Public Nuisance

Random commentary and senseless acts of blogging.

The first Republican president once said, "While the people retain their virtue and their vigilance, no administration by any extreme of wickedness or folly can seriously injure the government in the short space of four years." If Mr. Lincoln could see what's happened in these last three-and-a-half years, he might hedge a little on that statement.
-Ronald Reagan

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Friday, July 26, 2002

Robert Musil has responded to my earlier post on the Rubin/Enron controversy. In his response, Mr Musil points to an earlier post critical of Rubin which comes with a formidable reading assignment. The Nuisance hasn't entirely completed the reading, but in what I have seen, there is nothing that really breaks new ground. There is discussion of the questionable Citigroup/Enron transactions, but I saw no new evidence tying them to Robert Rubin. There is nothing that seems to dispute the point that these transactions were legal, although whether they should have been is another matter. There is discussion, much of it from Mr Musil's past blogging, of the already known phone call in which Mr Rubin tried to intervene with the Treasury Department to forestall the credit downgrade that played a crucial role in triggering Enron's bankruptcy.

There isn't actually a huge gap between myself and Mr Musil; at least not on this matter. The Man Without Qualities does agree with my main point that there are no specific known statements at this time to investigate with regards to the False Statements Act. As I stated before, I agree with him that there are sufficient grounds for Mr Rubin to be questioned by the investigators looking into Enron, although I personally would be surprised to see the Republicans get any real political joy, much less an indictment, out of the exercise. My original post was somewhat harsher with Instapundit than with the MWQ, precisely because Instapundit implied in his choice of words that specific statements were in question, an implication the MWQ avoided.

I do think, however, that the following excerpt from Mr Musil's post is somewhat slippery:

There is no indication in the media that Mr. Rubin mentioned any of Citigroup's questionable involvement with Enron when he requested Mr. Fisher's aid in pressuring the rating agencies. If Mr. Rubin knew about Citigroup's involvement at the time he called Mr. Fisher, Mr. Rubin may have misled Mr. Fisher in violation of the False Statement Act. Mr. Rubin is also reported to have spoken to various federal officials since making that call. But there are no reports that Mr. Rubin detailed Citigroup's deeper involvement, or any of the troubling deals that have recently surfaced.

Mr Musil has slid over the very substantial difference between not being fully forthcoming and actual lying.

Courts have already ruled that in sworn testimony no statement, however deceptive or misleading, can be considered perjury unless there is actual falsehood. The same rule would have to apply to the FSA - to do otherwise would have the absurd result of placing a higher standard on an informal conversation than on testimony given under oath. Mr Rubin was not under any obligation to detail Enron's dealings with Citigroup in his conversation with Mr Fisher - particularly as Mr Fisher doesn't seem to have asked about them, according to his own and Rubin's descriptions of the discussion.