Whenever a self-proclaimed libertarian takes the side of government over its citizens, you can bet that something sinister is underway.   I can’t think of a more appropriate way to describe Tom Grover’s recent attempt of political opinionating in his piece, “Rep. Carl Wimmer scandal isn’t about Rick Koerber, it’s about the integrity of our justice system.”  Mr. Grover essentially argues three points, 1) that Wimmer has betrayed the interests of justice and should resign for “intimidating” regulators, 2) that lawmakers should learn a lesson and steer clear of similar conduct, and 3) that Utahans should let regulators like Francine Giani alone while they do ‘their job.’

The short sighted and pious platitudes of Mr. Grover, a self-proclaimed Utah libertarian, demonstrate an alarming trend, exerting a surprisingly Herculean pressure, in modern politics.  Namely, in our current era, posturing and hasty generalizations serve as a regular substitutes for critical thinking and rational conclusions.  In this case, Mr. Grover’s brain-off, mouth open response to the so-called “Carl Wimmer Scandal” should be seen by citizens for precisely what it is—short sighted, and dangerously naïve.

The critical matter at issue in this story, and similarly at issue in our contemporary political culture, is one that ‘posture first, think later’ politicos like Tom keep missing.  The greatest threat to the individual liberty of free citizens does NOT come from private citizens (regardless of what they stand accused), it comes directly from government.

All contemporary issues notwithstanding the greatest danger facing free citizens today is unaccountable, overzealous, and unchecked government.  Very often, this threat takes the form of little known bureaucracy and even less known bureaucrats who freely trample the rights of citizens with little to no scrutiny or accountability.

Something that seems to escape the sporadic mental awareness of pundits like Grover, when contemplating political realities, is that business owners and entrepreneurs are citizens too.  Of course, someone who self-identifies as a libertarian knows this in theory, but in practice, folks like Tom seem to have trouble venturing beyond their own presumptions to see just exactly what their ideas mean when translated into the real world.

Take one simple example, where Mr. Grover remarks,

“If Mr. Koerber is a victim, he can prove it in court.  Evidence obtained against him illegally or coercively will be excluded.  Other abuses can be addressed in civil court.  Incidentally, Mr. Koerber was indicted after U.S. Attorney for Utah Bret Tolman conducted his own separate investigation.”

Here, Mr. Grover clearly and openly suggests that the right thing is for government to be allowed to do whatever it wants, and if it oversteps or does wrong, then those who are “victimized” can seek to have their day in civil court.  How dumb does this idea suggest citizens are?  Since when was this the position of a libertarian?  How is this an idea rooted in justice, a concept Mr. Grover seems to approve of, at least rhetorically?  You see, to the brain-off crowd, it might not be clear, but to the rest of us—we can see exactly what the consequences are of these not-so-libertarian ideas advanced by Mr. Grover. To illustrate, look at one simple quote from Mr. Grover’s story.  It contains only four sentences, but they speak volumes about what’s really being advocated.

#1 – “If Mr. Koerber is a victim, he can prove it in court.”

While the distinction will serve little purpose to most, it is worth noting that I’ve never claimed to be a “victim.”  What I have claimed is that the government has been engaged in wrongdoing, in illegal behavior, and in abusive violations of its citizens’ individual, civil rights.

>>>See “Federal Indictment Doesn’t Discourage Rick Koerber from Lashing Out at State Investigators,” by Fields Moseley (KUTV, Utah Channel 2 News)
>>>See “Rick Koerber Responds to Indictment,” by Franklin Squires (Official Company Website)

Besides the impact on my family and me, the actions of bureaucrat Giani and her colleagues have cost hundreds of Utahans their honest, well paying jobs.  In addition, the State action she oversaw has played a direct role in Utah citizens losing hundreds of millions of dollars.  So, if you’re going to choose to see ‘victims’ in this context, don’t forget to take a full measure.

