Tom Paxton’s We Didn’t Know


(The first time I  heard this, the Vietnam War was raging.  It was sung either by The Kingston Trio or The Chad Mitchell Trio.  It requires no imagination to substitute words like, “I guess we’ve  gotta’  drop those bombs if we wanna’  keep Iraqis and Afghanis  free.”  Or,  “Torturing prisoners is an Al Qaeda game and you can bet they’re doing the same.”    Citizens and policy makers  who stand in the way of  a just reckoning for those who ordered torture  are writing   verses for all our children, grandchildren and theirs.)

We didn’t know said the Burgomeister,
About the camps on the edge of town.
It was Hitler and his crew,
That tore the German nation down.
We saw the cattle cars it’s true,
And maybe they carried a Jew or two.
They woke us up as they rattled through,
But what did you expect me to do?

[Cho:]
We didn’t know at all,
We didn’t see a thing.
You can’t hold us to blame,
What could we do?
It was a terrible shame,
But we can’t bear the blame.
Oh no, not us, we didn’t know.

We didn’t know said the congregation,
Singing a hymn in a church of white.
The Press was full lf lies about us,
Preacher told us we were right.
The outside agitators came.
They burned some churches and put the blame,
On decent southern people’s names,
To set our colored people aflame.
And maybe some of our boys got hot,
And a couple of niggers and reds got shot,
They should have stayed where they belong,
And preacher would’ve told us if we’d done wrong.

[Cho:]

We didn’t know said the puzzled voter,
Watching the President on TV.
I guess we’ve got to drop those bombs,
If we’re gonna keep South Asia free.
The President’s such a peaceful man,
I guess he’s got some kind of plan.
They say we’re torturing prisoners of war,
But I don’t believe that stuff no more.
Torturing prisoners is a communist game,
And You can bet they’re doing the same.
I wish this war was over and through,
But what do you expect me to do?

Words and Music by Tom Paxton

Torture Photos: Is a public release necessary?


It depends on our purpose.

In October 2003,  The American Civil Liberties Union (ACLU)  sent  a Freedom of Information Act (FOIA)  request to the Departments of Defense,   Homeland Security,  Justice  and several  other Bush Administration agencies.  The request was for  documents related to the US Government’s role in the torture and/or rendition of individuals in its custody.  The ACLU claimed,  “[The  Government has] failed to address the numerous credible reports recounting the torture and rendition of Detainees.  Nor have they explained what measures, if any, the United States has taken  to ensure compliance with its legal obligations with respect to the use of torture and the infliction of cruel, inhuman or degrading treatment or  punishment.  [And] to determine whether the United States is honoring its obligations under domestic and international law….”

Bush Administration officials refused to release the “torture photos” because, according to them,  the photos would inflame the Middle East, put unidentified individuals, groups and in-theater military personnel at risk and would run afoul of  international laws  prohibiting the public parade and humiliation of war prisoners.

In September 2004,  the US District Court in the Southern District of New York (SDNY) stated,  “Congress enacted FOIA to illuminate government activities.  The law was intended to provide a means of accountability, to allow Americans to know what their government is doing….  Yet, the glacial pace at which defendant agencies have been responding… shows an indifference  to the commands of FOIA.”  The judge also noted,  “As of today, eleven months later, with small exception, no documents have been produced by [the Department of Defense, et al].”

The District Court ordered the public release of  the photos after viewing a representative sample in camera (e.g. in the privacy of the Judge’s chambers).  Since then, the Federal judiciary has consistently ordered that the photos and other pertinent  documents be  redacted and released in compliance with national and international laws that prohibit the public humiliation of prisoners.

In August 2006,  the United States Court of Appeals for the Second Circuit upheld the SDNY’s order to release the photos after  noting that the Bush Administration had interpreted certain legislative amendments to FOIA as “a diffuse and nebulous authority for keeping inflammatory information secret (though, curiously, only inflammatory information in law enforcement files).”  The Court continued, “Release of the photographs is likely to further the purposes of the Geneva Conventions by deterring future abuse of prisoners.”

On April 23, 2009,  the Obama Justice Department informed the Court that the Department of Defense would release its photos by May 28, 2009.

On May 13, 2009, nearly six years after the ACLU issued its first FOIA request, President Obama’s Justice Department informed the Court that the President had changed his mind,  “…upon further reflection at the highest levels of Government, the Government has decided to pursue further options regarding that decision…”  including a possible appeal to the US Supreme Court by June 9, 2009.

