coast? There is no reason to fear more oil coming ashore at some date in the future. There never was any “missing oil”, there were only government officials trying not to “waste a crisis”.

Now, before the appeals court, Mr. Mix’s attorneys will be able to make a few pertinent points reported by the New Orleans Times Picayune

“Mix's attorneys argued there is ample evidence he shared information about the flow rate throughout the government investigation. They also said prosecutors failed to prove Mix knew the information he deleted would be pertinent to a grand jury investigation -- an investigation they said he did not know about and that had not yet even begun.”

Is there anyone in the Obama Department of Justice who has heard of the phrase “equal justice under the law”? If so, Secretary Clinton is in for some very hard times ahead. 

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