As our modern culture hurls itself imperviously over the rocky cliffs of socialism in the name of rescue and bailout, normal people seem to be losing their ability to think critically and distinguish decency, fairness, civility, and honesty from rumor, rhetoric, political posturing and gossip. Its a cultural battle being waged every day in the business world, and I don’t mean just big business, I mean small business America too. The competition is decency vs. defamation. Do-gooders, versus society’s most valuable doers. In my world, the constant reminder of this battle is the fact that hardly a week goes by without someone asking me if I’m going to be indicted.
A chilling result of the crisis will be furthering the deadly process of criminalizing business failures. In the old days when an enterprise failed, the proprietors often ended up in debtors’ prison…But in recent years, particularly after the Enron/WorldCom corporate scandals, federal and local prosecutors began actively pursuing evidence of fraud whenever a big business went bust. Yes, there has been corporate wrongdoing, and miscreants have been tried and jailed. But many noncriminal individuals have been pursued.
One notorious case was the IRS’ attempt to prosecute KPMG and a number of its partners and employees for alleged tax fraud. The shelters KPMG sold in the 1990s were not illegal. The IRS still determined, however, that they weren’t valid. That kind of tax dispute would normally be settled in civil court. Instead, prosecutors threatened KPMG with annihilation: Settle on our terms or we will hit you with an enterprise-killing indictment. Arthur Andersen had recently been destroyed by such an indictment, even though the courts subsequently threw the charges out. The feds even pressured KPMG not to pay the legal bills of the targeted individuals–which would have forced these people to settle, as they couldn’t afford the massive legal costs of defending themselves. Thankfully, a courageous federal judge stopped this abuse.
But the itch to indict remains. No sooner had Bear Stearns, Lehman Brothers and AIG gone bust than criminal investigators swarmed in. They will find evidence of “fraud”–why didn’t you more aggressively mark down the value of suspect paper even if there wasn’t a market for it? Why the expressions of confidence in the soundness of your businesses when the rumors of trouble were surfacing? Lost in all this will be the fact that Lehman and AIG didn’t know they were in mortal peril until almost the very end. There will be indictments. The chilling lesson: Unsuccessful risk taking or failing in business can send you to prison. (Steve Forbes, “How Capitalism Will Save Us” Forbes Magazine, Nov. 10, 2008) Emphasis added.
It’s a dumb question really. It’s not like the government, even with the most corrupt bureaucracies, normally calls up the subject of its investigation on the telephone to say, “Hey, just for your information, we’re planning to indict you.” But, the brain-off among us don’t have to be bothered with thinking—they’re too busy indulging in feeling.
In January of this year a local news reporter came to my house and asked me point blank, “But, is it fair to say you expect to be charged?”
The reporter, Brian Mullahy, and I had been having a conversation about the fact that there have been rumors about me being in trouble with the law, despite no charges, nor formal complaints and no formal allegations of wrong-doing, over the course of the last five years. In that context, I had complained that the very existence of these persistent rumors—even the ones with no credibility whatsoever—had actually given bureaucrats the ammunition they needed to continue their years long investigation of me and my companies without any reasonable basis.
In answer to an earlier question I explained that I, in fact, had not been indicted or charged either on the state or the federal level and that I did not know what was being planned by prosecutors.This was the context for his question “But, is it fair to say you expect to be indicted?” I thought about his question and reluctantly answered, “Sure, sure.”
I went on to say in our interview that given the modern business climate in America any businessman in a situation like mine—regardless of his innocence—would be foolish not to prepare as if an indictment were coming. Of course, all this context was dropped when the evening newscast aired with the headline, “Utah Businessman Facing Federal Charges.” This, of course, was a lie. I was not then, nor had I ever previously, been facing federal charges.
It used to be a criminal offense to slander someone like this, but now we live in a world where it’s considered by many to be journalism—while at the same time businessmen are routinely accused of criminal behavior by vague allegation, outright defamation, and little attention given to facts or statutes and usually without the businessman having done anything that can be demonstrated to be clearly against the law. This situation, which is the fruit of socialistic ideas in government, has been a growing reality in America for the last full generation and is now a defining legacy.
