Nick Baumann

Nick Baumann

Senior Editor

Nick is based in our DC bureau, where he covers national politics and civil liberties issues. Nick has also written for The Economist, The Atlantic, The Washington Monthly, and Commonweal. Email tips and insights to nbaumann [at] motherjones [dot] com. You can also follow him on Facebook.

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5 Questions for the Fact-Checkers on Romney and Bain

| Mon Jul. 16, 2012 6:00 AM PDT

Media fact-checkers continue to take issue with the Obama campaign's claims that Mitt Romney was responsible for Bain Capital's outsourcing of American jobs, even though journalists (including Mother Jones' David Corn, Talking Points Memo's Josh Marshall, the Boston Globe, Huffington Post, and others) continue to uncover more information about Romney's role at Bain between 1999 and 2002. Here are five questions for Annenberg's FactCheck.org and the Washington Post's "Fact Checker" that may help sort things out:

  1. Is it possible that even without day-to-day managerial control, Mitt Romney may bear some moral or personal responsibility for the actions of Bain Capital post-1999, given that no one is disputing that he benefited financially from its actions and that his name was on the door? Is that question even fact-checkable?
  2. Much of the debate over when Romney left Bain has been driven by the Obama campaign's claims that Bain invested in outsourcing US jobs while he was there. Fact-checkers have said it's unfair to tie Romney to outsourcing during the 1999-2002 period. How should voters account for the fact that, as Corn reported, Bain invested in Global-Tech Appliances, a Chinese company that depended on outsourcing, prior to February 1999?
  3. Even if the Obama campaign made inflated claims about Romney's post-1999 role at Bain, are Bain and Romney's categorical denials that Romney was not "involved in the operations of any Bain Capital Entity in any way" and Romney "has had absolutely no involvement with the management or investment activities of the firm or with any of its portfolio companies since the day of his departure" justifiable? What is the definition of "operations" and "management activities"? Does it include signing documents? Are companies that Bain part-owned "Bain Capital Entities"? Are companies like LifeLike, whose board meetings Romney says he attended, Bain "portfolio companies"? If not, what is a "portfolio company"? Does serving as CEO/president/chairman of the Bain board count as a "management activity"? If not, why not?
  4. Does what we know about Romney's situation during the 1999-2002 period—that Jane Swift's Massachusetts governorship had not yet imploded, that Romney was also mulling a run for Utah governor, that contemporaneous accounts refer to him taking a "leave of absence," and that on Sunday one of his advisers referred to Romney's retirement as "retroactive"—indicate that Romney was maintaining some ties with Bain, if not active day-to-day management, in order to keep his options open if a political opportunity did not become available? Given those circumstances, would the company have made major decisions he strongly disagreed with?
  5. Most broadly: Given the available evidence, is it unfair to attribute any responsibility for Bain's post-1999 actions to Mitt Romney? Are such attacks completely out of bounds? Would it be correct to say that Romney's company—rather than Romney himself—outsourced jobs, given that he still owned it?

Correction: Due to a production error, a draft of this piece was published earlier. The text has been updated and corrected.

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Esquire Takes on Obama's "Lethal Presidency"

| Mon Jul. 9, 2012 7:04 AM PDT

Tom Junod takes on President Barack Obama's "lethal presidency" in the latest issue of Esquire. If you're interested in the war on terror, drone strikes, and targeted killings, it's a must-read. Here's a teaser to get you started:

Sure, we as a nation have always killed people. A lot of people. But no president has ever waged war by killing enemies one by one, targeting them individually for execution, wherever they are. The Obama administration has taken pains to tell us, over and over again, that they are careful, scrupulous of our laws, and determined to avoid the loss of collateral, innocent lives. They're careful because when it comes to waging war on individuals, the distinction between war and murder becomes a fine one. Especially when, on occasion, the individuals we target are Americans and when, in one instance, the collateral damage was an American boy. 

Read on. Junod does a service in the piece by refocusing the discussion from Anwar al-Awlaki, the American-born Al Qaeda propagandist who was killed in a drone strike last September, to Awlaki's 16-year-old, American-born son Abdulrahman, who was also killed in a drone strike later that month. What happens when a drone strike kills an American teenager? We already know: nothing. Here's another choice bit:

In every single utterance of the Lethal Presidency on the subject of its own lethality, it has offered the same narrative: that although it claims the power to kill, its combination of legal restraint and personal scruple makes the exercise of this power extremely difficult. The Lethal Presidency — and the Lethal President — wants us to know that killing is hard. It has spent months telling us this story because there is another story, a counterstory voiced off the record by administration members and confirmed by everything human beings have learned about killing in their bloody history:

That killing individuals identified as our enemies isn't hard at all.

That it's the easiest thing humans — particularly humans in power — can do.

The rest is here.

Romney Left Bain Later Than He Says, Documents Show

| Mon Jul. 2, 2012 3:01 AM PDT
Mitt Romney (center) and his Bain Capital buddies mug for the camera.

