Thursday, March 12, 2009

Brian Mulroney Needs "Special" Treatment


Mr. Justice Jeffrey Oliphant, ex Associate Chief Justice, Court of Queen’s Bench for Manitoba is set to chair yet another inquiry into the Mulroney-Schreiber affair, in June.

Judge Oliphant had a long and distinguished career as a lawyer and judge in Manitoba. He is by all accounts intelligent, honest, diligent, thoughtful and scrupulously fair. Unfortunately, these traits will work against him in the pursuit of the truth in the Mulroney-Schreiber affair.
To date Mr. Mulroney has bested the RCMP, Revenue Canada, Parliament and the press. Incredibly, he maneuvered the government into a humiliating settlement that netted him over two million dollars. The saddest part in all this was how inept the government, the police and prosecutors were.

The latest fiasco, was the Parliamentary Ethics Committee inquiry of last year, convened to look into the allegations of corruption against Mr. Mulroney. Clearly overmatched and unprepared, the inquiry fizzled as Mulroney once again, brazened it out, using a combination of bravado, humility, indignation and bluster. Mindful that they were working against a deadline, he successfully pursued a rope-a-dope strategy and the committee expended its energy uselessly and eventually ran out of time.

Perhaps we should take solace in the fact that most of the committee members, were so innocently unaware of the machinations of the world that Mr. Mulroney and Shreiber operate in and perhaps, it is an attestation of their honesty. Their questions certainly exposed a certain refreshing naivetĂ©. When somebody asked whether the $1,000 bills Mulroney received in New York was in Canadian or U.S currency, it was sadly evident that he was playing out of his league. The USA doesn’t have a thousand dollar bill.

There is no reason to believe Justice Oliphant will have a better result this summer.
Brian Mulroney and Karlheinz Schreiber are not fellows to be easily rattled. Regardless of the evidence, there will be no emotional MEA CULPAS from these two, as we saw in the Gomery Inquiry. The format of the inquiry is what will almost certainly lead it to fail.

Polite questions, delays, polite answers, delays, lawyerly niceties, delays, objections, delays, lunch breaks, delays etc., etc. We’ve seen it all before.

Rather than go this route again, We’d should perhaps employ the talents of the mythical deception expert played by Tim Roth on the TV’s new show, “Lie To Me,” wherein skillful observation of body language determines who’s lying and who’s telling the truth.

If we have learned anything in the continuing Mulroney saga is that our police, our judicial system and even Parliament itself cannot face down powerful determined, well-financed and well-connected politicians. A different approach is needed.

In 1978, The United States found themselves in the awful situation of having a sitting President go rogue. Richard Nixon had conspired to cover-up a relatively small crime, a break-in at the office of the opposition Democratic party in Washington, perpetrated by members of his own reelection committee. The affair became the known as the infamous 'Watergate Scandal'
The affair dragged on for two years as the president used his office and his long reach to stifle the investigation. Finally an impatient Democratic Congress, aware of it’s limitations, passed the ‘Ethics in Government Act’ and created the position of ‘Special Prosecutor’ (now referred to as the ‘Independent Counsel’)

Special Prosecutor Archibald Cox, was named to investigate the alleged crimes of the President and he was given wide-ranging authority and power to ferret out the truth. Faced with this determined investigation from a prosecutor who would not be put off, Nixon ordered the justice department to fire Cox. The then Attorney General, Elliot Richardson, refused to do so and resigned in protest. The puppet who replacement him, did fire Cox, but the outrage and backlash sealed Nixon’s fate. He was forced to resign.

Ever since then, the Special Prosecutor has evolved as the preferred tool to deal with the investigation and prosecution of highly powerful and politically connected miscreants.

To help do his job, the Special Prosecutor has been bestowed with some formidable weapons, including the power of subpoena, the power to charge anyone who doesn’t cooperate or who lies to him, with obstruction of justice and most usefully, the power to cut deals with potential squealers. He can question anyone he wants, including the target of his investigation. The only way not to answer questions is to invoke the right against self-incrimination, an act which is a tacit admission of guilt. Since the target of the investigation, doesn't know what the prosecutor has learned, he must be careful about what he reveals or what he lies about. It is a sublime game of chicken that the target usually loses.

The Special Prosecutor usually has a reputation as a pit bull. He doesn’t play by the polite rules that the politician are expert at manipulating. Truth be known, if you are in the Special Prosecutor’s sights and you’ve done something wrong, you’re going down.

President Clinton was almost impeached when it was proved that he lied to the Special Prosecutor Ken Starr about his relationship with Monica Lewinsky.

More recently, Special Prosecutor Patrick Fitzgerald, the U.S. Attorney for Northern Illinois, convicted vice-president chief of staff Scooter Libby for lying about a cover-up in the Valerie Plame affair (incidentally Fitzgerald is the same prosecutor who took down Conrad Black last year.) He is one tough determined sonofabitch.

Canada’s doesn't have a long history of using special prosecutors but does use them on occasion. Recently B.C. Attorney General Wally Oppal empowered a special prosecutor to investigate and determine what charges can be laid against residents of a polygamous community in Bountiful, B.C.

It is plain that Canada needs a national special prosecutor law, one that would see our federal Parliament sanction special prosecutors when deemed appropriate.

I have no doubt, that had a special prosecutor been employed in the Mulroney case, we’d would have seen this file already closed and a much different outcome.

I can think of many recent cases of alleged wrongdoing in high place that were allowed to die because it suited certain politicians and ministers to do so.
If Parliament had a say in selecting and authorizing a special prosecutor, it would be harder to sweep unpleasant files under the carpet.

An excellent example of where a special prosecutor would have been useful, was the RCMP scandal concerning misconduct in the out-sourcing of the administration of the RCMP pension plan. It was alleged that the administrators feathered the nest of relatives and that one highly ranked RCMP officer even punished the whistleblower. While some officers left the force, no charges were ever laid by the Ottawa Police, who were in charge with the investigation. A special, independent prosecutor could have made short work of the file.

If we want the truth in the Mulroney-Schreiber affair, we should give it over to a Special Prosecutor, it's as simple as that.
Let him use his power of subpoena. Let him demand answers, under threat of jail, from everyone and anyone involved, from Mila Mulroney to the President of Airbus.

Cooperate and tell the truth, or go to jail!

Meet with dozens of witnesses, separately and in secret. Build a case methodically and encourage reluctant witnesses with promises of immunity. Then confront Mulroney. If there enough evidence of wrongdoing (I believe that there is already enough) proceed to an indictment.

Remember, that in most of the cases in the United States where a special prosecutor was employed, the target of the investigation was never convicted of the original charge, but rather with the felony of lying to the Special Prosecutor. Mulroney has already lied under oath about his relationship with Schreiber. That happened in his defamation suit against Ottawa in 1996. (See the Globe and Mail article about it.) Had he lied to a special prosecutor, he’d already be in a country club jail like Conrad Black.

We’ve seen Mulroney skate on so many occasions that it’s hard to believe he’ll ever be convicted of anything, but it may happen if we proceed with a special prosecutor.

Perhaps we can take hope from the case of John Gotti the Mafiosi don who earned the nickname “Teflon” because he avoided jail despite numerous attempts by the government to get him. In 1992 after a decade of effort he was finally convicted of various crimes and sent away for life.

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