As a result, it is practically impossible for a lawyer to determine what business conduct will be pronounced lawful or unlawful by the courts. This state of affairs is equally embarrassing to businessmen endeavoring to obey the law and to Government officials attempting to enforce it.” (Robert H. Jackson. Assistant Attorney General of the United States. Later Supreme Court Justice of the United States. Anti-Trust Legislation Seen Necessary, New Jersey Law Journal, February 3, 1938, 6 N.J.L.J. 37 (1938) c. 1938 ALM Properties, Inc.)
So, our modern itch to indict, as referenced by Steve Forbes, continues to have affect in my life, and the same questions come week after week. The rumors this past week were stirred up by none other than prominent Salt Lake attorney who should know better, but we’ll talk more about that in a minute.
Indictment, indictment, in·dict·ment! Sometimes the questions come from those secretly hoping the rumors are true and that soon I’ll end up behind bars (for just what exactly, they can never quite articulate). Sometimes the questions come from brain-off, but kind hearted friends who just want to express their sympathy (again, for what, they can’t quite articulate.) It all makes me want to throw up, to tell you the truth.
I’ve reached a point in my life where I just can’t stand the slobbery thickness of brain-off emotionalism. I care nothing for the predicaments of those whose own emotional insecurity has brought them to the point of thinking that I’m somehow a villain in their life story when at the same time they don’t have the courtesy, civility, or kind feelings sufficient to talk to me and either get the facts to clear up their misconceptions or, on the rare occasion that there is actually something amiss between us, give me the chance to take responsibility for whatever wrongs or mistakes may, in fact, be mine.
Even worse, I’ve grown sick of the ever growing popularity of the notion that in the present era of bail-outs, bank failures, unemployment and rampant foreclosures, a consumer being stupid (or at least imprudent) and loosing a lot of money somehow qualifies him or her to randomly assign blame and self-righteously demand guilt from whatever businessman seems to fits the bill at the moment—facts be damned. These people are schmucks, and those who are moved by their groveling selfishness enable the sad state of affairs, so often talked about these days. They are complicit in our societies unyielding march towards disaster.
Do I have empathy for those whose financial situation is bleak? Of course. I’ve dedicated my life reaching out to and teaching these very people. However, that is part of the problem. Whenever you dive into deep water, in an effort to save a drowning person, you become at risk yourself. I can’t otherwise explain how so many people whom I’ve never done business with can be so maliciously engaged in the spreading the negative rumors and gossip—almost wholly started years ago by unprincipled, privately motivated, reckless and vindictive government employees.
The Fifth Amendment to the US Constitution is the legal cornerstone for federal grand juries, and the purpose of a grand jury, including the secrecy of its proceedings, was originally to protect citizens from government abuses. During the era of the Founders (most would be surprised to learn) there were no government attorneys. But, today the US Attorney oversees cases before the grand jury and he (or a member of his staff) is essentially given de facto control over access to the grand jury by the public, and the secret proceedings they carry out. Once a fair minded person begins to think through the implications of this modern court setting, serious issues regarding justice and fairness begin to emerge.
What is true about the danger of “enterprise-killing” charges today, was also true in the days following America’s revolution. The Founders sought to protect citizens from overzealous government by ensuring federal felony charges could not be brought whimsically or too easily, thus the requirement of a grand jury. Secrecy, during grand jury proceedings was a long standing English tradition dating back to the Magna Charta. A critical defense of free society rests upon the notion that the very allegation of wrongdoing, made by the government, can be punitive in-and-of itself, and the process must therefore be strictly guarded.
So, the grand jury is generally supposed to be private/secret. The idea is that before charging a free citizen with a crime, a person who is presumed innocent until proven guilty, give a jury of his or her peers the opportunity to consider the case first, without exposing his reputation to ruin by the process. Of course, there are other reasons for secrecy but the rights of individual citizens are at the foundation of the issue.