David Corn published an important story Monday morning about Mitt Romney's time at Bain Capital, the private equity firm Romney co-founded. Using documents from the Securities and Exchange Commission, David proves that Romney was involved with Bain's investment in Stericycle, a medical waste firm that has been criticized by opponents of abortion rights for disposing of aborted fetuses. Just as important, though, is the evidence that Romney was signing important documents for Bain—and running Bain-associated companies—well after February 1999, the point when both the Romney campaign and Bain itself claim that Romney left the firm. Here's the key paragraph from David's piece:

The Stericycle deal—the abortion connection aside—is relevant because of questions regarding the timing of Romney's departure from the private equity firm he founded. Responding to a recent Washington Post story reporting that Bain-acquired companies outsourced jobs, the Romney campaign insisted that Romney exited Bain in February 1999, a month or more before Bain took over two of the companies named in the Post's article. The SEC documents undercut that defense, indicating that Romney still played a role in Bain investments until at least the end of 1999.

The Post and the Obama campaign have been attacked for criticizing Romney about deals that Bain made after Romney supposedly left the company in February 1999. But as the government documents and Bain statements highlighted by David demonstrate, Romney remained involved with Bain at least through the end of 1999—and perhaps longer. Here's another key section, in which Bain directly contradicts the contents of a document that Romney himself signed:

In response to questions from Mother Jones, a spokeswoman for Bain maintained that Romney was not involved in the Stericycle deal in 1999, and insisted he had "resigned" from the company months before the stock purchase was negotiated. The spokeswoman noted that following his resignation Romney remained only "a signatory on certain documents," until his separation agreement with Bain was finalized in 2002. And Bain issued this statement: "Mitt Romney retired from Bain Capital in February 1999. He has had no involvement in the management or investment activities of Bain Capital, or with any of its portfolio companies since that time." (The Romney presidential campaign did not respond to requests for comment.)

But the document Romney signed related to the Stericycle deal did identify him as an participant in that particular deal and the person in charge of several Bain entities. (Did Bain and Romney file a document with the SEC that was not accurate?) Moreover, in 1999, Bain and Romney both described his departure from Bain not as a resignation and far from absolute. The Boston Herald on February 12, 1999 reported, "Romney said he will stay on as a part-timer with Bain, providing input on investment and key personnel decisions." And a Bain press release issued on July 19, 1999, noted that Romney was "currently on a part-time leave of absence"—and quoted Romney speaking for Bain Capital. In 2001 and 2002, Romney filed Massachusetts state disclosure forms noting he was the 100-percent owner of Bain Capital NY, Inc.—a Bain outfit that was incorporated in Delaware on April 13, 1999—two months after Romney's supposed retirement from the firm. A May 2001 filing with the SEC identified Romney as "a member of the Management Committee" of two Bain entities. And in 2007, the Washington Post reported that R. Bradford Malt, a Bain lawyer, said Romney took a "leave of absence" when he assumed the Olympics post and retained sole ownership of the firm for two more years.

There is now an immense body of evidence that Romney was deeply involved with Bain Capital and related companies well past the February 1999 date that the campaign has previously cited. Not convinced? Read David's piece.

Was the Obamacare Dissent Originally the Majority Opinion?

| Thu Jun. 28, 2012 1:03 PM PDT

 

So this is weird. Above is an excerpt from the dissent in Thursday's Obamacare decision. Justice John Roberts joined with the liberals on the court to uphold the law. But did Roberts switch sides? The dissent (read it here, starting on page 127) repeatedly refers to the "dissent," not a majority opinion. Here's law professor David Bernstein, writing at The Volokh Conspiracy, a conservative legal blog:

Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion... to preserve it?

Justice Ruth Bader Ginsburg's opinion, which was joined in part by the other liberals on the court, dissented in part from Roberts' majority ruling. So that could explain the "dissent" language. But legal scholars still seem to think it's unusual to refer to Ginsburg's opinion as a "dissent," because Ginsburg was on the winning side. Here's Georgetown University law professor Lawrence Solum, writing about the passage highlighted in the image above:

Language like this is highly suggestive of a majority opinion. The reference to the dissent and "we" strongly suggests that the "we" was a majority of the Court. This suggests that Justice Roberts switched his vote. There are other conceiveable explanations, but in my opinion, this evidence is very strong indeed.

J. Brad Delong, a blogger and economics professor at the University of California—Berkeley, notes that Justice Clarence Thomas, who authored a separate, very short additional dissent (read it here, starting on page 192), refers to the conservatives' main dissent as a "joint opinion," rather than a joint dissent, as would be standard practice. It could just be a typo—but later in the same section, Thomas does use the phrase "joint dissent." So it's unclear what's really going on here.

Volokh's Bernstein thinks that Roberts' supposed switch is a sign he was "responding to the heat from President Obama and others."* The high court is famously leak-free, but this story is so interesting, and the stakes so high, that we may actually learn more about what really happened in the weeks and months to come.

*Correction: This post originally cited a post on ToBeRight.com as an example of right-wing conspiracy theorizing about the pressure that was supposedly put on Roberts to uphold Obamacare. Blogger Violet Socks (which she says is a pseudonym) makes a convincing case that ToBeRight is actually a satirical site. Please click through to her post for the original text and a full explanation of what I did wrong. Blurgh. I regret the error.

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