Now, getting to the point more directly, let us think through what Mr. Grover is also suggesting.  Anyone aggrieved by suspected corruption, abuse, or malfeasance on the part of government officials, employees, or agents should just calm down, wait until the damage is fully done and then seek their day in court.  This would be like a citizen never being able to call the police when a crime is in progress, instead having as the only remedy, waiting until the commission of a crime is all over and then sue the criminals in civil court.

Of course, the implication of Mr. Grover’s idea is absurd when applied in such a common context (such as police officers and typical criminals), but when Mr. Grover applies it to government regulators and small business owners, the same idea passes for legitimate opinion.  Never mind that such a day in court is not permitted, in most circumstances, without first having to obtain permission from the government–to bring suit against a government agency.  Never mind that paying for such a day in court is, at a minimum, a several hundred thousand dollar venture (a sum much more difficult to muster after the government has had its way to begin with.)  Oh, and never mind that some damage and some wrongs committed cannot be undone by winning a victory in civil court (even if that victory includes a large money settlement).

It’s curious to me, how someone like Mr. Grover, evidently now attending law school (just what the world needs is another brain-off lawyer) can claim to love liberty while his own ideas self-evidently loathe the idea.  Would Mr. Grover, I wonder, hold the same ideas if it was him or his family that was being deprived of liberty without trial, being slandered and defamed by government employees working outside the law; or, if it was his livelihood being destroyed by someone like Francine Giani who actually has no legal qualifications whatsoever and yet holds virtually unchecked bureaucratic autonomy to shut down any small business or entrepreneur she whimsically sees fit?

Now, lest the reader think that by disagreeing with my characterization of Ms. Giani and her powers, you’ve escaped the logic of my conclusion – remember – Mr. Grover’s idea is that, no matter what has happened, no matter what wrong has been or might have been perpetuated by the government, the real remedy is to seek redress in civil court, after the fact.  Government officials, I guess in Mr. Grover’s views, are immune from criminal prosecution for wrongdoing–so long as the accusations originate from private citizens.

Note: This is of course, unless a free citizen, with no complaints or charges filed and no formal accusations made of any kind, and under no arrest, has contacted the government official in question and requested legitimate assistance in getting fair treatment from a government agency.  In this case, and this case only, it appears, Mr. Grover supports added scrutiny and accountability

Unfortunately, many of his readers will not easily see the obvious evil in his kind of juvenile pontificating.  Suggesting that a citizen’s only right consists of enduring abuse by the government only later hoping for a victory in civil court, is a political philosophy shared by the likes of Saddam, Chavez, Stalin, Mussolini, and in the Founder’s day, King George.

“#2 – Evidence obtained against him illegally or coercively will be excluded.”

It’s obvious that Mr. Gover hasn’t thought this one through.  First, you have to ask, who is it that will exclude such evidence?  You see, Ms. Giani has large, virtually unchecked latitude in bringing sanctions, administrative orders, etc., without any outside interference.

Second, the independent legislative audit (which I understand is probably too much reading, being over forty printed pages, to be expected of someone like Mr. Grover and his political likenesses who also pass sweeping legislation without so much as reading it) concluded that Ms. Giani’s department used illegally obtained evidence to exert extrajudicial pressure and coercion on small business owners.

Third, Mr. Grover seems to either forget or be unaware that grand juriess are enabled in almost all circumstances to hear and consider almost any such evidence in order to obtain an indictment.

Finally, the point being missed here is that the sum of my complaints against the government—and to the point of Mr. Grover’s essay, of Mr. Wimmer’s complaints against Giani—has not been that they have obtained evidence illegally (though they have) or that they’ve attempted coercion (though they have) but, the most substantive complaint has always been that the government is using extra-legal, and extra-judicial means of exacting punishment without any due process of the law and without regard to the rights of the citizens involved.

“#3 – Other abuses can be addressed in civil court.”