The problem today is that, with permanent government prosecutors essentially in charge of the grand jury proceedings, what was once a protection for citizens now, too often, is only an advantage to the prosecutor. Today, there is very little check against malicious prosecution or prosecutorial misconduct when all the proceedings are conducted in secret. Take for example the political motivation to tip the party balance in the United States Senate which utilized prosecutorial corruption in the recent case of former Alaska Senator Ted Steven’s whose case was just thrown out—after he suffered great harm to his reputation and after he lost his Senate seat, all because of the situation I’m describing. It is therefore, not surprising, that according to experts in the field, in 95% of the cases, prosecutors simply get an indictment, whenever one is wanted.
This means that a businessman has no way of knowing in advance whether the action he takes is legal or illegal, whether he is guilty or innocent. It means that a businessman has to live under the threat of a sudden, unpredictable disaster, taking the risk of losing everything he owns or being sentenced to jail, with his career, his reputation, his property, his fortune, the achievement of his whole lifetime left at the mercy of any ambitious young bureaucrat who, for any reason, public or private, may choose to start proceedings against him…It is a form of persecution practiced only in dictatorships and forbidden in every civilized code of law. It is specifically forbidden by the United States Constitution. It is not supposed to exist in the United States and it is not applied to anyone-except to businessmen. (Ayn Rand. Capitalism: The Unknown Ideal, pg. 50 – from a speech given at the Ford Hall Forum, Boston, on Dec. 17, 1961)
In my case, after a failed attempt by rogue state regulators that felt just as Ms. Rand describes, I’ve now learned more about what the federal government is up to, and what is happening before the grand jury, through rumor and gossip—than is supposed to be publicly available at all.
What good does it do to say to me, “We’re protecting your reputation Rick, by ensuring everything is done in secrecy,” when attorneys, government employees, and even members of the prosecutor’s staff are reportedly giving information about secret grand jury proceedings to their colleagues like Mr. Snow, who seem driven to spread the word around.
There is a strange, almost unnoticed drum beating in our popular culture, where economic hard times (which are the persistent handmaiden of socialism and its relatives) bring average Americans to believe that society’s producers are now somehow the villains. Even worse, our bureaucrats, government employees, and government officials are supposed to become our heroes. In the Founder’s generation we elected heroes to office, to keep abusive government in check. Today we try to make heroes out of those who like to cast aspersions without consequence, spend money without accountability and who send out bureaucrats and government agents with guns, threats, and the delegated force of the people—to satisfy our itch to indict and to punish society’s white collar villains—who, in rapidly growing percentages, are increasingly men and women whose crimes can’t be described or articulated and whose actual performances and intentions are almost entirely irrelevant. Lost is the idea that businessmen, entrepreneurs, and even corporate executives (regardless of their supposed crime) are still citizens, in a free country, presumed innocent until proven guilty—also born like the rest of us, with unalienable individual rights.
Only businessmen – the producers, the providers, the supporters, the Atlases who carry our whole economy on their shoulders-are regarded as guilty by nature and are required to prove their innocence without any definable criteria of innocence or proof, and are left at the mercy of the whim, the favor, or the malice of any publicity-seeking politician, any scheming statist, any envious mediocrity who might chance to work his way into a bureaucratic job and who feels a yen to do some [governing]. (Ayn Rand. Capitalism: The Unknown Ideal, pg. 44 – from a speech given at the Ford Hall Forum, Boston, on Dec. 17, 1961)
While we’re not yet France, we are not far behind. Did anyone notice the report yesterday from Reuters about the poll in Paris, where almost half of all citizens now think its okay for laid off employees to actually “lock up” or “take hostage” corporate executives—without any due process of law—as part of labor bargaining?
Or, did you notice that just this week, the day after North Korea successfully test launched a long range ballistic missile that means they can not only threaten our Asian allies but Hawaii and Alaska as well, our government announced its intention to actually reduce our missile defense budget, including the money allotted for existing self-defense based weapons systems stationed in Alaska. This brings to mind former US President Ronald Reagan’s warnings in the 1960’s against appeasement and unilateral surrender to the Soviets. But, I don’t want to get too distracted. How about his statement regarding creeping socialism and the risk to the American businessman?
