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I read "BCRE8TVE"'s diary early this morning and it is one of the best researched posts I have seen in months.  I borrow the author's entire post for all to read.  This historical expose of GOP shenanigans, contrasted against Obama's strategy to ensure BP pays for this mess is quite compelling.

Smokey Joe is upset about the "shakedown" of BP, but for him not to be intellectually dishonest,(I know, stop laughing) he would have to be opposed to what the Bush Justice Dept. called "DEFERRED PROSECUTION".

For example there was this one:

"Last month, prosecutors and the company reached an unusual deferred prosecution agreement, under which Bristol-Myers has two years to clean up its act and prove it can operate lawfully. If it stays clean, it won't face criminal charges. Also under the terms of the agreement, Bristol-Myers made a $300 million payment to a shareholder-restitution fund and Mr. Dolan (CEO of Bristol-Myers) gave up the chairman's post to Mr. Robinson."

Not only did they pay into a restitution fund, they removed the CEO of Bristol-Myers.  I know Joe thinks that would be wrong!

But, Joe would be upset if any company did something wrong and was strong-armed for it.  Even if the company was "trading with the enemy".

....will (not)criminally prosecute Chevron Corporation and its subsidiaries

(collectively, "CHEVRON") for any crimes related to its purchases of Iraqi oil under the United Nations Oil-for-Food Program from in or about mid-2000 up to and including in or about March 2003, that involved the payment by third parties of secret illegal surcharges to the former Government of Iraq, including asset forth in Exhibit A. which is incorporated by reference herein.


It is the intent of the United States Attorney's Office for the Southern

District of New York to seek the transfer of $20,000,000 of these funds to the Development Fund of Iraq (sanctioned on May 21, 2003, by United Nations Security Council Resolution 1483) to be used as restitution to the people of Iraq asthe intended beneficiaries of the proceeds of the sale of all Iraqi oil made pursuant to the United Nations 011-for-Food Program.

But that wasn't BPish in scope.  Smokey Joe thinks that it is wrong to "shakedown" a company only if they do something really bad.   Like trading with Iran.  Like these guys:

STATOIL accepts and acknowledges that the United States will file a criminal information in the United States District Court for the Southern District of New York charging STATOIL with violating the Foreign Corrupt Practices Act


In June 2002 and January 2003, Statoil paid bribes to an Iranian government official (the "Iranian Official") in order for him to use his influence to: (i) assist Statoil in obtaining a contract to develop three phases of the South Pars oil and gas'field in Iran (the "South Pars Project") and (ii) open doors to additional projects in the Iranian oil and gas exploration industry. The Iranian Official was the head of the Iranian Fuel Consumption Optimizing Organization ("IFCOO"), a subsidiary of the National Iranian Oil Company ("NIOC"). Statoil agreed to pay the Iranian Official through a consulting contract (the "Contract") with an intermediary company (the "Consulting Company") organized in the Turks and Caicos Islands and nominally owned by a third party located in London, England. The Contract obligated Statoil to make initial payments of $200,000 and $5 million, and ten subsequent annual payments of $1 million each.


STATOIL further agrees that it shall pay a monetary penalty of $10,500,000. In consideration of the NOK 20,000,000 penalty that STATOIL has already paid to the Norwegian authorities with respect to the conduct described in the attached Statement of EOUSA 1692 Facts, STATOIL shall receive a credit for that amount upon proof of payment and thus

shall pay $7,500,000 to the U.S. Treasury within ten (10) days of the execution of this Agreement.

Well, that sucks, but at least none of these companies were hiding the same sort of problems that BP was.  At least they didn't have the potential to destroy a large swath of the U.S., right? That's what gets Ol' Smokey upset - when the government "shakes-down" a company that really, really screws up. Wait, I forgot about First Energy Nuclear Operating Corp.:

  1. FENOC admits that the Department can prove that from September 3, 2001 through November 28. 2001, FENOC employees, acting on its behalf, knowingly made false representations to the NRC in the course of attempting to persuade the NRC that Davis-Besse was safe to operate beyond December 31 2001, as set forth in detail in the Statement of Facts attached hereto as Attachment B (the "Statement of


  1. FENOC agrees to pay a monetary penalty of $28 million. A portion of this amount may be directed to a community service project, with the agreement of both parties. None of the penalty shall be tax deductible, nor shall any of it be submitted as allowable costs in a Public Utility Commission rate-making proceeding.

