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.