The Case Against Bidder 70 Is an Abuse of Prosecutorial Discretion

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CommonDreams.org

The Case Against Bidder 70 Is an Abuse of Prosecutorial Discretion

The trial of an environmentalist civil dissenter who, as a student in 2008, disrupted a government fire-sale auction of oil and gas leases near Arches and Canyonlands national parks began yesterday.  The then-student, 27-year-old Tim DeChristopher, disrupted the auction by bidding nearly $2 million on leases he did not have the money or intention to actually purchase.  He is now known as “Bidder 70” and he is a true hero of the environmental movement.

This course of action was more than just civic minded in its desire to prevent the people’s wild lands from being forever injured by development of these oil and gas leases.  It was also an act of intervention on the side of due process and the law.  It was civil disobedience resorted to as a rogue president in his final days in office rushed to give away more of the American commons to an industry that brought him to power. 

At the time of Tim’s actions, the Southern Utah Wilderness Alliance and a number of other environmental organizations had filed suit against the Bush Administration, alleging that the Bureau of Land Management failed to comply with the requirements of the National Environmental Policy Act to prepare environmental impact statements before moving ahead with its plan to auction off oil and gas leases in some of Utah’s most splendid and even sacred wilderness areas. 

Even Obama’s incoming administration in December 2008 described the Bureau of Land Management’s plan to lease prime parcels of its land as improper, and a federal judge eventually agreed, holding that the BLM "cannot rely on EISs that lack air pollution and ozone level statistics,” which is what the BLM did in pushing the auction forward.  Ultimately, Obama’s Interior Secretary, Ken Salazar, dismissed 87 of 116 leases auctioned by the Bush administration largely based on the wilderness value of the leased land.

Another important aspect of Tim DeChristopher’s civil disobedience was that it did not cause any meaningful injury precisely because the auction was deemed illegal by the court.  As quoted in the Huffington Post, one prospective lease purchaser who participated in the 2008 auction reacted to being outbid by Tim, saying: “We were hosed.  It was very frustrating.”  The Huffington Post failed to make explicit the fact that since the auction itself was improper, the prospective purchaser’s sense of injustice should have been directed at the misconduct of the BLM, not Tim’s act of civil disobedience.  Had the BLM prepared its EIS correctly, the prospective purchaser, a consulting geologist, would have had grounds for seeking to recover the opportunity to bid on the lease in a new auction, provided, of course, that the lease was not inappropriate for development due to its wilderness and cultural value.  No one was hurt by Tim’s non-violent, selfless intervention to halt an illegal, permanent injury to the American people and the environment.

Given these considerations, one cannot help contrast the prosecution of Tim DeChristopher with the lack of prosecution of those culpable on Wall Street for the 2008 financial crisis. 

On one hand, DeChristopher’s conduct was civic minded, selfless, and harmless in its intervention against a government stubbornly insisting on illegal action injurious to the environment and the entire nation.  If convicted, the penalty for Tim’s heroic conduct could be as much as ten years in prison and a $750,000 fine.   

On the other hand, Wall Street’s conduct has been glutinously greedy, not just selfish, but callous in the extreme and incredibly injurious to the nation as a whole and to every single citizen individually. Yet, just this weekend, Charles Ferguson, the maker of the documentary, Inside Job, had to remind us in his acceptance speech for the Academy Award for best documentary feature that “three years after our horrific financial crisis caused by massive fraud, not a single financial executive has gone to jail, and that’s wrong.”  Certainly, the maker of the best documentary of the year, which happens to be about the 2008 financial crisis, speaks with credible authority when he describes that crisis as resulting from massive fraud demanding criminal prosecutions. 

What is implicit in Ferguson’s comment, but should be made explicit here, is that what makes the absence of prosecution against these executives so wrong is the executive’s motive in committing this massive fraud.  Even though, as a group, these executives are absurdly wealthy compared to the average American household, they still were compelled by their greed to enrich themselves further with their deceit, and as they did so, also to scoff at the average working stiff left to deal with the ruinous consequences of their conduct. 

According to a 2010 PEW Economic Policy Group report, every US household lost approximately $5,800 in income due to reduced economic growth during the acute stage of the financial crisis, another $2,050 in taxes to cover the $230 billion government response to the crisis, $30,300 in depreciated home values, and $66,000 in stock market losses.  There are approximately 110 million households in the U.S.