Press Secretary, Robert Gibbs expressed President Obama’s concern that release of the photographs would inflame the Middle East and increase the threat to US personnel serving in Iraq and Afghanistan.  The Obama team does not believe the Bush Administration adequately portrayed those risks in its Court filings and appeals.

Yesterday, The Huffington Post carried this ACLU response, “These photographs provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib….  Their disclosure is critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse.”

The U.S.  Federal Rules of Evidence state, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice… or needless presentation of cumulative evidence.”  In short,  not all relevant evidence is equal or admissible. A judge must determine whether its value as evidence substantially outweighs its potential harm.

There’s also a notion in civil societies  that an inflamed person is unlikely to be judicious.

Is it reasonable to believe that “The Amorphous Middle East” would be inflamed by a 24-7  media blitz of photos in which an occupying military force tortures citizens of  foreign lands?  Will “The Amorphous Middle East” see the photos as evidence  of the  Bush Foreign Policy, distinct from Obama’s?  And,  will that Middle East view efforts to hide the photos as a continuation of Bush policies?

One friend I spoke with said she wants the photos disseminated publicly. “Maybe pictures will  make Americans feel shame.  Maybe pictures will provoke an American conversation about who we really are and what ethics we really believe in.  Maybe it’ll force the politicians to really do something.”

Maybe;  but I doubt  the photos will stimulate the American public to a greater outrage.   Many of the people I know have been outrage- saturated by a plethora of criminal actions and a dearth of incarcerations.  Thankfully, the ACLU has a ton of arrows in its quiver.

Germany was shamed after World War I and a handful of years later we fought World War II.   We fire-bombed Germany during World War II and held them to account at Nuremburg. Germany is now home to one of the world’s fastest growing populations of Skinheads and other xenophobes.  Whether or not  cause and effect can be proved  in those examples,  they tell us  that shame is not a cure-all.

Our purpose, as opined by  the United States Court of Appeals for the Second Circuit, should be to deter “future abuse of prisoners”  and to ensure, as the ACLU demands,  that  “the United States is honoring its obligations under domestic and international law….”

We have a system of justice intended to do just that.  We place the accused on trial.  We hear the evidence against and for  them.  We release or punish them.  As a matter of course,  we  parade our convicted felons publicly.  We hope that their shame will deter others – will demonstrate our adherence to the rule of law.

With that in mind, whether the photos are released publicly or viewed in camera or by a jury,  the real issue is not which evidence will be presented (there’s tons) but rather, will Donald Rumsfeld, George Bush, Dick Cheney, et al stand in the dock.  Will they be paraded publicly to cleanse rather than inflict shame?

A public trial of those who conceived and implemented the torture policy would stimulate a discussion about the American ethic and reassure the world of our honorable intention to uphold our ideals. Without that,  publishing the photos is just more Bread & Circuses and I fear, provocation.

******

Legal documents at ACLU website

House Financial Services Subcommittee Hearing


Here are high points of the Hearing I found interesting and some of my own thoughts. (Quotation marks are included where statements are actual quotes rather than the “sense” of what was said.)

BARNEY FRANK, Democrat & Financial Services Committee Chairman.   As major stockholders, the US Government should try to recoup $165 million in bonuses by filing  a lawsuit alleging “poor performance” on the part of  bonus recipients.  He also demanded the names of bonus recipients and updates when bonus recipients either return or refuse to return  bonus money. (Although New York’s Attorney General Andrew Cuomo is in receipt of these names, Liddy expressed a need to protect bonus recipients because of  deadly threats made against them and their families.)  (According to  the Center for Responsive Politics,  Frank received $202,548 in contributions from the Insurance Industry.)

OLYMPIA SNOW, (R) Maine.   Offered AIG bailout provisions which would have disallowed most of the oversized bonuses.  (Received $5,000, according to the Center for Responsive Politics.)