This is always the argument of the brain-off crowd when seeking to excuse their own cowardice.  But, just how is it that a reputation can be regained in court?  How is it that a company destroyed unjustly by government bureaucrats, (that before hand had an excellent reputation, had paid all its bills, and had earned substantial assets in excess of liabilities) can be restored through civil court?

How is it that personal relationships destroyed by the lies and misinformation of the government and its agents can magically be remedied or repaired in civil court, after the fact?  You see, the underlying idea behind Mr. Grover’s argument is that all wrongs boil down to money; money, of course, that can be repaid to any supposed victim if a civil jury decides in your favor.  At the same time, people making this kind of argument are the first to point out, in their stiff-necked and boastful dignity, that money is not what life is all about.  If only Mr. Grover and his equivalents were as interested in measuring the real costs of tyranny in the currency of personal liberty.

“#4 – Incidentally, Mr. Koerber was indicted after U.S. Attorney for Utah Bret Tolman conducted his own separate investigation.”

I started out by warning that Mr. Grover’s ideas are dangerous and naïve.  I did so in the interest of those who might be tempted to believe him.  Here is a perfect example of how such danger and naivety plays out.  It is absolutely clear that Mr. Tolman’s office did not conduct it’s “own separate investigation.”  While language to that effect has been thrown around, the clear evidence is quite the opposite.  At the press conference, held by Mr. Tolman (a federal official), he invited Ms. Giani (a state official) to speak to the media about her involvement.  During her remarks she claimed ultimate credit and victory for the federal indictment and even thanked the Utah governor for sticking behind her.   Mr. Tolman remarked that the investigation had started by a referral from Ms. Giani and would continue to be carried out in partnership with the Utah Department of Commerce.  Yes, it can be argued, that the federal government employed an IRS agent and an FBI agent to interview and gather evidence.  However, the theory behind the charges in the indictment, and the supporting evidence so far detailed by the government, shows unmistakably that it was the State of Utah’s investigation that drove this case to federal indictment.

One last thing about this whole, “incidentally” remark by Mr. Grover.  Does it matter?  Does it even matter if the person who is the subject of such an investigation is guilty (which I am not, by the way)?  Meaning, have we reached a point in society where misdeeds, abuse, and even criminal conduct by government officials and agents is tolerable and/or excused so long as some other agency “ratifies” the action by bringing charges?  Or, to put the matter even more simply, Mr. Grover is suggesting that from this point forward in America, all the misdeeds and corruption on the part of government should be excused so long as they are going after a legitimate target.

Think about this.  This kind of “ends justify the means” argument is the same argument advanced by every tyrant in history.  Hitler, Stalin, and today’s Kim Jong-il, Castro, and Chavez all justify the ugliness and brutality of their methods by holding up their supposedly righteous goals.  Remember, they all think they are “good guys” using government to “promote the greater good.”  While it may not be obvious to Mr. Grover and those of his political ilk, this is the same behavior for which he is offering an outright apology/defense.

I can’t help but wonder if and when other liberty loving citizens will get sick enough about this kind of wickedness being disguised as reasoned political opinion that folks like Mr. Grover might actually have to start answering for such embarrassing and disgustingly vulgar expressions.  Wouldn’t it be interesting if someone like Mr. Grover was actually expected to defend the implications of his political ideas?

Now, let’s bring this whole thing to the central point.  You see, no one has to defend me or my supposed business dealings, in order to defend the role played by Carl Wimmer in this whole affair.  Rep. Wimmer did not seek to have Ms. Giani fired because she was investigating me – this is a red herring – thrown out by the lazy and insincere.  Carl’s insistence that she be fired was based upon her behavior, her disregard for the law, her ineffective leadership (remember her appointee Wayne Klein resigned to soften the potential blow to Ms. Giani and her department when the results of the audit were released) and her abusive tactics.

It should be noted that it was not my case alone that brought Carl to this position and it was not my case alone that led to the audit.