Oh well! But at least with the Bush administration it was all transparent and above board, right?  Wrong!:

In one case I have been studying for some time, the Bush Justice Department had ramped up to begin a large-scale prosecutionof two financial-services companies involved in what prosecutors concluded was a serious swindle. Suspicious financial deals had produced enormous losses for policyholders and state oversight authorities. In addition to jail time for a group of executives, the complaint, which was prepared and ready to file, sought $400,000,000 in damages for the alleged misconduct. One of the targets, knowing it was in the crosshairs, put a settlement deal worth "a nine-figure sum" (so at least $100,000,000) on the table, together with a monitored compliance program. Career prosecutors rejected it as too little.

Then strange things started happening. Control over the case passed entirely to political appointees in Washington, Criminal Division head Alice Fisher and her seniormost subordinates. The prosecutor was told that his boss "was concerned about his health." He was dropped from the case. And the team learned from his greenhorn replacement that the whole prosecution was over. It was being dropped.

The move became public and produced arched eyebrows and rude inquiries in the local press which started asking questions Justice didn’t want to answer. The reaction from main Justice? Suddenly an order went out to collect all the documents from the case and have them immediately incinerated. Someone was extremely nervous about having the decision not to prosecute studied. They wanted to ensure that no prosecution would ever happen.

But Obama has started a program to "shakedown"companies throughout the land, thereby leading us into anti-corporate Socialism!  At least with Bush they were rare, right?  WRONG!!!

Along with their close cousin, the nonprosecution agreement, deferred prosecutions became the norm for punishing corporate crime under the Bush administration. The growth has been rapid: 37 such agreements were publicly announced in 2007, compared with only 11 during all of the Clinton years. The list of malfeasant companies that have skipped off without indictments includes blue chippers like Boeing, Merrill Lynch, and Bristol-Myers Squibb. As Hogan & Hartson defense attorney Peter Spivack observed in an American Criminal Law Review article last year, the government has not filed criminal charges against a single major publicly traded corporation since 2003 without opting for a deferred-prosecution agreement first

But at least no one was concerned these agreements were being "rammed down the throat" of these companies, right? Wrong AGAIN!!!

With no judge to referee, prosecutorial whim can play a large role in the terms of a deferral. Companies have agreed to all kinds of novel conditions to get a deferral in recent years, such as creating 1,600 jobs in Oklahoma or installing slot machines at New York racetracks.  Sometimes, the terms of deferred prosecutions seem to be heavily influenced by the personal inclinations of prosecutors themselves. Former U.S. Attorney Chris Christie, now running for governor of New Jersey, has been among the more creative: He required Bristol Myers Squibb to endow a $1 million chair of legal ethics at his own alma mater, Seaton Hall Law School. And in 2007, he awarded a no-bid, $27 million-plus monitoring contract to retired Attorney General John Ashcroft—his former boss.

The size of that contract, along with an accompanying whiff of cronyism, led to another DoJ memo reining in the use of monitors, a congressional inquiry, and an ongoing Government Accountability Office review. According to Kristy Brown, a GAO assistant director, one of the questions the agency hopes to answer is whether such arrangements have been the result of "two-sided negotiation" or simply rammed down companies' throats.

But, of course Smokey Joe and his cronies are right when they say that it is unprecedented that a company would have to pay into a monitored compensation fund.

AOL - in 10 days of the entry of an order by the Court approving this Agreement, AOL agrees to pay $150,000,000.00into a compensation and settlement fund to be established under its direction and control to be used for either the settlement of shareholder securities law litigation or for purposes of any compensation fund...No moneys from this fund, however, shall be used to satisfy any monetary penalties imposed by the SEC or any law enforcement agency.  To the extent any money in the escrow account is not used within three (3) years, AOL shall transfer the remaining amount to the United States Treasury and execute any documents necessary to effectuate such transfer.

(It goes on, but I won't)

You were waiting for me to say WRONG!!! weren't you? Well, you're right, Smokey Joe IS wrong.  There were between 85 and 97 such agreements under Bush, and nary a peep from the GOP.

It is time to remind them of their previous position on using the Justice Dept. to make companies pony-up for their malfeasance.

For a list of all 85 companies whose agreements`were reviewed by the Judiciary committee, go here.

The ONLY thing I am upset with, in relation to BP having to set up a compensation fund NOW, is that they may wiggle out of any future liability for their actions.  Just like all of the companies that were not prosecuted under Bush.

If companies want corporate personhood so badly, they should be treated just like I would had I done these things.  And I would be in jail!

Originally posted to WhyldBill on Sat Jun 19, 2010 at 05:42 AM PDT.

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