CHRISTOPHER  DODD, (D) Connecticut.  Snow’s amendment was (allegedly) struck by  Connecticut’s  Chris Dodd.  How he did it is unclear.  At first, he denied the act.  Subsequently,  he said  he received instructions from Treasury and/or The White House.  Regardless, striking the provision resulted in Congressional approval of bonus contracts entered into before February 11, 2009.  As a result,  165 million taxpayer dollars have been paid to architects of the debacle. Reportedly, Dodd received $852,556 from insurance lobbyists.  (Center for Responsive Politics)

STEPHEN LYNCH, Massachusetts:  “We amend  contracts all the time.  My auto workers were badgered and badgered….  These [AIG] guys lost billions of dollars  and still believe they’re entitled to these bonuses.” (Lynch  received $35,299 according to the Center for Responsive Politics)

PAUL KANJORSKI, Chairman, Financial Services Subcommittee on Capital Markets (D-PA).   Admitted to knowing about the incipient bonus payments  two months  ago and  “warned Liddy that  paying the bonuses would be a  big mistake.”  “You [CEO Edward Liddy] should have told the bonus recipients to ‘sue us.'”  (Kanjorksi did not mention warning anyone else and according to the Center for Responsive Politics, received $345,548 in donations from the insurance industry.)

Joel Ario,  State of Pennsylvania Insurance Commissioner and  Chairperson of the National Association of Insurance Commissioners.  Ario believes that AIG’s toxic holdings could be walled off from its healthy funds-at-large.   (NB:  Therefore, the company at-large could survive if its sick subsidiaries were permitted to fail.) (Also see: [Funny] Side of the [Wall] Street:  Obamanomics.)

Neither the Government Accountability Office (GAO) nor the federal Office of Thrift Supervision (OTS)  have investigated whether AIG fraudulently misrepresented its health and wealth at the time it was creating “retention” and other bonus contracts  “to the tune of $400 + million  with the division that was bleeding to the tune of $40 billion.”

Another committee member asserted, [“The distribution of these bonuses] borders on fraud and criminality.”

According to Scott Polakoff of OTS, his agency knew the risk of the credit default swaps  in 2004 and did nothing to avert the collapse.  OTS did not close AIG’s toxic financial products division even though “the agency had a complete picture and oversight authority” to do so.  Polakoff further stated that “OTS had sufficient  expertise and personnel” but in effect, since Congress didn’t instruct OTS to review the  bonus contracts before AIG’s bailout was approved, the agency didn’t do the research.

Rodney  Clark of Standard & Poor’s (S & P) rating agency was asked,  “How can we depend on you and were mistakes made?”  Clark answered, “Hindsight being 20-20…, our conclusions [of AIG’s solvent value]  changed rapidly once the market started to collapse.  Market values are important as a guideline.  We could not understand  how quickly the value of mortgage backed securities would decline….  (NB:  On what basis, then,  did S & P  justify its AA-  rating until  September 15, 2008 if ?)  S & P hedged its bets. Ratings are based on current value and  give prospective investors a factual basis for predicting future performance.)  Clark  went on to say,   “In 2008, excluding  investment losses,  AIG would’ve been profitable.”

Really?  Does that mean S&P didn’t see the looming  losses or didn’t consider them relevant to the total value of the company?  (See: Ratings Agencies falsify reports or search CSPAN’s  archives for quotes from ratings agents who knew full-well that the mortgage-backed securities were toxic but provided healthy ratings because…that was the outcome corporations paid them to obtain.  (See:  previously-cited statement from Joel Ario.)

Edward LIDDY,  AIG insurance Chairman & CEO (temporarily appointed  in 2008 to detoxify AIG).   Prior to Mr. Liddy  taking his witness  seat,  he was stopped by  “pink lady demonstrators” who questioned him (in part) about  consequences to returning war veterans whose savings were invested  with AIG.  If he answered, it wasn’t televised.

He did tell us that the risk to AIG was unacceptably high if we did not pay the $165 million in bonuses. “It was my determination,” he said, “that AIG-FP would unravel if employees weren’t retained to wind down the projects they were working on.  Which they did.  They’ve reduced $2.7 trillion in toxic assets to $1.6 trillion.  It’s my intention to reduce those debts, sell AIG’s insurance companies and strengthen the healthy portions of our business.  If we don’t pay our debts, that triggers bankruptcy. I’ve asked AIG-FP (financial product) employees to return a portion  of the bonuses.   Believe me, I wouldn’t have approved the contracts if I’d been CEO  at the time they were  created.”

Liddy further asserted that Federal Reserve Chairman Ben Bernanke acquiesced to the  payment of retention bonuses.