For my case, it now looks like the allegations will be settled in a courtroom.  However, honest and concerned citizens should be asking why Ms. Giani’s behavior continually gets a pass by lawmakers, by the Governor, and even by the media.  Why hasn’t a single source in the established media started asking questions of Ms. Giani?   Remember, it was not me, my case, or Carl Wimmer who documented the grievous miscarriages of justice being carried out by Ms. Giani’s department.  Completely independent of my case, it was audit manager Tim Osterstock, Audit Supervisor Susan Verhoef and the leadership of the legislature that uncovered this disturbing pattern.  Everything I’ve released to the public (including audio tapes clearly documenting criminal and felonious behavior by Ms. Giani’s staff) has been in addition to the audit’s published findings.  Yet, the government has not sought to hold Ms. Giani and her minions accountable to any substantial degree.  No criminal investigation or civil investigation have been launched and the media continues to ignore this reality.  What is the purpose of conducting such audits of government agencies if the findings are just getting swept under the rug?

Ms. Giani, thanks to Mr. Grover and other lazy-minded pontificators and pseudo journalists, continues to hide her abuse and incompetence by stoking the flames of my case while playing the victim herself of Wimmer, and Shurtleff and who knows who else.

I find it mildly hilarious that when it was revealed in the media this past week that one of her own employees retaliated against Mr .Wimmer, a duly elected lawmaker, for asking around about allegations of the Department’s alleged abuse (her employee–a paid bureaucrat—sent an email to Utah Attorney General Mark Shurtleff lying about Wimmer’s motives and the nature of his relationship with me) that nothing more is said about it, but Wimmer is still painted as the bad guy, doing his friend a favor.  Since when were elected Representatives made off limits when a private citizen elect to exercise their constitutional right to petition their government for redress?

I’ll admit Francine makes a better poster child for victimhood than I do.  Her entire demeanor and public posture is that of a person being unfairly criticized and she is just out for vindication.  Never mind that several lawmakers (though not many courageous enough to speak out now in this climate) have done the same thing as Wimmer.  Never mind that she has been directly implicated in the wrongdoing discovered by the performance audit.  Never mind that her employees (even ones she has publicly defended) can easily be demonstrated to have been engaged in malicious behavior.  She’s building nothing, and she’s standing for no principle–but how dare an elected Representative ask the Governors to hold one of his appointees accountable.

Ironically, those in government who fancy themselves defenders of freedom haven’t shown themselves brave enough to actually hold her to the same standard as the rest of  Utah’s private citizens.  Have we forgotten that government employees are first and foremost citizens like the rest of us?  This whole situation reminds me of the Utah judge not long ago who was recorded, saying in her courtroom to a citizen addressing the court, “you and I are not equal, I am a judge.”

When Mr. Grover suggests that Rep. Wimmer betrayed the interests of justice and should resign for intimidating regulators, he ignores the undisputed fact that the now public legislative audit is sufficient grounds for anyone, including an individual legislator, to make such demands–regardless of my case.

In addition, to suggest that lawmakers should learn a lesson and steer clear of conduct similar to Wimmer’s is to suggest that executive branch employees and bureaucrats should not have to fear the check and balance oversight rightly provided by the legislature.  Never mind that the legislature has statutory authority to do just that.  I wonder, if left to Mr. Grover, who should be in charge of holding folks like Ms. Giani accountable.  Oh, yea, the courts–civilly, after the fact.  How just.

Think this one through.  The bureaucrats in this present case work for the executive branch of Utah government.  Their boss is ultimately, Utah Governor Jon Huntsman, Jr.  He has demonstrated, directly and indirectly no interest and/or ability to oversee the abuses documented in the audit.  He’s actually never publicly expressed an opinion on the audit, its findings, or the consequences of such abusive behavior being carried by his branch of government, under his watch.  Does no one in the Utah media even have a curiosity about this major blunder?

What Mr. Grover is suggesting is that the legislature, even in the actions of its individual members, has no place putting pressure (even as a check against abuse) on the executive branch of government.  He tries to make the argument that Rep. Wimmer was simply trying to protect “one of his cronies” but the argument is laughable to anyone interested in the facts.  Consider the following.

