Dealing with the BP disaster

But behind the Republicans’ embarrassing grandstanding and the critical labels
was a point to ponder. Calling corporate executives who are under criminal
investigation to a meeting with chief law enforcement officers who will decide
whether to press for indicting them present, along with the chief executive who
holds clemency power over all federal criminals, and pressing them to put up
billions of dollars of prospective unadjudicated damages should raise questions
to people who respect the due processes of civil and criminal law enforcement.

One need not be sympathetic to BP — I’m certainly not — to question such a
high-level legal powwow. How did BP’s lawyers allow this to happen? Should
their lawyers have participated in this quick “settlement”? How did government
lawyers permit this? According to The Wall Street Journal, the White House counsel involved in negotiations
criticized BP lawyers for “lawyering.” Doesn’t the unorthodox procedure raise
serious questions about BP’s future responsibilities for its horrific
misconduct? Will people who participate in these damages be precluded from
future claims?

President Obama’s actions were, at once, too strong and not strong enough. He
needed some Harry Truman attitude. Conditions are so extraordinary that some
form of government takeover and management of BP’s cleanup, under a court
injunctive order, to allow coordinating all efforts and assets would be more
effective. The attorney general should have privately assembled top officials
in the departments of Justice and Interior, along with experts recruited from
the private sector, to create a one-time task force to use all available laws
and regulations to coordinate ending the leak and developing all appropriate
redress — civil and criminal — to cope with the losses — including short-term
emergency losses — occasioned by BP’s misconduct.

Professor Robert Reich, former secretary of Labor in the Clinton
administration, suggests — as one example — that the government move to put BP
under a temporary receivership to manage the cleanup. BP’s duty is to its
stockholders; the government’s is to the public. The strategy and management of
it, under such a notion, would be the government’s; the costs and manpower
would be BP’s, Reich posits.

The study commissions should come later. Real action is called for now. Taking
charge of the necessary remedial, corrective and punitive action is what still
is required.

Ronald Goldfarb, a Washington attorney and author, worked in the
Department of Justice in the Kennedy administration, and was on the task force
that created the Office of Economic Opportunity.