“We didn’t tell Congress because nobody told us to,” Liddy explained.  “We’re partners with the Federal Reserve. They participate in  activities leading up to board meetings and they attend board meetings. I asked if they had comments  or different points of view as far as bonuses and everything else.  The Federal Reserve  did  not  disagree with our assessment that AIG-FN was at risk of jeopardizing the monies already given if we didn’t pay the bonuses. We were told by our attorneys that the contracts were unbreakable.  I assumed they shared  with Treasury and Congress information they gained from us.  The Secretary of the treasury did not know we were going to make the [bonus] payments though the Federal Reserve did.  It’s  up to the Federal Reserve to  discuss”  salient issues with the Secretary of the Treasury.

Later,  Treasury Secretary Timothy Geithner said he didn’t know about the bonus contracts until two weeks ago.

Countering assertions of possible fraud, Liddy said he believes,  “AIG was solvent when the retention contracts were drawn.”   (On what factual basis did he develop this assessment?  Or,  is he just repeating assessments  from ratings agencies which regurgitated AIG’s own corporate projections?  Isn’t that the same self-quoting claptrap that got us into Iraq?)

Liddy  continued,  “AIG has problems besides the mortgage-backed securities. There’s oil accounts and other  utilities in trouble.” (This appears to contradict his assertions of fundamental solvency.)

ED PERLMUTTER, Committee Member.  “There’s a whole fraud concept that says ya’ can’t be handing out bonuses when you’re insolvent.  I don’t think these bonuses should have been paid.”

Some legal issues, AIG’s Employee Retention Plan and relevant case and statutory findings.

Currently, some members of Congress are promoting tax legislation which would target bonuses paid by corporations that received stipulated bailout funds. Their idea is to re-appropriate the funds already disbursed. (There is every reason to believe such targeting is unconstitutional.  Seeing as how Congress writes the laws and  has more than its fair share of attorneys,  you’d think they’d know that.)

AIG-FP 2008  Employee Retention Plan, effective December 1, 2007

(Importantly, there is no signing date on the Retention Plan although it specifically covers 2008 and 2009.)  According to CEO Liddy’s Executive Summary of the retention plan in which he discusses the bonuses,  “The plan was implemented because there was a significant risk  of departures among employees at AIGFP, and given the $2.7 trillion of derivative positions at AIGFP at that time, retention incentives appeared to be in the best interest of all of AIG’s stakeholders…. This resulted in a $313 million total for 2008 and a $327 million total for 2009… The 2008 awards range from $1,000 to slightly less that $6.5 million.  Only seven employees will receive more than $3 million…. The retention plan is governed by Connecticut Wage Act.  (Section 4.04)”   (NB:  The law provides for the recovery of double damages and attorneys’ fees when wages are improperly withheld and the employer’s refusal to pay wages lack a good faith basis. Conn. Gen. Stat  sections 31-72.)  “In addition,”  states Liddy, “individual managers who decide to withhold wages that are due are individually liable for violation of the Wage Act…We have been advised that the bonus provisions of the American Recovery  and Reinvestment Act of 2009 prohibiting certain bonuses specifically exclude bonuses paid pursuant to pre-February 11, 2009 employment contracts.”  (Apparently, this is the  alleged  “Dodd Provision.”)

NB: The definition of “executive employee”  rests largely on whether an employee is salaried, is required to exercise personal discretion in performance of duties,  earns in excess of certain dollar amounts and has (usually) some supervisory responsibilities.

According to the Connecticut Wage Statute (sec. 31-71(e).  “No employer may withhold or divert any portion of an employee’s wages unless (1) the employer is required or empowered to do so by state or federal law and  (i) “Wage” means compensation due to an employee by reason of his employment.  (Italics added for emphasis.)

Liddy’s  Executive Summary referenced Schoonmaker v Lawrence Brunoli, Inc. 828 A.2d64 (Conn.2003). Schoonmaker established that double damages could be paid when salaries are withheld for reasons of  “bad faith, arbitrariness or unreasonableness.”

The courts have also established that, “Punitive damages may be awarded in suits in which it is proven by clear and convincing evidence that the defendant’s [employer’s] actions showed willful misconduct, malice, fraud, wantonness, oppression or [lack of care] which would raise the presumption of conscious indifference to consequences. Under O.C.G.A. 51-12-5.1(b), it remains the rule that something more than the mere commission of a tort is always required for punitive damages. There must be certain circumstances of aggravation or of outrage.”