1) Carl never tried to interfere with the investigation itself.

2) In addition to the performance audit, several other legislators were interested in the very same outcome, and that had nothing to do with me or the investigation of my companies.

3) The pressure he exerted by simply asking questions initially brought a Giani subordinate, the now resigned Director Wayne Klein, to admit that he was choosing his course of action against me—not based upon the facts or the law—but in his own words, because “[I had] legislators out there trying to cut [their] powers.”   Heaven forbid a legislator seeking to limit the power of a bureaucrat.  For this alone Wimmer should be hung, I’m sure.

3) Perhaps most importantly, after several years, Ms. Giani was unsuccessful in bringing any action against me civilly or criminally.  Don’t forget, her chief investigator in my case and the head of enforcement for the investigation, just one month prior to Ms. Giani turning the case over to the Feds, suggested to me, to her and to the AGs office that there “was no evidence” sufficient to bring charges of any wrong doing against me.  Any interested party can hear one of his several statements, in his own voice, concluding as much.

Has there been any news coverage of this?  If there was evidence that I should have been charged by the State of Utah, why did Ms. Giani neglect to produce the evidence when asked by the Utah Attorney General’s office in November / December of 2007?

In his piece, Mr. Grover writes,

“This is about more than Rep. Wimmer and Rick Koerber.  It’s about the integrity of our justice system. Each of us counts on blind justice to protect us. What kind of state do you want to live in? One where accusations of fraud are adjudicated on the merits in court?”

Agreed, Mr. Grover, it is about more than Carl Wimmer or Rick Koerber.  Agreed, it is about the integrity of our justice system.  Agreed, that Utahans should be asking themselves what kind of state they want to live in.  Agreed, that accusations of fraud should be adjudicated on the merits in court.  Have you considered reading the audit results of the Utah Division of Securities?  What would the audit results show, heaven forbid, if the legislature undertook an audit of all divisions in the Department of Commerce?

After five years, why didn’t the state of Utah bring any single action against me in any court?  Because of Wimmer and the Attorney General?  The facts are not on the side of those who glibly make this suggestion.  Ask Ms. Giani why she didn’t bring any evidence to the Utah Attorney General’s office suggesting wrongdoing.  Why didn’t she bring administrative actions (she could do that by statute without involving the Attorney General’s office)?  Why didn’t she ask a county or district prosecutor to bring such charges?  She’s done that in other cases.  Shouldn’t the questions, at least, be asked?

Even if there were reasons to bring charges against me, and none were brought, how is this a greater threat to the “integrity of the Justice System” than lying officials, or bureaucrats over-stepping the law and committing criminal violations thereof in pursuit of their case?

There used to be a time in America (between approximately 1776 and about 1930) that the basic philosophy of our justice system was “its better to let a potentially guilty man go free than to convict innocent men by overzealous government.”  Instead, today, the philosophy being advocated by Mr. Grover is that somehow I am a greater threat to justice than rogue government.  This is beyond reason.  It is insanity.

To argue that Utahans should let regulators like Francine Giani alone while they do ‘their job’ is to suggest that citizens should not have elected representatives at all (at least not Representatives who can take their interests into account in all matter of government.)

If Carl Wimmer was wrong to “represent” the interests of fairness and justice “for all citizens” in Utah and it is indeed the right thing to let government (Francine Giani or anyone else) escape accountability for their actions except after the fact – and perhaps then only in civil court – America has died.

Long after my case is over, come what may, Mr. Libertarian, we will still be dealing with a Department of Commerce that has only become emboldened since having their conduct publicly exposed, with little or no consequence, including:  1-Misleading the public, 2-Misstating the law to citizens, 3-Arbitrary enforcement of the law, 4-Conflicts of interest, 5-Document fraud, 6-Contempt or lack of respect for court rulings pertaining to innocent parties, 7-Coercive settlement tactics,  8-Knowingly making false statements during official proceedings, 9-Failure to remain impartial, and 10-Ongoing problems after the resignation of former Director Wayne Klein.”