All this is important because in the eyes of the law, or at least in the eyes of the law as understood by the judge overseeing Tim DeChristopher’s trial, no evidence of Tim’s motive is admissible at his trial.  

Furthermore, it remains unclear whether the absence of any harm caused by Tim’s civil disobedience will be viewed as a mitigating circumstance warranting a lesser sentence if the jury that doesn’t get to hear evidence of Tim’s motives finds him guilty. 

If the opinion of the U.S. attorney’s office is any indication, the absence of harm is irrelevant.  In 2009, when it filed charges against Tim, acting U.S. Attorney Brett Tolman justified its prosecution by saying: “Our nation is a nation of laws, and we live by the rule of law. …there are ways to express viewpoints and to press for change without violating the law, disrupting open public processes, and causing financial harm to the government and to other individuals.”

Tolman’s justification is dishonest and disgraceful on several levels.  First, a court has ruled that the public process Tim disrupted was not “open” because it illegally relied on improperly prepared environmental impact statements.  Second, as already stated, no financial harm flowed to any individual as a result of any of Tim’s conduct.  If any such harm occurred, it was caused by jamming through the government process a lease auction in the eleventh hour of the Bush presidency by avoiding requirements of environmental law that would have established that the proposed leases were not proper based on their value as wilderness areas.  Third, as the government would have had to unwind the auction as a result of its illegality, the only costs to the government resulting from Tim’s conduct are illusory because such costs arise from the government’s unnecessary insistence on prosecuting him, and this gets down to the heart of the matter: Prosecutorial Discretion.

The Obama administration simply has no valid justification for persisting in its abusive prosecution of Tim DeChristopher when it has failed to meaningfully prosecute the extraordinarily criminal conduct responsible for the 2008 financial crisis.  Acting U.S. Attorney Tolman's quoted justification for its prosecution of Tim loses every last shred of credibility and dignity in the light of this failure.  Tim’s allegedly illegal conduct was well motivated, beneficial to the people of the United States, and caused no injury.  The massive fraud committed by Wall Street executives and that caused the 2008 financial crisis was by contrast malicious, knowing, injurious, and without any redeeming virtue. 

It also must be said that the sanctity of law and order also fails as justification for the government’s prosecution of Tim DeChristopher because there are so many other ways to protect “the system” from environmental protestors without resorting to cruel and disproportionate punishments. 

Oil and gas lease auctions could be designed to require advance registration and advance deposit into escrow of immediately verifiable purchase funds.  The law Tim is charged with violating could be modified to take into account motive, injury, necessity owing to political and legal process failures (the defense Tim has essentially been denied by the court), and beneficial “mitigating” aspects of the violative conduct.  In short, any U.S. attorney who claims sending a hero student to jail for ten years with a $750,000 fine is necessary to protect law and order and the system is simply a sadist.  Any amount of imagination applied to the law would produce a better vehicle for responding to Tim’s heroic conduct than the proposed punishment.

When all is said and done, then, one must ask: Why is the administration proceeding with this prosecution?  And what is Obama’s responsibility for his administration’s abusive conduct? 

The administration will likely explain that it has offered many plea bargains and Tim has refused them all.  But there is no reason Tim should have to accept a plea bargain for modeling to the country effective, well motivated civil disobedience that avoids injury and succeeds in stopping corrupt government from harming the people.  Tim deserves a medal, not a ten-year stretch and a fine he never can repay. 

As for us, the people: We should be able to venerate Tim as a hero; we should not have to see him made into a martyr.  If Obama thinks he’s doing environmentalism a favor by making a martyr out of Tim, he doesn’t understand what the people really need, and that is a sad statement about our president. 

We don’t need an environmentalist made into a martyr; we need our president made into a leader.  As many have already suggested, Obama could show us some of this leadership by publicly encouraging the U.S. attorney to reconsider its exercise of prosecutorial discretion in its case against Tim DeChristopher.  He could go a step further by using Tim’s case as an opportunity for acknowledging that, given the corrupt influence of money in our political process, people ought to be celebrated, not punished who use civil disobedience to break bad laws, selflessly prevent harm, and benefit society.   As things stand today, Tim, a great many of your fellow Americans are very proud of you, and very disappointed in our so-called “leaders.”

Hank Edson

Hank Edson is an author, activist and attorney based in San Francisco. He is the author of The Declaration of the Democratic Worldview (Democracy Press, 2008).

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