New York’s Attorney General Andrew Cuomo may attempt to use the Fraudulent Conveyance Act to recover the bonuses.

In order to pursue Fraud charges, “… the misrepresentation [or omission] must be made knowingly and intentionally, not as a result of mistake or accident; that is, that the person either knew or should have known of the falsity of the misrepresentation [or the false effect of the omission], or that he made the misrepresentation [or omission] in negligent disregard of its truth or falsity.

NB:  Under the Bankruptcy Code, insolvency exists when the sum of the debtor’s debts exceeds the fair value of the debtor’s property, with some exceptions. It is a balance sheet test. 11 USC § 101(32)

18 USC CHAPTER 47 § 1031 concerns  “major fraud against the United States”  and  is another  statute being considered by  New York State’s Attorney General Cuomo. It  provides  the following:

(a) Whoever knowingly executes, or attempts to execute, any scheme or artifice with the intent-

(1) to defraud the United States; or

(2) to obtain money or property by means of false or fraudulent pretenses, representations, or promises.

Therefore, the two most important facts to ascertain  are,  “What was AIG’s actual state of solvency when the bonuses were contracted and did its officers misrepresent that state?”

More Answers Needed:

Which Congress people  received campaign finances from AIG and other financial corporations?  How much did they receive? How did those congress people vote or speak on salient congressional  actions?  (You can find some of the answers at  the Center for Responsive Politics and RollCall.  Feel free to vote accordingly in upcoming elections.)

At the time of AIG’s bailout or request for a bailout, what was the corporation’s actual worth?

Was the United States coerced by fear and intimidation into awarding bailout funds?

Besides Christopher Dodd, who was involved in exempting bonuses agreed to before February 11, 2009?   To  what extent were Treasury and The White House involved?

As always, you can view the hearings at CSPAN.

Commercials: Society’s Economic Mirror


While knitting and cogitating on the day’s jury*  events,  the background drone of TV commercials finally penetrated.

“What,”  I wondered, “do companies advertise when the stock market’s below 7,000 and new (monthly) unemployment claims regularly exceed half a million?  What’s worth the hefty investment in TV advertising?”

During the Wednesday night 7:30-9:30 time slot (MSNBC, USA, CBS) a snapshot emerged.  The largest advertising sector was Cable TV’s ads for its own products:  new programs,  old programs and upcoming specials guaranteed to improve your tax outlook and trim your monthly budget.

In terms of “products,”  Madison Avenue supports our return to home-cooked goodness, so gather the family round the table and make some nostalgia as you tuck into old fashioned dehydrated macaroni & cheese and  canned chunky soup brimful of luscious garden veggies.  Or, for a treat (only your budget knows the limits) try a chef-cooked bucket from the local KFC.

If you haven’t been drinking enough Brita-filtered tap water,  stock up on Activia yogurt or the colon cleanser of your choice.  Also, if you’re noticing an uptick in cholesterol, edema and/or chest pain and the emergency room’s sick of seeing you, get a bottle of aspirin  and join Jenny Craig or a similar national diet plan.  (MONEY SAVER IDEA:  purchase a single membership and apportion the food  to your family of four.  Huge budget benefits guaranteed!)

Our neo back-to-Foxfire-basic relies on simple things:  Fixodent, toilet paper,  TV.com (save electricity by planning your nightly viewing) GMC trucks (if your patriotism includes rebuilding America!) Dunkin Donut’s  aromalicious beans for homebrew,  Olay deep cleansing wash (for after a day of shoveling compost),  Dr. Phil, anti-depressants  & anti-constipation drugs of  choice sold cheap at Walgreen’s or  Wal-Mart (not your local pharmacy),  quick-flush toilets, do-it-yourself legal forms and finally, two attorneys  —  one for torts and one for bankruptcy.  If you’re a small business owner who’s still hanging an open sign, Verizon wants their Small Business Toolkit to be your new bff.  Yee gads! Verizon’s got your number!   What?  Well of course they’ll  have to turn the phones back on….

For those of us not living in a new back-to-basic tent city neighborhood, add Travelocity to the list of resources bolstering your pared down life.

Except for one final  advertiser, that’s it in a nutshell:  a yellow brick trip through Madison Avenue Oz and its representative,  Cable TV.