You point the finger at people like Representative Wimmer, but the truth of the matter Tom, is that you are the one posturing for government—not its citizens. While not everyone sees it, those who are awake and thinking, do in fact see the consequence of your ideas, and they are disgusting, repugnant, and indicative of something far more sinister than the object of your story.  The intellectual laziness, quickness to judge, and slowness to see past the whim-of-the-day media spin evidenced by your piece is something much more to be feared than a legislator asking for a bureaucrats head.

If you liked this post, try these...

• February 14, 2008 -- Francine’s Domain – Scandal Brewing in Utah Government
• December 6, 2009 -- Is Rick Koerber really the “Utahn of the Year?”
• June 25, 2009 -- Rick Koerber answers, “Is Rep. Carl Wimmer My Friend?”
• April 10, 2008 -- Carl Wimmer & Friends: Superheroes?
• July 19, 2010 -- Guess what I got from the Governor.

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?”

Rick Koerber. Some people want to see me behind bars. This is the closest I've come so far. Which I'm hoping annoys the socialists, and my old friend Abel Keogh, daily!

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, is a lie.  I was not then, nor have I ever in my life, 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 Rodney G. Snow.  He 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.

I once read a post on the Internet that stated, “I would love to talk to someone about the $140,000 that Rick Koerber has of mine that [he] ‘can’t pay’ me back.  Thanks. Ryan in St. George.”  Evidently I don’t qualify as the kind of  “someone” this person wants to talk with, because I have never been contacted by him.  Not only do I not recognize his name or situation, the sad reality is that I don’t know anyone in St. George, Utah named Ryan who has ever given me anywhere close to that kind of money.   I certainly do not have, nor do any of my companies have, to the best of my knowledge, any unpaid debts in any amount to someone named Ryan in St. George.

Such a small thing like this illustrates a major problem in our world today, particularly with federal grand juries.  I have known, for example, that as early as March 2008 there have been witnesses being called by the US Attorney in Salt Lake City, to testify before a federal grand jury regarding my supposed business dealings.  But in a federal grand jury proceeding I don’t have the right to confront any witnesses.  The rules of evidence are not the same, and there is no cross examination or rebuttal.  So, this guy named Ryan could be called before the grand jury, asked to testify about his $140,000, and this could be used as undisputed grounds to issue an indictment. The problem is compounded by grand jury secrecy.

The fifth amendment to the US Constitution is the legal cornerstone for federal grand juries, and the original 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.

Lest you think its just any old attorney involved in such behavior, Mr. Snow’s resume shows just how connected he is, having worked as an Assistant US Attorney for this very same office earlier in his career.  Mr. Snow, by his privileged position, evidently not only receives special illegal exemption from the legal requirements of secrecy, but he gets to use them to further his law practice at my expense.

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.  I’m not proud or happy about the business or financial failures that have so closely affected my life, and the lives of so many of my friends and loved ones.  Nor can I rest from my own labor to compensate for the ones for where I bare primary responsibility.  But failure, financially—short or long term, has never been the enemy of free citizens in America, or throughout history.   Failure, morally—to stand up for right, for freedom, and for truth—this is a failure that I consider the most serious enemy of all.  As economic freedom is threatened broadly, across all parts of the world’s citizenry, each of us are increasingly exposed the fact that we have an inescapable choice to make, individually.

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.

If you liked this post, try these...

• December 3, 2008 -- Hero’s Life
• October 27, 2008 -- God is a Capitalist: Answering Ruble Fisher
• June 23, 2008 -- Entrepreneur Conference at BYU-Idaho
• June 18, 2009 -- The Betrayal of Ayn Rand
• April 12, 2008 -- Are You a Capitalist, by 1886 Standards?