It is time we realized that socialism can come without overt seizure of property or nationalization of private business. [My note: Today, the federal executive speaks openly about seizure and nationalization of banks and financial institutions]
It matters little that you hold the title to your property or business if government can dictate policy and procedure and holds life and death power over your business. [My note: The President of the United States just fired the chief executive of GM]
The machinery of this power already exists. Lowell Mason, former anti-trust law enforcer for the Federal Trade Commission, has written “American business is being harassed, bled and even blackjacked under a preposterous crazy quilt system of laws.” There are so many that the government literally can find some charge to bring against any concern it chooses to prosecute. (Ronald Reagan. A Time for Choosing, Speech given October 27, 1964)
This is a reality far too few American’s have sobered up to realize. Which, brings me back to where I started. Have I been indicted? No. Will I be indicted? I don’t know. Am I preparing for it? As best I can. Regardless of what happens, I’m sure its only more likely that I’ll eventually be indicted as I continue to criticize the government, government employees, the lazy government PR media, and now complicit lawyers.
The point, however, is that it’s not really me who will be put on trial in such a case. It’s America, and its citizenry who are already on trial, today.
As for me, I’d actually be kind of a glad—in an odd sort of way—if I am ever indicted, because at least then I’ll be extended the courtesy and privilege of defending myself against actual charges, rather than vague insinuations and secret rumors. Don’t get me wrong, I am not anxious to plunge headlong into a legal battle where most of the deck is already stacked against me, but I will not run from it either. Though I’m certain it would be an extremely difficult road if that day does come—following the example of others who have tried to negotiate with unprincipled, power corrupt bureaucrats and over zealous prosecutors whose pre-condition for negotiation is an admission of guilt, is not something I will choose to accept.
I’m optimistic that this kind of conflict can still be avoided in my case, and I take steps regularly to try and ensure that is the case. But, if it cannot be avoided, while its impossible for me to see the details in advance, or the outcome of such a fight—I refuse to fear it. Why? Well among other things, in most cases, there are still twelve free citizens at the final end of any verdict.
The world of [regulation] is reminiscent of Alice’s Wonderland: everything seemingly is, yet apparently isn’t, simultaneously…It is a world in which the law is so vague that businessmen have no way of knowing whether specific actions will be declared illegal until they hear the judge’s verdict – after the fact. (Alan Greenspan. Later Chairman of the Federal Reserve. Paper given at the Antitrust Seminar of the National Association of Business Economists, Cleveland, September 25, 1961.)
While those with an eye to see, do indeed know the final end to this story (to paraphrase Dr. Skousen), none of us knows the details regarding our own personal challenges on the path to our ultimate rendezvous with destiny (to paraphrase another great hero of mine). The only option is to choose; to make a choice when the options are clear, and the chaos and tension that accompanies conflict has not yet become overbearingly personal.
I made my choice early on, when I first encountered these people. I made my choice before the huge successes and before the tragic business failures that have defined the last several years. […]
How about you? How will you react when you have your day in court (literally or figuratively)? Do you think that somehow you can escape the consequences of the rocky cliffs ahead? Will you just coast along the tidal wave of life that carries you about from day-to-day while you complain as you go that your life isn’t what you want? Or, will you stand up? Will you say to freedom’s common enemy, “There is a certain point beyond which you cannot pass!”
I’m sure the slobbery thickness of brain-off emotionalism will continue to bring more people to my door in the future asking about some supposed, pretended, or actual indictment–or maybe even worse. But, in the mean time, me and those who stand with me (including the consistently growing numbers of those who will be standing with me tomorrow and the next day, and the days after that), we will keep producing, educating, and organizing. And, when we can squeeze it in (and I’m pretty sure it’s something we’ll not soon forget), we’ll also do what we can to make sure the complicit schmuck’s (including those in the media, the legal profession, and in key government positions) who keep overstepping their bounds, to the detriment of innocent and free citizens, are also made to face the legal consequences of their own wrongdoing. I doubt that they’re any more anxious to face a just tribunal than have been any of history’s well known tyrants and their dimwitted, brain off accomplices.
NOTE: See Victory, and the Real Reason the Case Against Rick Koerber Was Dismissed, for the Rest of this Story.