I want to underscore  my last advertiser for its uplifting message.  Bank of America is America’s Bank of Opportunity.  I swear on an oath,  I smelled green grass and green tech constructing a green and bounteous future.  An inspirational partner for each of us, no doubt.  As a start, if you were one of the thousands of BOA partners they accidentally  socked for improper fees,  make sure you apply  for your $78 refund from the  the class action fund.

*    *    *   *

Skeletal thoughts from the past week:

Jon Stewart’s rip of CNBC, Jim Santelli and Jim Cramer is the most brilliant commentary I’ve seen in years.  (Cramer will be Stewart’s guest tonight.  That is, if he doesn’t “bail out”  like  Santelli did.)

In the large picture, Bernie Madoff is a scapegoat.  Let’s see what happens to those who made all the destructive schemes possible:  the SEC overseers, ratings agencies, Congress and Presidents going back to at least Reagan.  For sure, he should go to prison; but how does that benefit his (and the SEC’s) thousands of victims?

CNBC and its guests are taking a hand in shoring up our trust in the financial markets and  their institutions.  The new confidence game is beefy with cheery language and predictions.  MSNBC’s Morning Joe crew groaned at Mark Haines’ proclivity for  gloomy predictions.  Two mornings ago, Haines  eschewed doom and announced the Market had found its bottom.  The Dow’s closed in positive territory since. In fairness, his gloomy outlook changed the same day Citi’s CEO announced that his company was doing just fine. Quick fix.

*Aside:  Am currently serving on a Grand Jury which has an impact on my writing schedule.  More on that near the end of April when the service is complete.

“Lightning” Rod Blagojevich


Mother Teresa,  Nelson Mandela,  Gandhi and   Dr. Martin Luther King, Jr.?   Governor Blagojevich makes it easy for his detractors to paint him as  a delusional, narcissistic clown.

He makes it easy for all of us to join in our shared sense of “We’re Okay and He’s a Piggy.”

What actual evidence caused U.S. Attorney Patrick Fitzgerald to seek the Governor’s arrest?  What evidence  is fueling the feeding frenzy  amongst politicians, the media  and the public?

The Criminal Complaint

According to the Criminal Complaint (Docket #  1:08-CR-01010),  Governor Rod Blagoyevich’s malfeasance began around 2002 and the US Attorney  started gathering evidence against him in 2003.

By the time the Governor ran for re-election in 2006, the investigation was already three years old.

Interestingly, wiretapping wasn’t initiated until the investigation was more than five years advanced.  (October 22, 2008).

And what do we have to show for all those billable hours?   The Complaint alleges that Governor Blagojevich conspired to defraud, conspired to obtain money and property by fraud and corruptly solicited and demanded… (See  “Notes & Citations” below.)

The Complaint does not allege that any of the Governor’s hairbrained, adolescent-boy-in-a-treehouse schemes bore fruit.  Although one informant says he donated money to Blagojevich’s political campaign in exchange for a “lucrative post,”  I found no allegation in the Complaint that such a post (or lucrative contract) was awarded.

Stuart Levine is a witness central to the Government’s case against Blagojevich. In exchange for his testimony, the Government has agreed to drop some indictiments against Levine and recommend that he serve only 67 months in prison.  (Unrelated to anything involving the Governor, Levine admitted in his plea agreement to …crimes over the past  approximately 20 years... [and] further admitted to using illegal narcotic drugs …30 years…cocaine, crystal methamphetamine, ecstasy and ketamine.”

Much of the information in the Government’s Complaint was provided by Tony Rezko.  The Complaint implies Rezko was a confidante and agent of the Governor.

Unfortunately for the Government,  “Earlier this year [2008]  Mr. Rezko wrote a letter to the judge in his own criminal case … in which he complained that federal prosecutors in the office of U.S. Attorney Patrick Fitzgerald   “are pressuring me to tell them the ‘wrong’ things I supposedly know about Governor Blagojevich and Senator Obama. Mr. Rezko added that he had never been involved in wrongdoing with either man.”

Rezko changed his tune in December 2008. The Government’s affidavit against Blagojevich states, “Rezko has proffered [information] … in hopes of receiving a recommendation from the Government for a reduced sentence. On Thursday, the federal judge in Mr. Rezko’s case abruptly suspended his sentencing proceedings.”  (Wall Street Journal)

Admittedly, the Governor is caught on tape musing about appointments to Obama’s cabinet. He also admits on tape that it was “unlikely that the President-elect would name him….”

The Governnor speculates about his wife being named to paid-corporate boards.

He wonders how best to be named to a not-for-profit.

He says, “…if…they’re not going to offer anything of any value [for Obama’s Senate seat] then I might just take [it]….[I] will make a decision…’in good faith…but it is not coming for free…It’s got to be good stuff for the people of Illinois and good for me.'”

He denies his own “involvement in anything illegal, including involvement in illegal activity with Rezko…”

Moreover, Jesse Jackson, Jr. and  representatives of the Obama team have stated unequivocally that they had no  pay-to-play,  quid pro quo, conversations with Blagojevich or any of his agents.

And in mid-December 2008, the Illinois Supreme Court refused to hear a challenge to the Governor’s fitness to hold office.

We are now in a holding pattern.  US Attorney  Fitzgerald asked for and received a 90 day extension in which to  gather himself for an indictment.

If not in a Complaint that’s been five years in the making, then where’s the evidence  that Governor Blagojevich’s discussions rose  above the  “pay-to-play”  schemes commonly attributed to Halliburton, The Carlyle Group, Lockheed Martin, Northrup Grumman, General Electric, the insurance industry, oil companies establishing federal energy policy, Fannie and Freddie, Congress and professional sports teams bartering for public funds to build their new stadiums?

I’m not saying  Governor Blagojevich is innocent.  How can we know?  But I am asking why we’ve colluded in making him our lightning rod for government corruption when there are so many others  in the federal government and financial markets with  demonstrable blood on their hands?

Martha Stewart, anyone?

Notes & Citations

Court documents filed  in  USA v Blagojevich, et al .  You’ll have to scroll 2/3 down the page.(Docket #  1:08-CR-01010):

Allegations and statutes: “Rod R. Blagojevich and John Harris, were charged by way of a criminal complaint on December 9, 2008, with: (a) conspiring to defraud the  citizens of Illinois of their right to his honest services, as well as conspiring to obtain money and property by fraud, in violation of the mail and wire fraud statutes, 18 U.S.C. §§  13411343, 13461349; and (b) corruptly soliciting and demanding the firing of Chicago Tribune editorial board members who had been critical of Blagojevich, in exchange for the awarding of millions of dollars in financial assistance from the State of Illinois, 18 U.S.C. § 666(a)(1)(B) and 2.

Is Obama Clearing the Way to Criminal Charges?


On January 21, 2009, President Obama signed an Executive Order that revoked George W. Bush’s  Executive Order 13233.  Bush had sought to severely limit  access to the records of former United States Presidents.    His previous and  more exclusive version was drafted by then White House Counsel Alberto Gonzales and issued by President George W. Bush on November 1, 2001.

In signing the Executive Order,  President Obama  returned to the law as it was signed  by Ronald Reagan in 1989.

Obama’s  revocation affected two substantive changes  in what happens when a former president is asked to release  his presidential records.

Obama’s new order  reduces from 90 to 30  days the length of time a former president has to review records being requested.  This is important to the issue of delay as practiced for eight years by the Bush Executive.

More substantively,  the old version  (Bush’s Ex. Order 13233)  would have given Bush de facto veto power over Obama  if  Obama believed  Bush’s claim of  Executive Privilege was bogus:

“… the Archivist shall not permit access to the records by a   requester  [b]ecause the former President independently retains the right to assert constitutionally based privileges… the Archivist shall not permit access to the records by a requester unless and until the incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final and nonappealable court order.

According to Bush’s rule,  both the former and incumbent Presidents would have to agree to the document disclosure.

Obama’s new rule allows the current President   to overrule the  former President’s claim of Executive Privilege:

[Upon receipt of a claim of executive privilege by a living former President], the Archivist (b)  In making the determination referred to in subsection (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order.

Even under Obama’s Order,  the former President has theoretical recourse to  the Courts.

Is  Obama clearing debris  from the path  to criminal charges?  In part, that will depend on what happens to Cheney’s records and how President Obama treats  “Executive Privilege.”

Bush’s Executive Order 13233 mentions the Vice President’s records specifically.  Obama’s order does not — as if Obama believes  the Veep’s documents are  integral to the  Executive Branch.  That would be a new view. As you know,  Cheney believed his office existed in a misty venue somewhere between the Executive and Legislative branches.

1.   Wikipedia intro to Bush’s Executive Order 13233

2.   Obama revokes Bush’s  Presidential Records protections